Like all fundamentalist ideologies, the American right is guided by moral absolutes. Abortion is murder; homosexuality is evil; taxes and big government are always bad; terrorists hate America, etc. To be able to support such absolutes, the faith-based epistemology has to be rooted in rigid and precisely defined categories. For example, for the fundamentalist everyone is either a man or a woman, and the difference between the two can be clearly delineated. The birth of natural transgender individuals is therefore understood not as a normal human state, but as a birth defect that should be corrected.
Often moral discriminations are based on changes over time. For example, small children shouldn't drink alcohol whereas adults can. For the fundamentalist these too have to be honed down to exactly discernible moments. As I have previously argued, some of the resistance to gay marriage is the idea that the marriage event legitimizes sex. Sex is completely wrong before the priest says "man and wife," and perfectly OK after (although not immediately after, of course). Likewise opposition to abortion is based on finding a moment in time that can mark the start of life. Since conception can be treated for all intents and purposes as instantaneous, unlike the long gestation period afterword, it acts as the all-important dividing point between inflexible moral categories.
It turns out, however, that nature doesn't actually have any of the hard boundaries that we as humans tend to perceive. Apparently stable objects are fluid and ever-changing. Species blend gradually from one to another, populations and genes overlapping in complex ways with infinite possible intermediate forms. Science has even broken down the seemingly paradoxical distinction between waves and particles, and at last the Cartesian citadel -- the boundary between mind and matter -- is starting to show cracks. Our best ontology is statistical. No wonder the fundamentalist right hates science.
Liberal morality is, as one might expect, more reality-based. It takes into account that reality has wrinkles and exceptions, and works instead to find a balance between a set of complementary principles. These principles, developed carefully over time, may at times conflict over specific issues in which case judgment is required. These conflicts may result in adjustment and revision, particularly as we discover new knowledge and develop new sensibilities. But this is not, as Pope Ratzy recently opined, a "dictatorship of relativism" which "recognizes nothing definite and leaves only ones own ego and ones own desires as the final measure."
The so-called "culture of life" we hear so much about rests on the absolute and sharply defined boundary between that which is human life and that which is not. That which is, is a priori valuable and must be preserved at all cost. Abortion and euthanasia are clearly outlawed under such an ethic, since they destroy human life in some, albeit limited, form. But what of capital punishment? Clearly it also destroys human life, and the Catholic Church and the new pope have taken the consistent position of opposing state-sponsored homicide.
And yet, within the uniquely American version of this life cult, the virtue of capital punishment is an article of faith. This presents a significant opportunity for those who would argue for liberal morality and Enlightenment ethics not only to emphasize an obvious inconsistency in the religious right's so-called morality, but to show the functional superiority of our supposedly "relative" system of ethics.
Judicial punishments of all kinds must advance justice. The systems used to deal with criminal actions derives from what I like to think of as "the four R's."
1. Removal. The first priority must be to get the perpetrator away from his potential victims.
2. Restitution. Any harm that has been done should be undone as fully as possible. Damage should be paid for, and anything stolen should be returned.
3. Rehabilitation. The perpetrator should be, if possible, allowed to return to a useful, positive role in society.
4. Restraint. The punishments for crimes should be effective at preventing future crimes of the same type. (This is more commonly called "deterrence" by those without an overweening drive for alliteration.)
These principles are not "relative" in any way. I would use the same standards judging how we as a nation deal with criminals as I would to how historical groups or other cultures do, and I would certainly apply the principles uniformly regardless of the criminal or the nature of the crime. The analysis is simply not one of black and white, but of shades of grey. We can evaluate capital punishment against these measures and see where it contributes to justice and where it does not.
1. Removal. This is entirely a function of how quickly police and other law enforcement first responders act to interceded in situations which could be dangerous for either party. It's possible that in self-defense some alleged perpetrators may be killed, and the justice system must decide on a case by case basis if the use of lethal force was justified, but the police are there to stop crimes, not execute people.
2. Restitution. It's not possible, no matter how many fines are paid, nor how many humiliations the murderer suffers, to return the dead to life. Executing the person responsible makes no difference in this regard.
3. Rehabilitation. Capital punishment has nothing to offer in terms of returning an ex-con to civilian life. It is actually quite counterproductive for that goal.
4. Restraint. The best argument that capital punishment advocates can make is that at least they deterred one person from committing a second crime. Beyond that there is very little evidence that killing killers actually stops other people from killing. Everyone knows that murder is wrong and that if they are caught they will be punished. No empirical study supports the hypothesis that the threat of death, relative to other types of punishment, acts as a deterrent for potential murders.
Everyone has a natural desire for revenge. When we have been wronged we fervently wish to see the one responsible suffer in return, perhaps in an ironically symmetric way to the suffering they caused us. But one 'R' that's not on this list is Retribution. While it may be a normal urge, vengeance is not the province of a state system of justice. While "tit for tat" may be employed in everyday social interactions, it cannot be enshrined as the model for a justice industry. The state must look out for the welfare of all its citizens, so we have to devise a more modern set of principles.
There is a final principle we must address -- the 8th amendment's prohibition against "cruel and unusual punishment" (and "excessive fines" may also apply here, if you consider life valuable). Given that capital punishment does little to further the purpose of justice, and may even undermine it, it's clear that this type of punishment is egregious and unnecessary. It serves only vengeance, and vengeance is always cruel.
The right wing obsession with the death penalty is only the policy tip of a giant iceberg of violence. You don't have to wade very deeply into the far right's publications and discussion boards to see it. You find threats of violence against doctors, threats of violence against judges, defenses of torture, apologetics for internment camps, even prayers to God to inflict nasty diseases on prominent liberals. What justifies the viciousness of the "culture of life?" It hinges on guilt and innocence. Another knife-edged, black or white distinction, innocent lives are to be preserved and protected at all costs, while the guilty deserve death or worse. Recently for the extreme right, more and more people are getting on their naughty list.
But this absolutism leads to its own contradiction. If executing the innocent is an absolute evil, and if the system of capital punishment sends even a single innocent person to their death, then the entire system itself must be evil. With the wave after wave of new evidence showing significant numbers of convicts on death row have been falsely convicted, anyone who takes their commitment to preserving life seriously should be appalled. Their own insistence on absolutes puts the right in this moral bind, already one with divides Catholics and evangelical Protestants. Capital punishment and the state execution of the innocent can be a wedge issue inside the pro-life movement, and can work to split the Republican base. We should be exploiting it.
The 8th amendment taken in broad terms declares America to be a merciful nation, not a vengeful one. It counsels that if we can lessen punishments or treat the accused with greater compassion, we should. This is a noble sentiment for a great country. Within the bounds of the social goals and the ethical principles of justice, capital punishment is excessive and unnecessary, and should be abolished.
- jack*
I came over here from Paperwight's fine blog. This is most excellent. Much I've read so far here is but this in particular I'll be saving. I look forward to reading more from you in the future. The point you make in your penultimate paragraph I've seen made rather elegantly by Katherine of Odsidian Wings concerning the latest spewings from Volokh (I don't think it was a post on OW, but rather made in comments, maybe on CT or elsewhere).
Like everything else in the absolutist Manichean universe of right-wing moralism, the appeal is to emotion, and not reason. Which makes it even more of a contradiction as classical traditional notions of Western Justice are the locus which manifest the West's highest valuation of reason: balance, impartiality. Justice is blind because impartial and treats all as equivalent in her domain, the right seems to think of it more along the lines of blind rage.
On the 8th amendment, in particular, the latest Supreme Court ruling which had the right sputtering in outrage that Justice Kennedy cited, among other things, international legal opinion, I thought once again it was evidence of the right-wing's lack of reading comprehension skills.
I can take the most "strict constructionist" or literalist reading of the 8th and come down on Kennedy's side. And my argument would be a far more literal reading than theirs. To wit, it is bordering on moronic to read "cruel and unusual" as binding contemporary American jurisprudence to the set of known and approved 18th century punishments. These fuckers really don't know how to read. In keeping with the principles of their reverenced strict constructionism and literalism I would direct them to look up the word "unusual" in an 18th century English dictionary, say Samuel Johnson's (published in 1755, I believe) and I would then ask them to apply that meaning as it was understood by our much fellated Founding Fathers and see if they can then justify any other outcome. Morons.
Posted by: Barry Freed | May 02, 2005 at 11:16 AM