Letters: The Moral Argument for the Death Penalty (Feb 2000)
The Moral Argument for the Death PenaltyThis Web page is a part of the Letters column, wherein readers of TOC's monthly newsletter, Navigator, can correspond with the authors of its articles.
The following letters are a debate in response to "The Moral Argument for the Death Penalty" by Robert Bidinotto, which appeared in the February 2000 issue of Navigator.
The latest entries were added on September 7, 2000.
To The Editor:
I was surprised by the extent to which I disagreed with Bob Bidinotto's views on crime in general and on the death penalty in particular, as expressed in his article in the [February]issue of Navigator.
Like most Objectivists, I've thought about criminal justice a fair amount. But, also like most Objectivists, I don't have a complete theory. Jurisprudence is a complex subject, and I've always found the issue of assigning appropriate punishments to be one of its toughest technical problems. My disagreements with Bob are based on broader philosophical points, not on solutions of such problems.
Let me start with my most important disagreement: I disagree with Bob's conclusion. Either his article is misleading, or Bob advocates the death penalty; he thinks that it is right that we execute those convicted of murder, for example, in the United States today. I oppose the death penalty.
It seems to me that, in one sense, it is morally legitimate to kill, say, murderers, according to Objectivism. A murderer is a direct threat to my ultimate value, my life. If somebody is, in fact, a murderer, then it is in my rational self-interest for him to be dead. A murderer has no right to life according to Objectivism.
The simplicity of this moral argument is deceptive. The hard question is not a purely moral one, but an epistemological one. How do we establish standards of evidence that ensure that we don't execute innocent persons as murderers? I don't think that we have established such standards, and I am doubtful that we can. And, when we make a mistake, we deprive someone, wrongly, of the ultimate value; we kill an innocent person. Further, an alternative punishment, life in prison, serves the purpose of protecting me from murderers without invoking the risk of doing the ultimate harm. This, in very brief summary, is why I oppose the death penalty.
My next objection is that Bob did not ground his views on the punishment of criminals in the ethics of rational self-interest. I think that any Objectivist analysis of this issue should pose the question in egoistic terms: What scheme for judging and punishing criminals best promotes the survival of man qua man? I was surprised to find this question absent from Bob's analysis. And I think that it made a difference. I think that some of my concrete disagreements with Bob are due to this omission.
For example, Bob says that we punish criminals for past offenses, and not in order to prevent future crimes. I disagree. I think that we punish criminals in order to prevent future crimes. (I also think that we should force criminals to make reparations to victims, but this is a different issue, one that doesn't really bear on my disagreement with Bob.) I think that rational egoism supports my position.
Suppose a criminal commits a crime. I see two ways in which it is in my self-interest to have him punished.
The first is that the criminal's commission of a crime is evidence that he is a threat to me. That is, he is a threat to my future—there is no such thing as being a threat to my past. I need to punish him to prevent his committing more crimes in the future.
The second is that punishing this criminal dissuades others from committing crimes. A legal system that punishes convicted criminals on principle, as a matter of course, prevents crimes—that is, it prevents crimes in the future.
Bob regards past victims as being of central importance to a system of justice. He thinks that the prosecutor's job is to represent the victim's interest. I disagree. (The prosecutor should represent the victim's interest, but this should not be his fundamental purpose.) Again, I think this view is a consequence of Bob's not grounding his position in rational egoism.
When a crime is committed against someone else, it has direct bearing on my rational self-interest because it is evidence of a threat to my life. My rational self-interest demands that I do something about this threat—the victim's thoughts and preferences are irrelevant in this sense. If a Christian chooses to turn the other cheek after being maimed during a robbery, that is his prerogative. But it does not alter the fact that his attacker is a threat to me. Rational self-interest demands that I not ignore such threats. The fundamental purpose of a proper criminal justice system is not to rectify wrongs done to victims by criminals. (That is a legitimate purpose, but not the fundamental one.) The fundamental purpose of a proper criminal justice system is to maintain a society in which I can pursue my life without fear that my rights will be violated.
Bob characterizes justice in the context of punishing criminals as "...the punitive response to a criminal that penalizes him in direct proportion to the harm he has done to actual individuals." He describes proportionality as punishing a criminal "roughly to the extent of the harm he has caused to people-not more and not less." I think that Bob owes us an argument. What is it about the nature of crimes, and the nature of justice, that demands "proportionality" in punishing criminals? Bob has not said. I don't think that justice demands "proportionality" as Bob has described it.
I do think that punishments must be graded to crimes; more severe crimes must carry harsher penalties. If armed robbery and unarmed robbery carried the same punishment, we would simply be urging all robbers to carry guns. We must discourage criminals from escalating their crimes. But this principle has only a superficial similarity to Bob's notion of "proportionality." If we set aside the epistemological considerations I raised above, it seems to me that as egoists we would establish punishments for criminals that were vastly harsher than the harm they have caused to people. Were there no risk of mistakenly punishing the innocent, rational self-interest would best be served by punishing all criminals so severely that no one would ever think that crime could pay. I do not think that "proportionality," as Bob described it, can be defended as a matter of justice for criminals.
In conclusion, let me summarize my disagreements with Bob by posing two questions for him:
1. What is wrong with the argument against the death penalty that I outlined? (By the way, if my memory serves, and if this argument is right, then Leonard Peikoff deserves credit. As I recall, Peikoff made this argument—or something similar—in the question period after one of his lectures many years ago.)
2. How does the Objectivist virtue of justice imply your principle of "proportionality"? That is, how does the egoistically rooted need to judge men objectively, and to act on those judgments, imply that a criminal should be penalized "roughly to the extent of the harm he has caused to people—not more and not less"?
— David Ross
Bob Bidinotto responds:
A Logbook item in the same issue [as the death-penalty" article] mentioned that the piece had recently been anthologized in a couple of books of readings intended for teachers and students. But it didn't mention that the original version of this article appeared in the LEAA Advocate, a magazine of the Law Enforcement Alliance of America. That is a group of cops, victim advocates, justice professionals, and private citizens—not an Objectivist audience nor even an intellectual one.
Therefore I could hardly get into the complete case for an egoist-based conception of justice there, let alone into questions of epistemology. Likewise, the article's original venue explains my contextual description of "justice" in a way that applied only to dealing with criminals—and not in the broader ethical way that we understand the concept. (You correctly surmised my intention on this point.)
Given the audience, I had no intention to make the piece a comprehensive examination of the death penalty, which in any case would have required a book, not an article. The argument I made was intended to be directed only at the moral issues concerning the death penalty. So it wasn't "The Case for the Death Penalty," but only "The Moral Case for the Death Penalty." The epistemological arguments are also extremely important, but they were beyond my mission in the magazine article. (Still, Roger [Donway] thought the piece was interesting enough as it stood for the Navigator readership, and who am I to argue?)
Rather than go into a complete defense of my argument at this time, let me reply briefly only to say that the criteria of "future dangerousness," which you posit as the only really relevant consideration in punishing criminals, would (and does) cause gross and blatant injustices, just as I argued.
Justice is a moral principle based on recognition of the fact that individuals are causal agents in social contexts. Given this, a relevant question is: "Causal of exactly what?" A crime is a specific action with specific negative consequences for specific people. What the causal agent "deserves" can't be determined apart from those specific actions, their specific consequences, and their specific victims—at least not without a leap into arbitrariness and hence injustice. And that is exactly the leap we take with an undefined, nebulous "dangerousness" criteria of punishment.
There are many statistically significant markers of "dangerousness" that could be employed that would lead to draconian punishments even for many minor and youthful offenders—for instance, torturing animals or starting small fires during childhood. Many serial killers and psychopaths exhibit such patterns while young. But of course, many kids who start out that way later mature and never turn to crime during adulthood. So: How do we measure and respond to their actual danger? "Just to be on the safe side," do we lock up every kid who tortures an animal or sets a fire, until he's elderly and thus no longer "dangerous"?
Likewise, if "dangerousness" were our only concern, then why punish an offender (even a murderer) if it could be demonstrated with reasonable certainty that he was unlikely (or physically unable) to repeat his crime in the future? Suppose we caught Hitler after WWII—a broken and beaten shell of a man, ailing physically and mentally, posing no real further threat to anyone. If his past victims don't really matter, then why not just send him off to quiet retirement in Argentina? Or why not release the (now childless) Susan Smiths of the world? Or why not simply ignore every feeble old invalid who in a fit of anger poisons his spouse? Or why waste money tracking down people who kill only homeless bums, but who don't appear to threaten people like "us"?
All such responses seem completely consistent with the "dangerousness" criteria; but where is the "justice" in such a legal system? And if that principle goes, aren't we simply opening the door to totally arbitrary punishments, based not on objective facts (actual crimes and actual damage to actual people), but solely on our (your? my? whose?) subjective guesses about how dangerous people may be? (As an aside, it is sobering that in psychology and law, predictions of dangerousness have about a 33% accuracy rate.)
To address one specific criticism you made about my advocacy of proportional punishments: You suggest that a criminal is often responsible for much more harm (and many more crimes) than we catch him doing; so for meaningful equity and deterrence, penalties should be much higher than the demonstrated harm caused in the given offense. I agree. In my book Criminal Justice?, I argue that the proximate victim of a crime may not be its only victim, and that in justice, penalties can and should be enhanced to reflect collateral harm to others. This would include the ongoing coercive threat to others that a career criminal poses, since coercion (the threat of force) is also a crime with demonstrable consequences. In the book, I give some examples of how this consideration might be applied. Still, the connection I draw is to actual harm done to actual people—not to some notion of deterring, by disproportionate means, vague, interdeterminate future "danger."
You believe that my view contradicts rational egoism. But in response, I'd say that any conception of rational egoism that clashes so blatantly with justice suggests a contradiction. It's one I'd be happy to explore at some future date. But for now, thanks again, David, for taking this issue seriously enough to share your thoughts.
—Bob Bidinotto
To Bob Bidinotto:
Thanks for the [response]. I thought I'd send you some [rejoinders] while they are fresh in my mind.
First, you seem to be taking my use of the word "dangerous" to indicate that I hold some views that I don't. I said nothing about looking for early signs of "dangerousness" and taking action based on them. I did not intend to say anything about predicting dangerousness prior to the commission of a crime. I meant merely that someone's committing a crime, and being tried and convicted of it according to objective legal standards, establishes him as a rights-violator, thus as dangerous. I hope that this last statement is not controversial (assuming we're talking about things that Objectivists would regard as crimes).
You ask why, if danger to ourselves is our only concern (and I do think that it is) would we punish Hitler, Susan Smith, or a homicidal but feeble old invalid, people you intend as examples of criminals who are no longer dangerous to us. I feel we really must be talking past one another regarding future danger, because the answer to this seems obvious. We punish such people to dissuade others who might commit similar crimes. To start letting feeble old invalids off the hook for poisoning their spouses is to declare it open season on irritating old spouses. We punish such people to mitigate future danger to ourselves.
Please don't read more into my comments on future danger than is there. Not much is there. My point is an elementary logical one, not a sophisticated political or sociological one. As rational egoists, all we care about, fundamentally, is the future. We are interested in the past, but only because understanding what's already happened helps us advance our lives in the future. We can't affect the past; we can only affect the future. Each of our actions must be chosen because it promises to advance our lives—that is, our lives from the present moment on, our lives in the future.
So when, as rational egoists, we ask ourselves how we should treat criminals, we mean by that question "how should we treat them to best advance our lives—that is, our lives in the future, our lives from the present moment on?" The thing that characterizes criminals, that distinguishes them from other folks, is that they are rights-violators, they are dangerous in that sense. I say that we punish criminals in order to prevent future crimes, future rights violations. This is the value that we're pursuing in punishing criminals: the diminution of the risk of future rights violations. What value do you think that we're pursuing?
It can't be "justice" because justice is a virtue, a means of pursuing values; in order for an action to be a genuine instance of justice, there must be a distinct value to be achieved. It has to be something in the future because, as I've just pointed out, we can only affect the future. It has to be something related to the danger that rights-violators pose, because posing such danger is what characterizes criminals. It has to be something that advances our lives, or we Objectivists wouldn't recognize it as a value. I can't even come up with another plausible candidate for a value that we might be pursuing in punishing criminals. What value do you think that we're pursuing?
I am glad that we agree that penalties must be much higher than the demonstrated harm to a victim. That this is your position was not clear from your article, thanks for clearing it up.
—David Ross
To David Ross:
Let me take some fugitive moments to reply...
You wrote that "someone's committing a crime, and being tried and convicted of it according to objective legal standards, establishes him as a rights-violator, thus as dangerous. I hope that this last statement is not controversial (assuming we're talking about things that Objectivists would regard as crimes)."
Well, it's controversial to me—precisely because in itself, the broad, generic category of "rights-violator" offers no criteria for drawing distinctions between petty and major offenses. A kid who puts a firecracker in his neighbor's mailbox is a "rights-violator." Ted Bundy, who killed more than three dozen women, is a "rights-violator." Would anyone equate the two as equally "dangerous"? Should our response to both therefore be equivalent?
I know that's not your intention, David; but I must point out that, unmodified by any notion of proportionality, the criterion of "dangerousness"—defined solely by whether someone is a "rights-violator"—lumps together all criminals from trespassers to serial killers. Standing alone, it does not suggest that there are any distinctions between criminals, that there should be any distinctions in how we respond to them.
Am I caricaturing the implications of your position? You write, "if danger to ourselves is our only concern (and I do think that it is)..." Note the word "only." It's a pretty uncompromising word. Am I wrong to interpret this word as implying that society's concern about danger should trump any other consideration—such as simple "fairness" and "justice"? And am I wrong to draw the conclusion that, "if danger to ourselves is our only concern," and if danger is to be established by one's membership in an undifferentiated class of "rights-violators," then we need not "concern" ourselves about proportionality of punishments? That if our "only concern" is to deter "danger," that might imply punishments uniformly draconian, so as to terrify all potential "rights violators," from the petty to the predatory?
It's this sort of blurring of degrees of "evil" (or in this context, dangerousness) that I objected to in Peikoff's "Fact and Value," and I object to it here. Degrees of evil and dangerous do exist, and they do matter...if we are to evaluate individuals contextually (i. e., justly). Putting all criminals in a blender and labeling the resulting undifferentiated mass "dangerous"—equating the kid with the firecracker with the serial killer as a "rights-violator—evades the responsibility of judging each of these offenders as individuals. It leads to a "one size fits all" way of thinking about criminals. If you're a liberal, you try to rehabilitate all troublemakers from Dennis the Menace to Ted Bundy; and if you're a conservative, you threaten even Dennis the Menace with the draconian punishments merited by a Bundy.
That obliteration of simple, proportionate justice undermines the public's confidence that the legal system will be fair. Fairness in sentencing, to most of us, means responding to all crimes in a proportionate way, and to like crimes in a similar manner.
And that's precisely why I argue for a proportionate response to crimes. That proportionality amounts to contextualism applied to criminal law, a contextualism rooted in the degree of harm done. It is consonant with individualism, as it ties the concept of "crime" not to "danger," but to "harm"—harm done to actual individuals. It is consonant with justice, because it apportions punishments in accord with what individuals deserve, based on their actions and their consequences.
Punishments that aim purely at deterrence can become so draconian that they are not perceived as fair; and such punishments will not be enforced. This happens over and over again in our current system. If a draconian law is on the books, and is widely perceived as disproportionate, police frequently "look the other way"; prosecutors refuse to press charges, or arbitrarily charge the defendant with a lesser crime that doesn't merit the draconian punishment; juries engage in "nullification" by refusing to convict an obviously guilty person, thus letting him off scot-free; judges do what they can to minimize the severity of the sentence; and paroling authorities (where parole exists) dump the person back out onto the streets at the earliest opportunity. In all such cases, respect for the law is badly undermined.
You write, "I say that we punish criminals in order to prevent future crimes, future rights violations. This is the value that we're pursuing in punishing criminals: the diminution of the risk of future rights violations. What value do you think that we're pursuing? It can't be "justice" because justice is a virtue, a means of pursuing values; in order for an action to be a genuine instance of justice, there must be a distinct value to be achieved. It has to be something in the future because, as I've just pointed out, we can only affect the future."
Deterrence is certainly a legitimate value—one that we both share. But your system would aim solely at that value, while mine would aim at others, too. Yes, as you say, "justice" is a virtue, a means of pursuing values; and yes, a virtue is not an "end in itself." So "what value do [I] think we're pursuing?"
One practical value achieved by the pursuit of justice is precisely the public safety you seek. Rigorously consistent, proportionate punishments do reduce the level of "dangerousness" in society, because prospective criminals realize that they won't "get away with it": that the harm they impose on others ultimately will be reflected back onto them.
But to achieve the value of public safety, a legal system rooted in the implementation of retributive justice accomplishes several additional objectives completely missing from the purely utilitarian, deterrent-based system that you advocate:
1. A retributive system is rooted in individualism. Rather than treat criminals as an undifferentiated class of "rights violators," and completely ignoring the existence or claims of past crime victims, it sees both groups as composed of individuals— individuals who matter. It recognizes "rights violations" not as some abstraction, but as the violations of actual individuals, by actual individuals. And it establishes harm, and apportions blame and punishments, accordingly. It is thus the only legal system consonant with Objectivist principles.
2. A retributive system, while seeking the value of public safety, also seeks to redress the harm done to past crime victims—which a solely "future-oriented" system myopically ignores. In a deterrence-focused system, the individual crime victim's sole relevance is simply to provide the system with "evidence"—evidence not of harms done, but of the dangerousness of a criminal. The aim isn't to establish that his own individual rights were violated—only to establish that the defendant is a "rights violator." After being dragged into court as "an exhibit" of wounds, traumas, and losses, the victim then becomes an anonymous afterthought in the legal system, whose fate from that point on is to be ignored by prosecutors, judges, and everyone else. Our only focus is to be on the future...the future of the criminal; our only goal, to render him harmless. If the end of a system of law is the protection of individual rights, I find this kind of callous disregard of the rights of actual individuals appalling. So would millions of others, who find in this "future" focus a systemic, contemptible indifference to past crime victims. I've spent too many hours in the homes of such victims (and their survivors) to write them off with such equanimity.
3. Because a retributive system holds everyone strictly accountable for his actions and their consequences, it tends to reduce crime. By contrast, a system perceived as unfair actually contributes to crime, by reducing respect for the law.
4. Because a retributive system is perceived as fair, it fosters stability and public order, and the honesty of legal authorities. Let me point out that there's a value in simply having a system rooted in the principle of justice. No, I'm not advocating ethical intrincism here. A practical value achieved by the pursuit of justice is respect for and confidence in the law. I shouldn't have to explain to a non-anarchist the importance of having a stable legal system. But to command broad respect and public loyalty, a legal system must be perceived as fundamentally fair. Disproportionate punishments, or dissimilar punishments for similar offenses, undermine that sense of fairness, and as a result, public respect and confidence in the institutions of the law. This can lead to civil disobedience, a breakdown of public order, the cynical corruption of police and legal authorities, even anarchy. This is exactly what has happened in our utilitarian-based legal system, whose chaotically inconsistent and disproportionate responses to crimes have fostered widespread contempt for and corruption of the law.
Are those enough "values" for you?
I argue much of this at length in my book, Criminal Justice?, especially in a chapter titled "Crime and Moral Retribution." That article, and the book itself, provides a broad argument for my theory of a retribution-based criminal justice system; readers will find in those pages the broader theoretical grounding for my death penalty discussion. My retributive theory of justice completely rejects our current utilitarian-based system, which focuses on such ends as (for liberals) rehabilitation and (for conservatives) deterrence—both at the expense of justice. At the same time, my theory completely rejects traditional, intrinsicist notions of "eye for an eye" retribution. (Incidentally, in his own recent book arguing for a utilitarian, restitution-based system, anarchist economist Bruce Benson cites my book as providing the best counter-case for a retribution-based system. I humbly agree with Benson. Of course, one of the reasons for writing a book is that one doesn't have to write dozens of articles or e-mail messages explaining the same issues again and again.)
Anyhow, I've about said my piece on this, and commend my book to those who would like further comment on the legal system.
As for the death penalty, understand that my remarks about moral considerations by no means exhaust all I'd have to say about the other issues. [Bidinotto goes on to make a few brief remarks about epistemological issues.]
Best regards,
—Bob Bidinotto
To Bob Bidinotto:
It seems to me that we're talking past one another. I don't really think that you and I advocate very different criminal justice systems, in terms of practical operation. Somewhat different, but not very. I think that we differ, however, on the question of the ethical grounding of a criminal justice system. Or, at least, I do not see how you think that your views are grounded in the Objectivist ethics.
Here is a good example of how we seem to be talking past each other. In your latest response, you asked if I think that "society's concern about danger should trump any other consideration —such as simple "fairness" and "justice"?" The problem is not that my answer to this question differs from yours. The problem is that I don't regard this question as an appropriate formulation of the issue. The proper question is "What is the just response to the danger posed by criminals?" Your formulation says clearly that the danger posed by criminals, and the maintenance of "justice", are distinct and at least somewhat opposed considerations. I don't think that this is the case. The danger posed by criminals is the problem, and justice is—at a very abstract level—the solution. The problem is to come down from that abstract level. The problem is to specify what the virtue of justice, as an element of the ethics of rational egoism, implies for the treatment of criminals. My fundamental objection to your article is that no such analysis was even mentioned.
Best,
—David Ross
Posted 5/25/2000
What Is Justice For?
from Navigator editor Roger Donway
On Robert Bidinotto and David Ross
In his article, Bidinotto argued against the idea that the end of criminal justice is deterrence. The principal end, he wrote, is retribution for the violation of a victim's rights. David Ross wrote a letter asking how retribution could be the principal end. After all, he remarked justice is a virtue, and virtues aim at future values. Retribution looks to the past.
Bidinotto responded that criminal justice must begin with the acknowledgment that "a crime is a specific action with specific negative consequences for specific people. What the [criminal] 'deserves' can't be determined apart from those specific actions, their specific consequences, and their specific victims." That is: What the criminal deserves is retribution.
Ross replied: "As rational egoists, all we care about, fundamentally, is the future. . . . So when, as rational egoists, we ask ourselves how we should treat criminals, we mean by that question: 'How should we treat them to best advance our lives?' . . . I say that we punish criminals in order to prevent . . . future rights violations."
Bidinotto rejoined: "You write: 'if danger to ourselves is our only concern (and I do think that it is). . .' Am I wrong to interpret this word as implying that society's concern about danger should trump any other consideration-such as simple fairness and justice?
"Deterrence is certainly a legitimate value. . . . [But] a legal system rooted in the implementation of retributive justice accomplishes several additional objectives completely missing from the purely utilitarian, deterrent-based system that you advocate: . . . . [Second]. A retributive system seeks to redress the harm done to past crime victims."
Finally, Ross wrote: "You asked if I think that 'society's concern about danger should trump any other consideration-such as simple 'fairness' and 'justice'? The problem is not that my answer to this question differs from yours. The problem is that I don't regard this question as an appropriate formulation of the issue. The proper question is: 'What is the just response to the danger posed by criminals?' Your formulation says clearly that the danger posed by criminals, and the maintenance of 'justice,' are distinct and at least somewhat opposed considerations. I don't think that this is the case. The danger posed by criminals is the problem, and justice is-at a very abstract level-the solution."
Further Considerations
Let me add a few thoughts of my own and then invite you, most earnestly, to join in this exchange.
Justice involves evaluating other people in accordance with a rational moral code and acting toward them in light of such judgments. How do we act toward people we evaluate positively? Well, in general, we praise them, we trade with them, and we help them. And how do we act toward people we evaluate negatively? Well, in general, we condemn them, we avoid them, and we ostracize them. At the extreme, we punish them.
What values do we gain by these actions? One possible (though highly unlikely) benefit is material. When we praise a good student, it is remotely possible that-by some circuitous route-we will eventually reap material rewards for having done so. Far more likely are the direct rewards of visibility and gratitude. A further benefit is instructional. If a college expels a slacker, people in similar circumstances will see that vice has its penalties. That will increase (marginally) the likelihood of our benefiting materially from good people, and it will increase (perhaps more than marginally) the number of people in the world from whom we are likely to gain the values of visibility and friendship.
But these benefits, which are projectable even if speculative, are secondary and derivative. They derive from a much more fundamental value: the value of a morally right-ordered world. Treating good persons justly, with proportionate recognition of their actions and character, helps to ensure that people come to expect good actions will enable them to achieve more values, faster, than they otherwise would. Treating bad persons justly, with proportionate recognition of their actions and character, helps to ensure that people come to expect bad actions will cause them to achieve fewer values, more slowly, than they otherwise would.
Precisely how the pursuit of such a morally right-ordered world will benefit us, what values it will bring to us, is not something that we can calculate. Human beings cannot pursue life as though they were strategizing a chess game. That is why we must guide our actions by the light of moral principles derived from a moral standard and not (in most cases) by calculations based on our ultimate moral goal.
So, is criminal justice forward looking? Yes and no. It is forward-looking in that the values we seek necessarily lie in the future (and lie both inside and outside the realm of crime and criminals). But it is backward-looking in that it is based on treating people in accordance with their past actions and established characters. Is it based on encouraging or discouraging the same person from acting in the same way a second time? Not to any great extent. Is it based on encouraging or discouraging other persons in similar circumstances from acting in a similar manner? To some extent, but its scope is much broader than the value criminologists usually attribute to "deterrence."
The value sought by criminal justice is a juster world. Criminal justice is but one part of the virtue of justice (though an important part), and justice in all its aspects is a way of letting all people know that good actions are more fruitful than bad actions, not merely because of the relative causal efficacy of good actions and bad actions in the subhuman world, but also because of the responses (the "retributive" response, if you will) that good actions and bad actions quite properly draw from rational people.
Posted 5/25/2000
David Ross writes:
I had hoped to go back and forth with Bob Bidinotto another time or two before the general discussion began, but Bob has declined. Roger Donway has kindly allowed me the chance to summarize, and to make some final comments, instead.
The crucial idea in Bob's defense of the death penalty is proportionality. He describes it as penalizing a criminal "roughly to the extent of harm he has caused people-not more and not less." Bob's argument for the death penalty, in brief outline, is this: Proportionality is the moral keystone of a proper criminal justice system. The only punishment proportional to murder is the death penalty. Therefore, the death penalty for murder must be part of a proper criminal justice system.
I objected to Bob's argument on two counts. I formulated these as questions for Bob at the end of my first posting.
The first was that he had ignored what I called the epistemological argument against the death penalty. We do not have sufficiently rigorous standards of evidence to ensure that we never convict innocent persons of murder. To execute an innocent person is the ultimate wrong. Imprisonment does the job of protecting citizens from murderers without risking this outrage. Therefore, the death penalty for murder should not be part of a proper criminal justice system.
My second objection was that Bob has not grounded his principle of proportionality in the Objectivist ethics. I presented various reasons for thinking that he would not be able to do this.
Bob never addressed either of these objections.
In the latest issue of Navigator, Roger Donway solicited more letters
on this topic. In doing so, he explained that Bob's article had not been
intended for Objectivists. He also restricted the discussion by saying
that Bob had intended only to address the moral issues regarding the death
penalty, and
that discussion of the epistemological dimension of the
issue would not be allowed. The epistemological question, according to
Roger, had been "bracketed".
Bob and Roger have both emphasized that Bob's intended audience was not an Objectivist one. In the context, this seems odd. It would be appropriate to emphasize this if folks were objecting that Bob's formulations, or his word choices, did not conform to standard Objectivist practice. But nobody, as far as I know, has made such objections. My objections, in particular, are that Bob's views are unfounded and wrong. One should always present true, and properly grounded views, regardless of the audience.
I also think that Roger's comments about bracketing the epistemological question were a mistake. By publishing his article, Bob has clearly endorsed the position that the death penalty should be an active part of a proper criminal justice system. Without addressing it, he has thus implicitly denied the validity of the epistemological argument I presented, which is a standard Objectivist argument. To argue that the considerations that show one's point to be wrong are not to be addressed because they have been "bracketed" is a mistake.
Of course, there's nothing wrong with writing an essay that addresses some aspects of an issue and not others. The fact that Bob dealt only with the moral dimension of the issue is not a problem per se. The problem is that he reached an unconditional conclusion-and an incorrect one-based on these limited considerations.
I think that the "bracketing" policy only makes things worse. It's one thing to reach an erroneous conclusion through omission of certain evidence and arguments. It's a worse thing to maintain that conclusion by refusing to entertain the considerations that contradict it.
— David Ross
Posted 5/25/2000
Roger Donway responds:
When I first read Bob Bidinotto's article on the death penalty, it seemed to me to discuss two aspects of the criminal justice system: "What for?" and "How much?" In that sense, I did not consider it to be essentially about murder and capital punishment. Any crime could have served as a vehicle for discussion, but of course capital punishment raised these two questions in sharpest possible way.
Confronting the question "What is criminal justice for?" Bidinotto answered: "retribution against the criminal for the crime committed." It is not: "the deterrence of future crimes by this criminal or others." Confronting the question "How much punishment is proper?" he answered: "a punishment in proportion to the seriousness of the crime." It is not: "Enough to teach the criminal a lesson," that is, enough to rehabilitate him.
Personally, I thought that these were good points, that they need to be made, and that Bidinotto had set them forth in a commonsensical style. On the issue of proportionality, for instance, Bidinotto argued that justice demands treating a person according to his moral merits or demerits; therefore, justice demands that if X has done something worse than Y by a certain order of magnitude, X should be treated worse by something like the same order of magnitude. To inflict more or less punishment on him-to punish with an eye to deterrence or rehabilitation, for example-"is to abandon the quest for justice."
David Ross disagreed and engaged in an exchange Bob about these two points. Obviously, neither has convinced the other.
Ross also lodged against Bob's article the "epistemological argument" that he mentions above: "We do not have sufficiently rigorous standards of evidence to ensure that we never convict innocent persons of murder." I decided that this argument should not be part of the current exchange of letters, because Bidinotto expressly said he was discussing only what was proper in the case of proven premeditated murder. Ross says that by thus "bracketing" the issue I am implicitly denying the validity of the epistemological argument.
But why? Ross acknowledges that "there's nothing wrong with writing an essay that addresses some aspects of an issue and not others." That is what I thought I was doing by bracketing the epistemological issue. I was saying: "Let's set aside for the moment the question of when we know X has murdered Y, and discuss only what the proper response is when we do know that." Again, Ross acknowledges, "The fact that Bob dealt only with the moral dimension of the issue is not a problem per se."
What, then, is the problem. "The problem is that [Bidinotto] reached an unconditional conclusion-and an incorrect one-based on these limited considerations." What does Ross mean by "an unconditional conclusion"? Apparently, this: "Bob has clearly endorsed the position that the death penalty should be an active part of a proper criminal justice system." Yes, at least to the extent that we are dealing with cases where "there is no question of guilt or extenuating circumstances." (Navigator, February, p. 10) How can the "epistemological question" undermine that position, given its stipulation of known guilt. Ross's reply seems to be this: "We do not have sufficiently rigorous standards of evidence to ensure that we never convict innocent persons of murder."
But how is one to interpret those words? Is Ross saying that human beings never know for sure that X murdered Y, beyond all doubts save those of a philosophical skeptic? If so, then he would be right to protest my bracketing of the epistemological question. It would be pointless to discuss "what shall we do with known murderers" and bracket the question whether there are any such beings.
But I think it is obviously false that there are no cases in which human beings know for sure that X murdered Y. We know Jack Ruby murdered Lee Harvey Oswald. Consequently, when Ross says, "We do not have sufficiently rigorous standards of evidence to ensure that we never convict innocent persons of murder," I take him to be saying that we do not currently apply sufficiently rigorous standards of evidence to ensure that we never convict innocent persons of murder. That may be true, and we can discuss another time what the correct standards should be. But for now we can bracket the question what the correct standards should be. Our (future) conclusions on that topic may limit the number of cases to which Bidinotto's argument applies, the number of cases where "there is no question of guilt." But, so far as I can see, the epistemological argument cannot undermine Bidinotto's argument as such.
Incidentally, Ross's letter raises another question: In the case of capital punishment, must the standards of judicial evidence be sufficiently high that the state never executes an innocent man? Many Objectivists believe that is true and it may be true. But a proof needs to be offered. Until it is offered, "the epistemological argument" Ross states should probably be bracketed.
— Roger Donway
Posted 9/7/2000
To the Editor:
Unbelievably, Mr. Bidinotto's recent article on the moral argument for the death penalty completely ignores the most salient argument against capital punishment, an argument Ayn Rand herself made: the irreversible and unforgivable act of taking an innocent life.
Moral opposition to the death penalty is not equivalent to a lack of interest in justice. Even when an offender is proven guilty in criminal court, our system makes mistakes — as evidenced by the many individuals who have been recently vindicated with the invaluable aid of DNA evidence. Additionally, research by both private and public entities has shown over and over again that minorities are being unfairly targeted for arrests — our criminal justice system is not only imperfect, as we might expect, it is grossly unfair and far, far, far from perfect. Chicago put a moratorium on executions after finding an unacceptable number of individuals falsely accused. To advocate the death penalty in these circumstances is to advocate the same thing Mr. Bidinotto abhors — the taking of an innocent life, otherwise known as murder. Why should we take this chance?
Additionally, Mr. Bidinotto does not provide a satisfactory explanation for his assertion that "capital punishment is the only just punishment" in the case of premeditated murder [emphasis added]. To claim that capital punishment is "roughly proportionate to the harm that has been done to the murder victim" is a questionable claim. By this logic, we would rape rapists, stab robbers, molest molesters — actions Mr. Bidinotto also argues we need not do since we do not "have to punish in kind." So, how is it a moral imperative that we execute murderers? In accordance with Mr. Bidinotto's own assertion, I would argue that we need not execute murderers. Imprisoning a murderer for life is another option and is hardly equivalent to leaving "the morally innocent at the mercy of evil predators."
I urge Objectivists to learn more about the supposed "fairness" of America's criminal justice system. A place to start is Amnesty International's campaign against human rights violations in the USA.
When taking into account the problems within our criminal justice system, our pursuit of justice requires the restraint violent criminals do not possess.
— Alison Bowles
Posted 9/7/2000
To the Editor:
The discussion of the criteria for just and proper punishment has been extremely interesting. I would like to offer some brief comments in the hope of shedding more light, but not more heat, on the matter.
An important distinction is the one between the purpose of an action and the standard by which we choose it. If we neglect the question of standards and consider only purpose, then we fall into an end-justify-the-means kind of utilitarianism. If we consider only standards while forgetting purpose, we risk falling into dogmatic thinking, subordinating human goals to an abstraction.
The two are not opposed, of course. But it's important that any evaluation of one aspect be done in the context of the other. Much of the argumentation between Bob Bidinotto and David Ross seems to be based on concern that stressing one aspect — deterrence and safety as the purpose, or justice as the standard — may lead to neglect of the other.
The danger can be real. The danger in seeking deterrence while neglecting justice is obvious, and I don't have to repeat Bob's examples. Perhaps less obviously, pursuing "justice" as a Platonic standard while forgetting that the legitimate purpose of the government is to defend individual rights can be deadly. In the latter case, why would the government stop at punishing violations of rights? Isn't rewarding virtue the more important part of justice, and then shouldn't the government reward who have had undeserved misfortune? As Bob points out in Criminal Justice?, treating abstract justice as an end in itself "leads in practice to injustice."
But actually, the government should be implementing its purpose —
defending the rights of individuals — in accordance with its standard —
justice. The reason for doing this (the reason for having a standard
at
all) is that any other way of achieving the purpose leads to actions
for immediate goals which ultimately make the government a threat rather
than a protector.
Considering the dangerousness of an offender is entirely legitimate in meting out punishment. It would be wrong to use dangerousness by itself as grounds for punishment, or to regard arbitrary considerations as evidence of dangerousness. But it is legitimate to consider the future threat which a criminal poses in setting priorities, and in choosing from a range of punishments appropriate to the crime. Bob folds in the threat which a criminal poses as part of the harm which he does (e.g., the chronic shoplifter creating a climate of fear), but I think this is a needlessly indirect way of dealing with the issue. The degree of fear felt among the public might be seriously too high or too low, depending (for example) on how the crime was treated in the media; should the amount of fear generated by a press campaign be more important than better measures of how likely a person is to repeat his crimes in the future — for example, how much planning went into the crime and how callous he was in the way he committed it?
In a letter like this, every thought begs for further expansion, but I have to stop somewhere. So I'll leave these comments for the approval of those who may read them.
— Gary McGath