The morality of capital punishment

My friend Ilion has a post about my statement of opposition to the death penalty. I wrote, in a comment about the Spanish Civil War,

[Franco's] methods were wrong, in many cases (I oppose the death penalty under all circumstances), but the people he was fighting were ruthless monsters, and most deserved worse than they got.

Ilion replies:

Michael Egnor: "... I oppose the death penalty under all circumstances. ..."
Just to start, what you have truly said is that you oppose any laws under all circumstances. For, all law which commands, "Do this" or "Don't do that", is always at least implicitly backed up by the threat of sudden and violent death at the hands of State agents. Moreover, the death meted out in those circumstances tends to be far less judicious than the capital punishment sometimes handed out by a justly functioning court. I have written about this here, and earlier here, so in this post I'll only touch upon my reasoning. Those interested in understanding are free to read the earlier posts.

To say, "I oppose the death penalty under all circumstances", is to say, "I will not concern myself that my policy preferences would make an ordered civil society impossible." I could put the meaning of this much less charitably.

But, there is an even worse thing you have said -- which is that the criminal, the one who deserves death for, as an example, viciously murdering a member of our society, has the moral right and the legal ability to expel his victim from our society, such that we can hold ourselves to be not duty-bound to seek and apply justice on behalf of his victim. I have written about this here.

To say, "I oppose the death penalty under all circumstances", is to say, "I will not concern myself that my policy preferences would make a just civil society impossible." Likewise, this can be stated in even more stark terms. 

To say, "I oppose the death penalty under all circumstances", is to say, "I will not concern myself that my policy preferences would make an ordered civil society impossible." I could put the meaning of this much less charitably. 

But, there is an even worse thing you have said -- which is that the criminal, the one who deserves death for, as an example, viciously murdering a member of our society, has the moral right and the legal ability to expel his victim from our society, such that we can hold ourselves to be not duty-bound to seek and apply justice on behalf of his victim. I have written about this here. 

To say, "I oppose the death penalty under all circumstances", is to say, "I will not concern myself that my policy preferences would make a just civil society impossible." Likewise, this can be stated in even more stark terms.

Ilion is right.

The death penalty is a completely moral option in some circumstances, specifically the circumstances he points out. It is morally licit to take the life of a convicted criminal if it is necessary to preserve public safety and civil society. That is very clear in Catholic moral teaching.

There is no equivalence between abortion, for example, and capital punishment. Abortion is always and everywhere wrong. Capital punishment can be either right or wrong, depending on the circumstances.

The applicable moral standard is the principle of double effect (pde). Executing a convicted criminal has two effects-- the bad effect of taking a human life and the good effect of enacting justice and protecting society. According to the pde, capital punishment is a moral good if:

1) The intention is to do justice and protect society. Intending to make the criminal suffer simply out of sadistic lust, for example, would be immoral.

2) The good (protecting society and administering justice) outweighs the bad (killing a human being). Capital punishment for shoplifting would violate this requirement.

3) The good (protecting society and justice) is not the direct result of the bad. This principle is the reason that Robin Hood was wrong to steal, even if it was to help the poor. One may not use an intrinsically bad act (theft) as the means to a good act (giving money to the poor).

So does capital punishment violate the third precept? Aren't we accomplishing the good by doing the bad?

Not necessarily. The licit goal is to incapacitate the criminal-- to stop the criminal from offending and to impose a just punishment. This can commonly be accomplished without killing. But in some situations, indeed through most of history, lifelong incarceration was not available or practical. Prisons are a relatively modern invention of affluent societies. Where there are secure prisons capable of incarcerating murderers for life, one can protect the public and apply substantial justice without killing. I believe that that is the moral choice for societies who have such an option.

In some situations, the third precept is not violated, because the licit goal is to incapacitate the criminal, and capital punishment is the only option.

There are situations in which secure lifelong incarceration is not an option. In those situations, capital punishment is licit. Examples would include poor countries in which secure prisons do not exist, or countries in which government is so corrupt or weak that security of the prisons cannot be assured, or in situations involving terrorists in which it is likely that hostages would be taken by the terrorist's allies to secure release. It is on this basis that I believe that capital punishment for some terrorists may be a moral option.

When I wrote that "I oppose the death penalty under all circumstances", I misspoke. I do oppose capital punishment under nearly all circumstances in stable modern affluent societies, with the possible exception of some terrorists, because justice and protection can be accomplished without killing. I believe that killing a human being is a major wrong, and can only be justified under exceptional circumstances.

But Ilion is right, in my view. There are circumstances in which capital punishment is moral, and administration of justice and protection of society is paramount.