To some people it might look like a grotesque joke to consider the hangman in an even slightly positive role, let alone as a heroic figure. This is because the executioner plays a central part in the imposition of the death penalty, and this type of punishment is anathema to many of those who judge human action against a code of ethics. In this view, it is wrong for one man to murder another; nevertheless, it is an act of brutal savagery to then cold-bloodedly kill the murderer. Killing is always unjustified in this perspective, and thus two wrongs do not make a right.
In order to show the error of this way of looking at the matter, it will therefore be necessary to justify the ultimate chastisement on moral grounds. In what is to follow, I shall attempt to do just that. But I shall offer a “weak” justification for the death penalty, not a “strong” one. That is, I shall attempt to prove that there are at least some cases in which it is ethically appropriate to take the life of a person judged guilty of murder, not that this is always true.
In doing so, I shall have to assume away several objections. First, I stipulate that the convicted murderer is really guilty of committing the crime, and that there were no extenuating circumstances (e.g., self-defense) to mitigate the enormity of the act. Secondly, I will not question the jurisdiction of those who would enforce the capital punishment; I assume that this would be done by the “forces of law and order,” whoever they are, and that they are entirely innocent of any other wrongdoing, apart perhaps, from undertaking the act in question. Thirdly, I assume there will be no moral damages to the punishers: i.e., that they will not become brutalized and commit crimes on their own account as a result of putting the guilty to death.
Having set the stage in this manner, we are now presented with a murderer and his dead victim. Suppose that there were a machine in existence like the one depicted in the 1990s TV series Babylon 5. And this machine had room for two bodies and a switch, which, when activated, could transfer the life out of one body and into the other. That is to say, the live murderer could be dragged, kicking and screaming if need be, into this machine, and placed alongside the murder victim. (The “invention” of this machine was inspired by Anarchy, State, and Utopia, author Robert Nozick.)
The ethical question this machine poses for us is this: Would it be just to flick the switch, thereby transferring life from the murderer to the victim? Granted, we do not have access to such a wondrous machine as yet. But given the advances in computing, artificial intelligence, genetic engineering, etc., it is probably only a matter of time before such a machine exists.
To ask the question of whether its use is morally justified is to answer the question. Consider the implications of a negative reply. This would mean that, even though the murderer in effect stole a life from his victim, he shall not be forced to give one back. Can any more unjustified act be imagined? Hardly. Nor can it be considered gratuitous, “cruel and unusual,” or unbridled savagery to force the murderer to take part in this somewhat grisly procedure. For in this case, the murderer will not be killed for “no reason at all,” which is the way opponents of capital punishment describe what they see as a lust for revenge. On the contrary, he shall be killed so that another, his innocent victim, may live. Those who would argue against forcing the murderer to enter the machine are, in effect, advocating that the murderer’s life be considered more precious than that of the victim.
It is crucially important that this point be driven home. For it is our only weapon against those who object to capital punishment on moral grounds. By the use of this fanciful machine, we have introduced the cloven foot of capital punishment into the hitherto impregnable fortress built by the opponents of this penalty. We have established that, for at least one case, there is justification galore for taking the life of the murderer. What this means is that the lives of all murderers are morally forfeit, given the validity of the assumptions we are still making (no possibility of mistakes, no extenuating circumstances, etc.).
We must now relax these artificial assumptions and move back into the real world. We have still established that the murderer’s life is morally forfeit. He no longer has a claim over it that must be recognized. Who, then, has a valid title to his life? Since the victim is no longer with us, and cannot be brought back to the land of the living, his heirs are assigned all his worldly possessions. But one of his (un)worldly possessions, as we have seen, is the right to his murderer’s very life. True, in the absence of our machine, the victim cannot exercise this right, but he still has it, nonetheless. This right then passes on to his heirs, along with all his other rights, property and assigns.
Suppose that the heirs of the victim are a wife and small children. Then the wife becomes the owner of the murderer’s life. She alone may properly dispose of it. She may, if she wishes, order that he be killed. Alternatively, she may be a pacifist and agree to forgive him for murdering her husband. However, the victim may have left a will, stipulating, among other things, how he wishes his murderer to be treated, should that occurrence ever take place. If so, then his wishes must be respected, not those of his heirs. For their ownership of the life of the murderer is only based on the victim’s, which is thus primary. Another option would be for her to allow him to buy his freedom from her. If they can arrive at a mutually agreeable financial settlement, the murderer may be able to get off scot-free. (The murderer and/or his friends and business associates may wish to place the heirs of the victim in an untenable situation by making threats of further aggression. In order to preclude such a situation, a binding pre-arrangement may be arranged with the forces of law and order, which presumably are strong enough to be impervious to such threats.) Last but not least, the widow may insist that the murderer be incarcerated for life at hard labor, the proceeds from which would be used to house and feed herself and her children. There is little doubt that the proceeds from such an arrangement would be positive. Slavery, after all, was an economically viable system, and would have been more so, had there been no serious moral objections to it, as there would not be to the system now being advocated. Then, too, chain gangs were economically practicable. In the modern era, murderers receive three square meals a day, are housed in a warm, dry cell, have TV privileges and medical attention, etc., and, to add insult to injury, the victim’s heirs are forced to pay for all this through taxes. Can anything less justified than this be imagined?
Now let us relax the assumption of certainty. In other words, I shall hereby posit the real world situation in this regard. Here, except in such cases as the shooting of Lee Harvey Oswald by Jack Ruby, which was witnessed by scores of people in person, and millions more through the intermediation of television, the facts of any murder can only be known with a greater or lesser degree of probability. And let us further suppose that in one particular case not only was the wrong man accused, seized, tried, convicted, and then executed, but it was later found out, for sure, that this tragic mistake had been made. This is surely an occurrence that opponents of the death penalty greatly fear and cite in defense of their position.
By applying our principles once again, no matter how counterintuitive such a procedure may appear at first sight, we may successfully address this problem. Murder is the unjustified killing of an innocent person. The judge and jury that sentence an innocent man to death, along with the hangman who carries out this penalty, are acting in a manner so as to kill such a person. They are therefore guilty of nothing less than murder! As such, it is they who must now be made to pay for their crime. And, there would be no doubt that they had carried out this unjustified execution.
Such a scenario is utterly unrealistic in modern society, of course. But this is because our political leaders fail to consistently apply the law that those who engage in wrongful killing are themselves guilty of criminal behavior. They make an exception for judges, juries, hangmen, etc., who operate according to law, are disinterested and are motivated only by a desire to punish the guilty. But wrongful killing is wrongful killing, no matter whether it is considered legal or not. (I need do no more than cite the findings of the Nuremberg Trials to support this contention), and despite the motivation(s) of the perpetrator(s). Such considerations may help us to distinguish between different degrees of guilt—first-degree murder, second-degree murder, manslaughter, etc.—but cannot entirely exculpate blameworthiness.) Further, wrongful killing is murder, which should, in justice, be punishable.
However unlikely, let us just suppose for a moment that this insight were incorporated into the procedures of the legal system. It is not difficult to anticipate that under such a regime judges and juries would be most cautious in their impositions of the death penalty (and to a lesser degree, of course, to impose all other penalties), and hangmen would feel a greater reluctance to ply their trade indiscriminately. The “hanging judge” might still be popular in fictional accounts of justice, but he would not last too long in real life. Thus, even if the death penalty were legalized, there would be no unseemly haste under these conditions to send accused murderers to their final destinations. The bloodbaths feared by death penalty opponents would likely not materialize.
But there is yet one more arrow in the quiver of the advocates of life imprisonment as a maximum penalty. In their view, however justified the activities of the hangman, the death penalty does not decrease the murder rate—its ostensible purpose. In other words, balked in their principled opposition, they now take refuge in mere utilitarian arguments.
But they face difficulties here, too. First of all, a reduction in the murder rate is only one justification for the death penalty. The other, as we have seen, is a matter of principle: only in this way can the life of the victim (possibly) be returned to him. Secondly, the evidence cited by the opponents of the death penalty in support of their utilitarian argument is faulty. It consists mainly of studies which correlate presence or absence of the death penalty with the murder rate (trying to hold constant extraneous factors such as population size, density, wealth variability, poverty level, etc.). And lo and behold, there is precious little statistical relation between these two variables.
But Isaac Ehrlich, a more careful investigator, rejected this whole methodology. He reasoned that it was not really presence or absence of the death penalty that would serve as the prime incentive for or against engaging in murder, but rather the rate of executions actually carried out. A given state might retain the ultimate punishment on its books, but if it never acted upon it, this legislation would become a dead letter law, relatively ineffective in changing behavior. Instead of attempting to find a relationship between the law and the number of murders that took place, Ehrlich explored the correlation between the execution and the murder rates. And his evidence is highly revealing. Murderers, just like the rest of us, tend to be rational, and thus influenced by the strength of the penalties imposed upon them.
Nor is it difficult to comprehend the common sense behind Ehrlich’s findings. We know that the higher the penalty (given that the probability of its being imposed remains constant), the more likely it is that the proscribed behavior will be deterred. A fifteen-year sentence is more of a threat than incarceration for a decade, and life imprisonment is a sterner penalty than jailing for fifteen years. But the death penalty is surely a far more rigorous punishment than even prison for life. How else to explain the frantic attempt of prisoners on “death row” to put off or rescind entirely their appointment with the electric chair, so that they can “be free” to serve out a life sentence?
Now consider what must go through the mind of a criminal who has just engaged in a particularly heinous act which falls just short of actual murder. With a death penalty law that is actively enforced, the perpetrator is likely to reason as follows: “If I kill my victim, I gain by eliminating a witness who can later testify against me; on the other hand, I risk a far greater penalty if I am caught.” Without the death penalty, the likely reasoning is very different. The assessment of the benefits of murder remains as before, but now there is no greater penalty to be set against it. Under these conditions, it is chillingly easy to see why the incidence of murder would rise.
The case in favor of the death penalty, and hence the employment of the executioner, is buttressed by both principled and utilitarian arguments.
A necessary but not sufficient condition for justified punishment in cases of theft is that the perpetrator be made to return what is stolen. Justice could hardly be said to have been done if the thief is allowed to keep his ill-gotten gains while the victim is forced to stand idly by and watch him the thief enjoy his property. If I steal a tooth from you, then, at the very least, justice demands that I be made to give one back to you. This is how the biblical injunction “a tooth for a tooth” may be justified.
But this does not go far enough by half (as it turns out, “by half” is both literally and figuratively correct). Suppose that A steals $100 from B. If justice consists solely of forcing A to give back the $100 to B, it cannot be said that any punishment whatsoever has taken place. A is no worse off than before; however else this return may be described, it cannot be called punishment. At the very least, A should be made to give back B’s $100 to him, and then his punishment should consist of doing to A what he had previously done to B, that is, taking $100 from A, this time, and giving it to B. Since transferring $100 from A to B twice over is equivalent to transferring $200 from one to the other, this accounts for the aphorism “two teeth for a tooth.” (See Murray N. Rothbard, The Ethics of Liberty, Atlantic Highlands, N.J.: Humanities Press, 1982.)
Given the law of “two teeth for a tooth,” it is unfortunate that full justice cannot be done, even with the advent of our magical machine. For the murderer really owes his victim not one, but two lives, and our apparatus can only force him to disgorge one of these. If, however, people were like the proverbial cats, and had not one but nine lives, then it is clear that justice could only be accomplished by forcing the murderer into the machine twice. This, of course, would allow the victim to stockpile an extra life, for a total of ten.
