Dr. Boyd is professor of religion at Trinity University in San Antonio , Texas. His specialty is religious ethics.
This article appeared in The Christian Century, February 17, 1988, pp. 162-165. Copyright by The Christian Century Foundation; used by permission. Current articles and subscription information can be found at www.christiancentury.org. This article was prepared by Harry W. and Grace C. Adams.
George N. Boyd argues against the traditional position of the opponents of capital punishment that no crime ever “deserves” the death penalty, and suggests that the debate is not over what murderers deserve, but rather about how society should express and defend its fundamental values. His recommendation as to the best way to accomplish this is to acknowledge some murderers do “deserve” to lose their lives, but that society is better served by a commitment to the sanctity of human life by abstaining from taking it.
Social critic Ernest van den Haag argues that any attempt to establish the moral wrongness of the death penalty must show that no crime ever deserves capital punishment; that is, he says, opponents of capital punishment must disprove the contention that there at least some convicted criminals who morally deserve execution.
I disagree. In fact, I think that opponents of capital punishment must do precisely the opposite. If their position is not to be perceived as sentimental, if they hope to persuade any significant number of their overwhelming opposition, they must start by making clear that their case is not in principle argued on behalf of those who have been rightly convicted of capital crimes. Opponents of the death penalty should be emphatic that relative to what is “deserved” — that is, to what those who have committed murder have reason to claim from their society — there are many who “deserve” to die. Indeed there must also be many who similarly “deserve” that penalty among those who receive lesser sentences (as also among other guilty persons who are never apprehended or are not convicted). Indeed, there are some for whom legal execution is much better than what they “deserve.” If the rhetoric rings a bit harsh to anti-capital punishment sensibilities, it is not designed for preaching to the converted. Somehow it must be conveyed that the capital punishment debate is not about what murderers deserve, but rather about how society should express and defend its fundamental values.
Implicit in references to deserving are the dual assumptions that to speak thus is to speak with the vocabulary of retributive justice, and that the principle of retribution, however much qualified by other relevant principles, is inherent in any notion of penalty or punishment. The formulation of penalties may be motivated or even dominated by considerations of deterrence, rehabilitation, mitigating circumstance, humaneness, respect of persons or protection of society, but in every case there is necessarily the assumption that the legal penalty is occasioned and justified by the behavior of the one penalized.
It is precisely the guilt of the offending party that legitimates the externally imposed forfeiture of some valuable commodity — whether freedom, property or life itself. This fact would remain true even if “rehabilitation” were again to be favored in penal theory, for apart from wholly totalitarian premises, no mentally competent adult (a concept which raises another set of questions) can be deprived involuntarily of liberty in order to undergo rehabilitative measures simply because it is judged that he or she needs or would benefit from such measures. Only the guilt incurred by specific offenses renders the individual subject to a deprivation of liberty, irrespective of whether the deprivation may be used for a constructive purpose. Thus the individual is presumed to have “earned” or “deserved” the deprivation, and it is this “deserving,” with its indissoluble element of retribution, that constitutes the deprivation as punishment (as contrasted with persecution or oppression).
Granting that an indissoluble element of retributive justice attaches to the notion of punishment does not make retribution the whole of justice, nor does it imply that any specific type of punishment is prima facie appropriate. Establishing capital punishment as potentially “deserved” requires a further step. The essence of the idea of deserving, whether as retribution or reward, is reciprocity. The rhetoric of the American Declaration of Independence may speak of “rights” to life and liberty as inalienable, but the enjoyment of such rights within society was and is conditional; otherwise deprivation of liberty by penal incarceration would be inconceivable. It is no more unreasonable that our claim on society to respect our lives should be contingent on our respecting the lives of others than that our claim on liberty is contingent on our respecting the liberty, person and property of others.
Bluntly stated, individuals who voluntarily take another’s life (except under traditional categories of exoneration, particularly self-defense) thereby forfeit any claim on society’s respecting their own. Strictly from the standpoint of “deserving,” murderers deserve no better fate than their victims, and this assertion applies not simply to the relatively small number actually sentenced to death but to a substantial percentage of the far larger number who receive lesser sentences. If it is valid that not respecting another’s right to live forfeits any claim one can make for one’s own life, it applies even to the killings erupting from anger, jealousy or revenge which make up such a large part of murder statistics but are not normally subject to capital punishment.
What this situation demonstrates, however, is the severe limits of the notion of “deserving” as the basis for the death penalty. Long before Furman v. Georgia (1972), which briefly halted executions in the United States, or Gregg v. Georgia (1976), which reinstated the death penalty although imposing criteria that must be met to justify the capital sentence, it was already applied only to a limited number of those convicted of murder (for example, women were rarely executed). It was as true prior to those two crucial Supreme Court cases as it is now that the fundamental question regarding capital punishment is not what murderers have done or deserve. The issue is what society should do and be in response.
If “deserving” were the key to punishment (not simply its presupposition), should we not also restore torture to the penal system? Sadistic cruelty, the prolongation of terror and pain, the casual callousness of some murders for no more reason than to eliminate witnesses to a minor theft — such horrors of contempt for life frequently underlie the distancing language of homicide and due process. On all too many occasions, hanging would truly be “too good for him,” but that familiar phrase reminds us how far civilized law restrains itself from meting out thoroughgoing retribution, presumably for reasons that must supersede society’s legitimate concern for reciprocity, proportionality and just deserts.
The struggle to abolish capital punishment in the United States is currently a losing one. If it is to be won in the arena of public opinion and legislation (for it clearly will not soon be won by judicial review), any argument capable of persuading opposition must first establish its realism by agreeing that execution can be deserved. There are, nevertheless, two (and perhaps only two) arguments that supersede the issue of deserving and seem, in principle at least, capable of broad assent.
The most fundamental argument for discontinuing the death penalty is that society can best express the seriousness of its commitment to the sanctity of human life by abstaining from taking it, despite having justifiable cause. To respect human life precisely where its bearer has forfeited personal claim to that respect would be society’s ultimate statement both of the sanctity of life and of the kind of society it wants to be. Undeniably, the reciprocity of killing as punishment for murder in its own way takes life very seriously; but two side effects undercut its impact. Achieved reciprocity implies a new equilibrium, a state of justice achieved or restored, but the taking of an innocent life cannot be compensated, any more than a jealous lover’s act of murder is morally neutralized by a self-punishing suicide. Murderers should never be allowed the comfort of the illusion that they can “pay” for their crime.
The second side effect is that the whole process of killing or being killed may enforce the image of a “contest — an exciting highest-stakes gamble enacting in real life the games of children and the fantasies of television, with the possibility of one’s own violent death adding zest to the challenge (as it apparently does for some race drivers, mountain climbers or professional daredevils).
The principle that society best expresses its cherishing of life by abstaining from taking even the life that deserves to be taken corresponds to the logic of ultimate goodness as articulated by those religious traditions in which God’s greatest attributes are love, mercy and compassion — which attributes are held to be expressed precisely in the fact that persons are not dealt with as strictly as they deserve. This is not to say that a secular criminal-justice system should embody, for example, a theology of grace, but it is not too much to ask that a culture’s symbols of ultimate justice and life’s sanctity inform its ideals and practices. Protecting even the lives of those who have forfeited their claim to protection articulates society’s abhorrence of killing.
The best paradigm for this position is the biblical story of the first murder. The mark put on Cain was a sign and burden of shame and culpability, but it was also explicitly a sign of protection — a warning that his life must not be taken in retaliation. Opposition to capital punishment need not be sentimental, lenient, or even sympathetic toward the convicted. In principle it is perfectly compatible with views of punishment harsher than those normally practiced toward convicted criminals (murderers or otherwise), but whether one’s general attitude concerning punishment tends toward the severe or the lenient, the basic fact of the Cain story as a paradigm is the preservation of a guilty life. There remains room to differ on how deep, how painful, how indelible, the mark shall otherwise be.
The second fundamental reason for abolishing capital punishment does return us to the issue of deserving, although in an inverted manner. A society that respects life should never permit itself to execute an innocent person if it is within the society’s capacity to avoid such an act — as it surely is. Refraining from executing even those persons who may deserve execution is the way — the only way — in which to avert the occasional execution of persons mistakenly convicted, and to leave open the possibility of their exoneration. It is also the only way to avert the execution of persons who did commit the crime in question, but did so under circumstances of mitigation or diminished capacity such that capital punishment would not normally have been imposed had the circumstances been more fully understood.
Such cases, however, are secondary to the horror of executing one wrongly convicted, and focusing on them might occasion confusion regarding the general thesis. Except in cases of severely diminished capacity, the perpetrator of murder still forfeits any personal claim on life, even though society may add an injustice of its own by being inconsistent with a normally more lenient treatment of similar circumstances.
The criminal-justice system is quite imperfect as a mechanism for determining guilt and innocence. “Law and order” advocates are more than ready to grant this generalization with respect to the all-too-frequent case of guilty parties going free, but inevitably it happens occasionally in the opposite direction as well. The burden of proving guilt “beyond a reasonable doubt” is far from absolute as a protection against the accidents of incriminating circumstance, the political ambitions of some prosecutors, the potential for framed evidence, the passions of communities, and the prejudices and limitations of jurors, judges and prosecutors alike. It is sad enough when any conviction and imprisonment is belatedly recognized as mistaken, for society cannot ever redress the injustice of incarcerating an innocent person. Pain and humiliation cannot be reversed nor can the lost years of freedom be restored.
Yet society need only forego this one form of punishment in order to assure that it will not itself take an innocent life or prematurely cancel the possibility of the wrongly convicted person’s experiencing vindication.
Albert Camus’s essay “Reflections on the Guillotine” cites a 19th-century French jurist’s application of the law of probability to the chance of a judicial error with a result of one innocent man’s being condemned in every 257 criminal cases. Perhaps differences of a century in time, of American versus French legal systems, and the safeguards of Supreme Court restrictions serve to further reduce such a probability (although racial bias and politics may push in the opposite direction), but just how often this happens is not the point. The possibility, indeed the inevitability, of mistakes is inherent in this or any other criminal-justice system. If execution of the innocent nevertheless is avoidable, a humane society will elect the option that avoids it. Most of those who murder are, after all, already spared. Sparing the small remainder is cheap insurance against the most terrible consequence of judicial fallibility.
These two points, of course, do not constitute the whole case. Capital punishment’s lack of demonstrated superiority as a deterrent (the evidence for its effectiveness being at best mixed), the capacity of society to protect itself equally well by permanently imprisoning those who are currently being executed (which is possible at limited marginal cost, especially when one takes into account the cost of the extended trial procedures and interminable appeals and reviews which usually accompany capital punishment) — all these points are important, but their utility is chiefly as rebuttal arguments in response to the empirically weak but emotionally strong claims made on behalf of capital punishment.
Likewise, some of the “unconverted,” perhaps particularly among those with strong religious convictions, may yet be moved by more idealistic arguments for a different sense of what human life as such deserves, the horror of a particular individual’s behavior notwithstanding. There are, for example, highly conservative evangelical or fundamentalist Christians, including one ranking member of Pat Robertson’s presidential campaign team, who oppose capital punishment on the grounds that responsibility for life and death belongs only to God, and that society should never cut short any person’s opportunity to repent or embrace faith.
In any case, a change in the American mind-set regarding capital punishment is very much an uphill goal. Those arguments most likely to be persuasive are ones that grant rather than challenge the strength of the pro-capital punishment position – -the “deserved” character of the death penalty — yet seek to refocus society’s priorities toward how it can best express revulsion at killing and inculcate the cherishing of life.