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The Morality of Capital Punishment - Walter Berns

Leaving aside both the legal issues involved in deciding wh ti . 1 . . . . . . e 1er capi ta pums~ment 1s const1tut1onal and t~e empmcal issues regarding its

effectiveness as det~rrent and the fairness with which it is applied, is it by its nature a v10lat1on of human dignity? Walter Berns (1919-2015), who was Professor ?f Gov~rnment at <?eorgetown University, argues that the death penalty 1s a fittmg expression of our care for victims of hor- rendous crimes and our ange r at those who have perpetrated brutal in- justice. Indeed , by punishi ng criminals appropriately, we are holding them responsible fo r their actions and paying them the respect due them as human b eings.

"Many sorrows sh all b e to the wicked: but he that trusteth in the Lord, mercy shall com pass him about. Be glad in the Lord, and re- joice, ye righteous: and shout for joy, all ye that are upright in heart!" 1 What is said in Psalms about the Lord must also be said about the law, and as belief in divine reward and punishment declines, it must be said more emphatically about the law: we must trust in the law, and those who do will be rewarded. The law must respond to the deeds of th

e wicked, and the righteous must have confidence that the law will r~spond, and do so in an appropriate manner. It must punish t~e wicked because the righteous or law-abiding citizens make th1s dernauct of it. They are angered by the sight or presence of crime, and ange ·

r is not merely a selfish passion. . . Roosevelt Grier, the former New York Giants defensive lmeman,

:~ th

e other friends of Robert Kennedy see him shot down before eir eyes. They are shocked, then grief stricken, then angry; but

from W c alter B M l 't if the Death Penalty. 0PYright © erns, For Capital Punishment: Crime and the · ora 1 Y O • h

c 1979

by Basic Books , Inc. Reprinted by permission of th e pubhs e r.

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'.)26 P A RT Ill MORAi. l'H 013U'. MS

Ca lifo rni a la w can not p e rmit th e m to disc h arge that anger on . . . d d its cau se , Ke nn e d y's assass in ; th ey must b e r es tra m e , _a n the app rop .

h . ri -

a tc way of res tra inin g th e m is to a ssure the m t at It , the law, will re- spond to thi s c rime. The law must ass uage ~h a t an ge r ~y satisfying it, bu t n ot ... simply to pre ve nt the m fr o m ta km g the law mto th e ir own h a nd s.

Co n side r a n o the r example. A few years ago , a seven-ye ar-old bo was bruta ll y murd e red on the lowe r East Side of Manhattan. Th ~ n ex t d ay, in a n ea rby neighborhood , a twenty- e ight-year-old woman was sta bbe d to d e ath in the doorway to her apartment. When the p o lice caught th e man suspected of doing it, they had a hard time prote cting him from an angry crowd of local residents . A week later a thirty-one -ye ar-old m a n was stabbed to death by a burglar in his a partment (one of the increasing number of felony murders) , this b efore th e eyes of his wife. The Tim es account continues as follows:

On th e lowe r East Side, most re side nts seemed to agree with the poli ce that th e n e xt tim e a murder su sp ec t is identified , Tuesday's mob sce ne is ve r y likely to be r e p e ate d . There is a widespread feeling that th e police, the courts, the entire criminal justice system simply acts out a sort of c harade , and that it is up to t h e community to demand that justice is done. "When the police find him, they'll just say he's a sick m a n a nd se nd him to a hospital for two years," said ... a Delancey Street shopkeeper. "Then he'll be right back on the street. The only thing to do is to kill this man right away, quickly and quietly."

2

The law must not allow that to happen , and not merely because the criminal may indeed be sick; it must provide the forms of justice in order to fulfill its educative function.

Robert Kennedy's friends were angry; that East Side mob was angry; and it is not only right that they be angry (for murder is a ter- rible crime), but punishment depends on it and punishment is a way of promoting justice ....

[A] just society is one where everyone gets what he deserves, at1cl · , " as

the wicked deserve to be punished-they deserve "many sorr0 "15 '. _ the Psalmist says-and the righteous deserve to be joyous. punisl;t ment serves both. t~ese ends: it makes the criminal unhap~Y .~

1\v makes the law-ab1dmg person happy. It rewards the law-abidi g ·

. f . d nd b) satts y1~1g the anger he feels at the sight of crime. It rewar s, a rewardmg teaches law-abidingness · ' · · · · the)

[T]o th e extent that men cease to be loving and hating rn en: 1 e l b

. . r is t 1 a so eco me md1fferent to what we know as crime ... • Ange p as sion th a t r ecogni ze s a n d cares about justice ....

C(--t A P TE H 36 THL•: MO R A l.lT Y OF CA P I TAi. PU N ISIIMF N T 32 7

Anger is ex!Jresse d o r man il~s lc d on Lhosc occasions wh en some-

) as acte d 111 a manner th a l Is thought Lo b e uni ust and on e of ·r oJ1C 1 . . . :., , I S bases is the o pinion t haL m e n are respo~s1ble , a nd sho u ld be held

n sible, for what they do . Thus, ange r Is accompani ed not only by respo l . h . h . ain cau sed by 11m w o 1s t e object of anger, but by the pleas ure the P .· f . . . a- [rom the expectation o exac tmg revenge on someon e who is ansll1o . 3 .

ght to deserve rt. We can become angry with an in ani ma te thOU . d l k' k. b

. ct (the door we run mto an t 1en IC m return) only by foo lishl y 0 ~e 'b'l' . d d ··buting responsI I Ity to It, an we cannot o that for long, which attil . . . hy we do not thmk of returnmg later to revenge ourselves on the JS W door. For the same reason, we cannot be more than momentarily

·r·y ,1/ith an animate creature other than man; only a fool or worse ang would dream of taking revenge on a dog. And, finally, we tend to pity rather than to be angry with men who-because they are insane , for example-are not responsible for their acts. Ang~r, then, is a very human passion not only because only a human bemg can be angry, but also because it acknowledges the humanity of its objects: it holds them accountable for what they do. It is an expression of that element of the soul that is connected with the view that there is responsibility in the world; and in holding particular men responsible, it pays them that respect which is due them as men. Anger recognizes that only men have the capacity to be moral beings and, in so doing, acknowl- edges the dignity of human beings. Anger is somehow connected with justice, and it is this that modern penology has not understood; it tends, on the whole, to regard anger as merely a selfish passion.

It can, of course , be that; and if someone does not become angry with an insult or an injury su ffered unjustly, we tend to think he does not think much of himself. But it need not be selfish, not in the sense of being provoked on ly by an injury suffered by oneself. There were many angry men in America when President Kennedy was killed; one of them-Jack Ruby-even took it upon himself to exact the punish- ment that, if indeed deserved , ought to have been exacted by the law. T_here were perhaps even angrier men when Martin Luther King was kt:d, for King, more than anyone else at the time, embodied a peo- p es quest for justice; the anger-more, the "black rage"-expressed on that oc . . . . had casion was simply a mamfestat10n of the great change that lar occurred among black men in America, a change wrought in ser~:

1 ?art by King and his associates in the civil rights m ovement: the

I ity and£ f . and th ear o the past h ad been replaced by pnde and anger, e treat h course . ~en t t at had formerly been accepted as a matter of or as if It d . . were eserved was now seen for what 1t was, unJUSt

328 P AR T Ill M ORA L P ROB LE M S

d Ce. p ta ble Kin g preach e d love but th e move m e n t h an u n ac · . · e le d . d ange r as we ll a s love , and that anger was n o t d d de, pe n e on . . espic

b . ith e r se lfish nor u1~3ust1fied. On the contrary, it w able, e1ng ne . .· d as a refl .· f what was called sohdanty an may more accurately

6 ec,

t1o n o k fi h b e cal] . ·ofou n d caring for others, blac or ot er lacks, white £ b ect a p1 . b 'Id A . or lack . d in the world King was trymg to u1 , mencan for othe A s, a n , . r me . Cans If men are not saddened when someone else suffers r1-('. . , or an whe n someone else suffers unjustly, the implication is that th gry

h l ey do not care for anyone other than t emse ves or that they lack . . . h . sorne quality that befits a man. When we cntiCize t em for this we ack

' now1. edge that they ought to care for others. If men are not angry whe d f . . I h . na neighbor suffers at the han s o a cnmma , t e implication is that

their moral faculties have been corrupted , that they are not good citizens.

Criminals are properly the objects of anger, and the perpetrators of terrible crimes- for example, Lee Harvey Oswald and James Earl Ray-are properly the objects of great anger. They have done more than inflict an injury on an isolated individ u a l; they have violated the foundations of trust and friendship , t h e necessary elements of a moral community, the only community worth living in. A moral community, unlike a hive of bees or a hill of ants, is one whose mem- bers are expected freely to obey the laws and, unlike a tyranny, are trusted to obey the laws. The criminal has vio la ted that trust, and in so doing has irtjured not merely his immediate victim but the com· munity as such. He has called into question the very possibility of that community by suggesting that men cannot be trusted freely to respect the property, the person, and the dignity of those with whom ~hey are associated. If, then, men are not angry when someon~ else is robbed, raped, or murdered, the implication is that there 15 110

1 . other mora commumty because those men do not care for anyone . than themselves. Anger is an expression of that caring, and sooetl needs men who care for each other who share their pleasures ~n th · · ' 4 h ass1on eir pains, and do so for the sake of the others. It is t e P fi h that can d · th sel 5 cause us to act for reasons having nothing to O wi r- or mean_calculation; indeed, when educated, it can become a ge~~y ous passion th · • count[) , e passion that protects the commumty or h ·ch demanding p · h . . . ff from w 1 un1s ment for Its enemies. It 1s the stu heroes are made

. . . . f the Capital · h · sty 0 pums ment ... serves to remind us of t he m aJe

11 se·

m oral 0rd er that is embodied in o ur law and o f the t errible c:relY qu en ces of · t b h d be fl1 1 s reac • The law must n o t b e u n de r stoo to

r

C 1.1 Ap'TER 36 THE MORALI TY OF C A P l T AL ) . pn l: \JN 1 S l--H v1. '£.NT

329

hat we enact or repeal at our will and obey O d' b . ite t . 11 h . . r iso ey at ou sti ll . 1ce especia y not t e criminal law. Wh ere .l . r ven1e1 ' . ver . aw is re- co11 d s merely statutory, men will soon enough disobey it d h rde a . h . , an t ey ga ·n how to do so wit out any inconvenience to themsel T h ·n leaI . . ves. e w1_ . l law 1nust possess a dignity far beyond that possessed by crnu1na .1. . . mere ·v enactment or utl itarian and self-interested calculations· statutoI ; h . . . '

ost powerful means we ave to give it that dignity is to authorize the l1l l · l Th . . l l . impose the u t1mate pena ty. e cnmina aw must be made it to . . . .

if l by which I mean, awe-insp1nng, or commanding "profound a,~u , "I . d f h . ect or reverential fear. t must remin us o t e moral order by iesp . h b . d . d h which alone we can live as uman eings, an 1n our ay t e only punishment that can do this is capital punishment.