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CHAPTER 37 The Death Penalty as a Symbolic Issue

Stephen Nathanson

Stephen Nathanson, Professor of Philosophy at Northeastern Univers· argues against the position of Walter Berns and maintains that the de~t~ penalty is inconsistent with respect for the value of human life an~ therefore, ought to be renounced. Whereas Berns believes that capital punishment acknowledges the dignity of human ·beings, Nathanson views the death penalty as a violation of such dignity, for by taking the life of a criminal, we convey the idea that the criminal, although human, is no longer of any worth.

[T]he question whether we ought to punish by death is a question with great symbolic meaning. For people on both sides, whether we impose or refrain from imposing the death penalty seems to say some- thing about our values, about the kind of people we are, about the nature of our society. The death penalty debate is in part a field on which we champion some of our most central social and ethical ideals. We think that retaining or abolishing the death penalty conveys an important message, and we want it to be the right message. · · ·

The Morality of Anger Th b 1 · · 1 hasized e sym o 1c importance of the death penalty is strong Y emp by Walter Berns in his defense of the death penalty. In discussing

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symbolism of punishing by death, Berns stresses the moral signi cance of anger. He writes:

F second St6 hen _Nathanson , An Eye Jo, an Eye? The Jmmo,a/ity of Punishing by oeath,.,,io» of th

1 wnb.l' hopynght © 200l by Rowman & Littlefield Publishers. Reprin ted by perfil ' e pu 1s er.

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cJ-JA.p'fER 37 TH E DEATH PENALTY . AS A SYMB oi.,c rssur,. 331

If men are not angry when somco 1 -d~~~d, the implication is that ·there :c c '" is robbed. raper! .

J11U l cl _ no moral , 01 ·se those men o not care for anyone oth , l community be cati ,· f h . , .· . . er tllan them ·I -. expression o . t at car mg, and society r _I se ves. ,\ngcr

is an [A ] . h iecc s men wr h other. . . . nger JS t e passion that can C' io carC' 101 eac h' d . h ausc us to act fi . . }l avina not mg to o wit seJ:fish or mean 1 .. . or n·a-5ans t> • b ca culation · · 1 I 1

educated, 1t can ecome a generous passi h , .me t:fd, w 1e 1 . on, t e pass10 th tects the communrty or country by demanding p . h n at pro . urns ment for its

enemies.

B erns wants to vindicate anger because he regards it a , s an expres-

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of concern for others, and he fears that society is bei· d s10 . ng un er- . 1 ed by a lack of other-dJrected concerns Anger shows th mu . . . . . · · · · · at we

are not simply self-interested 1nd1v1duals Joined together in a mar- riage of convenience. Instead, we are a community of people who share common concerns and recognize common values.

Berns is certainly correct that anger may reveal important virtues in people, especially if a failure to be angry arises either from callous- ness or indifference. Nonetheless, whatever virtues are displayed by anger, everyone would agree that the actions that flow from anger must be controlled. The expression of anger needs to be limited by

moral constraints .. .. A person whose family has been killed in an automobile accident

caused by the carelessness of another driver may be angry enough to kill the driver. The anger shows the depth of the person's caring for other human beings, but it does not provide a justification for killing the driver. Virtually everyone would agree that execution for careless- ness is too severe a response. While some negative response to de- structive and harmful actions is appropriate, it does not follow that anything done in the name of righteous anger is morally right.

1 know of no one who denies that anger and outrage are the ap- propriate responses to the murder of innocent human beings. Nor ~o I know of anyone who argues that murderers should not be pun- ished at alL The question is whether punishing by death is morally :eqmred. That we may feel angry enough to kill someone does not imply that d · S omg so would be morally legitimate. but oh, one can sympathize and agree with much of Berns's message,

t at mes d . f us' sage oes nothing to support the appropnateness 0

Ingdeath · · h is in as a pumshment. To favor severe but lesser pums ments of m nodway to express indifference or callousness toward the dea

th s

ur er v· f h deaths do n IC '.ms. The anger and grief that we feel about t ese ot give us a license to kill. ...

'.' 12 PA RT Ill MORAi. PROBL EMS

Affirming the Moral Order

13crns ... believes that if people regard laws as conven iences for improving li fe, th en th ey wi ll not take them seriously enough. They wi ll feel free to di sobey the law when obedience is inconvenient. Part of th e appeal of the death penalty for Berns is that it suggests that the law possesses a transcendent value. "Capital puni shment," he writes,

scrvc-s 10 re mind us of the 1mtjesty of th e m o ral order that is embodied in o ur law and o f the te rrible consequ e nces of its breach. The law must no t be 11nderstood lo b e m e re ly statute that we enact or repeal at our wi ll a nd ob ey o r disobey at our convenience , especia lly not the crimi- mll l;;iw .... The c riminal law must be made awful, by which I mean , awe-inspiring ... . It must remind us of the moral order by which a lone we can live as human b e ings , and in our day the only punishment that ca n d o this is capital punishment.

For Berns, permitting the state to punish by death is a means of affirming the moral order and its embodiment in the law.

Berns is correct about one point here. The law must support the moral order in the sense that it must provide appropriate punish- ments for particular crimes. Morality is subverted when terrible crimes go unpunished or are punished very leniently, since these re- sponses would suggest that the crimes are not really serious ....

Berns wants to see the moral order reaffirmed, but he equates this order with the legal system. He does not want us to view the law "merely [as] statute that we enact or repeal at our will." Yet, tha~ is precisely what the law is. While the moral order does not shift wilh the votes of a legislature, the legal order does. All too frequently, ~he legal order itself runs quite counter to what morality would require. Berns does the cause of morality no service by offering a blanket sanctification of the law.

S · 1 B · d tent of UI e Y erns is correct in his view that the nature an con . 1 h l · . d k1l t e aw is a serious matter, but it is doubtful that we nee to

" l · · o- the peop e 10 order to convey that messacre Moreover b)1 revenno . I . co · ' · ns· aw when ll does not deserve reverence we help to perpetuate tnJ t' . A . . l ' ffi rm the ice. cntJca and sober view of the law may do more to a he moral order than an attitude of awe or exaggerated respect. _T ·ts

. . 1 J' 1it I cnt1c w 10 sees the flaws of the legal system and wants to in maY powers may be as committed to the moral order as Berns and he . d tot m eed have a better way to make the legal system conform moral order ....

(•. LfAPTER 37 THE DEAT H P ENALTY AS A SY!I.P•o ' " l , l(; ISSUF.

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fhe Symbolism of Abolishing the Death Penalty VI tis the symbolic message tha t we would convey b d .. V ,a itKC the death penalty and to abolish its use:i y eciding to reoo1 . •

I think that there are two pnmary messages. The fi st • h . • r is t e most f . Ltently emphasized and 1s usually expressed in terms f h 1eq . o t esanc- ·tyof human life, although I thmk we could better express ·t.

ti . . 1 m terms f respect for human d1gmty. One way we express our respect f, h 0 b . . b or t e

dignity of hum~n emgs is y abst~ining from depriving them of their lives, even 1f they have done ternble deeds. In defense of human well-being, we may punish _people_for_their crimes, but we ought not to deprive them of everything, which 1s what the death penalty does.

If we take the life of a criminal, we convey the idea that by his deeds he has made himself worthless and totally without human value. I do not believe that we are in a position to affirm that of anyone. We may hate such a person and feel the deepest anger against him, but when he no longer poses a threat to anyone, we ought not to take his life.

But, one might ask, hasn 't the murderer forfeited whatever rights he might have had to our respect? Hasn't he, by his deeds, given up any rights that he had to decent treatment? Aren't we morally free to kill him if we wish?

These questions express important doubts about the obligation to accord any respect to those who have acted so deplorably, but I do not think that they prove that any such forfeiture has occurred. Certainly, when people murder or commit other crimes, they do forfeit some of the rights that are possessed by the law-abiding. They lose a certain right to be left alone. It becomes permissible to bring them to trial and, if they are convicted, to impose an appropriate-even a dreadful- punishment on them.

Nonetheless, they do not forfeit all their rights. It does not follow from the vileness of their actions that we can do anything whatsoever to them. This is part of the moral meaning of the constitutional ba~ on cruel and unusual punishments. No matter how terrible a persons deeds, we may not punish him in a cr uel and unusual way. We may ~ot to~ture him, for example. His r ight not to be tort~red has no~ een forfeited. Wh y do these limits hold? Because th is person ~e

rn · h. · him ains a human being, and we think that there is somet mg 111 th at we must continue to respect in spite of his terrible acts. 'd One .11 d e some cons1 -, . . way of seeing why those who murder stI eserv . . .

t1at1rm d h 'd a of what 1t 1s to an respect is by reflecting again on t e I e

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'.) ,1 p A KT 1 l I M O R A I. l' I{ O B U •'. M S

rfrsf'nlf' so rneLhing. In most contexts , we think th at what I , h I - 1 · . . people de-snvc dcpencis on w ml l cy 1ave cone, mt.ended. or tried

h l. . f" . . to do It dc jJCncls on fea t urcs t al arc qua Illes o 111d1v1duals. The h · · I h' l Th eSl person for the 10b deserves t.o )e tree. e person who worked . · . espec1r1 1lv

hard deserves our gratitude. We can call the concept that , 1. . , app tes 1n these cases f,,,rsonal desert.

T h ere is another kind or d esert, however, that belongs to pe 1 f I . ·1 . . . If d d op e bv vir t uc o t 1e1r rn~1a111ty 1tse a~ oes de pend on their individ-

ual cl forts or ach ievem ents. I will call this impersonal kind of d . · esen hwnari desert. We appeal to this concept when we think that everyone deserves a certain level of treatment no matter what their individual qua lities arc. When the signers of the Declaration of Independence arfirmcd that people had inalienable rights to "life, liberty, and the pursuit of h appiness," they were appealing to such an idea. These rights do not have to be earned by people. They are possessed "natu- rally," and everyone is bound to respect them.

According to the view that l am defending, people do not lose all of their rights when they commit te rrible crimes. They still deserve some level of decent treatment simply because they remain living, function ing human beings. This level of moral desert need not be earned, and it cannot be forfeited. This view may sound controver- sial, but in fact everyone who believes that cruel and unusual punish- ment should be forbidden implicitly agrees with it. That is, they agree that even after someone has committed a terrible crime, we do not h ave the right to do anything whatsoever to him.

What I am suggesting is that by renouncing the use of death as a . b 1· f . th inalienable. pumshment, we express and reaffirm our e 1e m e

unforfeitable core of huma n dignity. ·11cr . I . th conYey1 " Why 1s this a worthwhile m essage to convey? tis wor hont · Throug because this belief is both important and precarious. d he hn·

· . degra et history, people have found mnumerable reasons to . hat the)· . 1. · ·n others t mamty of one another. They h ave found qua iues 1 d b)' these h d t threatene . ate or feared, and even when they were no h ir liber11 ·

· them oft e d people, they have sought to harm them, deprive hev had g00 or take their lives from them. They have often felt th.a~ t ~0 1111nat1d~-. k d d1v1ne reasons to do these things , and they have mvo e . 1 . l . . heir deeds. . 111 ,111 rac1a punty, and state security to support t Tl:lf\ i c 1 . f the past. . deJl i

These actions and attitudes are not rehcs O cino- the ·e· ·Id B)' renoun 1'. . nal i an awful feature of the conte mporary woi · 1 st 1111nJ1 .. ]11 ·d at ea . 101,1 .

penalty, we show our determination to accoi ' ll)' vile or 11 . b persona spect even to those whom we beheve to e

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c HA J'TER 37 T l-II~ OE/\T II P l,'. NA I.T y AS . A svrvi Bo1. , c I ssu1s 3 . h l 3n

. 5 This 1s, pe.r aps, w 1y we speak f· h :c1ou · 0 t e s . 1·1 l r than its value or worth. That which . ancttty of hu _ . r,1t ,e h bl d . is sacred man li fe untouc a e, an its value is not d remains · ~ense, K epende . . ' in some . fu )ness to us. ant expressed this ideal f nt on Its wonh use ·nd version of the Categorical Imper 1.

0 respect in the fam or 5eco . . a 1ve; "So ' ous ity whether m thme own person or . h act as to treat l man ' . h l m t at of an 1u-. as an end wit a , never as a means onl ,, Yother, in ever ca~e y. Y

fbe Problem of Moral Monsters

One may feel attracted to this ideal and yet res· t . b . . . I S 1· . is it y callmg t . ople hke Hit er or ta m or their various h h O mind pe . . enc men, who P onsible for the deaths of millions of innocent 1 were re-s d h 1 ;i H , peop e. Aren't su h

People beyon t e pa e. aven t they forfeited all 1 • : h . c aims to even mm imal decency so t at it would be appropriate to exe t h - h . d d ;i D ' cu e t em as pun-ishment for t eir ee s. oesn t the existence of such 1 h 1 · 1 · · peop e show that the deat pena ty is eg1t1mate?

These troubling questions raise important issues and d h , eat pen- alty opponents might meet them in diverse ways. For myself 1

h . h , am willing to say t at even m t ese cases, so long as these people no longer pose an active threat to others, it would be best not to execute them. Moreover, though their deeds were terrible beyond words, I think it best that we not renounce our respect for their humanity. . . . 1

Not all opponents of the death penalty would agree with the views \! I have expressed about figures like Hitler and Stalin, and ... it would l be possible for an opponent of the death penalty ... to concede that \ Hitler and Stalin might have gone so far that they no longer merited any consideration as human beings. One could even acknowledge that they should be executed.

All of this is consistent with opp osition to the death penalty. Why? Because these cases are extrao rdin ary and atypical. The death pen- alty controversy is concerned with the u se of death as a punishment for murders that occu r within society. It is advocated as a part of_our 0rdinary crim inal justice system . O ne could favor executing H~tler because of h is extr aord inary acts and still think that executions s~ould play no regular role in the achievement of domeStic 0rder Within a society. F 1 · f moral mon-rom the perspective of this reply the who e issue 0 sters . . ' . If d ath penalty sup-is a distract ion that confuses the issue. e 1- · 1 Porter . . 1 c traordinary po inca . s Were proposing execut10ns on Y ior ex b the crun. I 1 would e to

ina s like Hitler and Stalin, these exarnp es

336 PART III MORAL PROB LE: MS

point. Sine~ they are proposing executions for people whose d do not begm to approach the evil . of these famous persons d e~rh penalty supporters must. make a different sort of case for their ;ath The specter of Hitler and Stalin does not help their case a t a ll. iew.

The Morality of Restraint I_have argued that the firs~ symbolic mean!ng_conveyed by a renuncia- tmn of the death penalty 1s that human dignity must be respected in every person. To execute a person for murder is to treat that person as if he were nothing but a murderer and to deprive him of everything that he has. Therefore, if we want to convey the appropriate message about human dignity, we will renounce the death penalty ....

[T]he second important message conveyed by the renunciation of punishing by death ... [is that when] we restrain ourselves and do not take the lives of those who kill, we communicate the importance of minimizing killing and other acts of violence. We reinforce the idea that violence is morally legitimate only as a defensive measure and should be curbed whenever possible.

We can see the point of this message by contrasting it with Walter Berns's emphasis on the morality of anger. Without discounting all that Berns says, it seems to me that the death penalty supports the morality of anger in an unacceptable way. It suggests that if some- one's acts have provoked you to be very angry, then you may legiti- mately act violently against that person. The morality of restraint, on the other hand, requires that one control one's anger and allows one to attack another person only defensively. Anger by itself provides no justification for violence.

When the state has a murderer in its power and could execute him but does not, this conveys the idea that even though this person has done wrong and even though we may be angry, outraged, and indig- nant with him, we will nonetheless control ourselves in a way that he did not. We will not kill him, even though we could do so and even though we are angry and indignant. We will exercise restraint, sanc- tioning killing only when it serves a protective function. .

Why should we do this? Partly out of a respect for human dignity. But also because we want the state to set an example of proper behav- ior. We do not want to encourage people to resort to violence to settle

· 'd the conflicts when there are other ways available. We want to avoi cycle of violence that can come from retaliation and counter- retaliation. Violence is a contagion that arouses hatred and anger,

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if unchecked, it simply leads to still more viole nce. The state can and he message that the contagion must be stopped, and the onvey t . 1 £ . . . h . d c ffective princ1p e or stoppmg 1t 1st e 1 ea that only defensive ~

0st e is J. ustifiable. Since the death penalty is not an instance of violence b sive violence, it ought to e renounced.

defen £ 1· £ b b . . We show our respect or 1 e · est y restra1n1ng ourselves and al-

lowing murderers ~o live, rather. than b! following a policy of a life for a life. Respect for hfe and restramt of vmlence are aspects of the same ideal. The renunciation of the death penalty would symbolize our support of that ideal.