Getting Past the Death Penalty

A just society does not take the lives of its citizens.

When framed in the language of justice, and its underlying concept of morality, it is difficult not to oppose the death penalty. In order to reject the above rule, one must either provide a conception of justice that does not have any difficulty in deciding that some members of society ought to die or argue that certain people have, by virtue of their crime, forfeited their status as a citizen of the just society. I find the second argument far more compelling, but ultimately believe it still fails.

Let us first examine the proposition itself. As a starting point, we must agree that there is such a thing as a just society. This precedes any discussion of the particulars. The concept of a just society is rooted in both theology and philosophy. In its most basic form, a just society is one in which the members are treated not simply as means, but rather as ends (see, for example Kant and Rawls) possessing inherent value.  There are those, such as moral relativists, nihilists and Hayekians, who claim that there is no such thing as a just society as an objective entity.

Aside from Hayek, who thinks the idea itself absurd, other critics of the just society focus on whether an objective standard for justice exists. Without confronting these critics directly, I would argue that the above rule does not need to be founded on an objective notion of justice. A subjective notion of the just society is foundation enough.

That brings us to the first argument against the rule- that a just society could (should) provide for the taking of its citizens lives when deemed necessary. This is the argument that many supporters of the death penalty have made- that there is nothing inherently unjust in capital punishment. In fact, recent polling shows that even among death penalty supporters, there are about a third who believe that an innocent person has been executed in the past five years. Taking this a step further, does this mean that capital punishment supporters not only view it as not unjust, but that the execution of innocent people is also not unjust? That may be a bridge too far, but it does fit in a logical sense with these findings.

Now, to the second argument, which I find far more persuasive. In claiming that particular people have forfeited their status as citizens, it does not directly contradict the above rule. The two may coexist. A claimant may say, “a just society does not take its citizen’s life, but a heinous criminal is no longer a member of this just society by virtue of his crime, therefore this just society may take the life of this non-citizen.” The weakness of this argument is that it presupposes that the just society itself has some power to take away the citizenship status of one of its members. I believe this to be problematic for the same reason capital punishment itself is, namely that human beings are fallible. In other words, a just society cannot ensure that its determination of citizenship will be without error.

This leads to a more practical argument about the death penalty. Errors have been made. Innocent people have been executed. To deny such claims, one would have to believe that despite all of the exonerations of death row inmates, not one error has been made with the actual death penalty. To say that is a bridge too far is a wild understatement. To believe such a thing borders on willful delusion.

Now, some death penalty supporters will, and have argued, that the use of DNA testing will ensure that no innocent people will be executed. But this is a provably false claim. Not all capital crimes involve DNA. Further, we have very recent evidence that innocent people have been executed- Cameron Todd Willingham. Ample evidence of his innocence was produced before his execution. Yet, Texas governor Rick Perry refused to grant clemency.

If an innocent man can, and has been, executed, can we really say that we live in a just society. I would argue that we do not. My argument does not rest on the barbaric nature of capital punishment or that only the most repressive regimes in the world still utilize it, but rather on the fundamental notion of a just society. Put simply, as above- a just society does not take the lives of its citizens.

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