Burton Leiser: The Death Penalty Is Permissible 593 The Death Penalty Is Permissible 71 BURTON LEISER Burton Leiser is professor of philosophy at Pace University and the author of several books and articles in the areas of law, morality, and religion, among them Liberty, Jus- tice and Morals, from which this selection is taken. Leiser responds directly to Justice Marshalls claim that the death penalty con- stirutes a denial of the criminal’s worth and dignity. Just the reverse, argues Leiser. ‘The death penalty, based on retributivism, actually affirms the offender's dignity and worth, for it treats him or her asa fully responsible person. In the last part of the essay Leiser discusses the limits of the death penalty. Study Questions 1. How did the residents ofa midwestern town take the law into their own hands regarding a ferocious bully? 2. How is this incident relevant to the death penalty? 3. How does Leiser respond to Justice Marshall's dissent? (See Reading IX.70.) 4. Why, according to Leiser, isn't the death penalty “cruel and unusual”? 5. What does Leiser mean by mens rea? RETRIBUTION Vengeance and Vigilante Justice In Eils OPINION for the majority in Gregg v. Geor ‘gia, upholding the death penalty as constitu- tionally permissible, Justice Potter Stewart ‘observed that capital punishment “is an expres- sion of society's moral outrage at particularly offensive conduct,” and that even though thi fanction may be unappealing to many, “i essential in an ordered society that asks its citi- zens to rely on legal processes rather than self- help to vindicate their wrongs.” Without orderly. ‘means of imposing penalties upon offenders proportionate to what the aggrieved patties feel is deserved, society runs the tisk of anarchy, vig- ilante justice, and lynch law. Even if retribution is not the dominant objective of the criminal Jaw, he stid, it is neither forbidden by the Con- stitution nor inconsistent with the dignity of men. Indeed, he went on, capital punishment “may be the appropriate sanction in extreme cases [2s] an expression of the community's belief that certain crimes are themselves so griev- ous that the only adequate response may be the penalty of death.” As Lord Justice Denning told the British Royal Commission on Capital Pun- ishment, “Some crimes are so outrageous that society insists on capital punishment, because the wrong-doer deserves it, irrespective of whether itis a deterrent or not.” In 2 report on “vicious youth gangs” in Detroit, the New York Times quoted a black resi- dent as saying, “If 1 know who steals or breaks Reprinted from Libery, Justice and Moras, 3 ed. (Nevw Tort: Macovillan Publishing Company, 1986), by permision,594 PART NINE: PHILOSOPHY IN ACTION into my home, I'm going to get my gun. I'm going to hunt him. They can lock me up, but that’s the only thing left. The police, they’re not doing the job.” Following another report on violent juvenile crime, a reader wrote to the Times, “Sudden death fora young man who does not want to surrender his wallet is cruel and ‘unusual punishment. Why not let the punish- ment fit the crime, even if we have to amend the Constitution? The bleeding-heart mentality has caused too much bloodshed.” And in a small town in the Midwest, after the residents con- cluded that the authorities would do nothing to relieve them of the violent behavior of a fero- cious bully, large group waylaid him and fatally shot him. Afterward, no one in the community could be found who was willing to cooperate with the authorities in their attempt to solve murder. It is clear that their sense of justice was so outraged that they considered his death to be justifiable homicide, and not murder. These sentiments are clearly consistent with those theories of government which declare that when people agree to lay down their rights to self- help, transferring their right to avenge themselves on those who harm them to their common sover- eign (the government), the sovereign assumes the duty to see that justice is done. By conferring exclusive jurisdiction over criminal sanctions upon the government, the people prevent blood feuds from developing and bring order to the fix- ing of guiltand the exacting of retribution, which they would otherwise have done informally and summarily. As public frustration grows, as more and more innocent persons feel that they are director indirect victims of vicious criminals, and as more people become convinced that their demand for retribution will not be met by those into whose hands they placed the responsibility of exacting appropriate penalties from wrongdoers, the danger of vigilante justice grows. Thus, the move from orderly processes of exacting public retribution toward the arbitrary process of private vengeance gains greater momentum until it is finally translated into action, as it was in that Mid- ‘western town, Retribution and Human Dignity. In his dissent in Gregy ». Georgia, Justice Thur- ood Marshall said that “it simply defies beliefto suggest that the death penalty is necessary to pre- vent the American people from taking the law into their hands.” He went on to assert that Lord. Denning’s contention that some crimes are so outrageous as to deserve the death penalty, regardless ofits deterrent effects, is at odds with the Eighth Amendment. “The mere fact that the community demands the murderer’ life for the evil he has done,” he said, “cannot sustain the death penalty,” for the Bighth Amendment demands more than that a challenged punishment be acceptable to con- temporary society. To be sustained under the Eighth Amendment, the death penalty must [comport] with the basic concept of human dig- nity at the core of the Amendment; the objective in imposing it must be [consistent] with our respect for the dignity of [other] men. Under these standards, the taking of life “because the ‘wrongdoer deserves it” surely must fil, for such, ‘ punishment has a its very bass the total denial of the wrongsioer’s dignity and worth. The death penalty, unnecessary to promote the goal of deterrence or to further any legitimate notion of retibution, isan excessive penalty forbidden by the Eighth and Fourteenth Amendments. Robert A. Pugsley has argued that the princi- ple of retribution demands that the death penalty not be invoked. Capital punishment, he says, i symbolically the ultimate ostracization of an in vidual, It “emphatically transgeesses the inviola- bility of the executed” and also “destroys those bonds of community which criminal punishment should strive to reaffirm.” Its difficult, he says, to reconcile the “respect required for the individ ual’s dignity and moral capacity,” which he believes to be the essential point of retributivism, with the practice of execution, The executed criminal is not treated as a human being, but as an object to be discarded. Execution is dehu- manizing. It is the “total negation of the moral ‘worth of the person to be executed.”Burton Leisey: The Death Penaity Is Perssistble 595 A more proper retributivist response, he says, may be derived from the following consid- erations: Even if [the convicted murderer] is sentenced to a life term without possibility of parole, he retains his membership in the community, and has had that status reaffirmed by the process of adjudication and punishment, His formal bond ‘with the community #the punishment bond. It is that which signifies the community's recogni- tion of him as a responsible moral agent and deserving of its respect, expressed of necessity through penalty and censure. He in mm accepts, if only tacitly, his punishment as justi fied; he acknowledges that he ought to feel guilty and suffer for his violative behavior. In the instance of the life term, particulary, there is this paradox: ‘The community has “cared enough to give the very worst” punishment which, by abolishing the death penalty, it has permitted iself to impose. As Justice Brennan put it in supporting the abolition of the death penalty, capital punish- ‘ment treats members of the human race “as non~ humans, as objects to be toyed with and dis- carded.” As such, it is inconsistent with the fundamental principle that “even the vilest crim- inal remains a human being possessed of com- mon human dignity,” whereas capital punish- meat is “uniquely degrading to human dignity.” CRUEL AND UNUSUAL PUNISHMENT ‘The Bighth Amendment, which proscribed cruel and unusual punishments, was not intended to ‘outlaw capital punishmentas such. This is particu- larly evidentifone considers that the Fifth Amend- ‘ment, written and adopted at the same time, pro- vides that “no person shall be held to answer fora capiral ... crime, unless on presentment or indict- ment ofa Grand Jury,” and that no person “shall be deprived of life, liberty, or property, without due process of law.” Itis evident, then, that with a grand jury indictment, and with due process, a per son may be deprived of his life, just as he may be deprived of his liberty or property. The cruel and. unusual punishments that were banned by the Eighth Amendment were those that involved tor: ture or a lingering death and those that were dis- proportionate to the offenses being punished. Later Courts have found, on the same basic princi- ple, that any punishment for the mere stacus of being a drug addict is cruel and unusual, just asa single day in prison would be a crue! and unusual punishment for the “crime” of having a common cold. The Court found that although the Eighth Amendment was dynamic, evolving over the years as public moral perceptions changed, capital pun- ishment was not cruel and unusual as that term stands in the Constitution. As the liberal Chief Justice Earl Warren had once said, “the death penalty has been employed throughout our his- tory, and, in a day when itis still widely accepted, it cannot be said to violare the constitutional con- cept of cruelty.” Barlicr Courts had found that that concept implied “something inhuman and barbarous, something more than the mere extii guishment of life,” and that the suffering neces- sarily involved in any execution was not banned by the Bighth Amendment, though a cruel form of execution was. The Court noted that at least 35 state legislatures had enacted new statutes afier Furman, providing for the death penalty, as had the Congress. Itnoted also that the people of Cal- ifornia had amended their constitution, by refer- endum, so as to negate a decision by that state’s highest court banning capital punishment. Juries, too, are a measure of public morality, and in March, 1976, more than 460 persons were sub- ject to death sentences. ‘Arguing that the traditional justifications for capital punishment (deterrence and retribution) ‘were sufficiently well founded, despite the reser- vations that some people have about them, to continue to play a rote in penal policy, the Court concluded that the death penaltyis not unreason- able, thatitis consistent with contemporary moral standards, and that it is not a crue! and unusual punishment as that term is used in the Constitu- tion, In view of the safeguards erected around defendants accused of capital offenses in Georgia596 PART NINE: PHILOSOPHY IN ACTION and other states, the Court concluded that previ- ous reservations about the death penalty being imposed in an arbitrary and capricious manner no longer applied and that it could therefore be imposed whenever similar safeguards existed THE LIMITS OF CAPITAL PUNISHMENT ‘The death penalty has historically been employed for such diverse offenses as murder, espionage, treason, kidnapping, rape, arson, robbery, bur- glary, and theft. Except for the most serious crimes, it is now agreed that lesser penalties are sufficient. ‘The distinction between first- and second- degree murder does not permit fine lines to be drawn between (for example) murder for hire and the Killing of husband by his jealous wife. ‘Many murders committed in the United Srates are of a domestic nature—spouses or other close relatives becoming involved in angry scenes that end in homicide. Such crimes, usually commit- ted in the heat of a momentary passion, seem inappropriate for the supreme penalty. Al- though they are premeditated in the legal sense (for ittakes no more than an instant fora person to form the intent that is necessary for the legal test to be satisfied), there seems to bea great dif- ference between such crimes and those commit- ted out of a desire for personal gain or for politi- cal motives, between a crime committed in an instant of overwrought emotion and one care- fully charted and planned in advance. It is rea~ sonable, therefore, to suggest thar the vast majority of murders not be regarded 2s capital crimes, because the penalty may be dispropor- tionate to the crime committed. Only the most heinous offenses against the state and against individual persons seem to deserve the ultimate penalty. Ifthe claim that life is sacred has any meaning at all, it must be that no man may deliberately cause another to lose his life without some compelling, justification, Such ajustification appearsto existwhen individ uals orgroups employ wanton violence againstoth- ers in order to achieve their ends, whatever those ends might be. However appealing the cause, how- ever noble the motives, the deliberate, systematic destruction ofinnocent human beingsis one ofthe ‘gravest crimes any person can commitand may jus- tify the imposition of the harshest available penalty, consistent with the principles of humanity, de- cency, and compassion, Some penalties, such as prolongedtorture, may in fact be worse than death, and may be deemed such even by the intended vic- tims, Civilized societies reject them as being too barbarous and too cruel to the victims, and too dehumanizingto those who must carry them out. Perpetrator of such crimes as genocide (the deliberate extermination of entire peoples, racial, religious, orethnicgroups)deserveapenaltynoless severe than death on purely retributive grounds. Those who perpetrate major war crimes, crimes against peace, or crimesagainsthumanity, deliber- ately and without justification plunging nations into violent conflicts that entail widespread blood- shed ot causing needless suffering on a vast scale, deservenoless. Because of the reckless manner in which they ‘endanger the lives of innocent citizens and their clear intention to take human lives on a massive scale in order to achieve their ends, terrorists should be subject to the death penalty, on ret- ibutive grounds, on the ground that it serves as the ultimate form of incapacitation—guarantee- ing that terrorists who are executed will never again deprive an innocent person of his life, and on the ground that no other penalty can reason- ably be expected to serve asa deterrent to persons whose colleagues are likely to engage in further acts of terrorism in order to achieve their release from prison. Major crimes against the peace, security, and integrity of the state constitute particularly hei- nous offenses, for they shake the very foundations upon which civilization. rests and endanger the lives, the liberties, and the fandamental rights of all the people who depend upon the state for pro-Burton Leiser: The Denth Penalty Is Permissible 597 tection. Treason, espionage, and sabotage, partic- ularly during times of great danger (as in time of war), ought to be punishable by death, ‘Marder for personal gain and murder com- mitted in the course of the commission of a felony that is being committed for personal gain or our of a reckless disregard for the lives or fan- damental rights and interests of potential victims ought to be punishable by death. Marder committed by a person who is serving a life sentence ought to be punishable by death, both because of the enormity of the crime itself and because no other penalty is likely to deter such crimes. Needless to say, if a person is so deranged a8 to be legally insane, neither death nor any other punishment is appropriate. The very concept of punishment entails the assumption that the per- son being punished had the capacity, at the time he committed the act for which he is being pun- ished, to act or refrain from acting, and of behav- ing at least in a minimally rational way. A person who commits a homicide while insane has not, strictly speaking, committed a murder or, for that matter, any crime at all; for no crime can (logically or legally) be committed without mens rea, the intention or will to carry it out. The mere fact, however, that a person has car- ried out a homicide in a particularly vile, wanton, or malicious way is not sufficient to establish that that person is insane, for such a fact is consistent with many other explanations (¢.g., that the per- petrator, making shrewd and calculated judg- ‘ments as ro what would most likely enable him to succeed without being caught, concluded that ir would be in his own best interests if the crime appeared to be the act of an insane person who happened to be in the neighborhood). Bearing these caveats in mind, we may con- clude that any murder (as opposed to a mere homicide) committed in a particularly vile, wan- ton, or malicious way ought to be punishable by death, One of the principal justifications for the state’s existence is the protection it offers those who come under its jurisdiction against viola- tions of their fundamental rights. Those who are entrusted with the responsibility for carrying out the duties of administering the state's functions, enforcing its laws, and seeing that justice is done carry an onerous burden and are particularly likely to become the targers of hostile, malicious, or rebellious individuals or groups. Their special, valnerability entitles them to special protection. Hence, any person guilty of murdering a police- man, a fireman, a judge, a governor, a president, a lawmaker, or any other person holding a com- parable position while that person is carrying out his official duties or because of the office he holds has struck at the very heart of government and thus at the foundations upon which the state and civilized society depend. The gravity of such ‘crime warrants imposition of the death penalty. From the fact that some persons who bring about the deaths of fellow humans do so under conditions that just and humane men would consider sufficient to justify either complete exculpation or penalties less than death, it does not follow that all of them do. If guilt is clearly established beyond 2 reasonable doubt under circumstances that guarantee a reasonable op- portunity for the defendant to confront his ACcUSers, to cross-examine witnesses, to present his case with the assistance of professional coun- sel, and in general to enjoy the benefits of due process of law; if in addition he has been given the protection oflaws that prevent the use of tor- ture to extract confessions and is provided im- munity against self-incrimination; if those who are authorized to pass judgment find there were no excusing or mitigating circumstances; if he is found to have committed a wanton, brutal, cal- lous murder or some other crime that is subver- sive of the very foundations of an ordered soci- ety; and if, finally, the representatives of the people, exercising the people's sovereign author- ity have prescribed death as che penalty for that crime; then the judge and jury are fully justified in imposing that penalty, and the proper author. ities are justified in carrying it out.