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Death Penalty and Proportionality

by Tony M.

Opposition to the death penalty (DP) takes many forms, but the ones I am focusing on here are objections based on a seeming difficulty with the thesis that the DP is the proportionate penalty for some crimes. Objections come in three flavors: (1) that no crime is bad enough to deserve death; (2) that even if death is proportional as a punishment for a crime, some lesser penalty might also be adequate and (therefore) should always be preferred over using the DP; and (3) that the insistence on proportionality by DP is undermined by the fact that if death is proportional for a certain level of serious crime (such as the murder of an innocent civilian), there are many much more serious crimes than that (such as the murder of many innocent civilians, or the murder of policemen, or the instigation of insurrection, or the treasonous assassination of a president…), and yet we cannot put the murderer to death many times to fit proportionality to the crime, hence the thesis that we ought to carry out death as the ‘proportional’ penalty for a single murder is disturbed by the lack of proportion found further down the line. The last objection could seem to lead to the conclusion that the DP should then be used only for the one single class of crime that is “the absolute worst”, but because of the difficulty of locating such a class, in reality the objectors’ intention is to fuzz the notion of proportionality sufficiently to undermine ANY certain or definitive claims about it, and especially claims that we can be confident that the DP is proportionate to any specific crime.

All three objections are wrong, and I hope to provide here if not definitive proof of this, at least good solid arguments that allow us to set the objections down as being inadequate counterarguments to the basic stance that death is a proportionate penalty for very serious crimes.

Please note that in this post today, I assume for the sake of the argument many other premises required for support of the thesis that the DP is a morally licit punishment for certain crimes, such as (i) that the state generally has the authority (and duty) to punish for crime (something disputed by anarchists and some pacifists); (ii) that punishment has as its primary purpose the redress of the offense (a Catholic principle taught even by popes who hated the DP and wanted its abolition, but disputed by modernists and moral relativists who object to the concept of “guilt” and “just desserts” altogether); and (iii) that just punishments are to be proportional to the offense. I will not list all of the premises that are not here up for debate because I assume them for this discussion. However, I will sometimes have to refer to the rationales for the assumed theses because they set the proper framework for the proportionality discussion. Also, even though I am here arguing the issue of whether death is a proportionate punishment, I am not here arguing the issue of whether it must be imposed for certain crimes, which is a different topic.

Response to Objection 1: For any debate about how proportionality for punishment is determined, we have two obvious sources to reach for as help: First, our society and culture has its roots in Judeo-Christian revelation, and we can use that revelation to guide us on how to refine the general norm “punishments should be proportional to the offense” into more concrete determinations. Before we get into the specifics of proportions, it might be worthwhile to review the underlying principle, that punishments are intended to be proportional to the evil of the offense. In Luke 12:

The servant who knows the master’s will and does not get ready or does not do what the master wants will be beaten with many blows. But the one who does not know and does things deserving punishment will be beaten with few blows. From everyone who has been given much, much will be demanded; and from the one who has been entrusted with much, much more will be asked.

There are many other passages equally clear that punishments are determined between more and less based on the severity of the evil offense. So, how to settle on concrete proportional punishments? An obvious starting point is that of Exodus 21:

But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, bruise for bruise.

There are many other passages that resolve the general norm into concrete results, and they don’t always look like quite the same ratios:

Anyone who steals must certainly make restitution… If the stolen animal is found alive in their possession—whether ox or donkey or sheep—they must pay back double.

But if they killed the animal that changes the ratios:

Whoever steals an ox or a sheep and slaughters it or sells it must pay back five head of cattle for the ox and four sheep for the sheep.

Thus it is made clear, first, that merely returning the property that was stolen is not sufficient – a penal payment is also required beyond returning to the ‘status quo ante’; and second, that in determining the amount that is required beyond the amount stolen and then returned, different ratios may apply depending on circumstances, and even depending on what is stolen: God indicates 5 cattle, but 4 sheep. But in multiple places God seems to rely on paying back _double_ as a default.

In Exodus, and the other books of “The Law”, the DP is explicitly directed by God as punishment for a significant body of serious crimes, including murder, rape and adultery. However, it is grounded by an even earlier pronouncement by God in Genesis 9:6, “whoever sheds the blood of man, by man shall his blood be shed, for man is made in God’s image”. Thus between the statement that death is to be used in cases of murder (and others), and statements that due proportion is to be observed, we have clear if implicit direction to consider the DP to be proportionate for murder and for other grave crimes as well.

The New Testament is not empty of similar support: in Romans 13:4, Paul tells us

For the one in authority is God’s servant for your good. But if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoer.

By referring to “the sword”, Paul supports not only the penal power in general, but shows that it extends even to the penalty inflicted by the sword, i.e. death. In Acts, Peter by his command brings the punishment of death on Ananias and Sapphira, for their sins, and he too supports the penal authority (see 1 Peter 3). Even more explicitly, the Good Thief (Dismas) in Luke 23:39 says that “we are punished justly, for we are getting what our deeds deserve.” It is all of a piece, and it all fits with just one conclusion: from Scripture, the penalty of death for gravely serious crimes is held to be proportionate.

The second source we want to apply is natural law: without the need to argue about whether civil society “can” use Judeo-Christian revelation, natural law provides the same conclusion. The argument is a little more involved, but it is nonetheless available to those with an open mind and heart.

There are two ways I can think of to attack this, one pragmatically from actual uses and experience of punishing offenses (in all kinds of situations) and observing how the gradations are found, the other in a more theoretical approach from principles of good and evil. For the first: we can see in ordinary life many levels of punishments that are attached to many different sorts of offenses against the good. Some of them are by parents against misbehaving children, some are by voluntary social groups against members, and some are by governments against individual citizens. What we find broadly speaking is that there are gradations of types and gravity of offenses (e.g. misdemeanors vs felonies, and non-violent vs violent crimes), and gradations of types of penalties used to address them. For example, if the offense is theft, i.e. loss of material goods, the penalty might be a fine, or a fine plus an additional penalty of another sort (such as prison or probation). In Ohio a theft of property worth from $500 to $5,000 may be punished by up to 12 months in prison _and_ up to $2,500 in fines. However, a theft of $1,000,000 is punishable by up to $20,000 and 10 years in prison. (Other states are, roughly, similar: at the lowest end, fines alone are the norm, and at the upper end fines together with prison sentences apply – but the cut-off line between thefts worthy of only fines and those worthy of prison varies from state to state.) Within the family, some penalties might warrant loss of privileges (no TV for a day) whereas more serious kinds of offenses such as brawling might warrant corporal punishment, or that plus loss of privileges. What we can say with considerable confidence is that crimes of a graver nature or of a more long-lasting effect are often punished with penalties of a graver or longer-lasting sort. Non-violent misdemeanor offenses generally warrant penalties that crimp the offender’s ability to function in society in his usual way, (vandalism might receive a sentence of community service hours), but violent crimes tend to get penalties that crimp the offender’s very ability to remain within regular society at all: prison has the dual role of imposing on the criminal a loss of freedom of place and choice in all of his daily living, and also protects innocent society from his violence. It is common that violent crimes quickly ramp up in scale of penalty as compared to crimes against property: simple assault may be penalized by up to a year in the county jail, whereas aggravated assault may get from 10 to 20 years in prison. (It is assumed, in all these crimes for which the punishment has a range, that the lower end of the range may be determined by judges for mitigating circumstances, first offences, lack of premeditation, etc.) Rape is clearly a more grave offence against order and the common good than ‘mere’ assault, for it adds to assault an offence against the conjugal order, which is central to the social order; in addition it tends to the long-term harm of the woman’s psyche and her social welfare in a way that simple assault does not. In some places the penalty for rape is up to 25 years, in others it is for life (or “up to” life) in prison.

Naturally, pre-meditated murder is typically considered a very grave crime, and thus its penalty is still more severe. In many places it is up to life in prison, in others it is the death penalty (or “up to” the death penalty depending on circumstances and the jurisdiction). Even if one focuses on the fact that in some jurisdictions it is not a capital offence (especially if they don’t have the DP at all), one cannot deny that it is generally considered proportionate to a penalty of up to life in prison, depending on aggravating circumstances (e.g. a cold-blooded murder on a mere whim, or a murder of one’s father for an inheritance).

Yet there are crimes significantly more serious in kind than those of pre-meditated murder of an innocent person. There are crimes whose evil is clearly even worse for the public and for the common good than that of pre-meditated murder, in that they combine murder with other grave evils for a combination that is altogether a worse thing. For instance, the pre-meditated serial rape, torture and murder of women adds a layer of horror and disorder onto the murders that is proportionate to a more severe penalty than that of ‘mere’ pre-meditated murder. Likewise, murder of police and other safety officials is worse, for it undermines the state’s pursuit of justice and safety. Targeting a multitude of public officials would ratchet up the gravity again. Still more grave would be the assassination of many public officials in order to treasonously foment disorder precisely to overthrow the state (cf. Timothy McVeigh): destruction of the state itself is of a gravity far beyond that the death of an individual or even several individuals. In these the will of the criminal is bent on malice of an even graver order than that of a “simple” murder.

If life in prison is in practice considered proportionate to either rape or murder of an individual, is it beyond the realm of plausibility that none of these latter crimes warrant a punishment even more severe in kind than life in prison. Of course they do: that punishment is death. It is only societies that have ideologically cut off access to the DP that don’t construe such latter crimes as deserving a more severe punishment in kind than that of life in prison, for which pre-meditated murder is considered proportionate.

When we look at how actual societies, from families to associations to states, actually mete out penalties, and note how the gradations follow each other – even though there can be reasonable doubt as to matters of the precisely ideal penalty for certain offenses and granting due weight to rough or approximate leveling across many different social structures - there can be no serious doubt that there are crimes calling for penalties graver in kind than those that merit life in prison.

More philosophically: when we analyze the crime of murder (or one of these even more grave crimes), we can detail the orders of evil suffered both by the direct victims and by the community itself: we can characterize the nature and extent of an evil suffered, the lastingness of it, and the intensity of the suffering the offense imposes, and do so both with respect to the persons who are individual victims and with respect to the communities affected. Then we try to ascertain penalties that in some way match up to the nature, extent, lastingness, and intensity of suffering for the offender, even if not perfectly (it never will be perfect, here in this life) but at least in some general way.

We can examine lesser crimes and greater ones, note the suffering that the victim may have from loss of material goods (say, theft of their car), which might be capped in time by restoration of a the good or replacement of it by another one like it. Then we ramp it up for harms to the person itself (assault, rape) and note that the nature of the evil far exceeds, because it is “closer to home” as it were. Then we ramp it up again for crimes whose evil persists as an ongoing evil (maiming, for example) and yet again for crimes whose evil is not only irreparable in nature but even un-mitigatable (we can give a person without a leg a prosthetic leg, but we cannot give a murder victim a pseudo-life). Then we consider all these again with respect to the community as well, the harms that the community suffers and the degree to which the community may be able to mitigate the loss it bears.

When we do all this, it is clear that imposing death upon a criminal who is fully guilty of pre-meditated murder (or one of the still worse crimes) is not a penalty exceeding in degree or kind the sort of evil the victims and the community suffered at his hands: intimately personal, to the extent of his life itself, extremely intense, permanent, irreparable, and un-mitigatable. It is unrealistic to even propose that life in prison approximates in the person of the criminal the order and extent of evils suffered by the victims and the community. It just doesn’t.

Response to Objection 2 (that even if death is within the range of the proportional, some lesser penalty might also be adequate and therefore should always be preferred over using the DP): In the light of the last notes above in the Reply to Objection 1, it cannot be reasonably argued that life in prison even “approximately” is equal to the evils suffered by the victims and society from pre-meditated murder, death is not one with several other lesser penalties that lie equally within a “satisfactory range” of the evils of the crime by its nature, extent, lastingness and intensity. The order of evils suffered between them are too diverse (as are the differing orders of malice in the wills that fully consent to such acts). Hence, I believe that the above argument answers Objection 2 also: if death is proportionate to the crime, life in prison fails to be, and vice versa. However, it should be noted that Objection 2 typically rests on a separate error than that of not successfully judging the degrees of evil, it rests on a presumption that that because there is often a range allowed for what we consider fair punishments for a crime, we cannot with confidence rule out of proportionality a range for murder that includes life in prison as well as the DP. But if we were to take this objection seriously, it would literally include an admission that while the category of “proportionate punishment for murder” is expansive enough that it might include life in prison, it is also expansive enough to include the DP. In other words, it does not actually reject the position that the DP under the right conditions is a proportionate punishment for some crimes.

In addition, it tries to foist on to the DP debate a note of ambiguity, confusion, or uncertainty that actually adheres to ALL crime and all punishment, it is not special to the DP and should not be theorized into a special difficulty that we must only deal with if we insist on using the DP. In reality, ALL of our judgments about the proportion involved in punishments (in comparison to the offenses) are in a sense rough and approximate, and are thus subject to variation and revision over time and between different cultures. Nevertheless, in order to have ANY society, we have to actually visit actual crimes with actual specified punishments, not “rough” or “approximate” ones: we cannot impose a punishment of “a fine somewhere between $100 to $10,000 dollars, we know not where”. That there is wiggle room in resolving general standards into concrete penalties cannot stand as a defeater for the necessary action of punishing evil actions. We know that the same difficulty of “wiggle room” exists in other areas of justice, and we accept action in those too: when we sell a used car, we cannot know with precision and certainty (a kind of Heisenberg uncertainty) that the car is worth exactly $5,000, but in 1000 similar cases the price accepted between free individuals may range from $4,000 to $6,000 with justice. We do not think that every single one of them that diverged from the “true” and exact, notionally single “fair price” (that is in reality merely the average of all the sales) were miscarriages of justice. No more then does such a Heisenberg uncertainty undermine the basic justice of concrete decisions about the penalty for crimes. If one society decides only to levy death on a multiple murderer, or only on murderers of police and other officials, we do not then find the notion of proportionality thereby becomes so confused that we throw up our hands and declare all such assertions to be unfounded and unjust – any more than finding different states set the dividing line between fines and jail time for theft differently undermines the proportionality of those punishments.

Response to Objection 3 (that the insistence on proportionality by DP is undermined by the fact that if death is proportional for a certain level of serious crime (such as the murder of one innocent civilian), there are many much more serious crimes than that (such as the murder of many innocent civilians, or the murder of policemen, or the instigation of insurrection, or the treasonous assassination of a president…), and yet we cannot kill a murderer many times over): This is a more serious objection, which actually uses the position laid out in the Reply to Objection 1 to create the problem. The answer requires a more difficult discussion of background and principle. One should note, however, that this objection inherently refutes Objection 1, so we must never entertain BOTH objections from the same objectors at the same time (not if they are arguing in good faith based on what they actually believe, at least). A person cannot both believe that no crime is worthy of death as penalty AND believe that there are crimes much worse than crimes that do merit death as a penalty.

To answer this, I believe it is worthwhile to discuss the relationship between the temporal order and the everlasting order, for man is “ordered to an end” in a sense with respect to his life here on Earth, and yet ordered to an end in a distinct way as to the life hereafter. The civil order, and the civil government, pertains to the temporal order. But because man is one and integrated, a whole unified being, not a monster, the temporal order itself is ordered to the everlasting order as a means to an end; hence the state and its goal of ordering well should not cause man to be unable to achieve his ultimate end in the everlasting order. That is to say: virtue and right living as viewed by the good state is the very same kind of life as virtue and right living as viewed by God and as pertains to our ultimate end: the good Christian is a good citizen.

The created order is a moral order, since it harbors rational beings (with God at the summit, the rational being ordered to God by their intellects (knowing Him) and their wills (loving Him)). But a moral order is an order in which justice is a fundamental aspect: the order of justice is the order of the universe.

Likewise, whatever is done by Him in created things, is done according to proper order and proportion wherein consists the idea of justice. Thus justice must exist in all God's works. (Summa Theologica, Prima Pars Q21 A4)

Hence God will, ultimately, put paid to ALL merit and demerit, by rewarding and punishing as required to satisfy justice, universally and completely.

Yet man and the temporal civil order have a critical role WITHIN that universal order: man is called to both imitate God and to participate with God by regulating life here in the temporal order according to the good as possible within the temporal life. Man is per se a social being, ordered to life in society, and hence for man there is such a thing as the “common good” as well as personal and proprietary goods. It belongs to civil government to direct according to the common good under the temporal sphere. And justice is one of the common goods, indeed it is one of the critical goods which comprise the very purpose for which the state exists. Hence civil governments have the right and duty to both reward good and punish evil. In doing so, while we in a sense mimic and even symbolically foretell the justice with which God will complete creation ultimately, we do more than that. We don’t merely symbolize justice by rough images that call it to mind, we instantiate justice as it pertains to the temporal order. That is to say: even though civil authorities are not called on to read souls perfectly and mete out punishments due to offenders on account of their offending against God in his own august Persons, they are called on to discern guilt and mete out punishments due to offenders insofar as they offend against the common good of which the authorities have the care. That is, they have more than a symbolic role as regards the totality of justice, the justice they deliver is an integral piece of the justice by which God will settle affairs (St. Paul, Romans 13): The prince is God’s own agent in settling up accounts, even if only in part.

At the same time, we say that punishments are to be proportional to the offense, not “equal”, and certainly not exactly the same. Proportion allows for a kind of divergence from simple and sheer equality. Much of the time, we cannot actually visit on criminals exactly the same evils they inflict on others: if a poor man steals $100,000, after we restore the money to the victim (which is not part of the punishment), there is no way to impose on the thief a fine of $100,000 – or any other fine that is deemed in itself proportional to the theft of that much money. That is to say, we must necessarily adjust the penalty to circumstances in order to fit proportionality with possibility. Ability of the offender to pay the penalty is one of these circumstances: a fine of $1,000 to a poor man may actually represent to him a greater loss of his welfare than Ivan Boesky’s fine of $500 million was to him. Other circumstances can also alter the proportion: our ability to reprise a penal evil sufficient unto the case is obviously one. Another condition or circumstance might be other countervailing goods that we have received from the offender which cause us to temper the harshness of the punishment: if a policeman has put his life on the line repeatedly for society, we might alleviate the normal punishment for a minor assault to something lesser.

Though constituting a real part of the ultimate justice that will eventually prevail in creation, civil punishments are only a portion of it, and even then only an approximate portion. We are constrained to limits that make our penalties imperfect: We are always limited in ascertaining the interior degree of guilt that obtains due to greater or lesser adherence of the offender’s will to the evil act. More particularly (for this discussion), we are limited in how fulsomely horrible we can make penal evils as compared to heinous crimes. This justifies having punishments less perfectly penal than the evils of the temporal order that the crimes impose on us.

Because we (i.e. civil authorities) are not responsible for correcting the offensiveness of the sin against God, but only of addressing the offensiveness of the crime against the civic order, no civil punishments need be equal in severity to the whole evil of a crime that is (also) a mortal sin, which merits hell as punishment. It’s not our job to make the temporal punishment fit all of the evil, only that wherein the crime disturbs the temporal order. Hence it must be understood that pretty much automatically, reasonable civil punishments are never cut out to be as severe as the whole evil of the immoral act.

But even granting that, civil punishments need not (as a necessity) mete out as punishment penal evils that match in every last farthing each and all of the evils of the temporal order that the crime causes, it is enough that the penalty stand in proportion to those evils according to some measure that is more accessible to the human eye. For we are simply incapable of ascertaining all of the evils that attend on some immoral act and weigh them up. We instead are asked to put forward a penalty that is comparable in some way by reference to the order of the evil, and comparable in degree, to at least the most recognizable of the evils of the crime, and thus in a sense to stand in answer to other effects we cannot measure very well. Again, “proportionate” is not to thought of as perfect equality. For example, we allot a prison penalty to crimes of many different types, not because an offender stewing in prison is particularly apt as a redress to the evil society suffered from his crime (it is not much comparable to what we suffer from, say, fraud, nor from illegal pollution), but because the evil of his excessively willing to satisfy his will is particularly redressed by his being made to live a life according to another’s will. Being limited in our means of punishing, we cannot readily devise penal evils that are most directly apt for rape, or for fraud (since raping or defrauding the criminal is also immoral). That is to say, it is well enough that we punish with a penal evil that would naturally be, in some general way, as contrary to the will as the offense is contrary to the good of the victims and society, even if it is not contrary in every particular or is not a redress in every particular.

Hence it is allowable in human justice to mete out death once to a criminal whose offenses merit many times more severe a punishment than one death: we achieve an imperfect sort of proportionality that levies a penal evil that is similar in order and in degree to at least one layer of the evils he inflicted, and which to the extent the civil order is capable, stands (imperfectly) in answer for the rest of the evils that we cannot address directly, on the knowledge that God will make up for what is lacking in human power to correct the injustice. That is to say, the proportionality is imperfect but not completely absent. But the sure comfort that “God will correct” does not excuse us from doing our part: As Genesis 9:6 and Romans 13-4 declare, God delegates to human authorities the role of carrying out punishment, for the common good, to the extent of managing the civil offenses and to the extent temporal punishment can redress them. Our limitations in this are not fundamental defects of temporal society. They are part and parcel of a larger design that entails full justice, just as temporal society itself is not the whole order of created good but a part thereof. That “God will complete” is true does not imply we need not do our part in crafting what justice is available to us. St. Paul indicates that the civil role in punishment is part of God’s carrying out universal justice.

Comments (20)

Good post, Tony. I thought the answer to objection 3 particularly useful.

I think this is somewhat related to the following objection:

1) If retributivism is true, then the civil authorities are always obligated to mete out, as closely as possible, the just punishment of a crime.

2) Therefore mercy is not allowable to the civil authorities, on pain of not doing justice.

3) But it is obvious that mercy is sometimes allowable to the civil authorities.

Therefore,

4) Retributivism is false.

This could be applied to the DP or really to any retributivist justification for any punishment.

I think premise 1 is flawed.

You're right, Lydia, that this objection is closely related to Objection 3. I thought of tackling it in this post, but I decided it really comes under the question "Should (must) the state always apply the punishment that is most fully proportionate to the crime?", rather than as an attack on death as proportional to some crimes. As falling under a separate question, it deserves a separate post - which I plan to do. In addition, a person could as easily reject premise 3, claiming that civil authorities who apply mercy are in the wrong (I don't argue this, but it is a logically possible response to the argument above).

For a brief suggestion of the answer, I would say simply that the state's object is "the whole common good" (as it pertains to the temporal order), and not merely justice alone, so premise 1 does not hold.

Premise 1 would seem to rule out ranges of possible punishments at all (where the final decision within the range occurs at the sentencing stage), which seems obviously wrong. As stated, premise 1 seems to imply a unique just punishment for each crime, which man can discern, which must always be meted out.

In a Facebook group I actually recently saw someone try to bring up something like this argument (that I gave in the previous comment) as (believe it or not) an objection to Christianity. The idea was that God himself is not allowed to show mercy on pain of violating justice. Though there were plenty of Christians in the group, I was the one who took the opportunity to spell out the basics of the atonement...(That the death of Christ satisfies both divine justice and divine mercy.) But as an issue in the are of human justice, it has more prima facie plausibility.

Hi Tony,
I think some of what you address in connection with objection 3 could provide the basis for a different sort of objection to a retributivist defense of the DP. Grant that the DP is proportionate to the murder of one person. The observation that there seem to be far graver crimes might be used, not to challenge this (or any) proportionality judgment, but rather to challenge the link from proportionality judgments to judgments about permissible (civil) punishment. You said the following:

"Though constituting a real part of the ultimate justice that will eventually prevail in creation, civil punishments are only a portion of it, and even then only an approximate portion. We are constrained to limits that make our penalties imperfect...[snip] More particularly (for this discussion), we are limited in how fulsomely horrible we can make penal evils as compared to heinous crimes. This justifies having punishments less perfectly penal than the evils of the temporal order that the crimes impose on us."

If I understand you, some crimes deserve punishments that we simply aren't permitted to inflict. So, for example, supposing the DP is proportionate to murder, one might think that torture plus the DP is proportionate to torture plus murder, and yet that we aren't permitted to inflict the latter punishment. (Not just that the state isn't obligated; it isn't even permitted.) But this seems to challenge the retributivist case for the DP's permissibility, for it seems to concede that proportionality (or desert) isn't sufficient for permissibility.

Daniel, that is a very good observation.

In my estimation, the retributive principle doesn't require that the punishment penalize the offender in the very same way the evil he imposed by his offence makes us suffer. Rather, it calls for the offender to suffer in similar degree to the evil he imposed.

Now, if it were possible to classify the evil brought about by the offence as wholly in one order of good/evil, and (for ease of argument) if we were able to judge the degree with clarity, we would then be able to specify the amount of punishment also in one sort of penal imposition that redresses the offence. But in actuality, every offense against the state comprises disorders in (at least) two distinct orders of good (though usually more than two), and there is no simple coordination of degrees between the distinct orders whereby we could say "4 of these is comparable to 1 of those". For example, theft of a $5,000 car is "equivalent to" theft of money equal to the value of the car, as far as the "value of asset taken" is concerned. But theft of a car can ALSO imply loss of certain needs or conveniences (getting to work on time, and maybe not having your boss yell at you or fire you) that is not implied in having your bank account suddenly down by that number of dollars. And in addition, theft of the car also implies a general loss of stability of property, and an implied possible loss of safety of persons (if you had come across them as they were leaving with the car, would they have assaulted you? Will they sell the car to organized crime, which uses their ill-gotten goods to undermine the justice system?) There is no simple way of deciding that those other goods are represented by $12,000 in additional fine, to put it on the same basis as the value of the car. Though we DO IN PRACTICE assign such monetary values, it is recognized that they are in at least some degree merely representative, place-holder values: society is not asserting that the ACTUAL dollar cost of the lost social values is equal to $12,000.

Ultimately, "in adequate degree" (as the basis of retributive proportionality) can be sufficiently met by any punishment that stands to the will equally "as repugnant an evil" as the evils of the crime are. For the fundamental ongoing character of the crime (once the action is over) that warrants some further response by the state is the guilt, and the guilt is in the will in respect of the person choosing to abide by his own will rather than to submit to the will of due authority. Redress of that disorder essentially consists in the person suffering something naturally against his will in equal degree - not in the SAME MANNER.

When we can make the penal evil to be in the same order as the evil he caused, that is better in two ways: first, it helps us measure the penalty and fit it to the crime; second, it helps us SEE that the proportionality is being respected, that the penalty refers to the crime and is not a mere infliction of evil for the sake of evil. These benefits help us to hate the evil of that crime and love the good better. A little bit of manifestation of that connectedness is lost when we have to resort to a penal evil that is of a completely different order than the order of evil the crime brings.

Interestingly, the limitations on what we can impose as punishment are not ONLY because we are humans and not permitted to do certain things. Even God cannot impose punishments that are impossible: God cannot take 1,000,000 away from a poor man. God cannot inflict on a rapist a penal evil of the very same nature as that he sire a child outside of wedlock. So, even admitting that God will redress all injustice does not mean that we think God will go around imposing on evil-doers exactly the same evils they caused. But in addition to logical or metaphysical limitations, we are also limited by moral constraints, in that we cannot do actions that are intrinsically disordered to impose penalties.

Right, so the answer there is that torture is intrinsically disordered/evil but the DP isn't. We aren't arguing merely from proportionality to permissibility. Permissibility is known in other ways as well.

We aren't arguing merely from proportionality to permissibility

Absolutely correct. It is a necessary condition for an upright punishment that it be no more severe than proportionality allows. That alone is not a sufficient condition for it being proper, other criteria apply as well.

In fact, the full panoply of conditions that SHOULD be taken into account in order to determine the punishment is quite extensive. "Not intrinsically immoral" is, of course, included in the list, (but then, it's included in the list of ALL upright acts). More broadly, the impact on the common good as a whole is to be considered, and this means a great many factors are eligible for consideration. Indeed, so many factors, that no ordinary human is capable of certainty in establishing all of the effects and thus knowing what is the absolute best punishment to impose. Fortunately, there is a quickly sliding scale, and effects lower down the scale soon get into the law of diminishing returns - as is true of ALL prudential judgments, or we would be frozen in place trying to decide what action (or inaction) will result in the least harm. But in any case, the primary consideration should always be the justice entailed in the retributive aspect, because that simply IS the primary purpose of punishment.

Thanks Tony and Lydia. I grant, Tony, that the retributivist principle is not that punishment should resemble the crime per se, but rather that it should be proportionate (of an adequate degree) - whether to the evil caused, or the evil of the will, or what have you. As you pointed out, though, punishments that resemble the crime are often seen as capturing proportionality (even if resemblance isn't necessary for proportionality). So when I floated the idea of punishing torture plus murder with torture plus DP, I was simply raising a candidate punishment that prima facie honors the retributivist principle of proportionality/degree.

If the retributivist thinks proportionality is sufficient for permissibility, it would seem that torturing criminals would sometimes be permissible, which is intuitively a bad result. The response you and Lydia highlighted is that the retributivist shouldn't accept that sufficiency claim - proportionality isn't sufficient for permissibility by itself. We need to consider other factors, such as whether the candidate punishment is intrinsically evil, or whether it's conducive to the "common good" (deterrence? protection?)

I'm not sure how to best articulate my concern at this point, but the rough idea is that the retributivist case for the DP seems importantly incomplete. Proportionality, just deserts, etc., don't bring us to (aren't sufficient for) the DP's permissibility. (That's my variant on your objection 3, illustrated by the example of torture being sometimes proportionate but never permitted.) Imagine a "radical" retributivist who is on board with horrific punishments for the most horrific crimes. One natural response is: but those punishments are off the table, for reasons X, Y, etc., where these reasons are coming from outside the retributivist framework. (After all, it's an exclusive fixation on this framework that leads this radical retributivist to condone these punishments.) But then the critic of the DP might invoke the same strategy when it comes to "normal" retributivists and their case for the DP: that punishment should be off the table, for reasons X, Y, etc.

Lydia gives one response that may be made at this point: torture is, but the DP isn't, intrinsically evil. I'm inclined to agree at an intuitive level, and I also accept on biblical grounds that the DP can't be intrinsically evil. But I guess my point (or claim) is that at this point the debate over the DP has to shift away from retributivist considerations. For example, the critic of the DP may maintain that the DP should be off the table for reasons similar to why torture should be (e.g., whether it's intrinsically evil, or dehumanizing/degrading - whether to the punisher or "punishee", etc.).

I'm not opposed to the death penalty in principle, but I think that the account in the Pericope de Adultera needs to have greater weight in any Christian discussion of the death penalty than you seem to be giving it. As does the fact that in a whole lot of places and times throughout Christian history, the general tendency of the church was to discourage use of the death penalty though not to abolish it (if I remember right, Tsarist Russia, who no one can accuse of being a liberal or secular place, abolished the death penalty several times and at other times restricted it to treason). How would you incorporate the Pericope de Adultera into your thought about the death penalty?

Personally, if I was running the show I'd probably restrict capital punishment to treason, although I suppose I could be convinced otherwise for some really horrific crimes.

But then the critic of the DP might invoke the same strategy when it comes to "normal" retributivists and their case for the DP: that punishment should be off the table, for reasons X, Y, etc.

He can try. But there aren't any good reasons x, y, and z that take the DP off the table. :-)

In particular, the critic is going to be hard-pressed to make an analogy to torture, since the DP is not intrinsically immoral.

I'm not sure how to best articulate my concern at this point, but the rough idea is that the retributivist case for the DP seems importantly incomplete. Proportionality, just deserts, etc., don't bring us to (aren't sufficient for) the DP's permissibility. ... Lydia gives one response that may be made at this point: torture is, but the DP isn't, intrinsically evil. I'm inclined to agree at an intuitive level, and I also accept on biblical grounds that the DP can't be intrinsically evil. But I guess my point (or claim) is that at this point the debate over the DP has to shift away from retributivist considerations. For example, the critic of the DP may maintain that the DP should be off the table for reasons similar to why torture should be (e.g., whether it's intrinsically evil, or dehumanizing/degrading - whether to the punisher or "punishee", etc.).

It is certainly reasonable to suppose, as a logical possibility, that the DP ought to be taken off the table for some reason other than lack of proportionality. But it is not enough to argue the mere possibility as a concept, i.e. that there MIGHT be some reason X to take it off the table. You have to propose ACTUAL rationales that would (if correct) take it off the table.

As Lydia points out, the leading candidate, that of the punishment being intrinsically evil, fails. I won't go into the detailed argument here, since you already accept the point. But notice what this does: it leaves us room for only two possible types of proposals for an X that is the reason to take it off the table, the general and the prudential. The first is that, by the very nature of the case, it can't do the job it's supposed to do - it cannot possibly satisfy the primary purpose of punishment. And the other is the quite different style, that it's bad under these Y conditions, with respect to Z aspect that we have in front of us, etc (i.e. the prudential argument, that it isn't very satisfactory, because of conditions Y and Z). Note, though, that the latter TYPE of argument, being of a prudential nature, is inherently subject to imprecision, some degree of debate, some lack of definitude. It's not capable of definitive proof.

For the first type: it is patently implausible, and I don't know anyone who has actually argued the thesis as an actual claim. Once you establish that the primary end of punishment is the retributive end, and that the DP is morally licit in principle and proportional to some crimes, there just isn't room to argue that it cannot be the redress to the crime in any case. By being an evil, it is naturally repugnant to the will, thus it DOES redress the criminal's illicit willfulness. (It is a mistake in logic to argue that it should be taken off the table IN GENERAL because, although it meets the primary purpose, it sometimes fails to meet some of the secondary ends; the latter (if true) is only at best a prudential argument against it under Y and Z conditions, not a general argument.)

For the prudential type, obviously we cannot actually answer the claim without there being a specific claim for X. The main one on offer, that it is "degrading / dehumanizing" (i.e. the "human dignity" argument), does not stand up to muster. First, the argument from authority: the source of human dignity is man's being made "in the image and likeness of God". But God himself, only 9 chapters into Genesis, declares of the murderer "by man shall his blood be shed, for man is made in God's image". It is precisely on account of man being made in God's image, man's immense dignity, that the DP is a fitting punishment. The human dignity of the victim cries "from the very ground" for justice, for recognition of the singular awfulness of the offense, for a punishment that trumpets the wrongness of the offense to God that lies in dealing wrongful death to His image. St. Thomas Aquinas declares that it is in man's rational nature that we are in God's image: in having reason and being ordered to Godliness via freely willed choice, we are above the rest of physical creation. And by sinning against that august calling, the murderer defaces the reason he is born with, and the guilt of this calls for the penal evil that declares a firm "No" to his wrongful use of reason and will so extremely as to assent to murder. God Himself testifies that the DP affirms man's dignity.

In a second line of reasoning: when Genesis says that man is made in God's "image and likeness", the Fathers and Doctors indicate that these are not merely repetitive synonyms. The "image" part is the human nature being that of a rational animal, man having a rational soul, capable of knowing God as He is in Himself, and of loving God freely. The "likeness" part of it is added thereon, it is the uplifting of grace by which God elevated Adam and Eve to the state we call "Original Justice", in which they had the sanctifying grace to know God through not only reason but faith, and to love him in the love of charity - i.e. in this state they enjoyed a participation in God's own life, by way of His making His abode within their souls (not in the way of the Beatific Vision of heaven, but in the way of the anticipation of that final end we have in faith and hope, through grace). This means that there are two different orders of dignity involved in man as he was created in Eden, or as he may have now (through the sacrament of baptism). The dignity of rationality persists as long the human nature persists - i.e. forever. The dignity of the elevation of grace only exists as long as the person does not reject God by a sin that is incompatible with the grace of God in the soul. Obviously, no human loses the former dignity through crimes, but he may lose the latter. The existence of hell itself declares that punishment AS SUCH is a proper state for one who (a) has human nature, and (b) is guilty of a _willed_ offense contrary to the good of that nature. It is a fundamental aspect of nature (in there being moral creatures) that they be responsible for their choices and therefore that there be punishment for those offenses. Thus punishment in general is FITTING to the human dignity of those who commit offenses.

The DP in particular is fitting to those who murder, in that it is the punishment that gives best witness to the human dignity of the victim, and the rationality of the criminal.

A person who has lost the state of sanctifying grace (or never had it), cannot suffer a "loss" of the second dignity that only exists on account of said grace, and so DP cannot be contrary to the murderer's dignity in that sense.

As a practical observation: I have yet to see anyone attempt to argue that DP is contrary to human dignity, who ACTUALLY tries to say in detail what human dignity really is and how DP is contrary - excluding the secular humanists who get everything topsy turvy anyway. I see it over and over again: a magician's vague hand-waving over the words "human dignity", or as if it were the concept were a brand new invention that the Church had never considered before. No attempt to actually think about it and what it means. No attempt to connect the dots between grave moral responsibility and grave (grievous) punishment. Almost universally, no room for belief in hell as a permanent place of punishment, either.

Note, also, that the _Christian_ who raises the above objection is pressed to acknowledge the fact that by the very nature of moral acts, a crime that offends against some good of the human person calls for a redress with respect to the same order of that good of the human person (whether it is man or God who does the punishment); on admitting it is not that the DP is itself contrary to human dignity, it is that _man_ is not the right one to impose it. Genesis 9:6 refutes that as well. So does natural law, and the fact that the state cannot avoid being the authority in charge of making life-and-death decisions regarding war.

but I think that the account in the Pericope de Adultera needs to have greater weight in any Christian discussion of the death penalty than you seem to be giving it.

Hector, I didn't give it weight here because it doesn't speak to the issue of proportionality. However, I went into the Pericope de Adultera at great length in this post:

http://whatswrongwiththeworld.net/2018/03/the_woman_caught_in_adultery.html

In it I quite clearly put paid to the notion that what Christ did with the woman caught in adultery would make us refuse to use the DP. The passage doesn’t do that. And even if one were to reject my analysis of the real meaning of the passage, there would remain still this insurmountable problem: Christ does not have the woman punished AT ALL. If the point of the passage is his relieving her of her need to atone for her crime, by having her suffer NO punishment whatsoever, then the conclusion we would have to take is that WE MUST NEVER PUNISH. I.e. that punishment as such is contrary to the Gospel. Not only is such a conclusion idiotic, (we could have no society at all if nobody ever punished anyone including children, the rest of the NT shows quite clearly that Christians believe in punishment.

As does the fact that in a whole lot of places and times throughout Christian history, the general tendency of the church was to discourage use of the death penalty though not to abolish it

I am fine with proposals to reduce its use to the narrowest possible range that is consistent with the common good. This would of course rest on the thesis (which is the point of this post) that the DP IS in fact a proportionate punishment for some crimes. Given that point, weighing and balance of WHEN to use it is a proper role for civil authorities, and it is also a suitable topic for the Church to suggest guiding principles. I would love it if, instead of currently offering just a COUPLE of the guiding principles, and not even bothering to try to point out the hierarchical relationships between them, she would instead embark on laying out a whole systematic treatment of how and why the DP serves the common good in some ways and does not in other ways, and how to relate them all together. Eventually I intend to address the basic outline of such a treatment, but I need to lay some additional foundational stones first.

Thanks again. It's true that I accept that the DP (A) isn't intrinsically evil. I also accept that (B) it is (or at least in principle can be) effective vis-a-vis the primary purpose (according to you, and which I've been granting) of civil punishment: retributive justice. And I think you give good reason to think that the DP (C) isn't inherently dehumanizing and doesn't inherently violate human dignity.

But I'm curious about what it is exactly that distinguishes the DP from other candidate punishments that we think are "off the table", *even when* they seem to possess feature (B). Torture is the example I've mentioned, inspired by the third objection you considered in the opening post. I think I could better defend a retributivism-based case for the DP by being able to say more about the relevant difference between the (incorrect) "radical retributivism" that would be on board with torture (when deserved) and the "normal retributivism" that categorically rejects torture, and yet is on board with the DP (when deserved).

Do you think torture, unlike the DP, lacks feature (A), i.e., is intrinsically evil? This would imply that it's never permitted - not even in any sort of "ticking time bomb" cases. And it would imply that there must be a fundamental difference between torture and the torment of Hell that explains why only the former is intrinsically evil. Do you think torture, unlike the DP, lacks feature (C)? I see how the criminal's God-imaging rational nature can underpin the retributivist idea that a grave crime calls for redress, and I can see how such redress can also serve to honor the dignity of the victim. But it's not immediately clear to me that the DP is capable of playing such roles in a way that torture isn't.

Do you think torture, unlike the DP, lacks feature (A), i.e., is intrinsically evil?

Well, the Catholic Church has indicated it is intrinsically evil, so that's where I would head also. However, the Church is reluctant to define it, so I would offer this: I can make a good case that torture, when defined as pain severe and lasting enough to interfere with the use of reason and the freedom of the will, is wrong, not because the AMOUNT of the pain as such is intrinsically immoral an infliction (he could deserve that much) but because of the effect on the person's rationality - it thus reduces him to the state of a beast, which is contrary to human nature. (There are additional ways torture can be specified as being wrong, e.g. if done for the pain itself (because it is wrong to will the evil for its own sake), or if done to extract confession (because the severity undermines the validity of the confession).) The pain of Hell, presumably, does not fall under this condemnation because presumably God provides that the person retains the use of reason in spite of the pain (and, also, according to some accounts the most severe pain is the mental suffering of knowing you have lost God eternally by your own acts, i.e. a pain of mind that as such leaves intact one's use of reason). Thus it is not in virtue of the degree of painfulness itself that it would violate proportionality or retribution.

Thanks, interesting/helpful. Executing someone destroys his freedom of the will and his use of reason, so it's not immediately clear how torture could be intrinsically evil because of the effect on the person's rationality, given that the DP isn't intrinsically evil. Admittedly, executing someone doesn't "reduce him to the state of a beast", but I don't see why it would be intrinsically evil to disable a person's use of reason while preserving his life but not intrinsically evil to do the same by killing him.

The effect on the person's rationality also wouldn't seem to be able to account for the wrongness of intuitively cruel punishments that don't disable the use of reason. For example, "limited" torture (whether in severity or time), or amputations. Effect on rationality also won't account for the wrongness of torturing animals, though perhaps we don't have to give the same account in both cases. (It seems we can say that it's never ok to intentionally cause harm without some good reason. This would seem to rule out torturing animals. Retributive justice certainly never provides a reason to cause them harm.)

Effect on rationality also won't account for the wrongness of torturing animals, though perhaps we don't have to give the same account in both cases. (It seems we can say that it's never ok to intentionally cause harm without some good reason. This would seem to rule out torturing animals. Retributive justice certainly never provides a reason to cause them harm.)

Yes, that's what I would say too: there is no necessity that all of the reasons it is bad to torture humans would apply to animals, though some of them might cross over and apply to both. And I would agree that it's never ok to intentionally cause harm without some good reason, which I why I offered that it is wrong to do evil for its own sake.

Executing someone destroys his freedom of the will and his use of reason, so it's not immediately clear how torture could be intrinsically evil because of the effect on the person's rationality, given that the DP isn't intrinsically evil.

I don't think this is quite the way to understand it. When a person dies, they shift over into their after-life, in which their reason works just fine. They will know good and evil - even better than now. And they will retain the faculty of willing also, though there is a difference: if they go to heaven, they retain their freedom in loving God. If they go to hell, they will remain free to remain in rejection of God as they had done on Earth. Critically, in neither case does their state consist in being reduced in capacity to reason about what is right or wrong.

But even apart from considering the after-life, I would suggest that it STILL is not correct to view the DP as meaning the same thing as torture in that it "destroys the use of reason and freedom of will". That is to say, it does that only per accidens: the person does not end up living life as a beast, an object, instrumental to the will of another due to suffering the DP, which is what happens with torture. Imposing the DP on the criminal is not treating him as an impersonal object, it is not making him live like a tool or a rug for the sake of another.

Thanks. It's not clear that torture intrinsically involves treating one as an impersonal object, making him an instrument/tool to another's will. (And the current claim on the table is that torture is intrinsically wrong - and that's how we can justify advancing the DP on retributivist grounds without advancing torture on retributivist grounds.) This seems to get into the (contingent) motive behind the act, and the context in which I brought up torture was as advanced by a hypothetical "radical" retributivist for certain crimes that would seem (on retributivist grounds) to call for it. In these cases, the intention behind the act is the same as the intention behind the DP and other punishments: retributive justice. There's no intention (or even consequence) of using the person as a tool to the will of the state, except, in a manner of speaking, the state's will for justice.

It's not clear that torture intrinsically involves treating one as an impersonal object, making him an instrument/tool to another's will. (And the current claim on the table is that torture is intrinsically wrong

For the moment I am speaking solely from the standpoint of Catholic teaching: Vatican II documents referred to torture in a long list of items that it called "intrinsically evil", but (a) it did not define or refer to a definition of torture, and (b) the list itself makes it clear that the passage is intended to be read informally, rather than precisely as an official defining account, (like when the Church says things like "to eradicate all doubt, we define...").

So I will make an analogy with a similar evil, that of slavery. The Church calls slavery intrinsically evil, but does not define it. However, when you read the documents carefully, what seems to be more certain of what the Church is condemning is chattel slavery, and not ALL institutions that might have been called slavery at some point or other; it does not appear that the Church means to condemn penal slavery (i.e. punishment for certain crimes) as "intrinsically wrong", and probably does not intend to condemn debt slavery (as long as it is not chattel slavery), even if that institution is so allied to chattel slavery as to constitute an extreme danger to morals and to be condemned on prudential grounds anyway.

I propose that torture might be similar: There are different sorts of acts that may or may not fall under the same species of act, but are collected under the term "torture" and which are wrong in different ways or senses. For example, while the term evokes a sense of "severe" pain, what is classed as "severe" and what is classed as "moderate" might itself vary depending on the purpose to which it is put, and so the object of imposing the pain gets captured into the proper species of the act. Thus it is possible that some types of behavior that might be referred to as "torture" fall under the condemnation as intrinsically evil, and others might only fall under condemnation as prudential very dangerous to morals and likely to be evil most of the time given the circumstances. I am not prepared to lay out all of the distinctions - I don't claim to know them all - but offered the distinction above as one way of seeing that torture of (a certain type) clearly would be the sort of thing that is intrinsically evil, and provide also the REASON to consider it so, rather than merely relying on intuition. This would not preclude other sorts of torture also being intrinsically evil, but might make them so for a different reason.

What I think is fair, given the above, is to be wary of an assumption that the condemnation of "intrinsically evil" falls on ALL types of behavior that is typically called "torture" equally, merely because the Church has issued an informal list of intrinsically evil acts that includes torture. Not least because our standards of what degree of suffering constitutes "torture" is clearly undergoing gradual change, and so references to it in much older works and in recent works are not to be glibly assumed to use the term univocally. One thing I would firmly insist is that corporal punishment is strongly endorsed by Church teaching as a matter of principle, and modern sensibilities that tend to cast it in the same category as "torture" are out of whack, not to be trusted. Given that, and the Church's reticence in either defining torture or explaining explicitly the general grounds that makes it intrinsically evil across the board, I am unwilling to to out on a limb and ascribe to it a proposed rationale that it is intrinsically evil that would fall on corporal punishment equally. I am thus ready to agree to the wrongness that attaches to some sorts of torture, for which I can put forth the reason they are intrinsically evil, and unready to go beyond that in positive assertions (about other acts) that they are intrinsically evil.

So to be clear about my response, I don't think the person who supports the DP on the basis that (a) it is proportional, and (b) also that it is licit, needs to have a response to the kind of argument that lumps him in with OTHER supporters of DP who insist that it must be available and licit "because of proportionality", or supporters of torture as punishment because of proportionality. Other than "don't lump me in with those other groups", I suppose. That goes double for "don't lump me in with people who think we should rape rapists", as well. I don't think that setting rape aside as "not permissible" for punishment constitutes any sort of worry about whether the DP is licit as a punishment.

I would also claim that moral licitness of DP is to be presumed, and require of the nay-sayers that it is they who must produce a (valid) argument that shows it isn't, not the other way around. So far I haven't heard one.

Sorry for the delay. Thanks, these are helpful thoughts.

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