When we are first introduced to the character of Sir John Falstaff, Shakespeare’s corpulent, cowardly, and corrupt comic relief of a knight, in Act I, Scene II of King Henry IV, Part 1, he and Prince Hal are trading jests and insults with each other in the prince’s London apartments. In the midst of this light-hearted banter, Falstaff asks the future King Henry V, a serious question.
But, I prithee, sweet wag, shall there be gallows standing in England when thou art king?
Before allowing the prince to answer he goes on to advise the heir apparent:
Do not thou, when thou art king, hang a thief.
This advice is entirely self-serving, of course. By this point in the scene we already know Falstaff to be one to “take purses” by the “moon and seven stars” and before the scene ends, he will have made arrangements to commit a robbery at Gadshill. The prince , in response to the advice says:
No; thou shalt.
Falstaff takes this to mean that he will be appointed a judge, but the prince quickly corrects him:
Thou judgest false already: I mean, thou shalt have
the hanging of the thieves and so become a rare hangman.
Upon hearing this, the rotund rogue immediately begins to re-evaluate his position on capital punishment.
There are strong arguments both for and against the death penalty and people who have strong opinions on both sides of the debate, hopefully for nobler reasons than Falstaff. I, for one, have held different views on the matter at different times in my life, and am of mixed opinion on it now.
When I was a youth, before I became a believing and practicing Christian, I thought that the anti-death penalty side had the stronger argument. What if the wrong person is convicted and we put an innocent man to death? This, I was convinced, trumped all other arguments.
I still think that this is a strong argument. It was largely because of the wrongful conviction argument that Great Britain abolished the death penalty in 1969, after Sir Ludovic Kennedy published a number of books questioning the guilt of several people who had been convicted in highly publicized cases. The argument is derived, in part, from an ancient ethical principle found in the teachings of both Socrates and Jesus Christ. Socrates, in Plato’s Gorgias, argues that it is better to suffer an injustice than to commit one. (1) Jesus does not word it this way, but the same basic concept is there in His teachings when He taught His disciples not to seek revenge or to return evil for evil, but to love their enemies, forgive those who sin against them, and to turn the other cheek. If you suffer an injustice, i.e., are wronged by someone else, you may be harmed physically. If you commit an injustice, i.e., wrong someone else, you will , in addition to harming him, harm your own soul. This sound and ancient ethical concept is an essential component of the “wrongful conviction” argument against the death penalty.
The Socratic/Christian ethic, however, does not in and of itself require an anti-death penalty position. When an argument is made for or against a proposition, it can do one of four things. It can prove or disprove the proposition, or it can support or oppose the proposition without proving or disproving it. What makes the difference is the relationship between the argument and the proposition. An argument that proves or disproves a proposition –assuming, of course, that the statements in the argument are true themselves – is related to the proposition in such a way that if the argument is true, the proposition must of necessity be true or, if the argument is negative proof, false. An argument supports a proposition without proving it when it is related to the proposition in such a way that if true the proposition is also likely to be true. Similarly, an argument opposes a proposition without disproving it when the argument, if true, renders the proposition to be unlikely.
The Socratic/Christian idea that it is better to suffer an injustice than to commit one may make the proposition “we should not have the death penalty” plausible or even likely. Does it make it necessary?
The answer is clearly no. All that necessarily follows from it is the rather basic idea that we should not unjustly impose the death penalty upon someone.
To make the proposition “we should not have the death penalty” necessary, we would have to either a) demonstrate that the death penalty is intrinsically unjust, or b) demonstrate that our having the death penalty would make it inevitable that it would be used unjustly, i.e., against innocent people or people whose crimes did not warrant so high a punishment.
Can we demonstrate that the death penalty is intrinsically unjust?
No, we cannot, for the simple reason that we can prove the exact opposite, that in certain cases the death penalty is the very definition of justice.
Think about it. Let’s say that Joe Jones comes to hate his neighbor Will Wilson. He decides that the world would be better off if Wilson were removed from it and begins to plot his murder. Then one night, he carries out his plan in cold blood, and robs Wilson of his life. He is caught and arrested, brought to trial, and convicted for his crime. What would be a just sentence for such a crime?
The correct answer is that as he robbed a man of his life justice demands that he pay for his crime with his own life.
There are some who would dispute that answer. Their argument can be worded a number of different ways but they are all variations of the idea that “two wrongs don’t make a right.” It is true that two wrongs don’t make a right, but there is a simple reason why this cannot be used as an argument against the justice of the death penalty. It would be a circular argument for it would use that which it is trying to prove – that the death penalty is wrong – as a proof.
One way to try and get around that is to argue that it is always wrong to kill people, under any and all circumstances. This argument has the merit of consistency but it would seem to be made for a different world than the one we live in. If someone attacks you, with the intention of killing you, and the only way to prevent him from doing so is to kill him, is it wrong for you to kill him?
You could, potentially, answer yes on the basis of the concept referred to earlier that it is better to suffer than to commit an injustice. What if, however, it is not your life but the lives of others the attacker is threatening? What if the others who are threatened are people to whom you owe a particular duty of protection – your wife and children, for example?
There are sins of omission as well as sins of commission, and they consist of the failure to do that which one ought to do. It may seem high and noble to take the position that one should never take a life under any circumstances, but if you have the ability to save the lives of others who are dependent upon you by taking the life of someone who is attacking them, then surely it is a sin of omission not to do so. This means, that in these circumstances, it is right and not wrong, to take a life.
Now, showing that it is right in one specific set of circumstances to take a life, does not prove that it is right in another different set of circumstances. Showing that if it is necessary to take the life of an attacker to protect others it is also right to do so does not prove that capital punishment is right. What it does show is that killing is not wrong in all circumstances. If killing is not wrong in all circumstances then the universal, intrinsic, wrongness of killing cannot be used to argue that the death penalty is unjust because it is punishing one wrong with another of the same kind.
Sometimes the objection is made that taking the life of a murderer does not restore the life of his victim. This is a strong argument for those who think of justice primarily or solely in terms of the model of restoration. The flaw in this argument, however, becomes apparent when we take it to its logical conclusion. Is there any kind of penalty for murder that will restore the life of the murder victim? Of course not. Does that mean that murder should go unpunished? Perish the thought!
What this shows us is that justice must involve more than just restoration. The restoration model of justice may be sufficient for crimes involving the theft, damage, or destruction of property but it is completely inadequate for dealing with murder cases.
Justice has been an important subject of philosophical discussion since the days of Socrates and will likely continue to be so until the end of time. Whether we are talking about the way we treat other people, the distribution of common resources or goods, the settling of disputes or the administration of legal justice, the basic idea of justice is that of giving people that which they deserve. People, as members of a society, owe that society obedience to its laws. When someone is accused of breaking the law, it is the job of a judge to hear the accusation and the defense of the accused, in some cases to determine whether the accused is guilty (2), and to give the accused what he deserves – acquittal if innocent, a just sentence if guilty. The standard by which the judge determines what a just sentence is for a particular crime is the law itself.
In civilized countries we recognize that the law itself can be either just or unjust. A law can be judged just or unjust in one of two ways. It can be just or unjust in what it allows or forbids. Or, if it is just in what it allows or forbids, the penalty it prescribes for a particular crime can be just or unjust. It is only the second of these which is pertinent to this discussion.
Is a law that prescribes the death penalty for an offense just or unjust?
If justice means to give to someone what he deserves then clearly the answer to this question depends upon the nature of the offense. If the law prescribes the death penalty for a minor traffic infraction then it is an unjust law. If the law prescribes the death penalty for premeditated murder, on the other hand, then it is difficult to argue that the prescribed penalty is not deserved.
Indeed, by an ancient principle of justice that pops up throughout history in the legal codes of the most civilized societies, the death penalty is exactly what a murderer deserves. That principle is that the punishment ought to fit the crime. This principle has a number of implications. One implication is that the criminal should be forced to pay restitution to his victim when possible. If a man steals, damages, or destroys another person’s property, then he should be forced to return, repair, or replace that property. This is only possible for property crimes in which the injury done to the victim can be undone by restitution. There are other cases in which this is impossible. If a man rapes a woman, he cannot undo the harm he has done her. If a man murders another man he cannot bring him back to life. In these cases there is no restitution that can be made. For crimes like these justice must take the form of retribution. Another implication, of the principle that the punishment ought to fit the crime, is that the punishment a crime deserves is determined by the nature of the injury the victim of the crime suffered. If a man commits murder then the penalty he deserves is the loss of his own life.
If the death penalty is just for murder then it cannot be intrinsically unjust. Therefore, the only remaining argument that can necessitate the position “we should not have the death penalty” is the argument that if we have the death penalty, it will inevitably be used against innocent people. This might seem to be a very easy argument to make. Human beings are fallen, frail, and fallible. To argue from general fallibility for the inevitability of a particular error is not valid reasoning however (3). Furthermore, if it were a valid argument, it would prove too much. For if human error means that the death penalty will inevitably be used against innocent people, it must also mean that any alternative punishment will inevitably be used against innocent people. If this argument is valid against the death penalty, it must therefore be valid against all other penalties as well.
The wrongful conviction argument is therefore, not the infallible argument against the death penalty that I believed it to be at one time. My evaluation of the relative merits of the arguments for and against the death penalty changed when I realized that the arguments used against the death penalty can be used against the very idea of law and order itself. When I realized this, I realized that the death penalty was essential to criminal justice and the rule of law.
I have since encountered other arguments against the death penalty. These are not as strong as the wrongful conviction argument but I will address two of the more common ones. The first is that the death penalty is contrary to the Bible and to the teachings of Jesus Christ. The second is that the death penalty is inconsistent with the prolife position. Both arguments are addressed to specific groups of people – Christians and opponents of abortion – and assume the worldview held by those groups as part of the argument.
The argument that the death penalty is contrary to the Bible and the teachings of Jesus Christ is just plain wrong. Those who argue this most often point to the sixth commandment (4), the Sermon on the Mount and the story of the woman taken in adultery as evidence.
It is difficult to understand how anyone could honestly believe that the sixth commandment – “thou shalt not kill” – forbids the death penalty. This commandment and the other nine are part of a larger legal code. They are first recorded in the Bible in the twentieth chapter of the Book of Exodus. In the next chapter, the death penalty is prescribed for such crimes as murder, assaulting and/or cursing one’s father and mother, and kidnapping.
Now that same chapter, also includes a version of the ancient lex talionis, the standard of justice in which a man receives as punishment the injury he has inflicted upon another. By this standard, murder warrants the death penalty, and “life for life” is in fact the first thing mentioned in the version which appears in Exodus. Jesus is often said to have disagreed with the lex talionis on the basis of His words in the Sermon on the Mount, particularly those recorded in St. Matthew’s Gospel, chapter five, verses 38-42. In these verses He says:
Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also. And if any man will sue thee at the law, and take away thy coat, let him have thy cloak also. And whosoever shall compel thee to go a mile, go with him twain. Give to him that asketh thee, and from him that would borrow of thee turn not thou away.
Jesus, however, warned those who heard Him give this Sermon, against interpreting His words as disagreement with the Law of Moses. Verses 17-18 of the same chapter record Him as saying:
Think not that I am come to destroy the law, or the prophets: I am not come to destroy, but to fulfil. For verily I say unto you, Till heaven and earth pass, one jot or one tittle shall in no wise pass from the law, till all be fulfilled.
This warning comes just before the part of the Sermon in which Jesus six times introduces a quotation from the Law with “Ye have heard it said” and His own instructions with “But I say unto you”. In some cases, such as the commandments against murder and adultery, there is no apparent contradiction between Jesus’ own instructions and the Law. His instructions take the commandments further and apply them to a person’s inner thoughts and desires as well as to his outward actions. In the case of “an eye for an eye”, however, Jesus’ instructions appear to tell us to do the exact opposite of what the quoted commandment tells us to do. In this context, Jesus’ warning in verses 17-18 clearly means that we are not to think of His instructions as contradicting the Law. How is this possible?
The key to making sense out of all of this is verse 20 “For I say unto you, That except your righteousness shall exceed the righteousness of the scribes and Pharisees, ye shall in no case enter into the kingdom of heaven”. Everything that follows - the six “Ye have heard it said…but I say unto you” passages – is an elaboration on this idea that the righteousness which God demands of us is higher than that which the scribes and Pharisees taught out of the Mosaic Law. Therefore, when Jesus tells us to “resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also”, He is not contradicting “an eye for an eye” as a standard for courts of law in dispensing criminal justice, but telling us that we are not to follow it as a set of instructions about how to personally behave when someone wrongs us.
The scribes and Pharisees themselves, of course, misinterpreted Jesus’ teachings in the very way He warned against. When they came to Him, in the incident recorded in the eight chapter of the Gospel according to St. John, with a woman who had been caught in the very act of adultery and said “Now Moses in the law commanded us, that such should be stoned: but what sayest thou?” they did so, because they wanted to trick Jesus into contradicting Moses. To interpret Jesus’ answer “He that is without sin among you, let him first cast a stone at her” as opposition to the death penalty is to take His words as a contradiction of Moses which is to make the same mistake as the Pharisees who asked Him the question in the first place. He was not speaking to legal authorities with the job of enforcing the law and administering justice but to lay religious leaders who had come to Him in bad faith seeking something they could use against Him. His answer did not condemn the Mosaic Law and the death penalty but convicted those men of their sinfulness and self-righteousness.
To regard Jesus as an opponent of the death penalty, one must regard Him as being opposed to the Law of Moses. To do so is to discount everything He Himself said about the Mosaic Law and to take the position of both the Pharisees who condemned Him and the Gnostics, the early heretics who opposed the authority and teachings of His Apostles and demonized the God of the Old Testament.
The argument that capital punishment is inconsistent with a pro-life stance is more defensible than the argument that Jesus opposed the death penalty. The person like Wendell Berry, who opposes both the death penalty and abortion out of respect for human life, can be said to be consistent. Capital punishment does not devalue human life in the way that abortion does, however, at least if it is reserved for the most serious of offenses. When someone is sentenced to die for a murder he has committed he has done something to deserve the sentence he receives. When a foetus is aborted the human life that is terminated has not done anything to warrant death. When a murderer is sentenced to die it is in order that justice be served. When a foetus is aborted it is usually for the convenience of people (5) who want to be sexually active without the responsibility that comes with it.
In fact it can be argued that the death penalty actually upholds respect for the sacredness of human life. If human life is sacred, and someone takes that human life in the act of murder, to insist upon the death penalty is to insist that nothing short of the life of the murderer is sufficient to pay for the crime. For this argument to be valid, however, the death penalty must be reserved for crimes like murder. As Dr. Johnson eloquently put it:
Death is, as one of the ancients observes, to tôn phoberôn phoberôtaton, "of dreadful things the most dreadful"; an evil, beyond which nothing can be threatened by sublunary power, or feared from human enmity or vengeance. This terror should, therefore, be reserved as the last resort of authority, as the strongest and most operative of prohibitory sanctions, and placed before the treasure of life, to guard from invasion what cannot be restored. (6)
Dr. Johnson write those words in the context of an argument against the multiplication of capital crimes, and particularly against the use of the death penalty for property crimes. He went on to write “To equal robbery with murder is to reduce murder to robbery, to confound in common minds the gradations of iniquity, and incite the commission of a greater crime to prevent the detection of a less”. Johnson’s reasoning is sound and so Falstaff’s advice to Prince Hal appears to be sound, albeit for different reasons than those which prompted him to offer it.
In acknowledging this qualification to the justness of the death penalty, that it should be reserved for the most serious of crimes, we find ourselves returning again to that ancient principle of justice – let the punishment fit the crime. For crimes like murder, death is a just punishment. For lesser crimes, it is not. (7)
(1) Jesus Himself was, of course, the victim of the most famous abuse of the death penalty in all of history. He was accused of blasphemy – falsely, because His claim to be God was in fact true. He was tried illegally in the middle of the night, not by the full Sanhedrin, but by a few of His opponents assembled for the purpose of condemning Him at the home of the high priest. He was then brought to the Roman governor Pontius Pilate, who, although he knew Jesus did not deserve to die, consented to the crucifixion anyway in order to appease the mob. It is interesting to note that as the Christian faith was born out of an unjust execution, so was the Western philosophical tradition. Socrates was falsely accused of rejecting the gods and corrupting the youth of Athens. This accusation appears to have been at least in part politically motivated – it was made shortly after the restoration of the Athenian democracy and Socrates was known to be of aristocratic sympathy. As told by Plato in Apologia Socrates was found guilty by the assembly by a narrow margin. Asked to recommend an alternative punishment to the death penalty the prosecution was asking for, he proposed, instead of banishment as expected, a lifetimes worth of free dining in the best restaurant in Athens. This significantly increased the votes against him when it came to the sentencing. There are some interesting parallels between the deaths of Jesus and Socrates. St. Peter tried to prevent the arrest of Jesus with a sword, only to be stopped by His Master, who submitted to the arrest and to the crucifixion. Socrates refused to allow his friend Crito to break him out of prison the night before his execution. While their reasons were very different – Jesus went to the cross in order to die for the sins of the world, Socrates, at least as he is depicted by Plato in the Crito, refused to escape on the grounds that to do so would be to commit an injustice against the laws of Athens which he felt he owed a debt of obedience to despite his unjust conviction – both men acted in accordance with the belief that it is better to suffer an injustice than to commit one.
(2) In other cases it is the job of the jury to determine guilt.
(3) Here is how that argument would look expressed as a syllogism:
A. All human beings sometimes make mistakes.
B. The judges who hear capital cases are human beings.
C. A judge hearing a capital case will sometimes sentence an innocent person to die.
The conclusion C. does not logically follow from the premises. All that can be proven from the premises is that judges, as human beings, sometimes make mistakes, not that they will necessarily make a specific mistake.
(4) Or the fifth commandment if you go by the Roman Catholic and Lutheran system of numbering the commandments.
(5) Only a small percentage of abortions take place in the extreme situations pro-choice activists like to focus on in their arguments.
(6) Samuel Johnson, The Rambler,114, April 20, 1751.
(7) The question of whether or not government as it presently exists, i.e, the modern, progressive, egalitarian, democratic, bureaucratic nanny-state, is fit to administer the death sentence is another question entirely. The answer, unfortunately is no.
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