Is it ever proper for the law to support capital punishment? The short answer is yes, but I've got a nuance I've been thinking about. It is found in the recourse for suicide.
The death penalty is an institutionalized form of revenge. From my perspective, the question boils down to whether or not society, through its institutions has the moral imperative to take life. The simple answer is yes.
The reason is simple, which is that human beings in and of themselves have the moral imperative to take life. It is relatively simple to illustrate this moral imperative: kill or be killed. It is morally right to kill in defense of your own life. Very specifically, it is morally right for a human being to use violence in order to defend his peace, given that violence is proportional to the threat against his peace. If the threat is absolute, then the violent defense can also be absolute. Now if you have a problem with this principle, just hold on. I think I’ve got you covered. Read on.
It's easy to see for the individual, but for society things are not so clear. Now in looking at the moral justification, there is a difference between self-defense and justice. Justice is the application of defense or retribution by an institutional third party, so let’s talk about police and the justice system.
I think this justification should bear a bit more scrutiny. In one way, society and its institutions rightly inherit this proxy of the individual. This is, after all, the social contract of our society. We proxy our defense to police and to soldiers but the way we have done so over time has changed. Originally constituted to ‘provide for the common defense’ militias and police forces have evolved their role in our protection and the social contract is viewed now similar to the way, if we are children, our parents defend us. We are assumed to be incapable of our own self-defense, but this assumed incapacity is new. We all draw some measure of defense against our persons and our property via this social contract, but some of us (especially those vocally critical of the Second Amendment) assume that the taking of life should be in all cases off the table as a moral right.
For such people, there must be a different sort of proxy in mind. I think this different sort of proxy is, in fact, irrelevant and actually should be, but let’s get down to cases, shall we?
First let’s dispatch with the simple case. Most people are familiar with the argument militating against capital punishment owing to the corruption of the institution. The institution that carries out justice can become flawed to the extent that it does not serve the public trust in its execution of the law. Wrong suspects can be convicted. Executions can be cruel and unusual. Clemency can be granted to the guilty. All undermine public trust.
But I see more than one asymmetry here. Because what one finds morally acceptable for the proxied institution depends upon what one generally finds morally acceptable. So let's get busy with examples, but first to the ground rule. We will stipulate that in all three of these examples, that the attacker is of a particular stripe, namely that he is evil, relentless and implacable. He will kill, for immoral purposes, cannot be dissuaded, and cannot be stopped without being killed. Let us remember one more thing which is in fact the general law states that police should not lose in violent encounters, so they are trained and authorized to bring to bear one greater level of force than any attacker. In short, police bring guns to knife fights.
All of these example people, being in America, are part of the social contract. But they proxy different levels of moral authority to the government and police on their behalf.
Let’s call the first person Miss Jane. She is old and feeble, but made of stern stuff and takes no guff. She will give you the stink eye if you even curse in her presence and is the very picture of dignity. However, when faced with the attacker, she stands no chance of defending herself. So she proxies her moral authority to the police. She has no choice and basically wants no choice.
The second person, is the one closest to my position. Let’s call him Malcolm, who says ‘an eye for an eye’. Like Miss Jane, he insists on his full dignity, but is actually capable of defending himself. Whatever violence you might try upon Malcolm, he’ll do right back to you. In fact, Malcolm might even pre-empt your attempt. He’s vigilant and standing in the window looking for the trouble that’s looking for him. Malcolm would train himself to be like the police officer, ready to bring a gun against a knife raised against his person or property. But Malcolm knows he can’t be alert everywhere all the time. So he proxies his moral authority to the police as well, albeit with some reluctance.
The third man declares himself non-violent. Like Malcolm, he is capable of asserting ‘an eye for an eye’ but instead chooses to ‘turn the other cheek’ instead. Let’s call this man Martin. If someone is out to hit Martin with a baseball bat, Martin personally would turn the other cheek. However Martin would have no problem with police using the necessary violent force to strike that batter out. On the other hand, Martin’s philosophy would have him take a bullet, than he allow some police officer take the life of the attacker. He reluctantly proxies his moral imperative to police officers who would violently intervene but withdraws it at the point of taking a life. Similarly, he would not support capital punishment by the state if our attacker murdered his child. For him, all killing is equally wrong.
Now of course we have all sorts of people in America who fit these three examples and others. But we have to face the question of equality. No matter what your personal philosophy, the principle of equal protection under the law compels our justice system to accept the full moral proxy. In particular, this principle asserts that it is in the full interest of society to defend all lives equally whether or not they value their own lives equally. The police therefore have to go out, fully armed, fully prepared to accept the full moral proxy of any citizen at any time. The justice system must be fully prepared to accept the proportionate response to absolute destruction of life with absolute destruction of life.
So now we bring to mind what objections are raised in the public sphere over police homicides. In particular, I have heard it argued that in the case of the homeless and /or mentally ill, that police should be disarmed when intervening against attackers when they fit that profile.
I see the problem with that. Do you? We cannot have special police dispensing special justice for special groups. No matter how special your moral code, you must concede to the prerogatives of your state’s constitutional mandate to defend the general welfare. To do otherwise is to undermine the social contract and the principle of equal protection under the law.
Still, there is no recourse for suicide.