Death Penalty Exceptions

Not all who oppose capital punishment are absolutist in their beliefs. Many proffer up some cases in which execution is acceptable. Among these, the most prominent are (in the wake of 9-11) cases of terrorism, mass murder/serial killer, and cop killers.

The case of terrorism is perhaps unique. To begin with, if the terrorist(s) are not a member of the just society in which they engage in terrorist killings, then there is no conflict with a rule stating a just society does not take the lives of its own members. If, however, the locus of the terrorist activity and the terrorist are both situated within the same just society, then it is not dissimilar to the second case of mass murder or serial killing. (I’ll come back to another issue pertaining to terrorism later in this piece.)

The exception carved out for mass killings is based largely on social contract theory. That is, the act is outside of the bounds set by the social contract, and thus this actor has forfeited his citizenship in the just society (I think this can be fit into both an Hobbesian contractarianism as well as the contractualism of Kant, Rawls or Scanlon). This would place him outside of the protection of a rule that holds a just society does not take the lives of its own members.

Our final exception- that of the cop killer- is an argument based more on symbolism and/or emotion. In its symbolic role, it’s a means for politicians, and others, to show that they are “tough on crime.” At the emotional level, it is a visceral reaction to what some perceive as an especial affront to public morality.

But are those valid reasons? Might we not make the argument that our police officers, as our military, are engaged in an activity (protecting us) that inescapably places them in harm’s way? And that these individuals have accepted such potential dangers. Is there a societal interest in offering special punishment to the killer of Officer John Doe as opposed to the punishment meted out to the killer of citizen Jane Doe? If there is, I fail to see it.

Now, back to our terrorist situation. Is there a way to still use our notions of a just society in such a way that terrorist activity, no matter its locus, would be a breach of our social contract? I believe there is, if we expand the concept of a just society to include all humans. Now, making such an expansion would not fit into a contractualist account (as evidence by Nagel’s criticisms). Nevertheless, this thought experiment really underlies most international law with respect to human rights.


7 thoughts on “Death Penalty Exceptions

  1. “Is there a societal interest in offering special punishment to the killer of Officer John Doe as opposed to the punishment meted out to the killer of citizen Jane Doe?”

    I think you’re right here but the likeliest response is that cops have an instrumental value in the maintenance of civil order and an attack is more than a hazard of the duty but an attack upon the pillars society itself stands upon.

    Given that it would be bad for there to be fewer police officers(short term)and fewer recruits (long term)as a direct and subsequent result of cop killings, deterring just this vis a vis tougher punishments for cop-killing could be in the societal interest. (e.g. Iraq)

    • My only quibble is that I am not sold on the notion of death penalty as a deterrent. One of my former professors co-authored a paper a few years ago showing that there is a deterrent effect, but that is really one of a very few that find such an effect. I’m not sure if you’re making the following point, but it’s what came to my mind- in providing capital punishment for cop killers, society is signaling its high esteem for police officers, which could lead to more people entering that profession.

      • Your summation of my point is basically the contrapositive. I’m saying if 30% of all police officers were killed in the line of duty, fewer people would be police officers ergo deterring the killing of police officers (harsh sentencing) reduces powerful disincentives to entering a job necessary for the safety of society.

        I wanted to play devil’s advocate here because I think it’s a credible response to say that Jane Doe (assuming she isn’t POTUS or something) is less directly related to the safety and security of the society as a whole, than random police officer.

        That said, personally, I share you scepticism about how much of a deterrent the death penalty actually is – at least for the crimes for which it’s a possibility.

        I also think our narrow conception of crime deterrence (harsher sentencing) is self-limiting.

  2. I am opposed to the death penalty except in so few cases that I am effectively against the death penalty in all cases, if that makes sense.

    Basically, I support the death penalty when it comes to issues of national or civic security. Being a terrorist is not enough, but being a charismatic and symbolic leader of a terrorist movement could be. It’s sort of what makes treason different from murder. Sometimes you have to cut off the head before you can go for the limbs.

    However… I can’t think of any cases to which this applies in the US. We are fortunate enough to have a strong enough civic society where we don’t see these kinds of threats to the social order. Once imprisoned, Tim McVeigh posed no more threat alive than dead. Nobody seriously poses a threat of violent insurrection. And so on.

  3. I’m sympathetic to the cop-killer notion in theory but not in fact. The biggest protection we can give to the order of police is that we scorch the earth to locate the perpetrators so that anybody that kills a cop knows that they will face the price. Certainty of arrest (and conviction) is far more important than actual punishment.

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