Killing & the State
For Capital Punishment: Crime and the Morality of the Death Penalty.
by Walter Berns.
Basic Books. 214 pp. $10.95.
In the case of this book, the title and subtitle give, for once, an accurate idea of the contents. The book is a frank plea in favor of capital punishment. The argument places the issue in the general context of public attitudes toward crime and criminals, and is made finally on moral rather than on practical grounds. Walter Berns (a professor of political science at the University of Toronto) writes clearly, economically, and at times with passion. If for no other reason, the book is useful as a succinct statement of his particular viewpoint on an issue of great moral significance.
In the introduction, speaking of those who advocate the abolition of the death penalty, Berns states his disagreement with “the misguided, and occasionally even absurd, sentimentality that characterizes their position.” Even so, he begins his argument with a generally fair summary of the reasons commonly given for abolition (with one important exception, of which more later): that capital punishment is a violation of biblical morality or natural law; that it violates human dignity; that it fails to deter; that it violates the constitutional proscription of “cruel and unusual punishment.”
There follows a historical chapter, tracing the course of the abolitionist position back to the 18th century, when men like Cesare Beccaria and Benjamin Rush urged the end of capital punishment on both philosophical and practical grounds. Berns shows the connection between abolitionism and other reformist causes in the area of criminal law, a connection that has prevailed to the present time. Thus, even today, there continues to be a correlation between the abolitionist position and the view that the purpose of criminal law is rehabilitation rather than punishment.
A separate chapter deals with the question of deterrence. Following the work of Thorsten Sellin, the common view among American criminologists at least since the 1950’s has been that the data do not support the notion that capital punishment has a deterrent effect on homicide. This view, of course, has been strongly supportive of the abolitionist cause. Berns criticizes Sellin’s conclusions as going beyond the data. More importantly, he claims that newer work points to an opposite conclusion. This, Berns maintains, is particularly so with the work of Isaac Ehrlich, who applied the econometric method of multiple regression analysis to the causes of homicide and concluded (very cautiously) that “one cannot reject the hypothesis that punishment in general, and execution in particular, exert a unique deterrent effect on potential murderers.”
But as Berns correctly points out, few of those opposed to capital punishment base their opposition on the technical arguments over deterrence. If the criminologists could prove Sellin right—i.e., show that the death penalty does not deter murderers—this would be a useful debating point, but most abolitionists would probably hold the same position even if Sellin and his followers failed to make their case. The reverse holds for those who favor the death penalty; it also holds for Berns. His final argument is based not on the findings of the criminologists but on the conviction that the death penalty is neither unjust nor inhuman—indeed, that it is necessary if we are to uphold the fear of the law on which civilized society rests. Those who would abolish capital punishment, Berns believes, would really like to abolish all punishment. In doing so, they undermine whatever moral foundation society still has. A society that cannot condemn cannot praise, and by this double inability it proclaims that it does not believe its own alleged values. Finally, then, capital punishment is not just morally acceptable; it is, in Berns’s words, a “moral necessity.”
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Berns’s argument is unlikely to convince anyone who was not in favor of capital punishment before reading it. What is at issue is not this or that line of reasoning, but a vision of the human condition and of the boundaries of the humanly tolerable. It is noteworthy, however, that Berns appears unable to perceive this point. Missing from his otherwise fair list of the grounds cited in opposition to the death penalty is the one that is probably the most important among abolitionists—that the death penalty is an act of intolerable cruelty, and therefore should not be imposed in a society that deems itself civilized. This, to be sure, is a sentiment. But so is every outrage against acts of cruelty.
In the course of Western history, a number of institutions, previously accepted as being well within the moral limits of civilized society, have come to be looked upon as morally intolerable. Slavery was one such institution, torture another. The opposition to these institutions was also characterized as “misguided,” “absurd,” and “sentimental.” One may assume that Berns would oppose the reintroduction of judicial torture even if some econometrician could show that it would indeed discourage any number of loathsome crimes. This is not “sentimentality.” Rather, it is adherence to a perception of what it means to be human. The fact that this perception is historically relative does not invalidate it: men are historical beings, and different moments in history disclose different truths about their condition.
Capital punishment is sui generis in its cruelty. It is the impersonal, indeed anonymous, killing of an individual who is totally within the power of the authorities. It is a scheduled killing, for which the victim must wait in one of the most terrible experiences of time possible to a human being. And all of this takes place in the context of ceremony in which one man’s dying is part of other men’s celebration of morality. This quality of the death penalty makes it very different indeed from any other form of punishment and also from other acts of killing. Berns is probably right in saying that there is a significant overlap between those who oppose capital punishment and those who do not like the law to punish at all. There is probably also an overlap between the former group and those who favor a number of other humanizing policies with which Berns agrees. The morally crucial point is that one can be passionately opposed to the death penalty and, at the same time, affirm the right of the law to punish and the right of society to defend itself, if necessary by force of arms. To be opposed to capital punishment need not be the same as holding a “soft” position on other issues of the law or being some sort of pacifist.
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Public-opinion polls indicate that the abolitionist cause is losing ground. It is plausible to think that the rising sentiment in favor of capital punishment is linked to a general shift toward greater conservatism in society. It is all the more important, then, to insist that one may deplore the first even if one welcomes the second. The Right, in America as elsewhere, has often been given to a nostalgic yearning for the gallows. This tendency is the moral equivalent of the Left’s recurring sympathy for revolutionary terrorism. If it is possible to be on the Left without embracing the terrorist, it is possible to be on the Right and to reject the hangman. More than that, it is precisely when individuals with different ideological positions recognize that certain acts of cruelty are beyond the limits of what is humanly tolerable that some hope is held out for a common framework of moral judgments. Opposition to capital punishment is a strategic issue in such a moral quest.
