Folk-logical confusion
The public rationale for
the death penalty is (necessarily) based on an implicit error of “folk logic”; this
error underlies its ethically coarsening consequences.
My
discussion is grounded in a few basic observations about the criminal-punishment
system, which is three-tiered: fines, incarceration, and death. Each tier is
supposed to correspond to a qualitative worsening of offense: malum prohibitum, malum in se, and heinous crime (minimally involving murder). The rationale,
in short, is that taking a life is the ultimate crime, deserving loss of life,
the ultimate punishment. Although we can question whether loss of life is
really the worst that can happen to someone, that’s the way it’s presented, and
it perhaps necessarily appears so to the mass mind.
But, accepting
the premise, the
rationale pretends a nonexistent symmetry, the asymmetry being in the capability of one
person to inflict harm on others in great number. If death is the
ultimate punishment, it doesn’t follow that taking life is the ultimate crime:
a criminal is but a single person capable of harming many.
The 19th-century
philosopher Georg Hegel diagnosed the cognitive bias of failing to see that change
in degree (“quantitative” change), carried far enough, produces a change in
kind (“qualitative” change). In this light, look at the banking collapse that
led to the U.S. mortgage crisis, involving crimes by bankers that have yet gone
unpunished and which would never be punished by execution. (If you need worse,
consider the industrialists who funded
Hitler’s ascent.) Ordinary “thin utilitarian” public-moral intuition tells us
that knowingly causing suffering for millions is worse than even the sadistic
murder of a single person; if there were a qualitative category of heinous
crimes, at some tipping point sublethal mass crimes would become heinous. You
might advise don’t stop executing murderers, rather expand execution to
heretofore unpunished crimes of massive scale, but we find no point of qualitative inflection.
Moralistic
misdirection
From this artificial
abstraction of the act of individual murder stems the fundamental misdirection
society incurs when it institutes a death penalty, which reinforces and
accentuates the near-mode bias that carves, with the knife of extraordinary public
vengeance, horrific individual acts
out of their societal context. The
social symbolism in capital punishment dwarfs (at most historical junctures) any
specific deterrence effect. Capital punishment engineers a public mentality myopically
preoccupied with vengeance against victims
of far worse wrongs consequently ignored.
This
analysis rests on the insight that public consciousness imputes a qualitative distinction between
deeds where the law applies qualitatively different punishments, and
it is confirmed by the fate of another potential tier of punishment. The
deliberate infliction of pain is proscribed: we don’t flog criminals; but isn’t it curious that
we regard killing as humane and flogging not—when we might execute for killing, but never for nonlethal flogging? Why the reversal of
values when assessing crimes and their punishment? My explanation is that flogging
competes with long-term incarceration, and they can’t easily co-exist, since we
would then distinguish punishments without reciprocally distinguishing crimes.
When
flogging and stoning reappear, they serve a corresponding false distinction in
crimes, and crimes can be special by being no crime at all; theocracies have
resurrected flogging and stoning to punish thought crimes. Legally manufacturing
a spurious moral hierarchy—such as one including capital crimes—foments mass
myopia.
