Due Process and the Death Penalty

Utilitarian arguments and contradictions

by Theodore Dalrymple        

No one would contradict me, I suspect, if I were to assert that human beings are not always wholly consistent. Indeed, those who are much more consistent than average are apt to excite our fear or condemnation rather than our admiration. To be faithful to a bad principle is worse than having no principle at all. And, as Emerson said, consistency is the hobgoblin of little minds.

Yet by what other law than that of non-contradiction are we supposed to argue? Argumentation cannot just be a cacophony of incommensurable assertion, with the one who shouts loudest, speaks longest or employs the best phrases, taking the honors. And this is so even if Gödel was correct, and there is no entirely consistent system of logic without necessity to assume, without proof, the truth of some of its suppositions.

Yet there are contradictions and contradictions. I mention this because I am going to write about the death penalty, a subject about which almost everyone is contradictory, including me. I am against it though I am not a complete pacifist and do not believe that it is always wrong to kill, and though I happen also to believe that it, the death penalty, works – as a deterrent. I found unexpected evidence of this in the British historical experience, which I cannot here divulge because I confided it to a colleague who wants to use it in a book he is writing. To reveal it now would be to spoil its effect in his book.

My main objection to the death penalty is that, even in the most scrupulous of jurisdictions, mistakes are sometimes made, and for the law to put someone to death wrongly is an injustice so monstrous as to undermine trust in law itself. I once used this argument in company in which someone claimed to be able to refute me easily; for it was a fact, he said, that more people had been murdered by murderers who had not been executed than who had been wrongfully executed.

Granting for a moment his empirical premise, though I was not absolutely sure that it was factually correct, I replied that his argument was valid only if one accepted a very narrow interpretation of utilitarianism: and since I knew him to be not that kind of utilitarian, he was guilty of self-contradiction. My problem was that, on occasion and if need be, I resort to precisely the same kind of utilitarian argument myself; and therefore I was guilty myself of the very philosophical inconsistency of which I accused him. My interlocutor had the grace not to mention it.

I would not myself be prepared to participate in an execution, but I am not sure of the moral relevance of such an argument. I think that what is true of me is probably true even of most supporters of the death penalty: and have they the right to demand that others do what they themselves would not be prepared to do? Possibly, for there are many things that I would not do myself that I am nevertheless glad are done (though mostly my objections to doing them are aesthetic or psychological rather than moral). Still, there are many things that for moral reasons I would not do that I would not prohibit. But not to wish to prohibit something is not the same as to think it should be done.

At any rate, I am glad that the death penalty had been abolished long before I became a prison doctor: I would not have relished the task of certifying the fitness of someone to be executed. The criteria of fitness for execution is not one of the things taught at medical school; under common law, a person executed must be at leastcompos mentis, though it is not easy to see why, since execution can hardly be carried out to teach him a lesson. I would have been tempted to excuse everyone his execution on medical grounds.

The motives of abolitionists are, like those of other men, sometimes strangely mixed. I realized this when reading an article in the French Sunday newspaper, the Journal du dimanche about the forthcoming execution by lethal injection of Joseph Paul Franklin, the white supremacist guilty of several murders and of shooting and paralyzing Larry Flint, whom the newspaper called the Porn King. According to the article, Mr Flint is pleading that the man who rendered him paraplegic should not be executed.

The French, at least of the intellectual and writing class, are now outraged by the death penalty in itself and treat it as if it were a manifestation of mediaeval barbarism, though in fact it was abolished in their own country as late as 1981 (that is, a year after Franklin killed). The curious thing is that it is only executions in the United States that outrage them, not those that are carried out in, say, India. Various interpretations of this strangely narrow focus of moral outrage are possible, not many of them creditable.

However it does seem to me that to execute someone more than thirty years after he has committed his crimes, not because he has in the meantime evaded justice but because it takes thirty years to exhaust all legal expedients, bespeaks a judicial system that is not scrupulous, but grossly cruel and incompetent, to put it mildly. If there are enough grounds for postponing an execution for thirty years, there are either enough grounds for postponing it for ever or the whole system ought to be overhauled. Justice should be swift without being summary; a case such as this make it seem slow without being sure.

Mr Flint was reported as having said that he was against the execution of Franklin because ‘The death penalty has no deterrent effect.’ He added that if the death penalty were proved to exert such a deterrent, he would approve of it. But this is to render justice completely subservient to utility, which it cannot be and still remain justice.

There remains the humanitarian argument, but Mr Flint is not a convinced humanitarian, far from it, at least if the newspaper report is to be believed. For he said that ‘as for life imprisonment, to be condemned to a cell one yard by two [his own wheelchair] for more than thirty years is a punishment far worse than death by syringe.’ By implication, therefore, execution by lethal injection is not to be reprehended because it is too severe a punishment but because it is too lenient. He wants the suffering of his attacker to linger indefinitely, not to have a term. I am reminded of the famous, or infamous, eighteenth century pamphlet, Hanging Not Punishment Enough.

Yet I think it likely that Mr Flint is not, in fact, motivated principally by cruelty. He is merely, like me, like all of us, inconsistent.

One last point. The German company that makes propofol, the drug used in Missouri for execution by injection, has threatened not to allow it to be exported to the United States where, apparently, no one makes it. Germany, of course, has an unfortunate past where execution by chemical is concerned. But there is the slight difference of due process, due process that took thirty years to exhaust! What hay Dickens would have made of it!