There are two natural criteria to consider: the objectivity of a conviction, and the justice of the penalty.
On the "epistemological issue" issue of objectively identifying, say, heinous murderers: Consider for example the scandalous number of wrongful conviction that we have been able to identify, the generally poor epistemological condition of our culture, and dubious rules like those that exclude evidence from a fact-finding tribunal if it is sound but improperly obtained (punishing the person who acted illegally in gaining it is called for, rather than ignoring facts which could bring justice to the original criminal and victim). It's beyond the scope of this note to mine the details and identify the causes, but I think the case can easily be made that the epistemological troubles of our justice system are substantial and likely rule out as negligent the imposition of any punishment so decisive and final as the death penalty.
But suppose we reform our system to achieve epistemologically-responsible convictions of crimes -- are there any which would demand the death penalty? Or might it always be sufficient to merely "lock them up and throw away the key?"
Let's sort it out. First, note how Objectivism carefully distinguishes immorality in general from criminality, a particular species of immorality. For example: someone shunning productiveness is their own problem -- until it takes the form of stealing from others. The key distinguishing feature here is the initiation of physical force (including indirect forms, like fraud). It is one thing to choose not to pursue life yourself -- i.e., to choose not to be moral -- but it is another to also initiate physical force and prevent someone else from doing so, suppressing their moral agency. This is why the Objectivist politics identifies the proper scope of government action (and any legitimate use of physical force) as a response only to violations of rights, leaving all other matters to force-free resolution via, say, personal disassociation. It is specifically the initiation of physical force which necessitates a response involving physical force.
I am going to argue that just as rights violations are essentially different than other cases of immorality and thus require an essentially different kind of response, that there is an essential distinction between criminal offenses and civil offenses that requires an essentially different kind of response, and that there is an essential distinction between capital offenses and other kinds of crime that requires an essentially different kind of response. In every case, the nature of the offense is different in kind than offenses from the other classes, and in all cases the nature of any response, to be just, must at least match the offense in kind. That is: while injustice is possible if crime and punishment are not well matched, justice is impossible if they are not at least from fundamentally commensurable classes.
Consider then the following classes of offense and how they relate to each other, beginning with mere immorality and progressing through nested subclasses of ever-stronger rights violations (and yes, as I try to frame these categories in terms of essentials, I may be shifting some boundaries as currently conceived and implemented in our legal system):
I think the above clarifies the objective moral necessity of the death penalty when the proper conditions have been met (and please note again that such conditions would include an epistemologically sound conviction).
(For further discussion, like considering the injustice of trying to use the death penalty to punish heinous torture/rape, and what the above classification suggests regarding the composition of overall punishments, please see the article this was drawn from: "Principled Punishment and the Death Penalty". See also these quotes from Rand and Brandon on: Criminal Punishment/Capital Punishment.)
All criminal offenses involve the initiation of force, and thus constitute the individual's willingness to break the fundamental principle of civil society. Being permanently ostracized from society is not, in principle, too severe a response to such individuals. Think of an immigrant who says, I want to come into your peaceful society, and I will commit one armed robbery each twenty years I am here, OK?
I find the idea that crime and punishment are to be balanced, such as that an arson's house might be burned down (if he owned one) as punishment for his burning down his victim's house, to be wholly inadequate. The absolute least amount to be considered in this general way is that the arsonist owns two homes as fine as the victims, and both of them are burned down. That way, he "loses" what he took, and he loses as much again, as if he had been the victim instead of the perpetrator.
Think of a child who steals a cookie off his sibling's plate. One parent scolds him, and gives the cookie back to its rightful owner. Another parent takes two cookies off his plate, and gives them to the sibling. That child finds himself in exactly the position he intended to put his sibling in. His crime has fully back-fired.
The only thing making society safe is the implicit agreement or "social contract" to be peaceful. Every person knows and understands that. There is no learning curve involved. Nor is it a thin line that is sometimes difficult to discern or observe. It is fundamental to being a rational man, and it is key to modern life.
It only takes one exception to prove a person doesn't accept that rule. After that, they are beggars for the privilege of rejoining, and remaining in society. There is no logical, and there should be no social possibility of "paying one's debt" and returning to the state of a sincere and innocent member of society once a violent crime has been committed. We should neither forgive, nor forget.
There are two purposes to retribution. One is to make the perpetrator suffer more than his victim, so that contemplation of the attempted crime versus the actual result, the punishment is a matter of severe regret. (This helps the victim's peace of mind, also.) The second is deterrence. There are objective considerations regarding psychology and the mind-set of the criminal element that dictate guidelines for the measurement of deterrence. We should learn these and use them as minimums.
Where does this lead as far as the death penalty goes? It opens crimes lesser than murder to being appropriate to receive the death penalty. There is an old case, in CA, of a man's grabbing a young teen-aged girl off the street, and raping her and cutting off both her arms above the elbows. She lived. He was imprisoned for a long time, then he was let out. That crime is an instance of degenerate treatment of another person that I hold deserves the death penalty. Kidnapping should remain a capital crime. Armed robbery threatens death, and that deserves the threatener's death.
Actual law and order are so out of date that we take the norm to lie in a region that forgives and minimizes deliberate violations of life and property, we are soft, and failing in the policies that would maximize our security. Crimes against the person, in particular, ought to be considered unconscionable and treated severely.
answered Jan 08 '11 at 22:07
Mindy Newton ♦