Dr. Falls is professor of philosophy at St. Mary’s College, Nortre Dame, Indiana.
This article appeared in the Christian Century, December 10, 1986, pps. 1118-1119. Copyright by the Christian Century Foundation; used by permission. Current articles and subscription information can be found at www.christiancentury.org. This article prepared for Religion Online by Ted & Winnie Brock.
Holding an offender responsible necessarily includes demanding that she respond as only moral agents can: by re-evaluating her behavior. If the punishment meted out makes reflective response to it impossible, then it is not a demand for response as a moral agent.
Those rejecting the death penalty," social critic Ernest van den Haag once remarked. "have the burden of showing that no crime deserves capital punishment—a burden which they have not so far been willing to hear." This is a challenge to which opponents of capital punishment need to respond. In my experience, the most passionate calls for retention of the death penalty come from those who are certain of the inherent rightness of killing killers. And those who initially defend capital punishment as a deterrence to crime often respond to the conflicting evidence on this point by abandoning their utilitarian approach and asserting simply that killers deserve to be killed. Until this argument loses its force, capital punishment probably will continue to be regarded as a legitimate form of retribution, and executions will seem neither "cruel and unusual" nor in conflict with what the courts call "contemporary standards of decency."
Many who oppose the death penalty dismiss retributive justice in this context as merely an expression of revenge rather than a legitimate moral ideal. Christians may point out that the Old Testament law of an "eye for an eye" tried only to set human limits in a world of excessive punishments, and that the New Testament recommends Christlike acts of forgiveness rather than retribution. Such approaches may be exegetically correct and religiously instructive, but they do not address van den Haag’s complaint.
Do Christians really want to hand the concept of retribution over to the secularists or the vengeful? I think not. The wisdom of retributive justice is its insistence that the punishment must fit the crime. This approach does not explain why bad acts deserve punishment, but it is congruent with some intuitions we should be slow to give up—that the government should not imprison the innocent or those who nonvoluntarily or through no fault of their own cause injury to others, and that punishment must be proportionate. We would not imprison a petty thief for life when a mass murderer receives only a year.
The question is, can we hold on to these judgments and nevertheless answer van den Haag’s challenge? Can we say, in other words, that criminals deserve proportionate suffering but that no criminal deserves the death penalty? I think we can.
In making this argument I will assume that each of us has a fundamental moral obligation to respect the inherent worth of persons. This assumption is a good one for the Christians opposed to the death penalty to use in speaking to the secular world. It finds considerable affirmation in the Christian story of God’s relationship to humankind, and has strong, though not uncontested, support in secular realms. The principle of respect for persons is also usually accepted by retributivists who support the death penalty. My model of punishment will show the inadequacy of their position.
Two general rules follow from respect for persons. First, we cannot treat people as mere instruments to our survival, success or fulfillment. Second, we must value in each individual his or her distinctively human capacity for moral agency—the ability to assess situations rationally, to make judgments about what is right and wrong, and to act according to those judgments.
These two rules are of course closely connected. If for the sake of my entertainment I coerce someone into performing an act that threatens both of our lives, then I have both used her as an instrument of my own ends and denied her the opportunity to assess the situation and decide for herself whether to participate. In denying her this opportunity, I have failed to treat her as a moral agent. Moral agency, like any capacity, may be underdeveloped and poorly used; but when people act immorally, they are still moral agents in the sense intended here. Hence, even a wicked criminal deserves this fundamental respect.
What, then, is our reasoning for punishing a criminal? Why do bad acts deserve punishment instead of loving-kindness and pity for the errant soul? To answer these questions, let us consider some possible responses to wrong behavior. Imagine that I know someone who relishes telling my friends lies about me. I might refuse to confront or reprimand him, perhaps out of fear or pity, or because I do not consider the matter worth the trouble. Maybe I think I am taking the higher road and responding with loving-kindness. However, the net effect of my action is that I avoid treating him as a moral agent. Rebuking bad behavior is part of treating someone as the kind of being who can enter into moral debate, make decisions about right and wrong, and morally assess past behavior and future plans.
Generally, holding someone responsible for his or her actions takes the form of a reprimand. But if the harm done is severe, a verbal rebuke may not be enough; we may, in this case, decide to withdraw from the friendship or withhold our confidence. We try to do something that expresses the degree to which we have been hurt, thereby holding the friend responsible for the harm he has done.
In a similar way, crime can be considered as wrongdoing for which the government holds the wrongdoer responsible. By isolating the criminal from the community, society makes it clear that the person’s behavior will not be tolerated, impresses upon the offender just how wrong the community finds that behavior, and insists that the wrongdoer morally assess her actions. Punishment of this kind demonstrates a respect for the individual’s inherent worth as a moral agent. Thus, from our obligation to respect persons we can derive what I call the moral-accountability criterion of just punishment: punishment by the state is justified if and only if it serves the function of holding persons accountable. Punishment that fails to serve this function is unjustified.
While the theory of punishment I am proposing affirms the moral significance of proportionate punishment, it would nonetheless exclude forms of punishment which by their nature fail to hold the offender responsible. Holding an offender responsible necessarily includes demanding that she respond as only moral agents can: by re-evaluating her behavior. If the punishment meted out makes reflective response to it impossible, then it is not a demand for response as a moral agent.
Death is not a punishment to which reflective moral response is possible. A moral response to the certainty of death at sunrise is possible. But waiting to be executed is not the criminal’s punishment; death is. Death terminates the possibility of moral reform. We can believe that an executed prisoner responds as a moral agent after death only if we assume, as many Christians do, that there is conscious life for the individual after death. Such an assumption, however, is not only religious in nature, but is peculiar to certain religions and not others. A government committed to the separation of church and state cannot operate on such an assumption. Therefore, insofar as the state is concerned, death terminates conscious life and cannot be considered a punishment prompting the offender to respond as a moral agent. The death penalty therefore lacks an essential ingredient of just punishment.
The argument formulated here is for several reasons a useful one for Christians living in a secular world. The fundamental moral obligation it assumes—respect for people as moral agents—is compatible with but not dependent on specific Christian beliefs. Furthermore, it relies on the theory of retributive justice, popularly thought to justify capital punishment.
What if some Christians deny the value of the separation of church and state and argue that it is their religious duty to see that the state operates under the assumption that there is individual immortality? To argue successfully that murderers can deserve the death penalty, Christians of this persuasion would still have to argue that killing criminals successfully fulfills the function of punishment: holding the offender responsible. And to do this they must show that by killing offenders and assuming an afterlife, the community successfully allows the punished ones to respond to their punishment as moral agents. There are reasons for doubting that this is the case.
Though dead criminals can—according to this theory—make their response to God, they cannot make it to the community that punished them. Since they are not allowed to act out within the community either a will to reform or a defiant challenge to the community’s judgment, I question whether they have really been allowed the opportunity to respond in the requisite sense. Is a meaningful response possible if the realm offended, the human community, is not the realm in which the offender is allowed to respond? And is the act of holding someone accountable complete if the one who solicits the response cannot be the one who receives it? In leaving it to God to sustain the disembodied soul and make moral response possible, this approach in effect abandons the effort to inflict a punishment that makes a moral response possible.
Killing is not a coherent way for the community to solicit moral responses from those who have offended it. And since killing criminals is not a coherent way to solicit a moral response, it fails to hold offenders responsible. Thus, even though death is proportionate to death, killing killers violates the principle that justifies punishment in the first place.