February 14, 2008
As I have explained in my two previous columns, there are five core objectives of a criminal justice system: incapacitation, rehabilitation, retribution, deterrence, and symbolism. In the first column, I showed that incapacitation and rehabilitation are irrelevant as distinctions between execution and life in prison without the possibility of parole (LIPWPP) and that retribution strongly favors execution. In the previous column, I explained why I think capital punishment does not deter, though I strongly support the practice for other reasons. But even if I thought that executing murderers would deter others from this crime, that still would not justify doing so for that reason. Why not? It's actually quite simple.
People must be punished for their own crimes and not used as utilitarian instruments for the sake of scaring other people.
Consider a rather extreme example. Graffiti is a scourge on many cities. It costs money, it costs time, and it is a serious social pollutant because of all the intangible messages its presence communicates. But I have a solution. I say we cut the arms off all taggers. If that doesn't work, we'll start cutting off their legs as well. If that doesn't work, we can systematically progress through a list of cherished body parts until we find the correct deterrent. Perhaps we'll try advancing the mandatory body mutilation schedule every three months until we find no new graffiti appearing on our city surfaces. Though clearly effective at deterring, would this approach be wrong?
The obvious problem is that, as much as we hate graffiti, the punishment is disproportionate to the crime. Punishing a person more than his crime merits is itself an act of injustice, all the more so when done with the solemnity and deliberation of the state. Just as the lex talionis (eye for an eye) principle in the Bible was meant as a limit on retribution not an escalation, our system of ethics likewise obligates us to never punish a person more than he deserves.
"But wouldn't removing limbs be an excellent deterrent?"
Indeed, but people are not objects which may be used as we please to obtain a desirable persuasive impression on others. They must be treated with respect as persons in their own right. The problem with punitive amputation is not that it wouldn't deter. The problem is that, in over-punishing the violator, we would be reducing him from a human being to an instrument. This is the essential defect of every form of totalitarianism including communism. They turn people into numbers or cogs or machines or whatever metaphor best clarifies the problem rather than respecting them as human beings made in the image of God. Even benevolent motives cannot justify such abandonment of our core principle that humans have inalienable rights.
The proper first question is not whether capital punishment deters; it is whether capital punishment is just. If murder justifies execution on retributive grounds, then we should do it for that reason. If murder does not justify execution this way, then going beyond what is justified for the proposed benefit of deterrence becomes its own crime. Punishing a $200 theft with full restitution plus $600 for social fabric damage is fair. That this might deter is nice. That punishing it instead with $200 and three fingers would deter better does not alter the fact that hand mutilation would be an evil punishment.
There is one wrinkle in all of this, and it has to do with deterring the particular convict himself from future wrongdoing. It is sometimes right to over-punish a perpetrator for the sake of convincing him to not be a recidivist. This is the source of civil law's punitive damage awards. But at least for this discussion such considerations are obviously irrelevant. The executed murderer is very unlikely to need deterring from future murders.
Thus, when considering two or more punishments which differ primarily in degree of severity, deterrence is always at best a side issue. If the alternatives are both retributively just, then deterrence can certainly break ties. But if the difference is so clearly about severity, as is the case with execution versus LIPWPP, deterrence cannot be a consideration.
