Thought for the Day

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Originally Posted by Stavros

Let me try to clarify this by drawing a distinction between he act of killing, and the punishment that might follow. By its nature, killing is an absolute condition, there is little else one can say about it, other than to describe the way in which the act was committed, and then ask why. As we have seen, it then becomes a matter of sophistication in which the killing is either justified, or excused, even though the moral argument is without blemish- it is, and always has been wrong to kill..

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I remain puzzled why you keep asserting this point (which is central to your argument) as if it were a truism, when it is far from self-evident.

To my mind, your argument is tautological:
1. Killing is inherently wrong.
2. Therefore, no act of killing can be justified, even if it might result in outcomes that are desirable (eg saving innocent lives).

The problem is that point 1 is an a priori axiom, rather than something that is established by reasoning.

Contrary to your assertion that killing is killing, there are many shades of grey, which the laws recognise and try to deal with. Your own acceptance that it may be justified for self-defence acknowledges that. Even self-defence has shades of grey - eg what is a proportionate response to a threat?

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Originally Posted by filghy2

Probably both, but I haven't studied the issue enough to be sure. To be clear, I don't have a firm view either way on capital punishment, for the same reason. My concern has really been about the right way to frame the issue. I can see a theoretical case for capital punishment in limited circumstances, but it turns on some empirical questions that I don't know enough about.

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I know you were discussing how we should analyze the decision rather than stating it should be implemented. It is an interesting discussion even in the abstract and I didn't mean the questions as a challenge but just thought it might be interesting.

One of the things I've noticed when I've read case histories of the appeals someone on death row has filed is that you can convince yourself they've had opportunity to present anything exculpatory or challenge the evidentiary rulings in the initial trial, but you're not that much more certain they are guilty. For instance, if you're 98% confident they are guilty and that is a number generally considered higher than estimates of what "beyond a reasonable doubt" means, ten years of them having a chance to challenge the evidentiary rulings or find new evidence doesn't move that number much. On the other hand, there are some cases where the evidence is so overwhelming to begin with. I think if I could find instances where I think the death penalty should be implemented it would be this subset of cases and for murders that were especially cruel.

I suppose nobody here thinks some people who have committed heinous crimes should be executed based on a notion they "deserve it". I found some old notes on theories of punishment and theorists try to make a distinction between retribution and revenge, the former thought to be a more objective attempt to mete out a fitting and just fate for the criminal and the latter based on anger and a desire to inflict pain. I can see the distinction between the two but I'm not sure what role someone getting what people believe their actions warrant unless its impacts are more than psychic.

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Originally Posted by broncofan

I think if I could find instances where I think the death penalty should be implemented it would be this subset of cases and for murders that were especially cruel.

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I guess this point is pretty obvious since the two relevant factors are certainty of guilt and severity of the crime. I guess I mean that while procedural protections are important I would want there to be a much different burden of proof for death penalty cases. The review shouldn't simply be that they had a fair trial, that a rational jury could believe they are guilty beyond a reasonable doubt, and that there were no violations of their constitutional rights during the trial. It might be for instance that of cases in which a capital crime has been proven beyond a reasonable doubt, there is substantially more corroborative evidence and substantially fewer doubts that exist than in most cases in which a guilty verdict is rendered.

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Originally Posted by filghy2

I remain puzzled why you keep asserting this point (which is central to your argument) as if it were a truism, when it is far from self-evident.

To my mind, your argument is tautological:
1. Killing is inherently wrong.
2. Therefore, no act of killing can be justified, even if it might result in outcomes that are desirable (eg saving innocent lives).

The problem is that point 1 is an a priori axiom, rather than something that is established by reasoning.

Contrary to your assertion that killing is killing, there are many shades of grey, which the laws recognise and try to deal with. Your own acceptance that it may be justified for self-defence acknowledges that. Even self-defence has shades of grey - eg what is a proportionate response to a threat?

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I agree with a lot of your points, but the key to me is that having decided killing is wrong, human societies then seek to justify killing, or the termination of life, by making excuses, or producing reasonable justifications. I think you agree that justifying the exterminatiion of humans having first re-defined them as 'sub-human' is wrong, because the science is wrong, it is morally wrong, it is politically wrong, indeed, wrong in every aspect.

If we move away from killing in terms of criminal law, then obvious cases that present themself occur in medicine, where a physician must make a life or death decision, or the case of Abortion. The Hippocratic Oath burdens all physicians with the injunction to save lives, but medically, I think we all recognize this is not always possible. Someone who has a cardiac arrest and fails to respond to resuscitation efforts dies, not because the physicians failed to keep him alive, but owing to the cardiac arrest, yet it is still the responsibility of the lead physician to call a halt to proceedings and pronounce the person dead. Choosing not to operate on someone with cancer so advanced there can be no useful medical remedy is again not killing,and yet in the medical as well as human context many, probably most doctors regret their choice of action. Maintaining life support systems on someone who has had catastrophic injuries or malfunction of the brain, classing them to be in a 'persistent vegetatve state' is another example, where physicians can often be challlenged by relatives who insist that one day the patient may regain consciousness. The US case of Terri Schiavo is well documented here.

Abortion is an intriguing problem, and one that I have wrestled with without ever satisfying myself on what is right. Again, if we take the killing is wrong position, and the reigious argument supports it, then terminating a pregnance must be wrong. But, just as there is a context with abused women who murder their partner, pregnancy itself, though it is not an illness, can create medical complications that threaten the life of the mother and/or the child. Using your Hitler analogy, the argument would be that a termination is justified if it will save the life of the mother. A further argument can be made with regard to the foetus, if for some reason its gestation has failed to produce a being with limbs and organs that will sustain it after birth, and thus a decision is made that its life is not 'viable' or some other term, and a termination takes place.

I think these are different arguments from those which have recently proposed that life begins with conception. The arguments I refer to have a basis in medical science and relate directly to the medical condition of the mother and the foetus, whereas the religious arguments take one simple fact of science -life begins with conception- and remove all other scientific considerations to rest on a political argument. The obvious science fact is that the life conceived may not survive the gestation period, and women do miscarry. The poltical point is that in the US, according to the 'life is sacred' lobby, as soon as a woman becomes pregnant, she appears to lose her rights as a citizen, and the 'rights of the child' assume greater importance in law and morality. This is where I find my attachment to the principle that killing is wong, detached from the surrounding politics, because I cannot accept that a foetus has either equal, or superior rights to the citizen in which it resides. Moreover, the same people insisting that their argument is right, have no respect for the life of the child once it is born, do little or nothing if that child is born in poverty, little or nothing if the child is disabled, and in some cases, Abort the life if it is living in Baghdad or Afghanistan or Syria or anywhere else a bullet or a bomb can detect it.

If there is a distinction, it is between ending a life because there are no existing alternatives in medical terms, and ending a life through an act of violence. Abortion presents a challenging case if the reason is that the woman concerned doesn't want the pregnancy to continue because it would interfere with her career choices, because the pregnancy would prove she had been unfaithful to her husband, in other words, all but medical reasons. I don't know how to resolve this, because the woman must have rights as a citizen, while the criminalization of Abortion or the creation of term limits that make it all but impossible in some US States, removes all debate on the reasons a termination might be justified, though some have conceded a termination might be justified if the pregnancy was the consequence of rape, or incest, and in the past there is the shocking case of the 11-year old who was raped, forced to give birth to child, and by her parents to marry the man who raped her.

We have burdened ourselves with a noble declaration that life is sacred, and proved time and again that we as humans are chronic violators of our own laws and values, seeking as many excuses as justifications as we can, sanctioned by God or Man. I have not been able to solve the problem, which might be one of 'human nature' though I think, pace Steven Pnker, humanity in general may be less violent and lethal in the 21st century than we were in the 1st or 2nd. But it does also mean, I believe, that when it comes to punishment, there can be no justification for the State to kill, and on the basis of what I have said before, I see no argument in favour of execution. But as a character once said in the feeble Graham Greene book that bear's its title, 'It's a battlefield'.

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Originally Posted by Stavros

I agree with a lot of your points, but the key to me is that having decided killing is wrong, human societies then seek to justify killing, or the termination of life, by making excuses, or producing reasonable justifications. I think you agree that justifying the exterminatiion of humans having first re-defined them as 'sub-human' is wrong, because the science is wrong, it is morally wrong, it is politically wrong, indeed, wrong in every aspect.

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In law, defenses to murder are categorized as excuses or justifications. When someone kills but is not guilty by reason of insanity that is categorized as an excuse. If they are mentally incompetent or have severe psychosis and don't understand the nature of the act most people would think they are not as culpable as someone who has killed in order to rob his victim. It is an excuse not in the colloquial sense but in the legal sense because the act itself is not justified but they are not held accountable for it.

Self-defense is a justification. And it's very difficult to argue that someone who had a subjective belief they were going to be killed which is objectively reasonable should not be able to kill to save their own life.

Since we've found justifications and excuses that are exculpatory, we can't just say it is too difficult to assign degrees of culpability. The belief that a person is sub-human can't be used to justify killing but it is also a false premise. Most true premises would not provide a justification for killing.

It is difficult to codify degrees of culpability and determine which instances of killing might not be culpable but I can't imagine a good outcome if we didn't try.

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Originally Posted by Stavros

I agree with a lot of your points, but the key to me is that having decided killing is wrong, human societies then seek to justify killing, or the termination of life, by making excuses, or producing reasonable justifications.

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But isn't it normal that we hold certain actions to be wrong in general, but allow that there are some circumstances in which such actions may be justified? I suspect this applies to just about every ethical standard you can think of. For example, lying is generally wrong but may be justified in some circumstances (eg if telling the truth would put someone at risk), Stealing is generally wrong, but most of us would accept that it may be justified if the alternative was starvation.

You seem to be concerned that we are on some ethical slippery slope, where more and more exemptions to the rule are being allowed. I don't see much evidence for this. In most countries we are probably more careful about human life now than we have been at any time in history.

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Originally Posted by filghy2

But isn't it normal that we hold certain actions to be wrong in general, but allow that there are some circumstances in which such actions may be justified? I suspect this applies to just about every ethical standard you can think of. For example, lying is generally wrong but may be justified in some circumstances (eg if telling the truth would put someone at risk), Stealing is generally wrong, but most of us would accept that it may be justified if the alternative was starvation.

You seem to be concerned that we are on some ethical slippery slope, where more and more exemptions to the rule are being allowed. I don't see much evidence for this. In most countries we are probably more careful about human life now than we have been at any time in history.

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I agree, but re-iterate the cardinal point, which is the prohibition on killing that has been fundamental to 'Western Civilization', whether it is derived from Greco-Roman Law, or the Bible. You say that it is normal for humans to condemn an act which they then enact, and as Broncofan points out, the Law has devised a language which either excuses -in the legal sense of the word- or justifies the murder it also says is wrong. This seems to me to be the key problem with murder in general, and murder as a form of punishment enacted by the State.

Yes, we set ethical standards of behaviour we then fail to meet, but look at what this has meant, historically. It means, for example, that the Christian faith which has The Lord's Prayer as one of if not its most succinct statement of belief, has failed to honour it, and in spectacular fashion, whether it is the slaughter of over a million devotees of the 'Cathar heresy' (as defined by the Roman Catholic Church), the gruesome public executions of Tudor England, or the combined actions of the Spanish, the French and the British from the Americas to Africa and Australasia that led to the estimated slaughter of 100 million.

Fundamental to this is the concept of Civilization, not a neutral concept, that embarked on a global mission to replace one form of behaviour by another, in which Christian priests and followers based their mission on the basic assumption that the people they encountered, for example in the Australia integrated into a European Empire, were heathens and savages. As recently as 1919, Genral Jan Smuts, when devising the Mandates system of the League of Nations, justified Germany's African and Pacific colonies in the lowest tier, Mandate C, because "the German colonies in the Pacific and Africa, are inhabited by barbarians, who not only cannot possibly govern themselves, but to whom it would be impacticable to apply any ideas of political self-determination in the European sense".

This is not some everyday flaw in human nature, but a deliberate use of the theory and practice of civilisation that in both undermined the very principles on which it was erected. On such a basis, for the State to then arrogate to itself the right to execute may be seen as merely the icing on the inedible cake -as Christians we forgive your sins, or maybe we don't, but are going to kill you anyway.

At the very least, we ought to acknowedge that Capital Punishment has no connection to Christianity, indeed, contradicts it. As for your statement "In most countries we are probably more careful about human life now than we have been at any time in history", again, this might be true inside the State, but the indiscriminate bombing by 'us' of numerous countries around the world, suggests a complete indifference to human life and the suffering incurred, thus Western Civilization finds a way to replace its Religious values with the actualité that is the nihilism of 9/11, ISIS, and the Cartel violence of Mexico and Central America, majority Catholic countries.

This is the focus of most of my critique, so I understand your points and agree with most of them with regard to the everyday violations that on one level, make us 'the crooked timber of humanity' -but do we not also need fundamental values and ethics as human socities, and if we set ourselves such elevated goals, can we not try to at least strive toward them? And in doing so, stop Capital Punishment in all its forms, everywhere, from the head chopping monsters of Saudi Arabia -Israel and the USA's closest allies in the Middle East- hanged by crane in Iran, lethal injections in Texas -and so on. And it is easy to achieve, because in an hour from now, all countries can issue a declaration saying it will not longer happen.

A cost benefit analysis will often hinge on how one values different interests. It can then be defended even when a straightforward application of it would produce a result many find repellent because of the injustice it exacts in particular cases.

If the death penalty results in 5 innocent people who are executed but deters 10 killings should we support its implementation? Would you rather be someone who is murdered in random circumstances or spend 10 years on death row for a murder you didn't commit, face mental anguish at all of your last ditch efforts to exculpate yourself, receive false hope while waiting for a last minute pardon and then be clinically killed in front of a gallery of people who believe you're a murderer? I guess a utilitarian analysis could subsume these justice concerns by valuing this experience as more than twice as awful as the average killing that's been deterred, but it still signifies some difficulty in its application.

The design of our criminal justice system, which has been described by the maxim of let 99 guilty men go free for every one innocent man convicted also seems to weight the concerns in ways that are not mathematically straightforward. I can actually think of many more examples, including one that I mentioned, which is the possibility that providing a justification of self-defense causes more people to overreact than to successfully defend themselves. It's still possible to believe that while harms flow from allowing for the doctrine it provides a measure of justice in individual cases that is indispensable.

None of this is to say that abstract ideas of justice are more important than a cost-benefit analysis of which punishments we support but that just as there are ways in which we can carefully dissect the wrongfulness of similar acts, we can also be especially vigilant about the harm done by wrongful convictions and other difficult to measure injustices.

Hypothetical: ten people in a room and authorities know that one of the ten people plans to kill 100 people (you could also say 1000 people with a 10% chance of success or 100 people expected value) in an explosion at some later date. They do not know which person it is and each person has an equally likely chance of being the guy. If the law allowed authorities to apply for a warrant subject to a thorough review process to kill when such killing is likely to save lives, would they be justified in shooting 10 people to save 90 people net?

If not why not? And no I'm not designing an essay exam. I think the question relates to the use of utilitarian theory for every criminal justice question. But perhaps not. Maybe we just use different multipliers for things;.

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Originally Posted by broncofan

Hypothetical: ten people in a room and authorities know that one of the ten people plans to kill 100 people (you could also say 1000 people with a 10% chance of success or 100 people expected value) in an explosion at some later date. They do not know which person it is and each person has an equally likely chance of being the guy. If the law allowed authorities to apply for a warrant subject to a thorough review process to kill when such killing is likely to save lives, would they be justified in shooting 10 people to save 90 people net?

If not why not? And no I'm not designing an essay exam. I think the question relates to the use of utilitarian theory for every criminal justice question. But perhaps not. Maybe we just use different multipliers for things;.

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This debate is getting lost, I think, and I am not sure how much more I can contribute or just repeat myself. Your proposition has already been tried, as with the justification for the aerial bombardment of Afghanistan in 2001-2002, and the regime change in Iraq in 2003, all designed to 'kill them before they kill us', in which the majority of the victims had nothing to do with terrorism, and if you saw the brilliant but agonising documentaries, For Sama, and Once Upon a Time in Iraq, you shoud ask how you think your country benefited from its collective punishment of Arabs and Muslims, how much it cost (guesstimate -trillions of dollars) and why it has resulted in a dangerous instability in Iraq and Syria, while the Taliban who were the target in 2001-2002 because they gave a safe haven to bin Laden, are still just a proverbial inch away from being part of if not the Government of Afghanistan -your President was even prepared to invite these mass murderers to talks at Camp David.

Americans are fed a diet in film and tv of 'kill the bad guys' to the extent that when a cop kills a black man, it is instantly followed by the 'revelation' that the victim was a thief, a career criminal, a wife-beater-anything to justify the act. Marvellous Super-heroes don't negotiate, they don't convene summits to sign peace treaties, they kill.

It feeds into the mentality in which options are narrowed, it is either/or, and on balance, the guns have it. For a country whose population brays as it prays, this sickening, craven submission to violence is not going away, it stains the nation, and offers little hope for progress, unless and until it is stopped. No amount of sophistry or utilitarian bollocks is going to sort it out. The mere fact your President ran away to play golf 100 times when millions of Americans fell victim to Covid-19 and hundreds of thousands died sums up the cultural swamp into which you have sunk over the last four years, with the Federal Executioner adding to the toll for a simple reason: he doesn't care. And that is, in the end, the summary of much of this debate. Thank you and good night.