A Hulkly Response to Bernstein’s Rejoinder

So C’zar Bernstein replied to my criticism of his article on the death penalty. I thank him for that. You can see his rejoinder here. You can see my initial reply here and his initial piece here. This exchange can get confusing for readers, so I will try to be clear and concise in this response. That said, this is a rather long blogpost, so I apologize in advance. If I address this issue again, then, for the sake of brevity, and for the sake of mercy toward my readers, I’ll say much less.

Bernstein’s first objection is that I mischaractize the principle to which he was replying. The passage in dispute is 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.

In my initial reply, I accused Bernstein of mischaracterizing the abolitionist argument depicted in the first paragraph, for, as I see it, that paragraph concerns itself with our risk of executing innocent people while his criticism of that argument (seen in the second paragraph) concerns itself only with the risk of innocents dying or being killed. I accused Bernstein of therein attributing propositions to the abolitionist argument that were never offered. But Bernstein disagrees with my assessment, saying that it is confused. He writes this:

This is confused. The principle “Any activity that might or even regularly results in innocents dying ought to be abolished” is clearly false, and I demonstrated that conclusively with the counterexample I gave: Its truth would imply outright pacifism because war might result, and in fact regularly does result, in innocents dying.
Hulk ignored the argument to which I was responding, erected a totally different one that doesn’t employ the above principle, and then claimed that my objection doesn’t succeed against it.

Here Bernstein does not refute my objection. In fact, he affirms it. The principle of which he speaks is neither stated nor offered within the characterization of the abolitionist argument he aims to rebut. That abolitionist argument (see the first paragraph of the first quotation) only speaks about the risk of us executing innocent people – it does not state or depend upon the principle he aims to refute. Indeed, that principle only comes up within his assessment of the abolitionist argument, not within the abolitionist argument itself. But don’t take my word for it, see for yourself. You will see that I am right: Check out the first paragraph within the first quote offered within this blogpost.

If you looked, you would have seen that immediately after depicting the abolitionist argument concerning the risk of us executing innocents, Bernstein writes this:

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.

Bernstein begins that paragraph with the sentence, “Problems abound here as well.” He is referring to that abolitionist argument quoted earlier. He then describes the “problems” that the argument has and mentions that principle to which he aims to falsify. But as you can see, nothing he said in this paragraph deals with the risk of us executing innocents. He is only speaking about the risk of innocents dying. He then ends up falsifying this principle about the risk of innocents dying despite the fact that this principle has no relevance to the what the abolitionist argument actually said –  that is, it has no relevant to the risk of us executing innocents.

So why does Bernstein mention this principle? Why does he aim to refute it in his second paragraph despite the fact that it is not relevant to the abolitionist argument concerning the risk of executing innocents? Probably because that is how he understands the abolitionist argument. Heck, his second paragraph, the one following the abolitionist argument, does not even mention the word ‘execution’ nor any interchangeable idea. Instead, Bernstein depicts that abolitionist argument as if it were just about the risk of innocents deaths and not about the risk of us executing innocents. But once we see that the abolitionist argument is about the risk of us executing innocents, then that principle is irrelevant and has no relevance to what was actually said.

Thus, his criticism that I ignored his actual argument and erected some other is false. In fact, it’s exactly backwards: He ignored the abolitionist argument and then attacked a straw man, attributing to it a principle that it does not hold. Therefore, it was he who mischaracterized an argument.

If Bernstein or any of his defenders would like to challenge me on this, then you’ll have to explain where he attained the principle he criticizes, its relevance and why his initial criticism of that abolitionist argument did not mention the risk of us executing innocents.

Let’s move on. Bernstein writes this:

But I alluded to that doctrine in the very example of war I presented: “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.” Herein lies a decisive objection to this revised principle: War almost invariably involves intentionally killing innocents on all sides, including the sides that are uncontroversially waging just wars. War, then, is also a counterexample to this principle.

Just a note: I did not offer a “revised principle”. My argument is just that Bernstein ignored what the abolitionist argument actually said, attributing a principle to it that it does not hold.

Now if there were a principle within that abolitionist argument that I could speculate upon, then it might be something like this: “We should not intentionally and directly kill a prisoner for a crime, because he might later be exonerated.” This principle is not undermined by the abovementioned example of war, for its scope of reference and justification is limited to situations involving prisoners and judicial proceedings, not acts of war.

But still, I need to say something about what Bernstein writes. Consider his quoted statement, the one I last quoted. He writes that war “almost invariably involves” intentional deaths of innocents. His support for this? He says this: “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.”

That statement is suspect. If the doctrine of double effect is correctly deployed, the only intended deaths of innocents in that statement are those who are killed by the wicked soldiers. But the deaths of innocents intended by those wicked soldiers are neither involved with, part of nor caused by a just war. These deaths are the direct and intended ends of perverse and evil men who act independently of the just war and its efforts.

Let me be clear on this. If a wicked soldier rapes an innocent and kills her to protect his crime, then we can say that this killing happened during a just war, but not that it is part of the just war itself. Instead, the soldier is just taking advantage of an opportunity created by the war, acting not as a soldier, and acting not in his duty, but as a criminal and a murderer. He acts alone. He is the relevant cause, not the war itself.

So I reject this idea that just war causes or “involves” the intentional deaths of innocents in any morally relevant sense – this is a contradiction in terms. It is just that some perverse and evil people take advantage of certain opportunities during war, just as they do elsewhere in life.

Bernstein elaborates:

As I wrote in the original piece, there are always going to be bad apples in any army. Some soldiers are going to rape and murder. Murder involves not only intentionally killing a person who happens to be innocent, but, usually, intentionally killing an innocent person who is known by the aggressor to be innocent. When a soldier intentionally kills an innocent person whom he rationally believes is a terrorist, he doesn’t murder him. But when a soldier intentionally kills a woman merely because he doesn’t want her to report his act of rape, he does murder her.

In just wars, the latter kind of killing happens all the time. It happened regularly in the Second World War, for example. (Of course, just wars can include injustice.) This kind of risk to innocents is substantially more wicked than the kind of risk that’s associated with capital punishment since capital punishment in the United States virtually never involves murder. It is far more analogous to a soldier intentionally killing a person who happens to be innocent than intentionally killing a person who’s known to be innocent. To my knowledge, executioners never kill people they believe to be innocent; they invariably kill people they are justified in believing are guilty of heinous crimes.

The argument here is that in waging war, the risk of wicked soldiers intentionally killing innocents increases, perhaps to the point where we can expect it to occur. I can grant this point. Waging war increases the chance of all sorts of lawlessness and even murder. It might even be probable that some of our own soldiers will commit murder. But I don’t see this as a successful rebuttal for a few reasons.

Firstly, as I said earlier, these actions are distinct from the just war effort  – they are not part of the just war. That is, if we are waging war justly, those are not our acts. We do not own them. They are the independent acts of bad men. So, again, I reject this that just wars can “include” injustice.

Objectors might point out that warring states cannot simply excuse themselves from any culpability, for they still had good foresight and knowledge that these types of acts will likely occur during war. But this objection won’t do: It only offers grounds to think that a state must have justified reason to wage war and that the state should educate its soldiers against these sorts of wicked actions, punishing rogue soldiers severely. So long as the state acts rightly and takes these measures, its act of war does not negligently increase that risk, which therefore implies that there is no culpability for that risk. So, in such a case, to whom does the culpability of that heightened risk belong? Most likely to the state who unjustly causes war or to the wicked soldiers themselves.

Secondly, while the risk of innocents being killed by evil men does increase during any war, even to a point of high probative value, the risk involved pertains to the actions that other men might choose to do, not with what we choose to do within the confines of just war. In contrast, if execute prisoners, those are our acts. Their death is the direct and intended end of our action; and so we take the risk of executing an innocent ourselves. Thus, there are two different risks at work. Let me enumerate them:

1. The risk of an innocent being killed by a murderous soldier (or as a casualty via doctrine of double effect).

2. The risk of executing a prisoner ourselves, but who is, in fact, innocent.

Bernstein concerns himself with risk 1 but risk 2 is the concern of the abolitionist argument. Both risks involve the chance of an innocent being killed, but only 2 takes the risk of an innocent being executed by our own hands. Bernstein seems to to treat 1 and 2 as if they are the same or relevantly analogous, but they’re not, because 2 involves much more of our directness, involvement and responsibility for that innocent’s death than 1.  Rather than suffer that risk (can you imagine the psychological ramifications of knowing you executed an innocent man?), the abolitionist argues that we should not take it at all, choosing life imprisonment instead.

Whatever we think of this argument ( I give it qualified success, reserving the death penalty for cases involving certain guilt), we need to distinguish it from the depiction offered by Bernstein. We should also, for reasons mentioned here, agree that Bernstein’s argument against it misses the point about the abolitionist argument – it’s about the risk of executing innocents ourselves, not the risk of innocents dying or being killed by wicked people.

Let us move on. Regarding the abolitionist argument that we should seek life imprionsment and not take the risk of executing an innocent, Bernstein says this:

In any case, this response is weak. It counts just as plausibly as an argument against the very kind of punishment Hulk endorses, for I might just as easily assert without argument that the risk of wrongly imprisoning someone indefinitely is too great when this person could just be imprisoned temporarily. Life imprisonment is a miserable punishment. The risk of condemning innocents to a life in prison is much greater than the risk of executing innocents. It is difficult to see why the risk of killing a very small number of innocents is unacceptable but the risk of ruining the lives of substantially more innocents isn’t. Life imprisonment and executions aren’t the only ways to prevent recidivism even if they are the easiest, so that clearly can’t be the reason why life imprisonment is permissible given the far greater risk of injustice.

As I said in my first response, the reason why life is so important and the risk is so great is that life is the basis for any and all goods, save those in the afterlife. Thus, if we take a person’s life, then he has no possibility for any further goods or a future, because he has no life. All is lost for him. He has no further goods, hopes, future, and redemption, because he is dead. That’s partially why murder is the greatest crime you can do to a person – you’d take away the possibility for any of his further goods. Thus, capital punishment, though it is not murder, still takes a significant risk, because it removes the basis of all further goods for a person, ending his life. In fact, no other punishment within the US justice system has a parallel risk, for no other punishment takes away the possibility for further goods.

Compare that to life imprisonment. Could Bernstein reason similarly? Does my logic apply just as well to life imprisonment? Nope! If a person is innocent but wrongly convicted, life imprisonment does not take away the basis or potential for further goods. He still has a chance and potential for those goods, a future and free life, because he is alive. Thus, all is not lost for him. Consequently, Bernstein cannot plausibly argue that my logic applies to life imprisonment, because my reasoning about the value of life and significant risk of taking a life does not apply to life imprisonment.

In his rejoinder, Bernstein proclaims that he has already answered my argument with a statement in his earlier reply. He points his readers to this statement:

At this point, abolitionists often bring up the unremarkable observation that executions are irreversible. This is unremarkable because any punishment is irreversible, for time itself is irreversible. No prisoner can get back the time that was taken from him, even if he’s released before he dies. An innocent man who rots in a prison for his entire life before dying cannot have his punishment reversed. He can’t even be compensated.

But this is confused. My point is not about irreversibility. It’s not about undoing what is done. Instead, my point is that execution removes the potentional for any further goods. It’s about allowing for the possibility of future goods and freedom upon the discovery of innocence. Dead men don’t have that potential – they don’t have the chance for any further good, but men who are imprisoned for life do, at least until their natural deaths.

Bernstein writes:

 

It should be clear why Hulk’s suggestion doesn’t succeed. Some innocents sentenced to life imprisonment may be given back their freedom, but most won’t. Most will rot and die in prison just like most on death row will rot and die in prison.

Hulk’s suggestion is just as true for death row inmates: before their sentence is completed, they can be given back their freedom, offered an apology, and be given reparations. It is entirely possible to exonerate a man before he’s executed, just as it is entirely possible to exonerate a man before his life sentence is completed (that is, before natural death). That’s why, in both cases, we have an appeals process. It’s true that an innocent who is executed can’t be given anything, but neither can an innocent man who dies in prison as a result of being condemned there for the entirety of his natural life.

This is wrongheaded and misses an obvious point. Suppose two twenty-year-old men are charged with capital murder for the same incident. They’re both found guilty: One gets life imprisonment and the other gets death. But suppose they’re both actually innocent. They tried to appeal, but it doesn’t work. 20 years after their conviction, the execution of the second man is performed. He’s now dead. 2 years after that, the real killer admits his crime, and he provides sufficient evidence exonerating the two men. The first man is then released, and though he is 22 years older, he still has a chance to pursue his goods and to have a life, because he is alive. What about the second? Nope. That dude is dead. He doesn’t have the chance for any further goods, because he’s dead. You can’t apologize. You can’t give him back freedom. You can’t allow for him to pursue his own goods. Nothing. Because you killed him. Had that condemned man been given imprisonment for life, he likely would have been able to pursue goods and life outside the prison system.

So what Bernstein seems to miss is that the man sentenced to imprisonment for life (here understood to mean his natural life) always has the potential to pursue further goods and the potential for freedom until his natural death.  That can’t be said of the doomed man mentioned earlier – he only had that chance until the state ended his life unnaturally.

Let me further this point: Between the years 2005 and 2013, if an inmate was executed within the US, the average time between his sentence and execution was about 14 years (see here). If any of those executed inmates were innocent, they would have had more time to be exonerated and pursue further goods if they had been sentenced to imprisonment for life, because they would have likely lived until their natural deaths. Hence, we can roughly put the point like this: Men sentenced to imprisonment for life have until their natural deaths to be exonerated and pursue further goods, but not all men sentenced to die have until their natural death to be exonerated and pursue further goods.

Suppose Bernstien replies that the man sentenced to imprisonment for life has the potional to pursue his goods until his natural death only because he has not yet served the entirety of his sentence while the executed man has. If Bernstien made this point, then he’d be right. But so what?  He’d only help me accentuate an advantage of being sentenced to imprisonment for life: Innocent lifers can gradually serve their sentence throughout their natural lives, giving the justice system up until their natural deaths to correct itself, but that is not so for death row inmates. If we concentrate on the fact that the completion of a life sentence leaves a man with the same potential to pursue further goods as a man who was executed (which is to say, no potential at all), we overlook the fact that only life sentences afford the innocent man the time until his natural death to be exonerated. Thus, it is the fact that life sentences are served gradually and until natural death that gives them their advantage for the innocent. We should not lose sight of that.

 

Let’s move on. Bernstein writes:

 

In response, one might be tempted to point out that there’s more time to exonerate someone if he’s sentenced to life. One should resist this temptation. This will depend on the person for a variety of reasons: age, health, etc. The man sentenced to death at 18 will have many more years to clear his name than the man imprisoned for life at 70.

 

Well, sure. If we isolate our attention to specific cases, then it might be that a condemned man has just as much time to prove his innocence than he would if he were sentenced to life imprisonment. Why is that? Because he might only have 1 year left in his natural life, which is not enough time to execute him in the modern day United States (though in early America, he would have been executed within weeks). Thus, this condemned man would have had just as much time to clear his name than if he were sentenced to life in prison. Likewise, an elderly man at the age of 80, just sentenced to life, would have less time to be exonerated than a 20-year-man, for that elderly man will likely soon die a natural death, but the 20-year-old man will likely not die as soon. Fair enough. But, again, so what?

It is still true that life imprisonment gives some people more time to be exonerated than they would have if they were sentenced to death. The same cannot be said of the death penalty – a man condemned to death never gets more time to be exonerated than he would have if he were sentenced to life imprisonment. He either gets equal time (natural death) or less time (state execution), but never more time. For the innocent, that’s an advantage of imprisonment for life. This is a point that Bernstein seems to miss.

Secondly, that comparison between a 70-year-old man and an 18-year-old man misses the point of the objection, hinging on the short time left in older man’s life. This comparison almost seems constructed so that it can miss the point. If the same scenario involved another 18-year-old instead of a 70-year-old man, the abolitionist’s point becomes crystal clear: The man sentenced to imprisonment for life likely has 50+ plus years to exonerate himself, that is, the rest of his natural life, but that other 18-year-old man does not. If the appeals don’t work, then it is likely that he will be dead within 15 years or so. (1)

So that’s about all I need to say. I know that I have not here responded to Bernstein’s defence of his positive argument for the death penalty. I’m going to reserve my response to that argument for another blogpost within the weeks to come, one that focuses on the state and its judicial justification. I conclude that these rebuttals against the abolitionist argument remain unsuccessful.

 

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Endnote

(1) On a side note, one not strictly relevant to my dispute with Bernstein, this issue opens up another problem to exploit. If the current system takes about 15 years or so to execute a prisoner, which is a period of time usually caused by backlog and appeals necessary to help ensure guilt, then it is quite arguable that some prisoners endures a great deal of suffering and cruelty, because, for those years, they would endure “the anguish and mounting tension of living in the ever-present shadow of death.” In fact, the European Court of Human Rights affirmed that even 6 to 8 years of that wait is contrary to human rights, which is almost half that of the current wait time in the USA. But, if we don’t have a comparable length time, or longer, then we greatly shorten the time available for new evidence, which might increase the risk of executing innocents.  The problem, then, is ensuring that the inmate doesn’t endure cruelty while also ensuring his right to appeals and time for exonerating evidence. That’s no easy fix. My own solution is something like this: (1) Reserve the death penalty for those cases where guilt is certain and innocence is untenable and (2) give way to death penalty cases in any waiting period.

 

 

 

 

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