In a recent post, Professor Gad Saad argued that "the only barbaric attitude is one that suggests that there is not a single act that an individual can commit that would make him lose his right to live." I would like to defend this attitude.
My premise is that for the state to take a convicted felon's life is an extraordinary step. Hence, it is extraordinary to have a law that allows or even demands execution. Extraordinary acts and laws that support them must pass a high threshold of acceptance. The burden is on their supporters to make the case that execution of an individual is necessary for the collective good. I am deliberately framing the problem with a ban on the death penalty as the default. Professor Saad attempts the opposite. He appeals to evolved instincts of bloody revenge as the default. In his view, death-for-death is natural, and it is upon the opponents of capital punishment to prove that executions do more harm than good. I think this frame is flimsy. Where is the evidence for the instinct to kill a killer? A psychological desire for retribution does not necessarily demand that the punishment be the same as the crime. If it were so, killers should be killed in the same way that they killed their victims. This can lead to difficulties. You can't, for example, kill a mass murderer several times. If your desire for proportional retribution were the guide, you might ask the law to torture serial murderers before killing them. And if so, the final execution might be seen as a coup de grace, thereby subtly undercutting the goal of maximal suffering. Also, it seems to me that Professor Saad's appeal to vengeful desires would entail that the injured parties themselves perform the execution. His view does not provide an explanation for why the state should be empowered. Indeed, the delegation of the power of punishment to the state is a feature of that civilization which Professor Saad decries as being out of sync with evolutionary biology.
Professor Saad's case consists of an introductory example of crime and punishment, followed by six arguments against capital punishment, each with a rebuttal. Let's consider the sample crime first. The Connecticut brutalization of an entire family is heinous. It is chosen to inflame the emotions and to shortcut rational thinking. Instinct says "Kill the offenders, and do it slowly." It is also the oldest ploy in the book of capital punishers. If you don't support execution in a case like this, you must be asking for the end of society. Professor Saad also-rhetorically-pulls the "majority-wins" card. He writes that "most people (myself included) have absolutely no qualms with the notion that these inhumane beasts are likely to be executed for their crimes." Do you really want to be in the dissenting minority? I, for one, have no problem with that. Professor Saad goes on to raise the counter-argument that "most "civilized" nations have abolished capital punishment." Please note that he does not refute this argument. Shouldn't Europe, for example have fallen into barbarism?
Now for the six arguments against capital punishment, as presented and rebutted by Professor Saad. I quote his text in italics and add my re-rebuttal.
(1) Innocent people are oftentimes found guilty. As such, the possibility that a single innocent person might die is sufficient to abolish this practice. Here is my rebuttal: This is certainly a very serious concern that can nonetheless be addressed by ensuring that the legal criteria that need to be met for imposing the death penalty, are made much more stringent. For example, if your DNA is found on the murdered and raped bodies of four children then it is unlikely that you are an innocent (or framed) defendant. In other words, we can make the triggering criteria for capital punishment such that it becomes next-to-impossible for innocent people to be put to death.
Professor Saad acknowledges that the execution of innocents is a great tragedy, but he is confident that it can be avoided. Where is the basis of his confidence? Without evidence, it sounds like wishful thinking. Shouldn't the error rate have dropped to zero by now with all the advances in forensic science? And even if it has, how do we know that the false positive rate will stay at zero? How do we know that the state will not abuse the power to kill?
(2) The death penalty fails as a deterrent. My rebuttal: Notwithstanding the fact that I am not a lawyer I do not believe that the penal code is primarily meant to serve as a deterrent to future criminality. Punishment is de rigueur rather than deterrence. Humans have evolved a repertoire of emotions that served as adaptive solutions to problems of evolutionary import. One of these emotions is the universal need for revenge. This is such a pervasive element of the human condition that it constitutes one of the seven deadly sins. In other words, our human nature is so predisposed to seek retribution that moral philosophers and theologians alike have tried to temper our drive to punish those who harm us. As a civilized society, we have agreed to "subcontract" our vigilante desires to the state. However, our need for the most extreme of retributive justice does not suddenly disappear because we are a "civilized" people.
The argument that punishment should serve as a deterrent is rational, consequentialist, and utilitarian. Alas, the evidence does not seem to support it, and Professor Saad does not dispute this. We must empower the state to kill, he says, because that's what the desire for vengeance demands. But why? What would happen if we did not give the state this power? Professor Saad has nothing to say on this. Desires, he seems to think, just must be satisfied. Period.
(3) The death penalty is applied in a racist and biased manner. My rebuttal: If the legal criteria for the imposition of the death penalty are made more stringent in line with my first rebuttal, this should resolve (or greatly attenuate) this problem.
The biased administration of capital punishment is a huge scandal and human tragedy. It is proof that the state has not been able to reform its practice. Again, Professor Saad brushes away concern by appealing to a utopian future in which the meting out of punishment is error-free. In the meantime, go forth and execute.
(4) Murder is murder irrespective of who commits the act. My rebuttal: This is undoubtedly the weakest of all anti-death penalty claims. According to such moral relativism, the Nazis exterminating Jews at Auschwitz is no different than the state putting a recidivist child killer to death.
Actually, to equate execution with homicide as murder is not relativistic, but categorical. It is relativistic to say that sate-sponsored killing is morally justified. And if you didn't notice the irony, let me point out that millions of the murders committed by the Nazis were committed in the name of the state, in the name of the law.
(5) An individual who commits a heinous crime must have been "damaged" by his environment. Hence, there are always mitigating factors that can be used to "explain" any crime. My rebuttal: Child abuse is oftentimes used as a mitigating factor. Apparently, having been abused or neglected as a child might explain why you end up stalking a mother, killing and raping her, molesting her young daughter, killing the two daughters, beating the husband with a baseball bat, and setting the house on fire. Needless to say, millions of children are abused every year, and yet few end up becoming sadistic rapists and killers. As a matter of fact, several infamous serial killers have testified to the fact that their childhoods were bereft of any abuse. Incidentally, humans have free will. Hence, it is difficult to argue that an individual's past, irrespective of how difficult it might have been, forced him into a life of heinous criminality. This would be tantamount to environmental determinism, which is ironic given that those who believe in such determinism abhor so-called genetic determinism (which contrary to popular belief, no serious evolutionist argues for such a position)!
This whole point is, well, beside the point. Defense will take many forms, and defendants and their attorneys will do what they can to make use of them. The law provides for extenuating circumstances and it can vary the severity of the punishment. The question is whether capital punishment should be an option. Professor Saad seems to suggest-unless I misunderstand him-that we should not worry about any responsibility-reducing arguments. Kill and thou shalt be killed. And that should be so because killers have free will. Now, how do we know that? In fact, there is no evidence for free will whatsoever. It is a religious doctrine, debunked a mind-boggling number of times since Spinoza. And again, Professor Saad overlooks an irony befalling his own argument. He grants perpetrators free will, but not the rest of us. Remember, we are just driven by evolved instincts of retribution. It almost looks like he is arguing for the elimination of those more highly evolved. But that can't be right. Right?
(6) Only God has the right to impose such definitive punishments. My rebuttal: Many are unwilling to subcontract this task to Him, or wait until the "afterlife" for the ultimate justice to be truly served. We live in the here and now. Hence, waiting for the afterlife is a gamble that many are unwilling to take.
As I do not believe in divine justice, I cannot re-rebut this argument. I do think that convicted murderers must be punished. But there are options other than killing. Plus, they are less expensive. If pressed to bring a religious authority into the mix, I go with the Dalai Lama. His Holiness holds that "It is always possible for criminals to improve and that by its very finality the death penalty contradicts this" (cited here).