On rehabilitation and execution

If you haven’t seen it yet, you should take a look at Steven Long’s response to Chris Tollefsen’s recent arguments against capital punishment.  Tollefsen has now replied to my own criticisms of his views, and I will respond to his latest, and address some of the issues Long raises, in a later post.  In this post I want to respond to some questions raised by a reader of my article on Tollefsen.

The reader writes:

I would think that even if the retributive goal of punishment would prescribe death for the perpetrator, capital punishment could still be (and, I think, is) illegitimate in theory, let alone in practice, because it neutralizes the second goal of punishment, rehabilitation.  It is in this sense -- neutralizing the possibility of rehabilitation -- that capital punishment seems to me to most completely attack the dignity of the criminals in that it robs from them any possibility of making amends for their crimes.

I would make two points in response to this objection.  First, that punishment has three purposes – retribution, rehabilitation, and deterrence – does not entail that each of these purposes must be realized in a given act of punishment in order for that act to be morally legitimate.  For example, we may justly imprison a recidivist thief even if we know from experience that he is extremely unlikely to change his ways as a result of his imprisonment and even if circumstances make it unlikely that his particular imprisonment will deter other thieves.  Similarly, the fact that a given act of capital punishment may not fulfill all of the ends of punishment does not by itself suffice to make that act morally illegitimate.

Second, while there is obviously a sense in which capital punishment can prevent rehabilitation, there is also a sense in which it actually facilitates rehabilitation.  How so?  Consider first that a wrongdoer cannot truly be rehabilitated until he comes to acknowledge the gravity of his offense.  But the gravity of an offense is more manifest when the punishments for that offense reflect its gravity – that is to say, when the principle of proportionality is respected.  A society in which armed robbery was regularly punished with at most a small fine would be a society in which armed robbers would have greater difficulty coming to see the seriousness of their crimes, and in which they would for that reason be less likely to be rehabilitated.  Similarly, a society in which even the most sadistic serial murderers are given the same punishments as bank robbers is going to be a society in which sadistic serial murderers will have greater difficulty in coming to see the seriousness of their crimes, and thus will be less likely to be rehabilitated.  

In short, a society in which capital punishment is at least on the books – in which it is at least officially acknowledged that those guilty of the worst crimes are deserving of death, even if that penalty is never in fact inflicted – is a society more likely to foster rehabilitation, not less likely.  

But wouldn’t the actual infliction of that penalty undermine the possibility of rehabilitation?  Not necessarily.   In some cases it might; there may be some murderers who will go twenty years in prison without a twinge of remorse, but who somehow find repentance after thirty.  But in other cases, “the prospect of hanging concentrates the mind.”  Indeed, it may be that for some offenders it is only the prospect of death that can force them to face up to their crimes and repent of them.  And a deathbed conversion is possible only if you know you are about to die -- knowledge a scheduled execution definitely gives you, while a death from natural causes often does not.  

Moreover, merely having the death penalty on the books may be insufficient to convey the gravity of the worst crimes.  An actual execution now and again may be necessary convey this gravity, and thus to facilitate rehabilitation.  

That is not to say that concerns about rehabilitation are not also a serious reason to limit capital punishment.  They are.  As I noted in an earlier post, insofar as traditional Catholic teaching recommends a certain degree of hesitation in applying the death penalty, this hesitation arguably stems precisely from concerns over rehabilitation.  The point is just that the situation is more complicated than critics of capital punishment seem to realize.  It is no good just to say “Capital punishment prevents rehabilitation, so we should never resort to it except where absolutely necessary.”  For the fact is that it does not “prevent rehabilitation” full stop.  It prevents it in one (albeit obvious) respect, but promotes it in other respects, and all of these respects must be considered when formulating policy regarding the death penalty.

My reader also presents another objection:

Second, and I think this might be more fundamental, your article appears to forget the person responsible for carrying out the punishment, the executioner.  I thought that you were headed in this direction when you mentioned not inflicting rape on rapists; it seems to me that, from a purely retributive perspective, the rapist might deserve rape.  And the most compelling reason for not raping him is the effect on the humanity of the person responsible for carrying out the punishment.  Similarly, throughout history, we have sought ways to minimize the effects of execution on the executioner.  In the middle ages, he wore a mask.  Now, we hide from a panel of executioners which of them actually flipped the switch that caused the death.  If carrying out the execution is so detrimental to the executioner that we have to hide from him that he did it, that should raise serious questions about whether we should be executing criminals.  In that light, I think it distinctly possible that capital punishment might be illegitimate in theory even though certain criminals deserve death because no person, for the sake of his own soul, can carry out the punishment.

The first thing to say in reply to this is that there is a crucial disanalogy between rape and murder.  The reason murder is wrong is that the victim has a right to his life and that right is violated by the murderer.  But that the victim of rape has a right not to have his or her body invaded is only part of the reason rape is wrong.  Another reason rape is wrong is that it involves a kind of sexual perversion, divorcing as it does sexual arousal and activity from the affection and esteem that they ought always to be associated with.  (This is why marital rape is a grave evil; and of course, other kinds of rape involve a third evil of adultery or fornication.)

Now someone guilty of a grave enough offense has forfeited his right to life, and that suffices to make it justifiable in principle for the state to inflict capital punishment on him.  And someone guilty of rape has forfeited his right not to have his own body invaded; in that sense he would deserve to be raped himself.  But the reason it nevertheless cannot be legitimate to inflict this penalty on him is that it would involve the one inflicting it in the other immoral aspects of rape (sexual perversion and either adultery or fornication).  There is nothing like this involved in capital punishment.  Capital punishment is just the taking of someone’s life, where the person has lost his right to that life.  There is no additional factor involved that would give the act anything of the moral character of murder, in the way that raping a rapist would involve acts that have part of the moral character of rape.

But someone might now object: What if we merely tortured the rapist, leaving the sexual aspect out but preserving the aspect of his crime that involved bodily invasion?  Doesn’t the rapist deserve at least that much punishment?  I would say that he does deserve it, but I would agree that we should still not inflict such a punishment on him.  

Why not?  The reason is that the moral hazards involved in such a practice are too great.  Human beings naturally tend to recoil at inflicting pain on others or causing them bodily damage.  The reason nature has given us such feelings is that it is, in general, good for us to avoid inflicting pain on others or causing them bodily damage.  Hence, it is, in general, a good idea for us not to become too desensitized to doing such things.  

Now, this is true only in general, and not in every case.  (And as I have noted before, intuitions and feelings are at best only ever a very rough guide to what the natural law permits or forbids.)  It is, for example, good for surgeons to desensitize themselves, within limits, to the sight of blood and torn flesh; good for soldiers and policemen to desensitize themselves, within limits, to the violence they have to inflict on evildoers in order to protect the innocent; good for judges, prosecutors, and prison guards to desensitize themselves, within limits, to the pleas of families whose loved ones have to spend time in jail because of their crimes; good for parents to desensitize themselves, within limits, to the pleas of children who need discipline; and so forth.  

What is problematic is any circumstance that threatens not merely to desensitize us to imposing harms that need to be imposed, but to obliterate our sense of sympathy altogether.  And that, I would say, is the main trouble with the idea of torturing rapists and other violent criminals.  Making a practice of doing this would put those who have to carry it out in a day-to-day manner at too grave a risk of entirely wiping out their normal revulsion at the thought of inflicting pain on others.

Now a concern for excessive desensitization is, I would suggest, the reason for the practices surrounding the infliction of the death penalty cited by my reader.  Since capital punishment is no more inherently wrong than surgery or police work are, neither is desensitizing oneself to executing the guilty any more inherently wrong than desensitizing oneself to performing heart surgery or shooting an armed bank robber.  Still, it is, all things being equal, better to minimize such desensitizing where we can do so.  Hence we have practices like setting up an execution in such a way that no one knows for sure who flipped the fatal switch, etc.  

So, the fact that such practices exist does not by itself cast any doubt on the legitimacy of capital punishment.  Moreover, precisely because execution can be a relatively quick and relatively painless procedure, it does not involve in the first place the degree of moral hazard that torturing rapists and the like would.  Hence, concerns about the effects of execution on the executioner do not in my view constitute strong grounds for objecting to capital punishment in practice, much less in principle.