Tsarnaev (and capital punishment, the morality of the death penalty, and equivocation)

The Justice Department has announced that it will seek the death penalty against the surviving Boston bomber, 20 year old, Dzhokhar Tsarnaev. Now seems a good time to consider the arguments for whether the death penalty is a just punishment. I recognize, of course, that the Justice Department might be pursuing the death penalty in order to push Tsarnaev to enter into a plea bargain for life in prison by pleading guilty. That is a separate, though interesting, issue, as it implies that the Justice Department (hereafter JD) does not want to put Tsarnaev to death but doesn’t want him to get away with anything less than life in prison, so the JD is not pursuing life in prison because he might get a lesser sentence after trial. Whether that is fair in the eyes of justness is an issue I do not have the means to pursue now; my concern is whether executing Tsarnaev would be just.

The Moral Argument for Capital Punishment
Ernest van den Haag argues that capital punishment must be upheld as it prevents (the criminal) and deters (other persons) from committing the same offenses, and on the moral side of things, human life is of sacred value such that we must protect it by using capital punishment in the two aforementioned ways. He writes, “If there is nothing for the sake of which one may be put to death, can there be anything worth dying for? If there is nothing worth dying for, is there any moral value worth living for?” The moral argument for capital punishment, here at least, is that:

  • If life is of utmost value, then there are things worth living for.
  • If there are things worth living for then there are things worth dying for.
  • If there are things worth dying for then it is does not violate the utmost value of life to execute murderers.

The flaw of this argument is that there is the fallacy of equivocation in the clause “there are things worth dying for”. From the premise that there are things worth living for it does follow that there are things worth dying for, but not in the sense meant in the antecedent in premise three. Certainly if pleasure and virtue are things worth living for, then there are things worth dying for, such as freedom to pursue the things one takes pleasure in, this is after all while revolutions occur. But now we see that “values worth dying for” entails values that one would be willing to sacrifice one’s own life for. From this it clearly does not follow that it does not violate the value of life to execute murderers, showing that an equivocation enters in in the antecedent of premise three. The equivocation is of “there are values worth sacrificing one’s life for” with “there are values that one may be sacrificed for”. These are entirely different claims, and we can see that the former premise begs the question in favor of the conclusion for the justness of execution. Thus, the moral argument for capital punishment is flawed.

A Rossian Interpretation:

The plausibility of capital punishment is from the notion that there should be a balance of rights, in that one who violates the right of another forfeits their own right to the same claim – violating someone’s right to life by murdering them entails the forfeiture of the right to life for the murderer, making it perfectly moral to execute them, required even perhaps. This notion of a balance of rights being adjudicated by the state was touched on in my entry on Ross, so I shall use some of his ideas as background on this argument for capital punishment (though he never mentions execution).

An important conclusion of Ross was that in order for justice to reign in retributive justice the punishment must be proportional to the offense. But it seems in instances of the application of the death penalty, the punishment is of less painful suffering than that of the person who was murdered by the offender. Those put to death have often caused their victims untold suffering in their final moments and the suffering is something the murderer might have sadistically taken pleasure in. It seems that in order to have a proportional punishment for the offense we must cause the murderer the same pain that they caused their victim. But of course we think that would be cruel and unusual punishment, not befitting the dignity of our polity! That is a level of brutality that we do not think appropriate to stoop to. What this suggests is that there is a point at which the equal tradeoff of balancing rights is not proportional and we intuitively know this as a reason to perform “humane” executions. But this intuition should lead us further, not just to the conclusion that executions must be human, but rather, that executions are not humane as they are not proportional to the offense committed in the eyes of real and true justice.

Pluralism and Mercifulness, and a Note Against Particularism:

Robert Audi has argued that, although W.D. Ross did not attempt to locate the plurality of moral duties he thought were a priori true in the values of goodness due to their just being self-evident on their own, that intuitionist pluralists should seek to ground the plurality of duties in values, as there is no need to fear epistemologically overdetermination (“Prospects for a Value-Based Intuitionism”). I think Audi might be correct in this, and he himself appeals to human dignity as the grounding value of self-evident moral duties. From this very plausible value I think another moral duty becomes apparent: mercifulness. I think there is a prima facie duty, meaning a relevant moral reason for performing an action, to perform an action that would show the other person mercy, and this because such a duty shows respect for human dignity. This doesn’t mean that the duty to be merciful cannot be overridden by other moral reasons, or prima facie duties, just that there is a basic reason to be merciful. I do think that this basic moral duty does trump all claims to capital punishment; the death of one person would have to do a considerable amount of good in order to justify being unmerciful and taking someone’s life and I do not think enough good could ever be caused by any one person’s death, Tsarnaev included.

(I’m intrigued by the debate between pluralists and particularists, and I keep an open mind towards both views, but I lean strongly towards pluralism as of late due to my thinking on the fact that mercifulness could never be morally bad, which is a claim the particularist cannot allow. This matter is far from settled for me though, as I worry that the very concept of mercifulness entails a concept of moral goodness that begs the question against particularism.)

Insofar as we are concerned about morality, it does not seem morally justifiable to execute Tsarnaev. This is not to say that there are not practical reasons concerning politics and criminology that do justify capital punishment. How we should balance moral reasons against practical reasons is another issue entirely, (one which has been in the background in other posts – such as in my entry on Breaking Bad). I wonder if they can be separated, and in which case, our moral reasons should win the day. Let us not execute Tsarnaev.


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  1. #1 by SelfAwarePatterns on February 1, 2014 - 9:58 pm

    As always, an interesting essay. I have no enthusiasm for the death penalty, not necessarily because I think those who deserve death shouldn’t receive it, but because we are not good at making that determination. The DNA tests of death row inmates around the country has resulted in over 300 exonerations.

    We get this wrong a lot. The problem is that once you execute someone, you can’t ever correct it. It seems like we should err on the side of not executing anyone. Doing so would also avoid the sky high costs involved in working through all the legal appeals. Not having the death penalty would be more humane, more careful, and cheaper.

    The only people who lose are the revenge seekers, and most of them are violating their religion by desiring that vengeance.

    • #2 by ausomeawestin on February 2, 2014 - 3:09 pm

      Thanks for the compliment! I agree with what you are saying and I think it is one of the best practical, as opposed to moral, reasons for not using the death penalty.

      It’s an interesting argument in general though, because the real warning is that we could be wrong about someone’s guilt, and in which case any punishment done would be difficult to correct. I imagine those 300 exonerated persons found that their wrongful punishment was not corrected in a substantial way; things did not go back to normal for them. So the fact that we can be wrong about a person’s guilt should lead us to be wary of excessive punishments in general, such as life without parole, not just the punishment of death. Thanks for the great comment.


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