A Hanging

 I don´t often write here these days, so let's get a few things out of the way:

1. The current Blogger interface sucks goat. Google, please change it back. I promise I'll blog more if you do.

2. I am not George Orwell. The title is a combination of laziness and a far-fetched random association of ideas I doubt I'll be successful at communicating, and may have forgotten about before I even get around to trying. If it helps, just ignore it.

Now to business. The Death Penalty. What follows will be my answer to Mr Saad's article here. As is usual with this blog, in composing my answer I'll be ignoring every single one of the guidelines I regularly offer my students on "now to write an essay". In particular, I will not be writing from an outline, nor have I allowed myself any time to ponder what I am going to say or how I'm going to organise what I say. Who knows, in unguarded moments I may even cite Wikipedia. Nevertheless, I think I can give Mr Saad a run for his money. We'll see.

First of all, let's lay out the assumptions I'll be proceeding from, in case Mr Saad or any of his merely human disciples wishes to quibble with any of them. 

I believe (as Mr Saad apparently also believes) in free will, Discussion of why, and what I mean by this, belongs elsewhere, but suffice to say I won't be arguing that no one is "really responsible" for their crimes and therefore does not deserve punishment for them, which I regard as a silly position - after all, if the murderer can't be blamed for being a murderer, likewise the executioner can´t be blamed for being an executioner, and therefore we should just go on letting him hang murderers wherever we find him doing so, since he is programmed (perhaps by his deprived childhood) to that end. That line of argument leads nowhere, agreed.

I am also an atheist, so you will be relieved to learn I won´t be arguing that the exclusive rights over human life belong to the Big Guy. Again, I am surprised whenever I hear this argument, as it seems to rather go against the near-universal MO of believers in said Big Guy, whenever they've had a whiff of state power. Massacres, stonings, crusades, jihad, all tend not to require the direct intervention of an incorporeal divine hand, I assume religious people are indulging in a mode of humorous irony inaccessible to the unbeliever when they say only God can take a human life. Their actions suggest otherwise.

I am also not a moralist. I don´t believe people are "good" or "bad" per se, except insofar as we judge them to be so, mostly on the basis of fairly primitive mental categories in which there is a good deal of self-interest and self-regard. I do believe that the desire to avenge a wrong done to us, and also the desire to "punish" the people we dislike for whatever reason, are part of the human condition, in the sense that their instinctual basis is part of our evolutionary hardwiring - again, no argument with Mr Saad there. However, as soon as we get past this point of preliminary agreement I think Mr Saad's argument falls apart. Here's why:

Mr Saad's repeated exemplar of a person who, in his view, is the ideal candidate for execution by the State is the criminal who rapes and murders children and has been incontrovertibly proven to have done so. Now, it is possible, without at all excusing such heinous acts, to ask why they were committed (looking for answers to questions like this might be useful if we are trying to minimise the risk of such acts being committed in future). The answer must undoubtedly have to do with some primitive urge or deep-seated desire, however distorted or deviant, the satisfaction of which the criminal regards as somehow more pressing than the various dissuasory considerations that might occur to him. He may or may not be capable of empathising with the victim or with the victim's family: he may or may not be afraid of being caught, and possibly being executed if such a possibility exists. What we can say for certain is that, at some point, his "primitive" human urge to rape and kill was strong enough to outweigh all these hypothetical considerations, causing him to commit the crime. When he raped and killed those children, he was acting in accordance with some deep-seated desire or urge which he simply refused to keep in check: something very powerful and, presumably, "instinctual".

Now, if we believe in free will, our attribution of responsibility for the acts committed requires us to believe that he could have acted otherwise. He could have kept his criminal desires in check, and he chose not to. Mens rea - our whole justice system, excepting a peppering of strict liability, is built on this assumption. I can agree with the determinists that, quite possibly, the criminal would have required some sort of outside intervention - say, a decent education - to have made this sort of willed self-control a real option, and that there is indeed a sense in which "it's not his fault" he didn´t get that education. Nevertheless, there are certain legally recognised minimal conditions under which a person, regardless of his disadvantages in life, can be held morally responsible for his actions - which, as I say, in practice means that you, the criminal, can look back at what you did and recognise that you could have acted otherwise and decided (whatever that means) not to. 

This leads us to the contradiction at the heart of Mr Saad's position. I think there is a case to be made - though perhaps not a strong one - for capital punishment as a deterrent: Mr Saad more or less admits he finds this case unconvincing, so I won´t bother with that. I also think there is a case for capital punishment as a collective security measure, in the sense that some might argue that our children will be safer with proven child murderers dead than merely behind bars, whence they may later re-emerge to resume their predatory activities. Again, Mr Saad does not attempt to make that case, which under a certain set of circumstances I might find compelling. What he says is that the death penalty is justified because people have a deep-seated, "primitive" desire for vengeance:

"Humans have evolved a repertoire of emotions that served as adaptive solutions to problems of evolutionary import. One of these emotions is the universal need for revenge. This is such a pervasive element of the human condition that it constitutes one of the seven deadly sins. In other words, our human nature is so predisposed to seek retribution that moral philosophers and theologians alike have tried to temper our drive to punish those who harm us. As a civilized society, we have agreed to "subcontract" our vigilante desires to the state. However, our need for the most extreme of retributive justice does not suddenly disappear because we are a "civilized" people."

It's hard to know where to start with this, but let's try "need", two lines into the paragraph from both ends. If we "need" to have retributive justice because it's an "evolved" emotion, and "a pervasive element of the human condition", then do we also "need" to commit rape because, let's face it, lust is a pretty "pervasive" part of our condition? Or - since we're doing the Deadly Sins - how about envy? Do I "need" to go out and burn down businesses in Portland or Minneapolis because my envy at the business owners - their nice houses, their smart store windows, their presumably overflowing cash registers, all that "privilege" - is an emotion that I've inherited from countless millennia of social evolution? Mr Saad is the last person I would have expected to find confusing wants and needs, but here we are. 

To sum up, then, either we cannot do other than indulge our most primitive instincts, whether for vengeance or anything else - which means the child-murderer, for his part, cannot do other than indulge his, and it's foolish to blame him for doing so - or else we can, by exercising rational self-control, do other, in which case so can the child-murderer, and we have a case to judge him on. I tend to the second view, and I suspect Mr Saad does too - but if so, he really should stop pretending we are helpless playthings of our evolutionary programming. We aren´t. We can make rational choices, and here is one of them.

The fact that most countries in the world do not have the death penalty constitutes strong empirical evidence in support of the above. Why on earth pretend otherwise?

Now let's try an alternative view.

If, as Saad says, throughout history "moral philosophers and theoogians have tried to temper" the aforementioned drives,   it's at least in part because they saw that the need (yes, need) to live together in a society, especially a "civilised" one, required us to develop a mechanism to overcome and keep in check our most primitive, antisocial drives and impulses. The average human probably experiences antisocial impulses several times in the course of a typical day, and the test of civilised maturity is the individual´s ability to restrain those impulses. If you don´t learn to do that, you´ll likely end up in jail: that´s how any civilisation worth the name works. 

Having said that, it´s at least questionable whether we can have a civilisation just on the basis of knowing what we can't do, and what will happen to us if we go ahead and do it anyway. At this point I do have some sympathy with Mr Saad's (implied) position: I do think that deterrence is not enough. We need to have harmless, legitimate ways to redirect, or sublimate, our antisocial urges rather than merely seeking to repress them. So, for example, people who are obliged not to commit rape will find this requirement much easier to comply with if they have access to alternative, non-harmful means of sexual release (e.g. widespread access to porn); people prone to envy will benefit from having a place to go every Sunday where they can mumble gobledegook together while revelling in the imagined discomfiture of those they envy being burned forever in a lake of fire. People prone to anger, mass hysteria and collective fury will benefit from having some sort of event which they can attend regularly, where they can shout, scream, taunt, roar, wave their arms about and enjoy the satisfaction of their team thrashing the upstart outsiders. And in this list I would also place the natural (as Saad says) human desire for vengeance: what would work for that? Well, there's Michael Winner movies, there's Twitter, there's election night, there's watercooler gossip. In addition, if none of this works, there´s the penal system, which offers us the satisfaction, in a well-run society, of knowing the people who wronged us are condemned to living in deeply unpleasant conditions for a very long time. In practice, this seems to be enough for most people. As anyone familiar with the emotion of vengeful hatred will tell you, the trouble with merely killing someone is that it's generally far too quick.

Once again, the fact that we don´t (where I live, and in many other places) have the death penalty proves we don't "need" it. Some people want it, others don't, but even those who do would probably mostly admit that there are other things they want more, like safety, social stability, the rule of law, freedom of expression, and the freedom to  live a fulfilled life. So the desire for "vengeance" must be balanced against these other wants. And here is where my opposition to the death penalty really hardens: I find its existence to be to some extent incompatible with these other desiderata.

Take freedom, for example. The standard libertarian principle is that we should be free to do anything that does not harm others: and we know that there is no place in the world where that degree of freedom currently exists. For it to exist, we would need to develop a culture in which the freedom of the individual counts for more than the demands of the collective as mediated through state power. For this to come about, there has to be sustained and persistent opposition to such state overreach as we currently find: we need to continually assert the rights of the individual against the state. So here's the problem: giving the state the power to take away someone's life is the very opposite of that. To accept the death penalty is, by implication, to accept that even the right to life is subordinate to the state. It is to make the state equivalent in status to the Big Guy we already decided we can easily do without. Which is why it's no surprise that, with a few notable exceptions, most of the countries which still have the death penalty rank pretty low on the human freedom index. 

Mr Saad is, of course, a dreamer. So am I. But even I am not naive enough to think that, if we introduce the death penalty where we don´t have it, we're going to have the luxury of stipulating stringent evidentiary conditions for its application. In practice, it´s going to be administered pretty much as it already is in (take your pick) Texas, Florida, Pakistan, Afghanistan, North Korea, China or Iraq, or at any rate in line with your current legal system, which probably isn't ideal, and with racial biases and all the rest built in. So "mistakes won't happen" is pretty much pie in the sky. As far as I can see, advocating a death penalty only under conditions where no mistake could possibly be made is tantamount to not advocating for it at all. 

I'll leave you with this, from a great cinematographer who, like Orwell, saw what was what.