On Sunday, Pope Francis made a stunning appeal to the world’s governing class to abolish the death penalty. In our corner of the world, the machinery is already in place to do just that. Just last year, on the Supreme Court’s final day in session, Justice Stephen Breyer issued a forty-page denial of the constitutionality of the death penalty.
In addition to showcasing judicial cleverness — choosing the Court’s final day to attack that most final of punishments — Breyer’s opinion telegraphed what will be the Court’s next offensive against what it deems a relic of outmoded morality. Indeed, there is reason to believe the death penalty’s days are numbered. Consider the following: Breyer’s dissent was joined by Justice Ruth Bader Ginsburg, which means only three more votes are needed to secure a victory. Though they didn’t sign their names to Breyer’s dissent, is there any doubt as to how Justices Elena Kagan and Sonia Sotomayor will vote? If those votes are indeed secured, only one additional vote is needed to abolish the death penalty. Justices John Roberts, Samuel Alito, and Clarence Thomas won’t support the measure, making it likely that Justice Anthony Kennedy is again left to decide matters. Justice Antonin Scalia’s death throws some uncertainty into the question, since it is not yet known who will replace him. But it cannot be denied that abolitionism now has a plausible path to victory. Breyer’s dissent should therefore not be seen as a purely academic exercise, but rather as the opening salvo of the Court’s coming examination of capital punishment.
Breyer’s opinion thus coincides with a positive political moment for abolitionism: in addition to the Pope’s recent comments, the reality is that Republican support is decreasing. On top of that, a report from last year suggested President Obama could soon try to use his political capital to help overturn the death penalty, a practice he finds “deeply troubling.” Although Democratic frontrunner Hillary Clinton affirmed the death penalty in a recent debate, her support for it was so qualified it hardly registered as an endorsement of it. Now is therefore the perfect time to ask: Should conservatives support the death penalty?
Throughout history, capital punishment has been justified on a number of grounds. Some, such as the philosopher Immanuel Kant, adduce philosophical arguments to show that it is the punishment that justice demands. Others, such as the economist Isaac Ehrlich, support capital punishment on empirical grounds, arguing that it is better than alternative punishments in securing socially desirable outcomes, such as the safety of the population. Conservatives have challenged both claims.
In an article for Bloomberg View, Ramesh Ponnuru makes his case for why we shouldn’t be executioners.
The state has the legitimate authority to execute criminals, but it should refrain if it has other means of protecting people from them…. We shouldn’t execute people. But not because we might hurt people in the process, and not even because we might on some very rare occasion kill innocent people. We shouldn’t execute people who are unquestionably guilty because we don’t have to do it.
Writing in the wake of Oklahoma’s infamous botched execution of 2014, readers might have expected Ponnuru’s argument to rely on the gruesome reports of the pain experienced by the murderer. But Ponnuru’s preeminent concern is the safety of society at large, which is reflected in his view of punishment as essentially being a means of optimizing this safety. Since we can achieve this outcome without recourse to the death penalty, we should abolish the practice.
Unfortunately, Ponnuru misunderstands the nature of punishment. Asking “Should we allow capital punishment?” is a good question, but it follows the conceptually prior question, “How should we view punishment?” If we want clarity concerning particular forms of punishment, we should first clarify our stance on punishment more generally.
Let’s make a distinction between backward-looking and forward-looking conceptions of punishment. These are not value judgments; “backward” here is not intended pejoratively, and “forward” is not being used as a term of praise. Rather, a backward-looking conception is one that focuses on the act — which has already occurred, and is thus in the past — in order to determine which punishment is needed to redress the balance of justice in society. A forward-looking view, for its part, asks how we can, through the instrumentality of punishment, harness the state’s monopoly on legitimate power to generate socially beneficial outcomes. This is not a new debate: for a long time Immanuel Kant’s retributive theory of punishment has gone up against John Stuart Mill’s utilitarian conception.
Ponnuru’s conception is entirely forward-looking. Though he is not a utilitarian, when Ponnuru offers the safety of society as his main criterion, this overrides a consideration of the nature of the act committed. Of course, looking back at the act itself does not force one to support the death penalty. Ponnuru could look back and find that the act in question only merits a sentence of life without parole. The problem is that Ponnuru does not build into his calculus the importance of looking back. The result is a view that sees punishment primarily as a vehicle for social improvement, and only secondarily as a justice-restoring mechanism.
But of course punishment need not be viewed unidirectionally. Ponnuru is wrong not because he adopts a forward-looking conception of punishment, but because he ignores the most salient aspect of punishment, which is that it serves as a response to an act which deserves or merits it. Again, his mistake is not that sees in the mechanism of punishment the capacity to achieve socially beneficial outcomes. His error is to fail to appreciate punishment’s primary role as a justice-restoring apparatus. As the philosopher Igor Primoratz wrote, “the offense is the sole ground of the state’s right and duty to punish.”
The deficiencies in Ponnuru’s view are teased out by a simple thought experiment that has its origins in Kant. Under Ponnuru’s understanding, if suddenly everyone on earth disappeared save for one person who had committed a murder and was awaiting execution, the justification for the murderer’s death sentence would have disappeared along with the people. Since there is no longer a society to keep safe, there is no longer a reason to punish the wrongdoer. But there is something off about this result. Many of us would conclude that the murderer has done something that merits punishment, regardless of whether there is a society left to deliberate about it or not.
Over and above his neglect of a retributive rationale for punishment, Ponnuru also fails to give any support for his empirical claim that the death penalty is not needed in order to maximize safety. On the contrary, a regime which bans capital punishment is one in which the surpassing value of life is insufficiently respected. To keep the death penalty option off the table is to tell society that wanton destruction of human life is not taken seriously enough to warrant the forfeiture of the offender’s life. This can’t help but lead to a depreciation of life in other respects. By contrast, when the state holds up life as so valuable, so precious, that to wrongly take it is to forfeit one’s own, it broadcasts to all its members the significance of life. Thus it’s the death penalty and not life imprisonment which best reflects life’s weightiness and resists its devaluation, and a state which includes it joins that class of governments for whom murder is not just murder, but desecration.
Jay Sekulow, of the American Center for Law and Justice, is another conservative who opposes the death penalty. He explains:
I’m opposed to the death penalty…because…the taking of life is not the way to handle even the most significant of crimes…Who amongst anyone is not above redemption? I think we have to be careful in executing final judgment. The one thing my faith teaches me—I don’t get to play God. I think you are short-cutting the whole process of redemption…I don’t want to be the person that stops that process from taking place.
Sekulow’s reasoning is in one sense commendable but in another quite baffling. He introduces theological considerations, a move that is most welcome in a world aggressively hostile to their application in the public square. Yet since redemptive concerns are not, under any theological framework I’m aware of, relevant to the justification of punishment in a legal sense, Sekulow’s challenge to the death penalty cannot be seen as a serious one. What do the redemptive prospects of the wrongdoer have to do with a punishment’s justification? The death penalty is not a ministry. Sekulow’s bizarre spiritual concerns aside, his argument is ultimately a moral one. He sees a moral problem with “the taking of life” in response to even the worst of crimes.
The basis for the death penalty, under a retributive theory of punishment, is the lex talionis, or eye-for-an-eye principle. Part of the reason for retributivism’s association with Judeo-Christian ethics comes from formulations such as Numbers 35:31, which says “You shall accept no ransom for the life of a murderer who is guilty of death; but he shall be put to death.” This suggests what makes a punishment right is its retributive function; in this and all cases, the offense requires a proportionate loss to be inflicted on the wrongdoer. Since human life is invaluable, no amount of money can be given as “ransom.” As the philosopher G. W. F. Hegel put it: “Since life is the full compass of a man’s existence, the punishment [for murder] cannot simply consist in a ‘value’, for none is great enough, but can consist only in taking away a second life.”
Contrary to Sekulow’s suggestion, what is most secure about capital punishment is its moral justification. What continues to be the strongest case against it stems from procedural or practical concerns, not from theoretical ones. Our biggest problem is that human error is ineradicable. We can put in place a blinding number of safeguards, we can implement all the accountability measures our imaginations can dream up, yet the possibility that new injustices will nevertheless occur cannot be ruled out. Justice Breyer’s recent dissent is awash with such instances. In 1972 the death penalty was ruled unconstitutional based on these very concerns. Since then Congress has rehabilitated it by implementing reforms intended to avoid the worries that led to its judicial disrepute all those decades ago. If Justice Breyer is right that today’s version violates the eighth amendment’s ban on cruel and unusual punishment (see Scalia’s rebuttal to Breyer’s application of the eighth amendment), it is unclear whether capital punishment will be able to enjoy another revival, since such a conclusion would involve pessimism about the death penalty’s ability to ever be able to eliminate its inequitable and arbitrary implementation.
Justice Breyer’s argument that it is unacceptable for racial, geographical, and economic factors to be more decisive in capital cases than the offender’s culpability should resonate with all of us. Still, we need to recognize that this is not an argument against the death penalty itself, but rather against our non-ideal implementation of it. As long as the death penalty’s greatest challenge remains fundamentally procedural rather than philosophical, the Court’s arguments won’t go any distance toward impugning the rightness of capital punishment. We’re all too aware by now that what the Justices declare is not necessarily what justice declares.
*The view expressed in this commentary belongs solely to the author and is not necessarily the view of the ERLC.