In Part One of this article I looked at three frequently-heard objections to the death penalty. Here I will examine three more. In each of these I seek to show that a strong case can in fact be made for capital punishment.
Race and discrimination
The objection is often raised – in America at least – that more blacks are in prison or are executed proportionately than non-blacks. But the simple rejoinder to this is that sadly blacks happen to commit more crimes and capital crimes, proportionately, than do non-blacks. For this reason there are a disproportionate number of blacks in American prisons and on death row.
And the actual figures go against this notion that blacks are being discriminated here. In the US where capital punishment was reinstated by the Supreme Court in 1976, the majority of those under sentence of death have been whites. In 2001 for example, there were 63 people executed: only 17 were black, while 48 were white, and one was Native American.
Moreover, as Paul Cassell notes, the Department of Justice found that while black Americans made up 48 per cent of those charged with homicide, “there were only 41 per cent of those admitted to prison under sentence of death. In other words, once arrested for murder, blacks are actually less likely to receive a capital sentence than are whites.”
A related objection is that the death penalty unfairly targets poor people. But even if true, this can be said of most things in the criminal justice system. Rich people may be able to buy themselves out of some legal situations which poorer people may not. As John Jefferson Davis rightly remarks:
“Discrimination in any part of the criminal justice system is a matter of serious concern. At the same time, it is important not to exaggerate the problems of the system, and not to require perfection before the administration of criminal sanctions is possible. In any human society, the wealthy may be more capable of escaping the penalty of certain laws, but that is no argument for abolishing laws and prisons. If a given principle is valid – whether capital punishment or some other principle of criminal justice – then imperfections of administration are justification not for the abolition of the principle, but rather for its reform and more evenhanded application.”
Or as Norman Geisler writes, “If justice is applied unequally, then we should work to assure that it is applied equally, not abolish justice altogether. The same thing holds true for capital punishment. We do not argue that all medical treatment should be abolished until everyone has it equally, even though more poor and minority people will die from lack of treatment than others. Why then should capital punishment be abolished until equal percentages of all races are executed?”
Vengeance
Abolitionists often complain that capital punishment is merely legalised vengeance, which has no place in a civilised society. But nothing could be further from the truth. Revenge has nothing to do with retribution. And when just retribution is not consistently and quickly carried out, then an injustice-weary public may well resort to personal revenge.
Louis Pojman explains: “People often confuse retribution with revenge . . . Vengeance signifies inflicting harm on the offender out of anger because of what he has done. Retribution is the rationally supported theory that the criminal deserves a punishment fitting the gravity of his crime. . . Retributivism is not based on hatred for the criminal (though a feeling of vengeance may accompany the punishment). Retributivism is the theory that the criminal deserves to be punished and deserves to be punished in proportion to the gravity of his or her crime, whether or not the victim or anyone else desires it. We may all deeply regret having to carry out the punishment, but consider it warranted…
“When a society fails to punish criminals in a way thought to be proportionate to the gravity of the crime, the danger arises that the public would take the law into its own hands, resulting in vigilante justice, lynch mobs, and private acts of retribution. The outcome is likely to be an anarchistic, insecure state of injustice.”
Because people so often confuse these two concepts, it is worth devoting a bit more time to this, until we thoroughly drive home this point. Ernest van den Haag makes the distinction this way: “Vengeance is self-serving since it is arbitrarily (by his own authority) taken by anyone who feels injured and wishes to retaliate.” Retribution, however, “is imposed by courts after a guilty plea, or a trial, in which the accused has been found guilty of committing a crime.” It is inflicted “to enforce the law and to vindicate the legal order.”
Or as J. Budziszewski puts it, “Society is justly ordered when each person receives what is due to him. Crime disturbs this just order, for the criminal takes from people their lives, peace, liberties, and worldly goods in order to give himself benefits. Deserved punishment protects society morally by restoring this just order, making the wrongdoer pay a price equivalent to the harm he has done. This retribution is not to be confused with revenge, which is guided by a different motive. In retribution the spur is the virtue of indignation, which answers injury with injury for public good. In revenge the spur is the passion of resentment, which answers malice with malice for private satisfaction.”
And even here, we might nuance this just a bit further. A case can be made that it is a good thing to see justice established. Thus it is a good thing to see criminals punished. We can in fact rejoice in seeing evil thwarted, and evil doers punished. This may not be revenge so much as a proper appreciation of justice being served.
As J. Daryl Charles writes, “At its base the moral outrage expressed through retributive justice is first and foremost rooted in moral principle, not mere emotional outrage and hatred. Recall Augustine’s words to Marcellinus: retribution is a form of ‘benevolent harshness.’ The governing authorities, by punishing criminal behavior, mirror a concern for the welfare of the population and for those doing the wrong. Any parent intuits the truth of this principle. Indeed, not to act against the will of a wrongdoer, in the words of Augustine, is to ‘nourish and strengthen the will toward evil.’ It needs reemphasis, especially in our present cultural climate, that it is virtuous and not vicious to feel anger at moral evil. In truth, something is very wrong with us if we don’t express anger and moral outrage at evil. And yet, moral outrage alone is not enough.”
Clemency
Finally, a word about clemency. Can a leader on occasion offer grace instead of strict justice, and pardon someone who has committed a capital crime? Yes they can, and yes they have. That is clearly their prerogative, although it should be the exception and not the rule.
As Adam Smith put it, “Mercy to the guilty is cruelty to the innocent.” Let me at this point however head off one objection which will come from religious folks. This piece is dealing just with the secular arguments, pro and con, but let me here briefly deal with Christian concerns about grace, mercy, forgiveness, and so on.
The simple reply to Christian objections here is that the church and the state are both God-ordained institutions, each with their own spheres of responsibility. The main function of the state is to uphold justice and punish evil. The state deals with crime, while the church deals with sin. While the two often overlap, they are not identical.
The church, as well as individual Christians, can of course show grace and offer forgiveness to offenders. But the state cannot. Its job is to administer justice, and to wield the sword, bringing punishment on those who do wrong. A governor may on occasion dispense clemency, but this is not the main role of political leaders.
But even in the church, there are obviously limits. A Christian who is caught robbing banks may be forgiven by a local congregation, but it is still fitting and proper that he face his just deserts and do a stint in prison. And if a Christian murders someone, he too should not expect the state to just blink at his crime.
As Norman Geisler wrote, “If a Christian jumps off a high cliff, confessing his sins on the way down will not avert death at the bottom. The truth is that, forgiven or not, there are social and physical consequences of sin. A Christian who commits a capital crime can receive forgiveness but should not expect to avoid the appropriate penalty. And the fitting penalty for taking another life is giving one’s own.”
Churches and Christians can forgive, but states must not. As J. Budziszewski puts it, “Christ did teach personal forgiveness, but he never challenged the need for public justice. The supposition that personal forgiveness implies a requirement for universal amnesty is not merely weak but mistaken. Taken seriously, it would destroy all public authority, for if punishment as such is incompatible with forgiveness, then why stop with capital punishment? Must we not abolish prisons, fines, and even reprimands as well?”
But I deal with all this in much more detail here: https://billmuehlenberg.com/2007/10/14/sin-forgiveness-and-consequences/
Mercy and justice are both important virtues, both for individuals and for states. But as C. S. Lewis warned in his critique of the “humanitarian theory of punishment,” we lose both when we strip men of their dignity as human beings by saying criminals are simply sick, not responsible and guilty. Sickness demands treatment instead of punishment.
He writes, “The Humanitarian theory removes from Punishment the concept of Desert. But the concept of Desert is the only connecting link between punishment and justice. . . . The Humanitarian theory, then, removes sentences from the hands of jurists whom the public conscience is entitled to criticize and places them in the hands of technical experts whose special sciences do not even employ such categories as rights or justice.”
He continues, “The older view was that mercy ‘tempered’ justice, or (on the highest level of all) that mercy and justice had met and kissed. The essential act of mercy was to pardon; and pardon in its very essence involves the recognition of guilt and ill-desert in the recipient. If crime is only a disease which needs cure, not sin which deserves punishment, it cannot be pardoned. How can you pardon a man for having a gumboil or a club foot? But the Humanitarian theory wants simply to abolish Justice and substitute Mercy for it. This means that you start being ‘kind’ to people before you have considered their rights, and then force upon them supposed kindnesses which no one but you will recognize as kindnesses and which the recipient will feel as abominable cruelties. You have overshot the mark. Mercy, detached from Justice, grows unmerciful.”
Conclusion
While I have pitched this discussion to a secular audience, relying mainly on non-religious arguments, all this can be discussed biblically and theologically as well. For example, as to clemency, God has on occasion done just that. Sometimes those deserving the death penalty – such as Moses or David – have instead been offered grace by God. But of course quite often that is not the case, and normally God allows retributive justice to run its fair course in this world.
For those who are interested in a biblical and theological pro-capital punishment position, I urge them to look here:
https://billmuehlenberg.com/2007/10/11/on-capital-punishment-part-1/
https://billmuehlenberg.com/2007/10/12/on-capital-punishment-part-2/
And for those looking for what the Bible has to say about killing in general, and if it is ever right for a believer to kill, then I encourage them to have a look at this article:
https://billmuehlenberg.com/2006/09/11/is-it-ever-right-to-kill/
In sum, both secular and religious folks can and do disagree about this issue. I have stated my position, and think it is both ethically and rationally sustainable. For those who disagree, fine. I am happy for them to take another line on this. But I have here sought to make my case. It could undoubtedly be improved upon, but it is a start at least to a complex and controversial issue.
Part One of this article is found here: https://billmuehlenberg.com/2012/05/29/the-case-for-capital-punishment-part-one/
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