God's Justice and Ours.
June 12, 2002 9:49 AM Subscribe
God's Justice and Ours. Justice Antonin Scalia writes on capital punishment in First Things: "In my view, the major impetus behind modern aversion to the death penalty is the equation of private morality with governmental morality. This is a predictable (though I believe erroneous and regrettable) reaction to modern, democratic self–government."
The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” And when Cranmer asks whether he is sure of that, More replies, “He will not refuse one who is so blithe to go to Him.” For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!
Well put.
posted by insomnyuk at 10:21 AM on June 12, 2002
Well put.
posted by insomnyuk at 10:21 AM on June 12, 2002
The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law—even if it does not compel him to act unjustly—need not be obeyed. St. Paul would not agree. “Ye must needs be subject,” he aid, “not only for wrath, but also for conscience sake.” For conscience sake.
I don't think I would quote St Paul so blithely on the subject of civil disobedience, since he was in and out of prisons his entire career. While he didn't counsel Christians to go around looking for trouble, he certainly didn't tell them they should let the government be the arbiter of their consciences.
Am I misunderstanding, or is Scalia attempting to extend the idea of the divine right of kings to modern democracies?
Is it prudent to imperil acceptance of the Church’s hard but traditional teachings on birth control and abortion and euthanasia (teachings that have been proclaimed in a binding manner, a distinction that the average Catholic layman is unlikely to grasp) by packaging them—under the wrapper “respect for life”—with another uncongenial doctrine that everyone knows does not represent the traditional Christian view? (Emphasis his)
Here comes that "traditional Christian view" bugaboo again. Sigh. I've invoked that specter in discussion myself, but it sure seems to be malleable. Wish we could pin that baby down a little better.
posted by norm29 at 10:30 AM on June 12, 2002
I don't think I would quote St Paul so blithely on the subject of civil disobedience, since he was in and out of prisons his entire career. While he didn't counsel Christians to go around looking for trouble, he certainly didn't tell them they should let the government be the arbiter of their consciences.
Am I misunderstanding, or is Scalia attempting to extend the idea of the divine right of kings to modern democracies?
Is it prudent to imperil acceptance of the Church’s hard but traditional teachings on birth control and abortion and euthanasia (teachings that have been proclaimed in a binding manner, a distinction that the average Catholic layman is unlikely to grasp) by packaging them—under the wrapper “respect for life”—with another uncongenial doctrine that everyone knows does not represent the traditional Christian view? (Emphasis his)
Here comes that "traditional Christian view" bugaboo again. Sigh. I've invoked that specter in discussion myself, but it sure seems to be malleable. Wish we could pin that baby down a little better.
posted by norm29 at 10:30 AM on June 12, 2002
Why quote St. Paul when the big Guy himself directly addressed the question:
(John) 8:3 And the scribes and Pharisees brought unto him [Jesus] a woman taken in adultery; and when they had set her in the midst, 8:4 They say unto him, Master, this woman was taken in adultery, in the very act. 8:5 Now Moses in the law commanded us, that such should be stoned [to death]: but what sayest thou? 8:6 This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not. 8:7 So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her.
posted by quercus at 10:39 AM on June 12, 2002
(John) 8:3 And the scribes and Pharisees brought unto him [Jesus] a woman taken in adultery; and when they had set her in the midst, 8:4 They say unto him, Master, this woman was taken in adultery, in the very act. 8:5 Now Moses in the law commanded us, that such should be stoned [to death]: but what sayest thou? 8:6 This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not. 8:7 So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her.
posted by quercus at 10:39 AM on June 12, 2002
I think Scalia is making an important point.. Yes, lupus, you have the issues of mistakes in the justice system..
But the government must balance that versus the benefits or threats to the society. If, by keeping the death penalty, you are elminating any chnace of the person committing another crime against society, and the befits of doing that as opposed to anything else, then the government has the obligation to do so.
By having support for the elimination of the death penalty depend chiefly on the personal morality of individuals, you ignore the government's responsibility to the society as a whole - as government does not exist for the individual, but for the society that individual is part of.
posted by rich at 10:44 AM on June 12, 2002
But the government must balance that versus the benefits or threats to the society. If, by keeping the death penalty, you are elminating any chnace of the person committing another crime against society, and the befits of doing that as opposed to anything else, then the government has the obligation to do so.
By having support for the elimination of the death penalty depend chiefly on the personal morality of individuals, you ignore the government's responsibility to the society as a whole - as government does not exist for the individual, but for the society that individual is part of.
posted by rich at 10:44 AM on June 12, 2002
as government does not exist for the individual, but for the society that individual is part of.
That is interesting, as I am all about the individual (and I mean all about the individual) and I support the death penalty as a concept if not always in practice.
posted by thirteen at 10:49 AM on June 12, 2002
That is interesting, as I am all about the individual (and I mean all about the individual) and I support the death penalty as a concept if not always in practice.
posted by thirteen at 10:49 AM on June 12, 2002
as government does not exist for the individual, but for the society that individual is part of.
That is interesting, as I am all about the individual (and I mean all about the individual) and I support the death penalty as a concept if not always in practice.
posted by thirteen at 10:52 AM on June 12, 2002
That is interesting, as I am all about the individual (and I mean all about the individual) and I support the death penalty as a concept if not always in practice.
posted by thirteen at 10:52 AM on June 12, 2002
If, by keeping the death penalty, you are elminating any chnace of the person committing another crime against society,
Eliminating the death penalty does not mean you cannot eliminate the chance of the offender committing another crime -- without the death penalty there is still the option of life imprisonment without the possibility of parole.
(Well. That was one ugly sentence. My apologies.)
Given that, how is a demand for the death penalty anything but blood lust, or, to continue in the scriptural vein, a demand for an eye for an eye?
posted by lupus_yonderboy at 10:56 AM on June 12, 2002
Eliminating the death penalty does not mean you cannot eliminate the chance of the offender committing another crime -- without the death penalty there is still the option of life imprisonment without the possibility of parole.
(Well. That was one ugly sentence. My apologies.)
Given that, how is a demand for the death penalty anything but blood lust, or, to continue in the scriptural vein, a demand for an eye for an eye?
posted by lupus_yonderboy at 10:56 AM on June 12, 2002
rich - You can eliminate the chance of someone committing another crime against society without killing them surely? And i would have thought that a government existed for both the benefit of society and the individual.
As an aside, what happens if you extend Scalia's arguement and have the equation of private morality with corporate morality?
Would Scalia argue that these moralities should also be different I wonder? Certainly from the way some companies disregard human life at the moment, it would seem that they are.
Sorry for going off in a tangent.
posted by iain at 10:57 AM on June 12, 2002
As an aside, what happens if you extend Scalia's arguement and have the equation of private morality with corporate morality?
Would Scalia argue that these moralities should also be different I wonder? Certainly from the way some companies disregard human life at the moment, it would seem that they are.
Sorry for going off in a tangent.
posted by iain at 10:57 AM on June 12, 2002
Here comes that "traditional Christian view" bugaboo again.
Indeed. But Scalia only means "Roman Catholic" here, to the exclusion of, say, Primitive Methodists.
Goodness knows what he would say to Martin Luther King.
posted by thomas j wise at 11:03 AM on June 12, 2002
Indeed. But Scalia only means "Roman Catholic" here, to the exclusion of, say, Primitive Methodists.
Goodness knows what he would say to Martin Luther King.
posted by thomas j wise at 11:03 AM on June 12, 2002
Slight tangent: there is a fascinating Salon Premium article about how Scalia may vote in the current death penalty case of Ring vs. Arizona:
The court's decision is likely to hinge on conservative Justice Antonin Scalia. That's because Scalia wrote a strong concurring opinion in the precedent Ring's lawyers are using -- a New Jersey drug case known as Apprendi vs. New Jersey, in which the justices ruled 5-4 that any new information obtained or used by a judge after a trial, as grounds for increasing the sentence of a convict, must first be considered and approved by a jury. In supporting the Apprendi decision, Scalia wrote: "Judges, it is sometimes necessary to remind ourselves, are part of the state." He added, "The founders of the American republic were not prepared to leave [criminal justice] to the state, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights."
"The question for Justice Scalia is whether he will have the courage of his Apprendi convictions even though it will mean making what is for him an abhorrent result -- striking down Arizona's death penalty law," says Edward Lazarus, a former federal prosecutor now in private practice in Los Angeles who writes for FindLaw.
The Ring case involves a prisoner who, in 1995, was convicted by an Arizona court of being a ringleader in the fatal 1994 robbery of an armored truck in which the driver was shot dead. Although Ring was never placed at the scene of the crime during the course of the trial, he was found to have played a key role in the planning of the robbery, and was thus convicted of felony murder by a jury, a crime for which the maximum penalty is death. But the jury split 6-6 on the charge of premeditation.
Given that in the U.S. it is almost unheard of for someone to be executed who didn't have a direct hand in a killing, it is unlikely that Ring would have gotten a death sentence if that had been the end of it. But when it came time for the judge to hold a sentencing hearing on Ring's case, new evidence was presented -- one of his accomplices testified that Ring had been the shooter. Based on that new information, which was never heard by the jury, the judge sentenced Ring to death.
And that seems to fly in the face of Apprendi vs. New Jersey, in which Scalia argued that the jury's right to review information used by a judge to sentence a convict is rooted in common law. Now, Ring's attorney Hurwitz is arguing that the court's Apprendi decision ought equally to apply to evidence used by a judge to sentence someone to death.
posted by homunculus at 11:28 AM on June 12, 2002
The court's decision is likely to hinge on conservative Justice Antonin Scalia. That's because Scalia wrote a strong concurring opinion in the precedent Ring's lawyers are using -- a New Jersey drug case known as Apprendi vs. New Jersey, in which the justices ruled 5-4 that any new information obtained or used by a judge after a trial, as grounds for increasing the sentence of a convict, must first be considered and approved by a jury. In supporting the Apprendi decision, Scalia wrote: "Judges, it is sometimes necessary to remind ourselves, are part of the state." He added, "The founders of the American republic were not prepared to leave [criminal justice] to the state, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights."
"The question for Justice Scalia is whether he will have the courage of his Apprendi convictions even though it will mean making what is for him an abhorrent result -- striking down Arizona's death penalty law," says Edward Lazarus, a former federal prosecutor now in private practice in Los Angeles who writes for FindLaw.
The Ring case involves a prisoner who, in 1995, was convicted by an Arizona court of being a ringleader in the fatal 1994 robbery of an armored truck in which the driver was shot dead. Although Ring was never placed at the scene of the crime during the course of the trial, he was found to have played a key role in the planning of the robbery, and was thus convicted of felony murder by a jury, a crime for which the maximum penalty is death. But the jury split 6-6 on the charge of premeditation.
Given that in the U.S. it is almost unheard of for someone to be executed who didn't have a direct hand in a killing, it is unlikely that Ring would have gotten a death sentence if that had been the end of it. But when it came time for the judge to hold a sentencing hearing on Ring's case, new evidence was presented -- one of his accomplices testified that Ring had been the shooter. Based on that new information, which was never heard by the jury, the judge sentenced Ring to death.
And that seems to fly in the face of Apprendi vs. New Jersey, in which Scalia argued that the jury's right to review information used by a judge to sentence a convict is rooted in common law. Now, Ring's attorney Hurwitz is arguing that the court's Apprendi decision ought equally to apply to evidence used by a judge to sentence someone to death.
posted by homunculus at 11:28 AM on June 12, 2002
Eliminating the death penalty does not mean you cannot eliminate the chance of the offender committing another crime -- without the death penalty there is still the option of life imprisonment without the possibility of parole.
But it is not assured. While there is still life, the is still hope - the criminal may victimize other inmates, enjoy some measure of the pleasures of life, and spend the rest of his or her days alternately fomenting appeals and planning escapes. As a death penalty supporter, I will concur that the system needs to be certain that innocents are not executed (the current equating, however, of those inmates removed from death row as "innocent" when it reality they are still very much guilty does not impress me much - it's only so much bullet-dodging, imo). But I believe that there are some crimes that are so heinous, so foul, that there truly is only one just punishment. Until the law enforcement community can absolutely guarantee that a sentence of life imprisonment can be carried out to the exact definition of the term, I will continue to support the death penalty.
Just as an aside, before it comes up - though I support the death penalty, I do not believe it deters criminals other than the one executed. That idea is a total fallacy, and the supporters of capital punishment would do well to eliminate it from their arguments.
posted by UncleFes at 11:43 AM on June 12, 2002
But it is not assured. While there is still life, the is still hope - the criminal may victimize other inmates, enjoy some measure of the pleasures of life, and spend the rest of his or her days alternately fomenting appeals and planning escapes. As a death penalty supporter, I will concur that the system needs to be certain that innocents are not executed (the current equating, however, of those inmates removed from death row as "innocent" when it reality they are still very much guilty does not impress me much - it's only so much bullet-dodging, imo). But I believe that there are some crimes that are so heinous, so foul, that there truly is only one just punishment. Until the law enforcement community can absolutely guarantee that a sentence of life imprisonment can be carried out to the exact definition of the term, I will continue to support the death penalty.
Just as an aside, before it comes up - though I support the death penalty, I do not believe it deters criminals other than the one executed. That idea is a total fallacy, and the supporters of capital punishment would do well to eliminate it from their arguments.
posted by UncleFes at 11:43 AM on June 12, 2002
"The Humanitarian Theory of Punishment", by C.S. Lewis
posted by aaronshaf at 11:54 AM on June 12, 2002
posted by aaronshaf at 11:54 AM on June 12, 2002
lupus, iain; sure, you can put someone in prison for life, but then there are the costs to society for that, as well (and not just monetary as Fez points out). Also, while eye for an eye may not be one person's morality, it may be another's..
the point Scalia is making, I believe, is that individual morality arguments do not necessarily apply to governmental morality because they are attempting to do two different things.
Corporate morality needs to correspond to the governmental morality the entity operates under, since those are the laws it must obey. While you may find some practices of coporations morally objectionable, it is following the principals of the government (which in some cases are more influenced by a corporations (perceived) potential contribution to the society as a whole, providing the corporation with the go-ahead to do individually morally objectionable things).
While it would be nice for companies to follow the individual morality of those that run it, there are trade-offs that must be consciously made - some significant, others not as much so - that affect the health and continuing viability of the company as whole.
posted by rich at 12:07 PM on June 12, 2002
the point Scalia is making, I believe, is that individual morality arguments do not necessarily apply to governmental morality because they are attempting to do two different things.
Corporate morality needs to correspond to the governmental morality the entity operates under, since those are the laws it must obey. While you may find some practices of coporations morally objectionable, it is following the principals of the government (which in some cases are more influenced by a corporations (perceived) potential contribution to the society as a whole, providing the corporation with the go-ahead to do individually morally objectionable things).
While it would be nice for companies to follow the individual morality of those that run it, there are trade-offs that must be consciously made - some significant, others not as much so - that affect the health and continuing viability of the company as whole.
posted by rich at 12:07 PM on June 12, 2002
the core of his message is that government—however you want to limit that concept—derives its moral authority from God. It is the “minister of God” with powers to “revenge,” to “execute wrath,” including even wrath by the sword (which is unmistakably a reference to the death penalty).
hardly "unmistakably". this could mean any number of things, such as the right to wage war, the right to protect your country, etc.
Abolition has taken its firmest hold in post–Christian Europe, and has least support in the church–going United States
Least?? what about saudi arabia? what about China? those are not christian nations.
Nevertheless, a very interesting article, and a very interesting discussion as well (congratulations to everyone for keeping it civil and intelligent). I would agree with scalia that the traditional teaching of the church has been in support of capital punishment. In Scalia's view, traditional teachings seem to be the be-all and end-all in both religion and law, as he goes to great lengths to explain his view that the constitution is not a 'living document' but a dead one. I don't happen to share this view, but I understand where he's coming from. But here I have a problem with his strict interpretation:
hardly "unmistakably". this could mean any number of things, such as the right to wage war, the right to protect your country, etc.
Abolition has taken its firmest hold in post–Christian Europe, and has least support in the church–going United States
Least?? what about saudi arabia? what about China? those are not christian nations.
Nevertheless, a very interesting article, and a very interesting discussion as well (congratulations to everyone for keeping it civil and intelligent). I would agree with scalia that the traditional teaching of the church has been in support of capital punishment. In Scalia's view, traditional teachings seem to be the be-all and end-all in both religion and law, as he goes to great lengths to explain his view that the constitution is not a 'living document' but a dead one. I don't happen to share this view, but I understand where he's coming from. But here I have a problem with his strict interpretation:
- when the 8th amendment was ratified, capital punishment was not considered cruel and unusual punishment
- the 8th amendment forbids cruel and unusual punishment. it does not forbid specific punishments such as the death penalty.
- today, more people are beginning to view the death penalty as cruel and usual punishment, such that in 10-20 years, society (on average) may consider capital punishment cruel and unusual
- since the constitution bans "cruel and unusual" punishment rather than specifically describing what kinds of punishments should be considered cruel and unusual, doesn't the interpretation of this amendment have to take into account what society considers cruel and unusual?
Until the law enforcement community can absolutely guarantee that a sentence of life imprisonment can be carried out to the exact definition of the term, I will continue to support the death penalty.
Funny, UncleFes: I think we're using the same argument but from opposite sides of the fence. You are using the ambiguities in life imprisonment -- possibility of escape, victimisation of other inmates, enjoyment of life -- to support the death penalty; My concerns with the death penalty -- inequity of application, inevitable killing of people innocent of that crime -- cause me to support life in prison.
I'm more interested, though, in your previous statement:
"I believe that there are some crimes that are so heinous, so foul, that there truly is only one just punishment."
My question: Can a penalty be just if it is carried out disproportionately based on the colour of the defendant's skin?
(And, just out of curiosity, what are so heinous, so foul crimes that support a penalty of death, in your view?)
posted by lupus_yonderboy at 12:35 PM on June 12, 2002
Funny, UncleFes: I think we're using the same argument but from opposite sides of the fence. You are using the ambiguities in life imprisonment -- possibility of escape, victimisation of other inmates, enjoyment of life -- to support the death penalty; My concerns with the death penalty -- inequity of application, inevitable killing of people innocent of that crime -- cause me to support life in prison.
I'm more interested, though, in your previous statement:
"I believe that there are some crimes that are so heinous, so foul, that there truly is only one just punishment."
My question: Can a penalty be just if it is carried out disproportionately based on the colour of the defendant's skin?
(And, just out of curiosity, what are so heinous, so foul crimes that support a penalty of death, in your view?)
posted by lupus_yonderboy at 12:35 PM on June 12, 2002
My question: Can a penalty be just if it is carried out disproportionately based on the colour of the defendant's skin?
If you never get over this hurdle, you will never be able to rationally debate the issue. It seems like you are operating under the assumption that anyone who is a minority on Death Row is only there because the system is racist. You are branding every juror who has convicted a minority, and every prosecutor and judge involved as a racist. I think that's wrong.
I can think of a few crimes that would deserve the death penalty. Try murder.
posted by insomnyuk at 1:18 PM on June 12, 2002
If you never get over this hurdle, you will never be able to rationally debate the issue. It seems like you are operating under the assumption that anyone who is a minority on Death Row is only there because the system is racist. You are branding every juror who has convicted a minority, and every prosecutor and judge involved as a racist. I think that's wrong.
I can think of a few crimes that would deserve the death penalty. Try murder.
posted by insomnyuk at 1:18 PM on June 12, 2002
inequity of application, inevitable killing of people innocent of that crime
and we probably we would each question the other's reasoning on the caveats :) I certainly would take issues with the "inevitability" of putting a truly innocent man to death. The execution process is lengthy and contains multiple opportunities for appeal. The last thing death penalty advocates want is an executed innocent - it is the one thing both sides can agree on, I think.
My question: Can a penalty be just if it is carried out disproportionately based on the colour of the defendant's skin?
It depends on what you mean by disproportionate. If these crimes are committed disproportionately by certain races, then the problem is not with the punishment, but rather with the cultural aspects (poverty and lack of economic opportunity seem to be the biggest affectors) that lead individuals to commit crimes, and solutions should be sought and implemented there. But if you mean that if people of different races who commit the same crime receive different sentences, I absolutely agree that's unjust.
And, just out of curiosity, what are so heinous, so foul crimes that support a penalty of death, in your view?
Actually, I'd like to see the list of capital crimes expanded. I think murder, regardless of degree, should be a capital crime. Any rape should be a capital crime. Certain levels of attempted murder should be capital crimes (esp. when the possibility exists that the criminal will attempt to finish the job and/or the damage to the victim is especially severe). Child molestation and production of child pornography, upon recidivism, should be a capital crime.
Obviously, those opinions are not shared by the general run of the population. My personal opinion is that the American public is losing its willingness to enact the death penalty, and I believe it will be ceased here within ten years.
posted by UncleFes at 1:21 PM on June 12, 2002
and we probably we would each question the other's reasoning on the caveats :) I certainly would take issues with the "inevitability" of putting a truly innocent man to death. The execution process is lengthy and contains multiple opportunities for appeal. The last thing death penalty advocates want is an executed innocent - it is the one thing both sides can agree on, I think.
My question: Can a penalty be just if it is carried out disproportionately based on the colour of the defendant's skin?
It depends on what you mean by disproportionate. If these crimes are committed disproportionately by certain races, then the problem is not with the punishment, but rather with the cultural aspects (poverty and lack of economic opportunity seem to be the biggest affectors) that lead individuals to commit crimes, and solutions should be sought and implemented there. But if you mean that if people of different races who commit the same crime receive different sentences, I absolutely agree that's unjust.
And, just out of curiosity, what are so heinous, so foul crimes that support a penalty of death, in your view?
Actually, I'd like to see the list of capital crimes expanded. I think murder, regardless of degree, should be a capital crime. Any rape should be a capital crime. Certain levels of attempted murder should be capital crimes (esp. when the possibility exists that the criminal will attempt to finish the job and/or the damage to the victim is especially severe). Child molestation and production of child pornography, upon recidivism, should be a capital crime.
Obviously, those opinions are not shared by the general run of the population. My personal opinion is that the American public is losing its willingness to enact the death penalty, and I believe it will be ceased here within ten years.
posted by UncleFes at 1:21 PM on June 12, 2002
I suppose the Crucifixion was OK by Scalia, then? I really wish Papa John could just excommunicate Scalia for this stuff, but then again I'm a Catholic who has no problem with contraception, so I'd probably go first.
I tend, cynically, to think that we will eventually address the problems of unfair application of the death penalty, and once that problem's out of the way this will actually strengthen support for it in the U.S.
I try to avoid making "practical" arguments about fairness or cost in opposing the death penalty, since it implicitly approves of a "perfectly applied" capital punishment
posted by oddovid at 3:21 PM on June 12, 2002
I tend, cynically, to think that we will eventually address the problems of unfair application of the death penalty, and once that problem's out of the way this will actually strengthen support for it in the U.S.
I try to avoid making "practical" arguments about fairness or cost in opposing the death penalty, since it implicitly approves of a "perfectly applied" capital punishment
posted by oddovid at 3:21 PM on June 12, 2002
Hey, if not for the death penalty, we wouldn't have Easter holidays. :-)
Scalia's article is extremely well-reasoned and intellectually consistent. I particularly like his point about the inconsistency in claiming that death is unacceptable, but punishments short of death are somehow OK.
I won't take issue with his reasoning. It's his premises, the idea that it's a good thing for society to punish as opposed to rehabilitate criminals, that I disagree with. Punishment achieves nothing. It usually makes society as a whole worse off. Advocates of punishment wave around ideas like 'respecting the person enough to hold them responsible for their actions', 'expecting a moral standard from people', blah blah, all of which are post-hoc justifications for an instinctual desire to see an evildoer suffer pain. The impulse to punish is an instinct that we inherit from the first jelly-blob organism that, bitten by its neighbor, bit its neighbor back. It's not a long distance from there to biting the organism that bit one's 'friend', and from this we easily derive the procedure of ganging up en masse to bite an organism that threatens any one of us. The instinct has not progressed beyond this, because it hasn't really had to. Nature doesn't rewrite working code, it just adds to it.
I would prefer to see the justice system operate like this: (1) Compensate (including mental health treatment, etc) the victims, first from the assets of the criminal. (2) Attempt to rehabilitate the criminal. (3) If rehabilitation proves impossible, execute the criminal. The degree of severity of the crime is not particularly relevant; a person who kills her husband for purposes of claiming insurance money, say, poses no great continued threat to society. Her unrighteous gains should be taken away from her, and the insurer and any dependents of her husband compensated, but no amount of suffering inflicted on that woman (or any other person) will return her husband to life. She should be treated, and if her imbalanced desires for money and lack of empathy with other people can't be addressed, she should be killed, mercifully and not for public entertainment (which is another thing that bothers me about the US death penalty system: it's one lion short of being a circus).
This system would lead to a lot of sociopathic recidivists (the 'minor' criminals who steal, brutalize others, etc etc) being killed. I don't think that's a bad thing at all, particularly in the context of the rest of Ash's Agenda: (1) a social support system which provides all people with education, healthy food, medical care, and private shelter as 'human rights'; (2) prescription supply of all drugs, including alcohol and nicotine, to addicts in the context of a rehabilitation-focused system. Yes, that would mean seeing the doctor once a month to get your nicotine patches and discuss how you're going with quitting, but if you want your nicotine for $0, that's the price to pay. Yes, I do agree that a person has a right to buy and smoke cigarettes (and buy and shoot up heroin cut with bicarb soda, too), but if the state is supplying nicotine patches free, I expect that tobacco would eventually turn into a home brew-type market.
Oh yeah, and we should teach ethics, empathy and critical thinking from kindergarten up, so selfishness and short-term thinking isn't so much of a problem to future generations. Who gains from the current system of hoping people figure out decent behavior for themselves, maybe being taught it by parents, and punishing them if they fail to grasp the concept?
Ash.
posted by aeschenkarnos at 6:25 PM on June 12, 2002
Scalia's article is extremely well-reasoned and intellectually consistent. I particularly like his point about the inconsistency in claiming that death is unacceptable, but punishments short of death are somehow OK.
I won't take issue with his reasoning. It's his premises, the idea that it's a good thing for society to punish as opposed to rehabilitate criminals, that I disagree with. Punishment achieves nothing. It usually makes society as a whole worse off. Advocates of punishment wave around ideas like 'respecting the person enough to hold them responsible for their actions', 'expecting a moral standard from people', blah blah, all of which are post-hoc justifications for an instinctual desire to see an evildoer suffer pain. The impulse to punish is an instinct that we inherit from the first jelly-blob organism that, bitten by its neighbor, bit its neighbor back. It's not a long distance from there to biting the organism that bit one's 'friend', and from this we easily derive the procedure of ganging up en masse to bite an organism that threatens any one of us. The instinct has not progressed beyond this, because it hasn't really had to. Nature doesn't rewrite working code, it just adds to it.
I would prefer to see the justice system operate like this: (1) Compensate (including mental health treatment, etc) the victims, first from the assets of the criminal. (2) Attempt to rehabilitate the criminal. (3) If rehabilitation proves impossible, execute the criminal. The degree of severity of the crime is not particularly relevant; a person who kills her husband for purposes of claiming insurance money, say, poses no great continued threat to society. Her unrighteous gains should be taken away from her, and the insurer and any dependents of her husband compensated, but no amount of suffering inflicted on that woman (or any other person) will return her husband to life. She should be treated, and if her imbalanced desires for money and lack of empathy with other people can't be addressed, she should be killed, mercifully and not for public entertainment (which is another thing that bothers me about the US death penalty system: it's one lion short of being a circus).
This system would lead to a lot of sociopathic recidivists (the 'minor' criminals who steal, brutalize others, etc etc) being killed. I don't think that's a bad thing at all, particularly in the context of the rest of Ash's Agenda: (1) a social support system which provides all people with education, healthy food, medical care, and private shelter as 'human rights'; (2) prescription supply of all drugs, including alcohol and nicotine, to addicts in the context of a rehabilitation-focused system. Yes, that would mean seeing the doctor once a month to get your nicotine patches and discuss how you're going with quitting, but if you want your nicotine for $0, that's the price to pay. Yes, I do agree that a person has a right to buy and smoke cigarettes (and buy and shoot up heroin cut with bicarb soda, too), but if the state is supplying nicotine patches free, I expect that tobacco would eventually turn into a home brew-type market.
Oh yeah, and we should teach ethics, empathy and critical thinking from kindergarten up, so selfishness and short-term thinking isn't so much of a problem to future generations. Who gains from the current system of hoping people figure out decent behavior for themselves, maybe being taught it by parents, and punishing them if they fail to grasp the concept?
Ash.
posted by aeschenkarnos at 6:25 PM on June 12, 2002
Punishment achieves nothing.
Well, nothing except justice.
posted by kindall at 7:40 PM on June 12, 2002
Well, nothing except justice.
posted by kindall at 7:40 PM on June 12, 2002
Well, nothing except justice.
An excellent book relevant to this discussion is Susan Jacoby's long out of print--try your local library--Wild Justice: The Evolution of Revenge HarperCollins, 1983), links to which are few and far between. This one from Reason Magazine, gives a bit of flavor in passing:
Interestingly enough, while searching for links to Wild Justice, I ran across yet another reference to another Roman Catholic thinker, Rene Girard:
posted by y2karl at 8:52 PM on June 12, 2002
An excellent book relevant to this discussion is Susan Jacoby's long out of print--try your local library--Wild Justice: The Evolution of Revenge HarperCollins, 1983), links to which are few and far between. This one from Reason Magazine, gives a bit of flavor in passing:
An intriguing dissent from the standard anti-death penalty view is offered by Susan Jacoby, author of a thought-provoking book called Wild Justice: The Evolution of Revenge (1983). Both in the book and in a recent article on the McVeigh execution in Newsday, Jacoby argues that although the death penalty is beneath a civilized society, revenge or retribution -- the desire to make the offender "pay" for his crime and to "express society’s outrage at serious violations of its norms" -- is inherent in all forms of punishment and is an important purpose of the justice system.
Jacoby treats revenge and retribution as synonymous, but perhaps there is a subtle difference. The targets of McVeigh’s "revenge" had the most tenuous connection to the perpetrators of the Waco raid. In other cases, private vengeance may be directed at the wrongdoer’s relatives or loved ones. (Imagine the reaction if someone were to suggest exterminating McVeigh’s family as "payback.") Vengeance may also be disproportionate to the offense and unconcerned with intent. If a child is killed in a car accident, the parents in their grief and rage may well want to see the driver dead, even if he was blameless or at worst negligent; in a few cases, they may even act on that wish. Yet we can hardly imagine official authority carrying out such revenge.
Retribution, on the other hand, addresses moral culpability. This is perhaps most forcefully revealed by the reaction to executions of people with diminished mental capacity. In 1992, the execution of Ricky Ray Rector in Arkansas sparked a controversy not only because then-Gov. Bill Clinton took time off from the presidential campaign to fly back to his home state and sign the death warrant, but also because Rector was severely brain-damaged following a suicide attempt. One detail repeatedly cited as evidence of the barbarism of his execution was that on his way to the death chamber, Rector asked his lawyers to save the dessert from his last meal for later.
The story is cringe-inducing, but why? Not because of the suffering inflicted on the condemned; surely, it’s far more cruel to send a man to his death when he is fully aware that there will be no "later." Rather, the issue is the defendant’s perceived lack of moral agency, his inability to feel responsible for his act and to connect it to his punishment.
Interestingly enough, while searching for links to Wild Justice, I ran across yet another reference to another Roman Catholic thinker, Rene Girard:
In Violence Unveiled, Bailie makes accessible to a wide audience the ground-breaking work of the French cultural critic and theorist, René Girard. At the heart of Girard's theory is the contention that violence undergirds the foundations of culture. According to Girard, human beings are mimetic by nature, that is, we imitate those we most love by desiring what the beloved desires, and now possesses. That is to say, human beings are deeply driven by the desire to possess what belongs to the beloved. Desire turns to envy; envy to rivalry; and rivalry creates an untenable conflict at the heart of our most intimate relationships, namely, the conflict generated by feelings of intense anger and rage directed at those we most love for possessing what we most desire. Such deep conflict, if left unresolved, undermines the stability of society and threatens its very preservation. Girard maintains that society attends to this conflict, and the destructive, violent impulses it generates, by creating the cultural myth of the scapegoatAnd what the hell, also mentioned in these essays and reviews is Wndy Kaminer's It's All the Rage: Crime and Culture--reviewed here, again, in Reason. And again, I quote:
-- the witch, the heretic, the outsider, the disease-bearer, the Jew -- who is arbitrarily identified and selected as the source of the conflict. Ridiculed, tortured, expelled, murdered, or sacrificed, the scapegoat both satisfies and discharges the violence embedded deeply in our psyches while simultaneously keeping safe society's most important relationships. Scapegoating thus prevents the chaos and disintegration
that would otherwise follow when imitative violence is left unchecked, and spirals out of control.
For Girard, religion plays an essential role in the cultural myth of the scapegoat. Its societal function is to create, maintain, and mediate a sacrificial system that ritually and symbolically reenacts the violence done to the scapegoat. Religion successfully mediates the cultural myth of the scapegoat by veiling the violence, which is integral to the myth, under the mantle of the sacred. With the violence thus concealed, the scapegoat undergoes a curious transformation. By delivering society from its most destructive impulses, the scapegoat is transformed from the "despised and rejected" of the people
to the "savior" of the people. The sacrificial system that is at the heart of religion is thus structured around rituals that symbolically reenact the necessary violence that saves society from itself. Participation in these rituals satisfies, sustains, and, perhaps most importantly, contains both the individual desire and the cultural necessity of imitative violence. In so doing, religion legitimates violence by veiling it with the status of "sacred."
Picking up on the theme of her acclaimed bestseller I'm Dysfunctional--You're Dysfunctional, Kaminer looks at how the basic motifs of the recovery movement--everyone's a victim of abuse, shame and guilt are "toxic"-- have influenced the legal process. Juries are now likely to "include people who watch talk shows and have been encouraged not to judge the self-proclaimed victims of addiction and abuse simply because they've engaged in bad behaviors"--the Oprahization of justice, as it were.Sorry for the length, but there are questions raised and food for thought in all of these links and quotes.
Both conservatives and anti-victimhood liberals such as Kaminer and Alan Dershowitz have deplored the tendency to bring the "personal development" mentality, with its scorn for individual accountability, its claims that we are all victims, and its emphasis on subjective feelings, into the legal process. But Kaminer argues that some of the same characteristics--the obsession with victimhood, the emotionalism, the blurring of lines between justice and therapy--are also evident in the law-and-order revolt and in the victims' rights movement: "From the victims' perspective, the trial is, in part, a therapeutic process. They seek 'healing' in the resolution of the case, which seems appropriate to the citizenry of a therapeutic culture." Conservatives, generally so contemptuous of the therapeutic culture, happen to approve.
This startling charge certainly deserves to be considered seriously. But is it fair? The "healing" element of righting wrongs has always been present in the concept of justice, and the victims' rights perspective demands precisely what the therapeutic culture denies: personal accountability.
What troubles Kaminer about the push for victims' rights is not the demand for better services for crime victims but the pressure to give them "power to help determine the disposition of cases." She is right, of course, to warn against "allowing feelings about the victim to displace facts about the defendant's culpability"; the parent of a murdered child may well be unable to appreciate the need to prove guilt beyond a reasonable doubt.
But despite a few extreme voices, such as the slain policeman's mother who dismisses fears about executing an innocent man by stressing that her son was also innocent, how many victims' advocates want to use the law for "healing" regardless of the defendant's culpability? A parent whose child is run over by a car while jaywalking feels the same loss as the parent whose child is killed by a mugger, but surely no one would call for the same punishment in both cases. The linkage of punishment to guilt is also the difference between vengeance and retribution.
posted by y2karl at 8:52 PM on June 12, 2002
How very glib of you, Kindall. Now what exactly is justice, how is it distinguished from vengeance, and how do two wrongs make a right?
Ash.
posted by aeschenkarnos at 9:05 PM on June 12, 2002
Ash.
posted by aeschenkarnos at 9:05 PM on June 12, 2002
Now what exactly is justice, how is it distinguished from vengeance, and how do two wrongs make a right?
Justice, like all moral principles, is based on reason. Vengeance is based on emotion. And two wrongs make a right when the second of them isn't actually a wrong, but is merely called a wrong by people who should know better.
There, that wasn't so hard, was it?
posted by kindall at 12:22 AM on June 13, 2002
Justice, like all moral principles, is based on reason. Vengeance is based on emotion. And two wrongs make a right when the second of them isn't actually a wrong, but is merely called a wrong by people who should know better.
There, that wasn't so hard, was it?
posted by kindall at 12:22 AM on June 13, 2002
I'm not asking you to poetically praise justice, or backhand me with attribution of "knowing better" (and the implication of wilfully ignoring my attributed knowledge). I'm asking you to define justice, and derive punishment from that definition.
Ash.
posted by aeschenkarnos at 12:34 AM on June 13, 2002
Ash.
posted by aeschenkarnos at 12:34 AM on June 13, 2002
The notion of 'rehabilitation' is a nice one, but not always applicable. The system is not set up for rehabilitation in most cases, and you would probably have moral issues with a real system focused on rehabilitation. (see: reprogramming/brainwashing)
posted by rich at 2:37 PM on June 13, 2002
posted by rich at 2:37 PM on June 13, 2002
The basic idea of justice is simply that acts have consequences, and that terrible acts must have terrible consequences. It really is that simple. Justice serves many purposes (it's a little bit of deterrence for potential criminals, a little bit of closure for victims) but its primary purpose is to keep society strong by serving the deep-seated human need to witness tit-for-tat. Which happens, in game theory, to be the best strategy in an iterated Prisoner's Dilemma, which may be why evolution has embedded the yearning for justice so deeply into our psyche. A strong principle of justice instills a society with the sense that all is right, and that when it goes wrong, it will be made right.
The difference between justice and vengeance is that justice is deliberate and rational and, one hopes, fair and accurate, at least as much as humanly possible, while vengeance is an emotional response to a perceived wrong, subject to all the pitfalls of our animal selves.
When do two wrongs make a right? Even if we allow the distatesful premise that it is wrong to punish a criminal for his crimes, punishment can still be the proper course of action if it averts a greater wrong: the weakening of the social fabric and the subsequent loss of public confidence in their government.
posted by kindall at 8:53 PM on June 13, 2002
The difference between justice and vengeance is that justice is deliberate and rational and, one hopes, fair and accurate, at least as much as humanly possible, while vengeance is an emotional response to a perceived wrong, subject to all the pitfalls of our animal selves.
When do two wrongs make a right? Even if we allow the distatesful premise that it is wrong to punish a criminal for his crimes, punishment can still be the proper course of action if it averts a greater wrong: the weakening of the social fabric and the subsequent loss of public confidence in their government.
posted by kindall at 8:53 PM on June 13, 2002
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Opposition to the death penalty is not based solely on the belief it is immoral for a government to kill its citizens. By definition, the penalty offers no chance of judicial review, no chance to right the inevitable mistakes of the criminal justice system. In other words, to support the death penalty is to support killing innocent people. Add to that the unequal burden of punishment born by the poor and minorities and you have a practice with no place in any modern, democratic system of self-government.
posted by lupus_yonderboy at 10:16 AM on June 12, 2002