Bernstein on the Death Penalty

We haven’t had a blogpost about the death penalty here at Rightly Considered, so I figured it was time. Plus, Ohio just killed a man just a few hours before I began writing this blogpost, so that is even more reason for me to write about the death penalty.

Here I criticize C’zar Bernstein’s rejoinder to anti-death penalty arguments, finding some of his counter arguments rather weak. That’s not to say that I agree with the anti-death penalty stance, because I don’t. I take the Catholic position on this issue, believing that there is nothing intrinsically wrong with the death penalty. In fact, I can even name a case where I believe the death penalty should have been applied (see here, for example). It is just that I think some of Bernstein’s arguments against the abolitionist case are unsuccessful. So let’s take a look.

Bernstein writes this:

A better abolitionist argument is as follows. There’s a significant risk that innocent people will be executed if capital punishment isn’t abolished. After all, many people have been wrongly convicted of other crimes, so murder probably is no exception. Moreover, the execution of an innocent person is obviously a grave injustice. It is then alleged that this risk is unacceptably high and, consequently, capital punishment ought to be abolished.

Problems abound here as well. One obvious problem with appealing to the risk of innocent death as a reason for abolition is that it implies outright pacifism. In the real world, any just war will inevitably and invariably cause the deaths of innocents, either because they are the foreseen but unintended casualties of necessary and proportionate attacks, or else because there are likely to be a few wicked people in any army. Despite the even greater risk of innocent death in the context of war, very few of us believe in abolishing the armed forces. The principle that any activity that might or even regularly results in innocents dying ought to be abolished is, therefore, false.

But the abolitionist argument depicted in the first paragraph referred to the significant risk of executing an innocent if we deploy the death penalty. Bernstein uses the deaths of innocents during war to rebut this point, but there is an important difference he misses: Their deaths are believed to be acceptable partially because their deaths are not intended as a means or an end. In other words, we don’t execute those people, but we do execute other people if we deploy the death penalty. Thus, the abolitionist concern here is with executing people who are, in fact, innocent – it is not simply with the risk of innocents dying as a result of our actions (see the doctrine of double effect).

Now it might be objected that we don’t intend the execution of innocents with the death penalty either, which is doubtlessly true. But that would not challenge the “significant risk” of executing someone who is innocent but wrongly convicted. The abolitionist point, it seems to me, is that the risk of wrongful execution is too great when this person could just be imprisoned indefinitely. But why is execution so special?  Why is it so “hands-off”? Execution is special because it involves premeditation, intent and direct action for that death, which implies a great deal more of involvement and responsibility for it (think of the difference between a negligence causing death and murder). For that reason, an execution should give us a great deal of pause, if not something we want to avoid altogether. It’s no small thing.

Objectors might point out that we don’t reason like this in war – we shoot at human targets with the intent to kill even though they might be innocent, civilians mistaken for insurgents say. True enough, but these killings, if they are just, occur within the context of defence and required immediate action, which does not apply to DP cases heard in criminal courts. So I don’t think that this objection is successful either. I should also say that what I said here rebuts Bernstein’s point that the abolitionist objection implies pacificism –  it doesn’t. There is no issue here with killing in immediate defence of life or nation.

Bernstein continues:

A more important problem, however, is similar to one we’ve already encountered: all punishment, including life imprisonment, carries the risk of significantly harming innocent people. I am aware of no plausible principle that implies it’s impermissible to swiftly kill murderers on account of the risk to innocents but that doesn’t also imply that it’s impermissible to imprison murderers for life, despite the fact that many more innocents will inevitably suffer this torturous punishment.

Well, sure, any form of punishment could wrongly administered, but what makes the death penalty more concerning is that life is the foundation for all other freedoms, liberties and goods; and so if we take life away, we remove the possibility of any further liberty or good upon the determination of his wrongful conviction. At least with imprisonment, if he is found wrongly convicted, he could be given back his freedom, offered an apology and perhaps a large sum of money so that he might better pursue life’s goods. But he can’t do any of that if he’s dead.

Lastly, Bernstein writes this:

The reason we punish such people is because they deserve to be punished for the evil they have done. That’s why it was right to punish Eichmann in some form or other years after his crime. Justice, then, involves giving each his or her due. Some people deserve to die for brutally and intentionally murdering innocents. If that’s right, then far from being unjust, capital punishment is a requirement of justice itself. If the purpose of having a criminal justice system is to bring about justice, then the state may and even should kill those who deserve to die.

I agree with much of this, but it is unclear to me to why Bernstein thinks that the state has the just authority to execute prisoners.  We can grant that some murderers deserve to die and that the state’s job is to administer justice, but that doesn’t imply that every call for justice is appropriate for the state (for example, parents, not the state, have the authority to punish their young children; and moreover, only God and Church have the authority to punish me for sin). If we are all equal in dignity and right to life, qua being, where does the state get the authority to intentionally kill outside of immediate defense? That remains unclear. If Bernstein wants to make a positive case for the death penalty, he will have to justify this authority.

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