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INDEX:
Capital punishment - the debate continues... (Received by e-mail from Ben Y.: Refs: Dolhenty's Capital Punishment and Human Rights and Adler's On Inalienable Rights and previous remarks.) NOTE: Ben Y's argument is in red type - Dr. Dolhenty's replies are in black type. Justifiable Homicide I am in agreement with you in regard to the fact that lethal acts of self-defense and defensive warfare entail killing as a "secondary effect," as opposed to killing being the "primary intention." Secondary effect is in fact why I chose these two particular examples to raise the question regarding the consistency of your position on inalienable rights with the right of self-defense. When the aggressor's life in taken from him, it is a morally justified homicide in which the aggressor is just as dead through a "secondary effect" as he would be under "primary intent." But what justifies the killing? Is it not that the aggressor has forfeited his life through his misconduct? If we say "no", then it appears we are lacking a just cause for using lethal means of self-defense. Yet, Mortimer Adler asserts that inalienable rights cannot be forfeited by an individual's misconduct. Since Adler's statement is a principle of his position on inalienable rights, it requires further explanation in light of the justifiable homicide situation wherein the aggressor presumably forfeits his life. MY REPLY: Good, we are making progress. What justifies a killing in self-defense? It is not that the aggressor has "forfeited" his life. At best, that is a mere "after-effect" of the defensive action. What justifies an action of self-defense where justifiable homicide is involved is the non-aggressor's inalienable right to life and his right to defend that life. The aggressor has no right to initiate physical force against someone else. If he does, then the person defending himself can use whatever means are necessary to defend his life but can kill the aggressor only if that is the last resort. The aggressor retains his fundamental right to life, even though his life is taken as a "secondary" effect of the defender's action. There is no question of "forfeiture" here. Definition and Beyond In response to your statement "strictly speaking definitions do not have truth-value", I am changing my position and I must agree with you. I had been speaking rather "loosely" about definitions. Some logicians maintain that all definitions, insofar as they are informative, are either true or false. I'm no so sure about that so I am taking the position that in the "strict sense" definitions do not have truth-value. Aquinas says, "The first operation of the mind responds to the essence of a thing, the second to its existence. Now because existence rather than essence lies at the heart of the truth, we say that truth properly - and error in attendance - enters with the judgement and its expression in a statement, rather than with simple apprehension and its manifestation in definition." MY REPLY: Good, we are making further progress. But what role should definition play in such an inquiry as this? Definition should operate as an instrument of knowledge. Along these lines one definition cannot be as good as any other. As Aquinas says, "If anyone advances a definition that does not lead to the properties of a thing, his definition is fanciful, off the subject, merely a debating point". In regard to your definition of inalienable rights, I previously referred to it as a stipulated definition. However, the fact that we are debating about definition may be sufficient evidence that you are not using a stipulated definition of "inalienable rights." It seems you are advancing what is sometimes referred to as a theoretical definition. Theoretical definitions are modified when a greater understanding of the object is achieved. So the question remains whether a more accurate interpretation of human rights is being asserted? Your strategy has been to redefine "inalienable rights" in a sense that is clearly opposed to what the framers and signers of the U.S. Constitution, the Bill of Rights and the Declaration of Independence intended by its use. You then impose this meaning which allows you to find and raise questions regarding the logical and moral contradiction with the idea of inalienable rights contained in said documents and the traditional acceptance of capital punishment. The real problem here seems to be this manner in which you have formulated your argument. It seems thus far that the only justification offered for your position that capital punishment is never justified is your own definition of inalienable rights. This begs the question. Again, a defense of your position appears to be solely a reversion to your definition of "inalienable." This is a logically circular defense, and I don't intend "circular" in the sense that language and definitions are circular. Once we go beyond the focus on definition and critique the statements of your theory or doctrine, we can properly say that your statements are either true or false. Will you then protest that your statements are only true or false in a relative sense, depending on what definition of "inalienable rights" one accepts? MY REPLY: It is true that my argument is formulated with my definition of "inalienable rights" as a basic premise. The reason for this, again, is that either there is a clear difference in "kind" between alienable and inalienable rights or there is not. If there is not, then the "rights" are basically the same in kind from the same source, and we should stop differentiating between the "kinds." Then we are left with only one "kind" of rights, and these would most likely be alienable rights. There would be, in other words, no inalienable rights at all. The term "inalienable" (actually "unalienable) as used in the Declaration of Independence would simply be a "poetic" term or a metaphor of some type or a figure of speech used as, maybe, a "persuasive" definition. So, the definitions to be used, and the distinction between the terms used ("rights") is important to the argument. My point is, however, that there is a difference in "kind" between alienable and inalienable rights. Otherwise, all "rights" are of the same "kind," with no clear distinction. In this case, I would suppose that all "rights" find their source in the State or society and so-called "natural" rights do not really exist but are mere "poetic" suppositions that may cause us to feel good, but have no real existence in reality. Capital Punishment Human rights are called inalienable because the are so deeply rooted in our nature that to remove them is to destroy the very personality of man. MY REPLY: So, am I to assume that so-called "inalienable" rights have only utilitarian value and, because we merely like the idea of having them, we just "say" they exist? I am not quite sure what you mean by the "very personality of man." I see no such thing as a universal "personality" in man; I do see the essence of man as "rational animal." But "essence" and "personality" are not the same thing. So I am somewhat confused here. In light of this fact how can capital punishment ever be justified? It is justified through the need to protect the good of the community. The organized community reserves the right to use capital punishment in those rare situations in which preservation of the common good must take precedence over the criminal's private good. This is what justifies capital punishment. Whether this right should be exercised is a prudential question. Some factors to consider in answering this question is the increasing illegitimacy and violent tendencies of our government, the breakdown of our criminal justice system, our culture of death, our history of inconsistent and injudicious use of capital punishment, as well as the alternative of life imprisonment. Regarding those violent criminals who have received the sentence of life in prison, we should not neglect to take into account the frequency with which they seriously injure and kill other prisoners and prison guards. MY REPLY: Well, I don't think that capital punishment is justified through the need to protect the good of the community. The death penalty is a "remote" action, that is, it usually occurs a long time after it is imposed. There is no immediate threat to the community as there would be in the case of a "proximate" threat where a criminal is killed in the course of a criminal act. I would submit that the good of the community can just as well be protected by imprisonment with no possibility of parole. Also, regarding the dangers in prison, especially violent prisoners can be isolated, virtually totally, from any contact with anyone else. This it seems to be would be a rather rare thing to have to face. But if a prisoner is totally out of control, total isolation may be necessary and it does not violate his inalienable right to life. In general, then, I don't think that protecting the good of the community even comes close to a defense of capital punishment. Alternatives to Capital Punishment In regard to my concerns about societies who may have no alternative to capital punishment, one can certainly find in history communities that used expulsion of the criminal, but I will simply pose a couple of situations for thought. Imagine a "nowhere to go" scenario involving a primitive society on a small, remote island. In such a geographical condition, merely expelling the killer from the group will afford little protection for the community if he should choose to return stealthily and kill again. Or, imagine a "lions, and tigers, and bears" scenario involving a primitive community wherein the very survival of the individual depends upon the group. For this is why they banded together in the first place: protection against enemies, the elements, and wild animals, and the need to hunt in groups. Expulsion from the community will mean, in this environment, certain death for the criminal. In any case, a good dose of cultural anthropology should suffice, as it will reveal some communities that possessed no secure and humane alternative to capital punishment. MY REPLY: I submit that society always has an alternative to capital punishment, as most societies in the industrialized world in fact do. As far as "primitive" societies are concerned, banishment from the community has been utilized before with success. I am sure there are other alternatives which can be used. But, even then, the lack of an alternative is not a satisfactory defense of capital punishment. The Middle Ages While the earlier comments about the Middle Ages have little relevance to the issue at hand, I feel compelled to say that I could find little in what was said that I could agree with. For instance, the comments about the conflict with Albigensians are, as far as I am concerned, both superficial and misleading. The conflict with these neo-Pelagians cannot be reduced to only a difference in theology, major or minor. The situation was quite complex, with very profound concerns involved - so profound that "rationalization" most likely does not enter into the picture at all. At least I see no evidence for it. This is merely my problem with modern man judging the past. Oftentimes we are judging events and motives we do not truly understand. And in so doing we assume a position of moral superiority. We suffer more deeply from the illusions of progress than we realize. Are we more advanced than the Middle Ages? Scientifically and technologically, yes. Culturally and morally, no. It is the modern nation-state that is the greatest killing machine in history. It is modern secularized culture that devalues human life in a way not found in times past. Ours, not the Middle Ages, is a culture of death. Modern man wanders about aimlessly with an identity crisis. Not so for the man of the high Middle Ages who was formed by a fairly wholesome culture. And we should be asking whether culture is even possible in our secularized, technological society. It is the man of the high Middle Ages who should judge us instead. MY REPLY: Most of the above is argumentative, and is not really related to the issue of capital punishment. I do, however, agree with much of what you say. The final words on the capital punishment debate with Mr. Y... I will begin by saying that I do not see that my objections to Dr. Dolhenty's theory of human rights have been refuted or sufficiently answered. Furthermore, his assertion that societies always have suitable alternatives to capital punishment, I found most perplexing. Though I don't find the "alternatives" issue necessary for legitimating capital punishment, as the requirements of restoring the balance of justice is sufficient for this purpose. The question does, however, present a serious problem for the extreme abolitionist. MY REPLY: The basic question at issue here is the meaning of "human rights," their origin and their status. Mr. Y and I do not agree on this issue and this amounts to an impasse, a situation where reasonable men can disagree about the meaning of something and its practical application. Furthermore, the issue of "alternatives" is not really pertinent to the issue at hand. I don't think this matter can be resolved in any way. Whatever alternatives I propose can be criticized as "impractical" or "without merit," and I think this is a matter than cannot be finally resolved considering the argument. Therefore, I will allow Mr. Y to have his say here regarding his opinions on the matter. There is the obvious difficulty with maintaining that a course of action, i.e. avoiding capital punishment, is morally incumbent upon communities incapable of protecting the common good by other means. It denies the community sufficient means of exercising its duty to protect the innocent. The result is a devaluing of innocent human life. Furthermore, regarding societies that are able to use life imprisonment sentences, to require that they never use capital punishment, also devalues innocent human life, as the punishment of lifetime incarceration is not proportional to many particularly heinous crimes of premeditated murder. Some societies used exile or banishment, such as the Romans who would banish for certain kinds of crime. This punishment was one type, while various means of capital punishment were used for other specified types of crimes. There is little merit in glamorizing banishment, life in prison, or any other alternative to capital punishment. Banishment and other alternatives to capital punishment have their limitations in protecting society, and if used exclusively, can be ineffective at protecting the innocent from repeat killers. Banishment does not guarantee that the banished will not become some other community's problem, or even return to the original community as a threat. Banishment is still used today, and it still doesn't work well. California, not so long ago "banished" a parolee that many wanted executed for his hideous crime. The parolee was given a bus ticket to Florida, where he later murdered a woman. Cuba emptied its prisons of its worst criminal element, exiling many of them to the U.S., where they became our problem. Many of these exiles currently inhabit our prisons after committing all sorts of crimes in this country. So much for the wonders of banishment. Some communities also banished to remote islands for certain crimes, while maintaining capital punishment. Yet, many communities throughout history have not had access to islands..... if one should fancy confinement to an island a panacea. In any case, having been quite unfamiliar with the capital punishment debate, I decided to familiarize myself somewhat with a number of arguments in hopes of understanding the perplexing logic and sentiment exhibited by abolitionists. First, I did find very reasonable and impressive statements by writers who maintain that the state's right to capital punishment should not be exercised for various reasons expressed in their essays. However, on the extreme side of the abolitionist movement I found questionable arguments for the position that capital punishment is never justified. One of the impressions I had of the extreme abolitionists is they exhibit a strong inclination to deny facts, which a reasonable person would ordinarily accept. This appears to be a consequence of the abolitionists' zealous ideological commitment. Furthermore, I found abolitionists acknowledging that if their arguments were conclusively proven false, they would still maintain that capital punishment is never justified. MY REPLY: (To the last paragraph) What specific "facts" are we "abolitionists" denying? Our argument is based on a certain consideration of the meaning of, origin of, and status of "natural rights." It is not a matter of descriptive "facts," but of "normative" understanding. I do not believe our arguments can be proven "false," in the strict understanding of what constitutes falsity. We disagree over a "definition" of inalienable versus alienable rights, that is, the "meaning" of the terms. Since we cannot agree on the meaning of the terms involved, the argument is at an impasse, as I noted above. I maintain, therefore, that our arguments cannot be proven "false," just as Mr. Y's argument cannot be proven "true." Therefore, whether or not we would still uphold the abolition of capital punishment is fundamentally a "non-issue" and appears to be an attempt to discredit our position by attacking us personally as "true believers" in spite of any supposed "facts," even though the argument is not a factual one. I will illustrate their unusual means of arguing using "deterrence" as an example. It goes something like this: A. Capital punishment is not a deterrent. B. You can't prove that capital punishment is a deterrent. C. Even if capital punishment were a deterrent, it doesn't matter. This same pattern is found repeated by abolitionists in other issues related to the capital punishment question. "A" often involves an argument that discounts many relevant facts, and is replete with statistics that don't prove what the abolitionist wants the reader to believe they prove. "B" generally indicates a 'closed mind', while "C" indicates the influence that ideology has over the mind. On the other hand, deterrence does matter to most of us, though not to the ideologue. Deterrence is an important factor in preserving the common good. One of the prerequisites for capital punishment to be a deterrent is that its use is consistent and prompt. In the U.S., we were averaging perhaps 20,000 to 25,000 homicides per years, with a mere 12 to 30 executions per year. Recent executions in Texas do not change the overall picture of capital punishment. If the above statistics are accurate, then in regard to the infrequent use of capital punishment in the U.S., we may surmise that it is somewhat ineffective as a deterrent. However, to argue from the contemporary use of capital punishment, that capital punishment in itself is not a deterrent, is misleading. Furthermore, to assert that capital punishment is not a deterrent, even when used consistently and promptly for premeditated murder, exhibits an incredible disregard of what is generally know about human behavior. Simply put, promptly applied penalties, which are proportionate to the crime, deter criminal activity. Penalties will deter some people, but not all people. We do not argue that since some people speed, rob, or rape that no one is deterred from doing these things by the penalties attached to the respective prohibitions. We can count the number of people who were not deterred by capital punishment, but we cannot count the number of people who were deterred. The absence of data does not mean that no one is deterred. Also, we do know that repeat killers are absolutely deterred by execution. MY REPLY: Since I do not consider the "deterrence" argument to be a relevant one, I have no response to this and will let Mr. Y's presentation stand on its own to be evaluated by the reader. The proposal for abolishing the death penalty in favor of life sentences has consequences, which make abolition imprudent. One consideration concerns the repeat offender in the matter of premeditated murder. He may receive one or more life sentences and later kill a prison guard or another prisoner while incarcerated, or have someone killed outside the prison through various contacts. Shall we then give the lifer another life sentence? Shall we show our concern for these subsequent homicides only after the victims are buried by saying that such killers should now spend life in solitary confinement? (As if solitary confinement for life could get past the ACLU and completely prevent homicides.) In any case, we are failing to protect the innocent. Is the abolitionist's ideology more important to him than the lives of the victims of a repeat killer? It seems so! One response given by a prominent abolitionist is that repeat killers are not as common as we think. Oh, really? And how common do they have to be before we begin to value the lives of the victims? In the final analysis, the radical abolitionist cares not how frequently his treasured killers slay the innocent. The trendy movement to abolish the death penalty appears to be one contributing factor to the continued breakdown of the criminal justice system. Along these lines Mayor Koch of New York, commented on a situation like the one described above, in which a prisoner serving two life terms killed a prison guard and was given a third life sentence: " 'The law is an ass', Charles Dickens wrote nearly 150 years ago. No, it is not the law, it is the people who created the law who should be so described." The position that says capital punishment is never justified represents an exaggerated individualism, which undervalues the common good. The particular good of an even a repeat or serial killer is placed at a higher value than the common good. Mayor Koch provided a perfect example of the insane effects of this ideologically driven sentiment. The dangerous prisoner is a constant menace to others inside the prison and by potential escape. Anyone familiar with our 'wonderfully modern and advanced' penal system knows there is no magic, armchair solution to the risks posed by dangerous prisoners. Correctional officers I know had to give formal consent as a condition of employment, to work in the potentially life threatening environment of the prison, which can mean being taken hostage by prisoners with little expectation of anyone negotiating their release. Most rehabilitation programs cannot provide a solution to the problem posed by the dangerous prisoner since the programs are based on badly flawed theories of psychology and sociology. These same flawed theories are held dear by many abolitionists. I strongly recommend any abolitionist to read a study, one that I read many years ago, called "The Criminal Personality", by Yochelson and Samenow. A dose of reality every now and then is always good. One of the primary purposes of government is to protect innocent human life. If the state is precluded from exercising the option of capital punishment even in exceptional cases, then it fails in its duty to protect the innocent. There is an interesting argument for using a particular alternative to capital punishment given by Beccaria (1738-1794) in On Crimes and Punishment. While Beccaria's position is that there is no justification for punishment by death, he makes one exception when he says, "The death of a citizen can be necessary in one case only: when, though deprived of his liberty, he has such power and connections as may endanger the security of the nation; when his existence may produce a dangerous revolution in the established form of government. But even in this case, it can only be necessary when a nation is on the verge of recovering or losing its liberty; or in times of absolute anarchy, when the disorders themselves hold the place of laws." Even for strict abolitionist Beccaria, there is acknowledgment that at least one situation requires that preservation of the common good take precedence over the life of the guilty. However, Dr. Dolhenty's position won't allow capital punishment of the guilty even in this situation described by Beccaria. The only life valued by Dolhenty's theory is that of the guilty criminal; and never mind the multitude of innocent lives. It might be replied in defense of Dolhenty's position that there could never be, in the entire history of the world, any such situation as described by Beccaria. But that would be the abolitionist again evading the issue as well as the realities of life, which Beccaria knew well. MY REPLY: I see no necessity to respond to the all of the above since I don't base my argument on the concerns expressed there by Mr. Y. However, to state that the "only life valued by Dolhenty's theory is that of the guilty criminal" is not only presumptuous, but false, misleading, and certainly comes close to being an "ad hominem" or "ad populum" fallacy. The extreme theory espoused by Dr. Dolhenty, would in its effects, lead to a false and degraded humanism, which values the life a criminal guilty of the gravest crimes against humanity over the lives of even a multitude of innocent people. In other words, according to Dr. Dolhenty's theory, the life of the most dangerous homicidal criminal is inviolable, even if when capital punishment is the only means of saving the lives of many innocent people. A theory with such morally unacceptable implications must be rejected as untenable on these grounds alone. MY REPLY: Now, please notice that my position is considered an "extreme" theory. Please notice I am accused of promoting a false and degraded "humanism." Please notice I am accused of "valuing" the life of a criminal over that of an innocent. All these, of course, are essentially personal attacks and are ridiculous on their face. What is an "extreme" theory? What is a false and degraded "humanism"? Where do I say I value the life of the criminal over that of the innocent? This is obviously an attempt to misconstrue the position I take and to divert the reader from the essential questions involved. It is also an attempt to appeal to the emotions, presenting the "scare" scenario which is so prominent in today's discussions of social policy. I continue to support my position, if for no other reason than the concept of "inalienable" rights as opposed to "alienable" rights demands it.
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