Journal of Applied Philosophy, Capital Vol. 19, Punishment, No. 3, 2002 Restoration and Moral Rightness 287 Capital Punishment, Restoration and Moral Rightness GARY COLWELL ABSTRACT In order to show that opposition to capital punishment cannot be both moral and entirely unconditional, Hugo Bedau proposes a fantasy-world scenario in which the execution of a murderer restores his murder victim to life. Were such a world to exist, argues Bedau, the death penalty would then be morally right. The aim of this article is to show that Bedau s argument is mistaken, largely because capital punishment in his fantasy world would not be an instrument of perfect restitution, as he thinks, but instead would be an instrument of unfair restitution. Two attempts are made to repair Bedau s fantasy-world argument, but neither of them is found to be successful. Consequently his fantasy world does not successfully provide the conditions under which opposition to capital punishment morally would have to cease. However, because capital punishment is morally wrong in his fantasy world it does not follow that it is morally wrong in this world. Bedau s Fantasy-World Argument Hugo Bedau is a philosopher who is opposed to capital punishment, at least as it is practised in this world. But much as he is opposed, he does not think that opposition to the death penalty can be both moral and wholly unconditional. If opposition to the death penalty is to be morally responsible, then it must be conceded that there are conditions (however unlikely) under which that opposition should cease. To show that his opposition is not wholly unconditional, he imagines the following extraordinary situation: Consider... an imaginary world in which executing the murderer would invariably restore the murder victim to life, whole and intact, as though no murder had ever occurred. In such a miraculous world, it is hard to see how anyone could oppose the death penalty on moral grounds. Why shouldn t a murderer die if that will infallibly bring that innocent victim back to life? What could possibly be morally wrong with taking the murderer s life under such conditions? The death penalty would be an instrument of perfect restitution, and it would give a new and better meaning to lex talionis, a life for a life. The whole idea is fanciful, of course, but it shows as nothing else can how opposition of the death penalty cannot be both moral and wholly unconditional [1]. The Flaw in Bedau s Argument The most important premise in Bedau s fantasy-world argument is the claim that, if capital punishment would restore the murder victim to life, then capital punishment, Blackwell Publishers, 108 Cowley Road, Oxford, OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
288 Gary Colwell would be morally right. Is this premise true? On the contrary, the death penalty under the fanciful conditions he imagines would not be an instrument of perfect restitution; nor would it give a new and better meaning to the phrase lex talionis, a life for a life. This is because the second use of the word life in the phrase a life for a life implies that a life has been permanently taken, at least permanently as far as existence in this world is concerned. And if the restoration of a victim were to occur because the murderer was executed, then the phrase a life for a life would no longer apply to the punishment administered against the murderer. If killing the murderer restored the murder victim to life, then the victim would no longer be dead and hence would no longer be a murder victim. Equally troubling would be the fact that the executed murderer would no longer be a murderer. To make the charge of murder stick, the state almost always has to be able to identify a permanently dead murder victim; in those cases where a permanently dead victim cannot be produced, such a victim must be assumed to exist somewhere [2]. And since the status of the murder victim in Bedau s restoration scenario would have changed to that of a live previous murder victim, the status of the murderer would also have changed to that of a dead previous murderer. The death penalty for a murderer in Bedau s scenario would be relatively more severe than the death penalty for a murderer in an actual case where the dead victim naturally stays dead. In the restoration scenario the previous murderer would have paid unfairly the ultimate price, the one normally exacted for permanently taking the life of a victim, but whose life in this imaginary case will not have been permanently taken after all. The murderer would have been killed, not because his action had caused his victim to be permanently dead, but because his death would bring his victim back to life. With a live previous murder victim and a dead previous murderer on our hands our ethical concepts about murder are stretched well beyond the conceptual boundaries set by the normal meaning of the phrase lex talionis; and the stretch does not, pace Bedau, constitute an improvement upon the meaning of the phrase. His restoration scenario was supposed to show not only how capital punishment would give a new and better meaning to lex talionis, but also how it would be an instrument of perfect restitution. What it shows instead is how capital punishment would be an instrument of unfair restitution, being very far from perfect. The victim s life would be returned all right, but at the unfair cost of the permanent loss of the murderer s life. A life permanently taken for a life temporarily taken would not be a fair penalty. Thus, it would not be morally right. A First Attempt at Repairing Bedau s Fantasy-World Argument It might be thought that executing a murderer in this fantasy-world scenario, in order to bring the murder victim back to life, could still be justified even though the murderer would be permanently dead and his victim would be restored to life. The justification, it might be argued, could be established on the grounds that the murder victim was caused an enormous amount of pain before he or she was actually killed. Suppose the victim had been tortured for days, weeks or even years before his or her life was taken. In such a case the victim would have been terrified for a long period of time; he or she would have suffered horrible indignities and have had his or her person violated. And
Capital Punishment, Restoration and Moral Rightness 289 wouldn t that, in conjunction with causing his victim to be temporarily dead, justify punishing the murderer by execution, making him permanently dead? Before we explain why the answer is No, we need to step back and look behind the supposition of this imagined response. While it is true that some murderers torture their victims before putting them to death, the duration of torture varying with the circumstances of each case, it is also true that some murderers do not torture their victims. They choose instead a quick and efficient method of murder. A fatal bullet to the head of an unsuspecting victim will cause the victim no pain. So the argument in such cases would not apply [3]. Still, what about the cases where the victim has been tortured before he or she has been put to death? Might putting the murderer to death permanently be justified on joint grounds of torture and temporarily caused death? The ideal of fairness is at the heart of the justice system in democratic countries. And unless we are going to dispense with this ideal we should try to calibrate every punishment to fit the crime committed; even if, admittedly, it is not possible to succeed perfectly at this moral and legal exercise. Nevertheless, all other things being supposed equal, someone who is convicted of stealing one million dollars is punished more harshly than someone who is convicted of stealing one hundred dollars; and some who spends the stolen million dollars is punished more harshly than someone who returns the stolen million dollars. Similarly, in an assault charge, punching someone in the arm will draw a lesser punishment than will cutting off someone s arm with a machete. These commensurate judgments seem fair and reasonable. By extension, there should be different kinds of punishment for different kinds and durations of torture. But this ideal could not even be approximated if in the fantasy-world scenario the state were to administer capital punishment for every case of murder in which the murder victim had been tortured to the slightest extent before he or she had been killed. After executing a murderer for torturing his victim for one day, what punishment would be left, in this scenario, for another murderer who tortured his victim for a month? And if one were to decide to administer the punishment of execution for any torture lasting, say, one month or longer, one would still have to contend with the fantasy-world fact that such a victim of torture would have been given her life back, albeit a life in which (perhaps) she lived the remainder of her days with the images of the dreadful event before her mind. We would still have on our hands the complication of a live previous murder victim and a dead previous murderer. A Second Attempt at Repairing Bedau s Fantasy-World Argument In Bedau s imaginary world, executing the murderer would invariably restore the murder victim to life, whole and intact, as though no murder had ever occurred. In his account, however, we are not told explicitly that the age of the restored victim, at the moment of restoration, would be precisely the age of the victim at the moment of murder; although taking the account at face value would lead one to adopt this interpretation. On the assumption that this is what Bedau intends, an unwelcome result follows. In many cases the restored victim at the moment of restoration, and with respect to her loved ones, would be proportionately much younger than she was at the moment of murder. For example, if a twenty-five-year-old mother were murdered when her child
290 Gary Colwell was two years old, and if the murderer were not found, convicted, and executed until twenty-four years later, at the moment of the murderer s execution, and thus at the moment of the victim s restoration, one would have the odd spectacle of a mother who was younger than her child. This is not likely to be greeted with joy by either party; though with today s accent on youth, the mother might not mind as much as her child. Perhaps with a slight alteration to the scenario we can still make moral sense of Bedau s fantasy-world ethic. The problem until now has been one of equivocation. In the scenario, the meaning of the second instance of the word life in the phrase a life for a life is different from the meaning of the first instance of the word life in the same phrase. For it turns out that the victim s life (second instance) has not been permanently taken, whereas the murderer s life (first instance) has been permanently taken in order to ensure that the victim s life has not been permanently taken. It is tempting to think that we can repair the problem of equivocation by aligning the two meanings of the word life in accordance with the restoration factor that has been introduced into the natural context of murder. Unlike what we assume is Bedau s intention in the scenario, perhaps we ought to consider that the murderer could also be made to stay dead for a period of time less than the naturally permanent one, a period commensurate with the time that his victim, before her restoration, was dead. If, for example, the murderer were not caught and executed until ten years after he murdered his victim, according to our revised fantasyworld scenario he could be executed and made to stay dead for ten years; plus, let us say, a fairly determined additional period of time for putting his victim through terror and pain before murdering her. Let us suppose that, as a consequence, he is made to stay dead thirteen years altogether. This approach seems to be fairer than the popular fantasy-world approach articulated by Bedau, and it would remove the problem of equivocation that emerges in the phrase a life for a life when it is applied to capital punishment in his unrevised fantasy world. However, although the revised fantasy-world scenario might give us a better meaning to lex talionis than would the unrevised fantasy-world scenario, it would still not be clear that the meaning of the phrase in the revised fantasy world would be an improvement upon the meaning of the phrase in our actual world. Furthermore, an additional problem introduced by the revised fantasy-world scenario would make such a world on balance, if it were actualized, morally worse than our real world. Making the murderer stay dead for the same period of time as his victim was dead prior to the victim s restoration would simply be carrying the concern for fairness in the lex talionis, as it is ordinarily understood, into the revised fantasy-world scenario. The difference between the revised fantasy world and our actual world lies in the reversibility condition attached to death in the fantasy world, and not in some ethical improvement to the ideal of fairness in choosing the appropriate punishment for murder. In the real world, in states where capital punishment is used, the life of the murderer is permanently taken primarily because the life of his victim(s) has been permanently taken [4]. The same concern for commensurate kinds of punishment would be present in the revised fantasy world, with the additional requirement that someone might want to compute dead time for the torture of victims. If this were thought to be unfair, then an alternative to dead time for torture could easily be found: the one in fact that is currently used, namely incarceration. But even with the admixture of dead time for dead time and prison time for torture time we would still be carrying the spirit of the
Capital Punishment, Restoration and Moral Rightness 291 lex talionis from our world into the revised fantasy world. It is not easy to see how such a revised fantasy world would provide us with a better meaning of lex talionis than does the world in which we currently live and permanently die. Besides the complexity involved in computing the dead time and prison time for murderers, there would be an added complication to living in the revised fantasy world. Murder would not likely be taken so seriously by those entertaining the act because death would no long mean the permanent cessation of earthly life. As a result, more murders would probably be committed. One can imagine prospective murderers reasoning in something like the following fashion. Either I ll be caught or I won t. If I m caught, it will likely happen within a ten-year period after the murder, in which case I ll just spend ten years or so dead, and then I ll come back to life to enjoy the remainder of my life [5]. But if I m not caught, then I ll enjoy my whole life, with the exception of the little worrying I ll have to do and precautions I ll have to take to avoid being caught. In neither case would the consequence be as serious as it is now in the real-world system of capital punishment where execution means the permanent death of the murderer. Furthermore, if more murders were to occur in the revised fantasy world, then the courts would be even more congested than they are in our actual world. So, overall, it is unclear that even a revision of Bedau s fantasy world would establish a context in which capital punishment would give a better meaning to lex talionis. Conclusion It has been argued that the restoration of the murder victim at the cost of the permanent death of the murderer, were it to happen as a result of the practice of capital punishment, would not make capital punishment morally right. It would in fact make it morally wrong. However, to establish that capital punishment would be morally wrong in Bedau s fantasy world is not to establish that it is morally wrong in the real world. And if one is ever to establish that capital punishment is morally right under some set of conditions, in order to show that opposition to it is not wholly unconditional, it looks as though it will have to be done by keeping its practice in this world uppermost in mind [6]. Gary Colwell, Department of Philosophy, Concordia University College of Alberta, 7128 Ada Bocelevard, Edmonton, AB T5B 4E4, Canada. gcolwell@concordia.ab.ca NOTES [1] HUGO BEDAU (1993) Capital punishment in Tom Regan (ed.) Matters of Life and Death: New introductory essays in moral philosophy, 3rd ed (Toronto, McGraw-Hill, Inc.), p. 183. [2] A victim s body may have been disposed of, and thus be not recoverable. In such circumstances, if the composite evidential picture strongly supports the view that the suspect is guilty of murder, even though the body cannot be produced, the suspect can be charged with, and convicted of, murder. But such cases are not common. [3] It might be said that even though the victim in such cases feels no pain, his or her loved ones will feel pain; and couldn t the execution of the murderer be justified on those grounds? Again, we must deal with the supposition. In not all cases will there be grieving relatives to suffer the pain imagined here. But in those cases where there is pain caused to relatives and loved ones, the punishment meted out to the
292 Gary Colwell murderer would have to be made proportionate to the pain suffered by the relatives and loved ones. And the proportionate punishment would practically always be less than death, even in those cases where, for example, the grieving relative suffered a fatal heart attack or aneurysm as a direct result of learning of the murder of the loved one. On this point see the remainder of the discussion in the text. [4] Of course, in our world, perfect fairness is rarely achieved, whether or not capital punishment is used. Where capital punishment is used we seldom have the situation in which the murderer is executed at the same age as his victim was when he was murdered. If, for example, the murderer is nineteen years old and is executed for killing a person sixty-nine years old, most of the murderer s natural life will have been taken as punishment for taking, say, thirteen percent of the victim s life, which doesn t seem perfectly fair. (And even this is guesswork because it isn t true that everyone will live the same length of time. The teenage murderer, had he been permitted to live, might have died at the age of twenty-five from congenital heart failure, and the sixty-nine-year-old victim might have lived to be one hundred.) But on the other hand, if capital punishment is not used, and imprisonment is used instead as the form of punishment for murder, then we also have a less than perfectly fair situation in which a murderer is still alive and possibly out of jail in twenty years, while the victim, say a child, is permanently dead. Which system of imperfect fairness is more fair? Some might say capital punishment is because at least one is exacting a life for a life; whereas in the case of imprisonment one is comparing a living murderer, living under some form of punishment, with a dead victim. There is no similarity between the kinds of states in which the live murderer and the dead victim reside. However, an attempted solution to this aspect of the problem of capital punishment is not part of the burden of this paper. [5] There would of course still be the question of the age of the restored murderer to contend with, as discussed earlier. But this is a problem that afflicts all fantasy-world scenarios like Bedau s, of both the revised and unrevised kinds. [6] Thanks are due to Jonathan Strand and Daryl Pullman for their comments on the early drafts, and to the anonymous referees of this Journal for their comments on the penultimate draft.