Moral Preening and Capital Punishment

A feeling of moral superiority is often compensation for the lack of any other kind of superiority, and has the advantage that it can never be decisively disproved. With respect to capital punishment, Europeans feel morally superior to Americans because they have abolished it as a relic of judicial barbarism. So complete has been the revolution in moral sensibility that they speak as if the French foreswore the guillotine before the Roman invasion rather than in 1981, against the majority opinion of the public.

The question of capital punishment has long agitated the minds of intellectuals, and recently I had the good fortune to find and buy The Punishment of Death by Henry Romilly, published in 1886, an anti-capital punishment tract. Romilly was the son of the lawyer and politician, Sir Samuel Romilly, one of the early abolitionists; Henry is therefore a case of hereditary abolitionism. He is not, of course, to be despised on that account.

Some of his arguments seem distinctly odd. For example, he says that the frequent reports of the repentance of the murderer on the scaffold, and of his dignified conduct thereon, create a sympathy for him that would tend to lessen the public abhorrence of his crime and therefore decrease the general inhibitions against committing like crimes. This is distinctly far-fetched.

Romilly denies that the death penalty is a deterrent to murder because, at the moment of killing, the murderer is usually in such a state of passion that nothing can enter his mind to prevent him from committing the act. He does not say to himself ‘I might swing for this,’ and desist; he realizes it, usually to his chagrin, only after the event.

Recently, I stumbled across evidence that showed that this was wrong, that the death penalty probably does deter murder. I had read a book called Murder Followed by Suicide, by the distinguished doctor and criminologist, D J West, which was published in 1965, the very year of the abolition of the death penalty in Britain.

For several decades before the date of publication, a third of all homicides in the country had been followed by the suicide of the perpetrator. In the great majority of these cases, the perpetrator was mad, and actually would not have been found guilty (because of his or her insanity) had he or she lived to face trial. The title of the book, then, while dramatic, was slightly inaccurate. It should have been Homicide Followed by Suicide, but that does not have quite the same ring to it.

The suicide who had just killed was likely to be suffering from delusions, for example that by killing his wife and children he was sparing them something far worse at the hands of the conspirators who were persecuting him. While most killers are men, a much higher proportion of mad killers were women.

It occurred to me that nothing on earth would deter these mad killers from their course of action: they were like Romilly’s killers in the grip of an ungovernable passion. So the death penalty would not deter them; but if, I hypothesized, it exerted a deterrent effect upon other potential killers, what one would see after the abolition of the death penalty was a rise in the total number of homicides, but a reduction in the proportion of them followed by suicide.

And this is precisely what happened. Thanks to researches by my friend, the criminologist David Fraser, I learnt that, while the general homicide rate increased after 1965, the proportion of homicides followed by suicide fell, from a third – stable for many years before the abolition – to about one fourteenth. Moreover, the absolute number of homicides followed by suicide, while showing a tendency to fall (perhaps because of the earlier and more effective treatment of the psychotic), remained rather similar

At the very least, these facts were compatible with the deterrent effect of capital punishment. No doubt other interpretations of them were possible, but the most natural interpretation seemed to be that the possibility of being hanged – never more than a possibility, since no more than a eighth of murderers were ever executed – concentrated the minds of the violent

Does this, then, settle the question of capital punishment? The answer is obviously ‘No.’ The effectiveness of a punishment is not sufficient to justify it. We are horrified by the amputation of thieves’ hands not because it is ineffective, or even because it is unjust, but because it is barbaric. The relationship between facts and policy is more complex than is sometimes believed.

It seems to me that the decisive argument against the death penalty is that, even in the most scrupulous jurisdictions, mistakes are made: and for the state to put to death an innocent man is a terrible thing, one that is likely in the end to undermine its legitimacy in the eyes of many. A supporter of the death penalty to whom I put this point retorted immediately that it was easy to refute it, because it could be shown that murderers repeated their murders more often than the wrong man was executed, therefore the balance was in favor of the death penalty. I replied that this seemed to me more a refutation of utilitarianism than an argument in favor of the death penalty, but as with most such discussions, no final agreement was reached between us.

As with so many questions, those on one side are more at pains to refute the arguments of those on the other than to find the truth. This is partly for reasons of vanity, as Schopenhauer would no doubt say; but there is something else besides. We find it difficult and disturbing to hold in our minds arguments of the form ‘On the one hand, on the other.’ If we are for capital punishment we want it to be good in all respects, with no serious drawbacks; if we are against it, we want it to be bad in all respects, with no serious advantages. We want the world of facts to dictate to us, virtually, how to act; but this it will never do. We always have to make a choice.

Theodore Dalrymple

Theodore Dalrymple is a retired prison doctor and psychiatrist, contributing editor of the City Journal and Dietrich Weissman Fellow of the Manhattan Institute.

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  1. says

    The “mistakes will be made” objection founders on one terrible reality.

    OF COURSE mistakes will be made. We are human, not God. Even when we strive mightily to avoid mistakes, they will still be made. To argue that the hand of justice will ALWAYS be stayed because perchance, possibly, just maybe this one time, a mistake is being made, is to deny justice.

    Where, and even more importantly, why, stop with capital punishment? Why not relegate life without parole to the dustbin as well? Surely, there have been people imprisoned for life mistakenly, some who have died behind bars? What terrible injustice has been done to them? I can keep going, all the way down to a blasted parking ticket if you’d like. Assuming that the punishment fits the crime (a different argument to be sure), the “mistakes will be made” stands in refutation of ALL judicial punishments.

    If not, where is it no longer applicable? And WHY?

  2. Dudley Sharp says

    Dr. Dalrymple:

    Interesting look at suicide and murders/homicides.

    I agree with most of your comments.

    I think the conversation with your friend does have a resolution.

    One can support the death penalty because it is a greater protector of innocent lives, but only as a beneficial outcome of the sanction, not the foundation for it. That foundation must remain justice, the foundation for all sanctions (next post).

    The death penalty is a net greator protector of innocent lives, in three ways (next post).

    Are there any prospects of a negative outcome that don’t deter some? Not that I have been able to find.

    In the US, the evidence is conclusive, that about 99.8% of murderers subject to the death penalty fear death more than life, just as most all humans do. Based upon that overwhelming evidence, it would be strange, indeed, to find that a more rational group, those potential murderers, who chose not to murder, were not similarly affected by a greater fear of death than for life and a greater welcoming of life over death.

    It appears that the majority of the populations of all countries – inclusive of those in the EU – may support the death penalty for some crimes (next post).

    The alleged and false moral superiority of those individuals and countries opposed to the death penalty is only the shallow reflection of self delusion, which overlooks the sanctions foundation in justice, as well as its outcome in saving more innocent lives.

  3. Dudley Sharp says

    The Death Penalty: Justice & Saving More Innocents
    Dudley Sharp

    The death penalty has a foundation in justice and it spares more innocent lives.

    Anti death penalty arguments are either false or the pro death penalty arguments are stronger.

    The majority populations of all countries may support the death penalty for some crimes (1).

    Why? Justice.

    THE DEATH PENALTY: SAVING MORE INNOCENT LIVES

    Of all endeavors that put innocents at risk, is there one with a better record of sparing innocent lives than the US death penalty? Unlikely.

    1) The Death Penalty: Saving More Innocent Lives
    http://prodpinnc.blogspot.com/2012/03/death-penalty-saving-more-innocent.html

    2) Innocents More At Risk Without Death Penalty
    http://prodpinnc.blogspot.com/2012/03/innocents-more-at-risk-without-death.html

    MORAL FOUNDATIONS: DEATH PENALTY PT. 1

    1) Saint (& Pope) Pius V: “The just use of (executions), far from involving the crime of murder, is an act of paramount obedience to this (Fifth) Commandment which prohibits murder.” “The Roman Catechism of the Council of Trent” (1566).

    2) Pope Pius XII; “When it is a question of the execution of a man condemned to death it is then reserved to the public power to deprive the condemned of the benefit of life, in expiation of his fault, when already, by his fault, he has dispossessed himself of the right to live.” 9/14/52.

    3) John Murray: “Nothing shows the moral bankruptcy of a people or of a generation more than disregard for the sanctity of human life.”

    “… it is this same atrophy of moral fiber that appears in the plea for the abolition of the death penalty.”

    “It is the sanctity of life that validates the death penalty for the crime of murder. It is the sense of this sanctity that constrains the demand for the infliction of this penalty. The deeper our regard for life the firmer will be our hold upon the penal sanction which the violation of that sanctity merit.” (Page 122 of Principles of Conduct).

    4) Immanuel Kant: “If an offender has committed murder, he must die. In this case, no possible substitute can satisfy justice. For there is no parallel between death and even the most miserable life, so that there is no equality of crime and retribution unless the perpetrator is judicially put to death.”.

    “A society that is not willing to demand a life of somebody who has taken somebody else’s life is simply immoral.”

    5) Billy Graham: “God will not tolerate sin. He condemns it and demands payment for it. God could not remain a righteous God and compromise with sin. His holiness and His justice demand the death penalty.” ( “The Power of the Cross,” published in the Apr. 2007 issue of Decision magazine ).

    6) Theodore Roosevelt: “It was really heartrending to have to see the kinfolk and friends of murderers who were condemned to death, and among the very rare occasions when anything governmental or official caused me to lose sleep were times when I had to listen to some poor mother making a plea for a criminal so wicked, so utterly brutal and depraved, that it would have been a crime on my part to remit his punishment.”.

    7) Jean-Jacques Rousseau: “Again, every rogue who criminously attacks social rights becomes, by his wrong, a rebel and a traitor to his fatherland. By contravening its laws, he ceases to be one of its citizens: he even wages war against it. In such circumstances, the State and he cannot both be saved: one or the other must perish. In killing the criminal, we destroy not so much a citizen as an enemy. The trial and judgments are proofs that he has broken the Social Contract, and so is no longer a member of the State.” (The Social Contract).

    8) John Locke: “A criminal who, having renounced reason… hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or tyger, one of those wild savage beasts with whom men can have no society nor security.” And upon this is grounded the great law of Nature, “Whoso sheddeth man’s blood, by man shall his blood be shed.” Second Treatise of Civil Government.

    ====

    “Moral/ethical Death Penalty Support: Christian and secular Scholars”
    http://prodpinnc.blogspot.com/2009/07/death-penalty-support-modern-catholic.html

    “The Death Penalty: Neither Hatred nor Revenge”
    http://homicidesurvivors.com/2009/07/20/the-death-penalty-neither-hatred-nor-revenge.aspx

    “The Death Penalty: Not a Human Rights Violation”
    http://homicidesurvivors.com/2006/03/20/the-death-penalty-not-a-human-rights-violation.aspx

    “Killing Equals Killing: The Amoral Confusion of Death Penalty Opponents”
    http://homicidesurvivors.com/2009/02/01/murder-and-execution–very-distinct-moral-differences–new-mexico.aspx

    ====

    1) US Death Penalty Support at 80%; World Support Remains High
    http://prodpinnc.blogspot.com/2012/04/us-death-penalty-support-at-80-world.html

    Much more, upon request. sharpjfa@aol.com

  4. Gabriel Hanna says

    The argument that capital punishment is wrong because an innocent person may be put to death is flawed because it is ALSO an argument against punishment. A man unjustly imprisoned can be let out and compensated with a pittance, but you cannot give him his wasted years back, his disrupted relationships, or erase the terrible things that may have happened to him in prison.

    And activists who oppose capital punishment ALSO oppose life imprisonment and solitary confinement. Sometimes this does not become apparent until after they have got their way on capital punishment. This is why Anders Breivik is facing such a scandalously short prison sentence for all of his murders.

  5. Bob Smith says

    “The argument that capital punishment is wrong because an innocent person may be put to death is flawed because it is ALSO an argument against punishment.”

    Except you’ve identified the crucial distinction, the wrongly imprisoned man can be compensated (and, at least in the Canadian experience that I’m familiar with, that compensation is seldom a pittance). That compensation may not fully compensate him for his time in prison, but it does so in so far as money can compensate a person for being wronged. The wrongly executed man, on the other hand, well, until we learn how to revive the dead, there is no way to even attempt to remedy the wrong done to him.

    More to the point, wrongfully killing a person is generally considered to be a greater wrong than, say, wrongfully imprisoning a person (a proposition that I think is generally uncontrovertible and which is reflected in what I suspect is the more or less universal practice, at least in the west, of imposing harsher sentences for the former than the latter). So, again, we see a critical distinction between the dealth penalty, on the one hand, and life imprisonment, on the other. The former is both a greater wrong than the latter, and unlike the latter, it is not possible to compensate the victim of the former wrong.

    Moreover, we have to deal with the practical reality that in the anglo-american system of criminal justice, where guilt need only be proven beyong a reasonable doubt, we will, with statistical regularity, convict innocent people. And note, our justice system will result in the convictions of innocent people even when all the parties involved in the criminal justice system (defense lawyers, prosecutors, police, judges, juries) are competent, scrupulous and acting in good faith – although in the real world where the parties do not live up to those ideals, wrongful convictions will only become more numerous. I don’t have any particular moral objection to killing murderers (killing people is generally considered a wrong, but western societies have no trouble recognizing exceptions to that general rule – killing enemy soldiers in war, deranged gunmen in the street, killing in self-defense, etc.), but I think it’s problematic to adopt a sentencing regime that you know, with statistical certainty, will result in the killing of factually innocent (but legally guilty) people.

    To that extent, opponents of the death penalty make a valid point when they say that the death penalty reduces the state to the level of the murderers it executes. We can dismiss that argument to the extent it relates to the execution of factual murderers (since, in their case, there is a critical moral distinction between the murder victim and the executed murderer – the latter wrongly killed a human being), but we can’t dismiss that argument so readily to the extent it relates to the factually innocent convicted murderer. In this respect, the moral argument against the death penalty doesn’t draw any force from the proposition that it’s wrong to execute murderers (and I think people can go either way on that point), it draws its force from the incontestable proposition that it’s wrong to kill innocent people.

    Moreoever, the utilitarian argument, that we accept the killing of the occasional factually innocent convicted murderer because it deters more murders, has troubling implications. It raises the question of why we stop at executing murderers in our pursuit of lives saved. If we executed negligent doctors from time to time (“pour encourager les autres”), maybe fewer patients would die from medical malpractice. How about reckless drivers, negligent drug baby food manufacters, etc.? But the cold utilitarian math of net “lives saved” in that scenario (if any – I suspect the more likely result would be a decline in the number of docters), wouldn’t be sufficient to get us over our moral abhorence of that idea. So why is it abhorent to execute negligent doctors in that hypothetical scenario, but not factually innocent people?

  6. dana ely says

    I wrote this letter to our local paper years ago and I feel it still is germane.

    Society, other prisoners pay as we let killers live

    I disagree with Michel Berla’s letter against the death penalty. In June
    2007 The Washington Post had an article entitled “Studies Say Death
    Penalty Deters Crime.” The article is a discussion of the basic
    common-sense truth concerning the death penalty: It stops people from
    killing, it has a deterrent effect.

    The Post article says “What gets little notice, however, is a series of
    academic studies over the last half-dozen years that claim to settle a
    once hotly debated argument, whether the death penalty acts as a deterrent
    to murder. The analyses say yes. They count between three and 18 lives
    that would be saved by the execution of each convicted killer.”

    On a less scientific note, thanks to the TV show “Lockup,” we are able to
    glimpse the hell that is a maximum-security prison. There I saw a prisoner
    earnestly say he realized he was put on this earth to be a serial killer
    and will try to kill as many people as possible until he himself dies. Any
    sensible society would take this guy out and summarily shoot him.

    We tell ourselves we are so civilized because we live in a society that
    does not have the death penalty. But who pays the price of our moral
    sanctimony? The other prisoners and the guards bear the direct burden of
    dealing on a day-to-day basis with nothing-to-lose imprisoned killers.
    These life-without-parole prisoners have no hope at all, day after endless
    day spent in a noisy, echoing box. Isn’t this a form of cruel and unusual
    punishment for the killers? But it is also a ticking, lethal time bomb for
    the guards and other inmates.

  7. MPH says

    If you want to win the argument, first frame the terms of the argument. Dr Dalrymple’s question is a false one. There will always be a death penalty. The question is who will enforce it, judges and juries or law enforcement and surviving friends and family. How often is a cop-killer taken alive? How many murders are retaliation?
    While there will always be exceptions, any legal system that fails to satisfy society’s need and expectation of justice will first render itself irrelevant and then find itself disregarded. Flawed though it may be, the current legal system is better than vigilantism, which may and would commit even more ‘errors’.

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