Thursday, May 21, 2009

Common Sense, Capital Punishment and Deterrence

Opponents of Capital Punishment in Connecticut say it ought to be abolished because, among other reasons, it does not deter.

They are either right or wrong, though it seems counter-intuitive to say the punishment does not deter. When your Mom slapped you on the wrist for stealing cookies from the cookie jar, she did so on the assumption that her condign punishment would deter your future thefts.

When people say that capital punishment does not deter, we should ask them whether they believe any punishment deters. Assuming those who make this assertion should be taken seriously, we must asked them how they know capital punish does not deter. How may one test the assumption?

Paul commits a murder for which he is executed, and Peter is either deterred or not. In both crime and life, one takes ones chances. Peter may not be deterred because he knows of a certainty that while he is a genius – prisons are full of them – the cops are dunces. And even if he is caught and prosecuted in Connecticut, he has the word of the Speaker of the state House of Representatives, the President Pro-Tem of the Senate, as well as both committee chairs of the Judiciary Committee, that no one in Connecticut will be executed unless “they want to be executed.” Michel Ross, the second person to be executed in Connecticut in the last half century fairly begged to be executed because he wished to relieve the family members of his several victims the agony of further prolonged hearings and trials.

In Connecticut, the possibility is very good that if Peter, say, engages in a home invasion, rapes a mother and daughter and then murders, but for the father who luckily escapes, a whole family by setting their house on fire, he will not be executed. So Peter computes the possibilities and is not deterred. Can we say in that case that capital punishment has not deterred Peter. Would it not be closer to the truth to say that the empty threat of capital punishment does not deter? Punishment delayed under these circumstance is punishment denied. Is it not truer to say, under the prevailing circumstance, that non-punishment does not deter; that assumption would at least ratify our intuition?

To show Capital punishment does not deter, we would have to demonstrate that Peter would have committed a capital crime but was deterred from doing so because Paul was executed for having done the same, and Peter as a result consciously decided not to commit a murder. To ask a pedestrian question, how would I find Peter, and others like him who made a similar decision, so that I might include all of them in a statistical analysis? How do such non-crimes figure in polls and statistical analyses? They don’t and can’t. Deterrence is a likely hypothesis, nothing more. There is no irrefutable proof that punishment deters, shall we say, bank robberies. But we do not argue that because the deterrence value of punishment in the case of bank robberies is questionable, we should for that reason repeal future punishments.

If capital punishment has no deterrent value, is it unjust?

No. A punishment need not deter to be just. Justice, in punishments, is related to proportionality and a dispassionate process that results in the assignment of punishment. That is why lady justice is pictured as a woman blindfolded with a scale of justice in her hands. She is blindfolded because justice must be disinterested. And she presents a scale because justice involves a weighing of truths presented at trial and a just verdict, followed by a condign punishment. The punishment is just if the process leading to the punishment is dispassionate, fair and proportional to the crime for which the criminal has been convicted.

These -- and not the deterrent value of punishment – are the marks of justice. And in the light of these values, capital punishment in Connecticut is both just and necessary in the cases in which it has been applied.

There are people who argue that capital punishment is vengeance, murder by the state, but these people cannot make common distinctions between the capital crimes of a criminal, which sometimes are vengeful, and the judgments of a jury, which are dispassionate and, in the case of Ross, who raped and murdered several young women, eminently just.

Others argue there are strong religious reasons that support the abolition of capital punishment.

That is true. But those who argue in this fashion, if they are Catholics, give the lie to their profession of faith if they do not oppose abortion, which their church regards as the taking of an innocent human life. Those who support capital punishment for certain crimes – say, multiple murder, especially heinous murders, or the murder of a prison guard or prisoner while serving a sentence for murder – need not pay attention to protests coming from this quarter. Atheists, what Jacques Maritain called “practical atheists” and agnostics cannot avail themselves of this argument. It has been pretty much a given in Connecticut legislation, especially on the state’s judiciary committee, that laws ought not to be written merely for the purpose of satisfying religious objections.

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