A Few Thoughts on The Death Penalty

Opposition to the Death Penalty Should Be the Default View
With the botched execution of Clayton Lockett comes renewed attention on an important topic in retributive justice, and an opportunity for abolitionists of the death penalty to make their arguments heard. Recently I have been stricken by how strange it is that the abolitionist must offer arguments for something so obviously inhumane as execution; it seems like the prohibition of the death penalty should be our default position, and that we must be argued towards the death penalty, not assume the acceptableness of the death penalty and ask for arguments for why we should not use it. After all, what seems to warrant the death penalty is a moral prohibition against killing, but while the death penalty needs this moral prohibition to even get a start, there must be more than just this prohibition doing the work, as the fact that killing is wrong does not logically entail that we should kill those that kill (by itself it entails that we actually shouldn’t execute persons), we need another premise, such as “all wrong actions must be punished with murder” or “a person who commits a wrong action must have that same action done unto them”. Both of these premises seem false, but my general point is that a proponent of the death penalty must convince us of its justness against our basic intuition that is unjust, and such an argument will likely rely on objectionable premises such as these.

This argument is inspired by David Brink’s argument that moral realism, given the commonality of moral discourse and argumentation, should be our default position, and that anti-realists must argue us out of that position; the onus is on the anti-realist. I’m a little skeptical of this approach for metaethics, as it seems our common experience could be well explained by an error theory of Mackie’s sort, so really our only conclusion from common sense is that cognitivism is true, the question is still open from there as to whether our propositions can ever be true. Due to the plausibility of an error theory, the moral realist does owe us a well-articulated theory of moral properties. A more successful application of this style of argument then might be in noting that our default position should be that there is an external world that we can have knowledge of, and that the solipsist must argue us to their position, as it is absurd to think that the realist must convince a skeptic of what seems obvious.

The Humane and the Inhumane
That idea came to me when I was discussing the death penalty with colleagues. One is an extremely conservative woman, and we actually came to an interesting agreement. She noted that as a conservative black woman who strongly supports the death penalty, she has no problem with what happened to Lockett, because he was sentenced to death and so he deserved whatever he got (she didn’t think it constituted cruel and unusual punishment for him to suffer an agonizing 45 minute heart attack). I noted that I agree that the botched execution was no more inhumane than it would have been if it had gone as planned – if Lockett had been executed correctly it still would have been inhumane, either way the death penalty is unjust. So, we agreed that Lockett’s botched execution was just as humane as an ordinary execution; she took this to mean that Lockett’s execution was humane; I took it to mean that no execution is humane.

In the many discussions I’ve had on this topic, I’ve often heard the phrase “they deserve to die”. I don’t know exactly what this phrase means, as the property of deserving-to-die-ness is fairly incomprehensible to me, and when asked, most people don’t have an explanation for such a concept that is not circular – “well, they deserve to die because they committed a fundamental moral wrong” “but why do they deserve to die if they committed a fundamental moral wrong?” “because if they committed a fundamental moral wrong then they deserve to die!” Maybe I just haven’t heard the correct explanation, but so far I have yet to see how there is an intuitive connection between committing a certain moral wrong and deserving to die.

And certainly the obtaining of a deserving-ness property would have to be a conceptual entailment from the completion of the act, and thus from an a priori conceptual entailment of the wrongness of the act, and not an empirically verifiable reliable connection between certain acts and deserving-to-die-ness. So if deserving-to-die-ness is a real property, it must be a moral property that is conceptually entailed by other moral properties, such that the existence of such a property would have to be known through reflection. The point is that we have to see this conceptual entailment, and I fail to see it.

From the fact that a fundamental moral wrong is committed, the most extreme conceptual connection that is comparable to “deserving-to-die-ness” is that it would have been better if the act had not been committed, and taken far enough, that it would have been better all things considered, if the person had never existed so that they would not have committed the act. But this is not the same concept as “deserving-to-die-ness”, given the temporal bounds within which we reside. From the idea that we should have prevented their birth given knowledge that they would have killed many persons, does it follow that they deserve to die now, now that they have committed those murders? Given that this conceptual entailment is present due to the regret for not preventing the act, and that “deserving-to-die-ness” now would not prevent those murders, it is not conceptually entailed from the fundamental wrongness of an act that one deserves to die for committing that fundamental wrong. So from the fact that an act is morally wrong, I fail to see how there can be a conceptual connection of the wrongness of that act and “deserving-to-die-ness”. The relation that most closely resembles this connection turns out not to imply a deservingness to die, or so I have argued.

If any one has a theory for how this conceptual entailment might obtain I would be very interested to hear it. I am of the opinion that conceptual entailment and general a priori knowledge need not be immediate, and may be seen to be true after reflective consideration of the facts. Perhaps I am missing a very crucial notion/fact, or I am just not properly reflecting on the relation. I welcome all comments.


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  1. #1 by SelfAwarePatterns on May 14, 2014 - 12:50 pm

    As you know, I’m opposed to the death penalty, but I find your analysis interesting because it seems like a case of those of us motivated primarily from the care/harm foundation colliding with those more motivated by the fairness/cheating foundation. “Fairness” and “deserves” of course, are endlessly debatable judgments.

    But someone arguing from the fairness foundation will probably say that someone who killed a person, particularly if they did it in a cruel manner, deserves death. Of course, to those of us motivated by the care foundation, all we’re doing is increasing suffering by executing the perpetrator, but someone sufficiently motivated by what they view as fairness might not…care.

    The question is, how do those of us concerned about the harm of the execution convince someone motivated by fairness? Any argument we make just about the harm might fall on deaf ears.

    • #2 by ausomeawestin on May 14, 2014 - 3:58 pm

      That is an excellent point, I hadn’t thought of the debate in that way, so I greatly appreciate you sharing this way of viewing it.

      My argument was that the death penalty is inconsistent with the non-harm principle that, I assumed, was needed to motivate the death penalty in the first place. I think you are right that the proponent of the death penalty will be unmoved by this argument because of a general concern for fairness rather than non-harm. So let’s reconsider the argument on their terms.

      The idea must be that it is just to punish persons with death because fairness requires that we treat persons as they treat others, such that the underlying principle is a universalizability thesis, and not a non-harm thesis. Perhaps the idea is that the universalizability thesis entails that when one commits any type of action, one tacitly accepts that you may have that action done to you, as this is only fair.

      It’s difficult to see an immediate contradiction in this, as surely executions should be said to be carried out by the state and not by individual persons, such that it doesn’t follow from the universalizability thesis that since that state performs executions that we should execute the state, such that the state cannot perform executions without contradiction.

      The best response to this view, for right now, is to deny the universalizability thesis, as it is surely false that there is a conceptual entailment between A’s performance of an act P in situation X and A’s having act P done unto him in situations Y and Z. But this point is far from conclusive, so the proponent of the death penalty is unlikely to be moved by it.

      Thanks again for sharing this important point. I will have to think further about this debate with your framework in mind.

      • #3 by SelfAwarePatterns on May 14, 2014 - 6:04 pm

        You’re welcome. I’m honored by your consideration of it. The only thought that comes to me is to point out how unfair the death penalty can be (wrongful convictions, etc).

      • #4 by ausomeawestin on May 15, 2014 - 8:34 pm

        Quite right! That might have to be the route in, though I suspect you’d agree that we can keep looking for an argument as to why the death penalty is not just contingently unfair, but conceptually and thus, necessarily unfair.

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