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The Danger of Making Exceptions for the Death Penalty

Even the most heinous crimes demand that we respect a person's moral agency

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What are the philosophical and moral implications of sending ISIS terror suspects who until recently possessed British passports to stand trial in the US, and so condemning them to capital punishment? Are the acts of El Shafee Elsheikh and Alexanda Kotey so horrific that we may revise our views on the death penalty?

The debate over Elsheikh's and Kotey's cases, after raging for much of the summer, has heated up again after recent charges that British Home Secretary Sajid Javid's decision to drop the UK's objection to the death penalty in these cases was to avoid the 'outrage' of the Trump administration. Elsheikh and Kotey, who were until recently British citizens, are currently being held by UK allies in Syria. They are believed to be members of the notorious Isis cell nicknamed ‘the Beatles’ and are suspected of taking part in public beheadings, waterboarding, and other serious crimes. They would likely face the death penalty if convicted by a U.S. court, whereas the UK abolished capital punishment in 1998.

Elsheikh’s and Kotey’s cases are troubling in a number of ways. Most importantly, Javid’s decision departs from a UK government policy of not sending people to foreign countries for trial, or aiding investigations of them, without assurances that the death penalty will not be used. Supporters of the government’s decision insist that this case represents only an exception to the UK’s longstanding policy regarding the death penalty, not a revision of it. In a leaked letter published in July by the Daily Telegraph, Javid told U.S. Attorney General Jeff Sessions that the decision not to seek death penalty assurances in Kotey’s and Elsheikh’s cases ‘does not reflect a change in our policy on assistance in U.S. death penalty cases generally, nor the UK Government’s stance on the global abolition of the death penalty.’

But if this is so, then why are exceptions being made in Kotey’s and Elsheikh’s cases? The government is in effect sending the message that the UK favours global abolition of the death penalty except in cases when it is okay. The great virtue of living under the rule of law is that it protects people against being subject to the arbitrary control of other individuals. But this means that a society that cares about the rule of law can't pick and choose to whom it extends its protections.

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"We don’t have empirical evidence that capital punishment deters crime more effectively than other forms of punishment."

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One explanation, suggested by the legal counsel representing Elsheikh’s mother in a legal challenge to the UK’s cooperation with the US on the case, is that Javid was afraid of angering the American government. Edward Fitzgerald QC, who represents Elsheikh’s mother, said that Javid’s departure from seeking death penalty assurances was ‘in large part because of anticipated outrage among political appointments in the Trump administration.’ This explanation, if correct, is especially troubling. The UK would be effectively amending its stated support of global abolition of capital punishment to make exceptions when this stance would upset the United States, or perhaps whenever it is politically inconvenient.

Javid facilitated bringing Elsheikh and Kotey to trial in the United States by revoking their British citizenship. As a legal matter, the Home Secretary has the power to deprive a person of British citizenship when he believes doing so would be ‘conducive to the public good’ and would not make the person stateless. In Elsheikh’s and Kotey’s cases, it essentially appears that the Home Secretary is using his power to strip citizenship as a way to outsource the job of holding them criminally accountable to a country that allows a form of punishment long condemned by the UK government. But the British legal system’s promise to uphold certain values and respect the human rights even of those accused of heinous crimes doesn’t hold much water if the accused can simply be stripped of citizenship and sent to another country that does not hold the same values.

At the heart of the controversy, of course, is the question of whether the death penalty is itself morally permissible. Philosophers have debated for centuries whether punishment in general, and the death penalty in particular, is justified. In general, some argue that punishment is justified because of the good consequences it promotes, typically crime reduction, whereas others contend that punishment is justified for its own sake, because it is deserved. 

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"Can we make any progress on the question of what punishment offenders deserve, beyond just these competing intuitions?"

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It’s difficult to defend the death penalty on the first of these views, which appeals to the good consequences of punishment. Proponents argue that because the death penalty is harsher than other sentences, it will provide a greater disincentive to potential criminals. The problem is that this intuition isn’t supported by statistical evidence. A 2012 study by the U.S. National Academy of Sciences found that there is no credible empirical evidence that the death penalty is a more effective deterrent than, say, a very long prison term. In fact, research suggests that it is the certainty of punishment rather than the severity of punishment that has the real deterrent effect. In other words, a person will be deterred by a much less severe sentence if he believes it’s likely that he’ll be caught and punished, and a person who doesn’t believe he will be caught and punished isn’t likely to be deterred even by a very severe sentence.

So we don’t have empirical evidence that capital punishment deters crime more effectively than other forms of punishment. But even if capital punishment were a more effective deterrent, this wouldn’t mean that it’s justifiable to execute people to deter other potential criminals. Typically, even philosophers who endorse punishment as a means of deterrence also accept that punishment shouldn’t be more severe than an offender deserves. Even if we could most effectively deter shoplifting by executing convicted shoplifters, this punishment seems obviously unjustified because it is harsher than shoplifters deserve. 

Some philosophers, called retributivists, instead embrace the idea that punishment is justified as a way of giving offenders what they deserve. From a retributivist perspective, our question becomes whether criminals can ever deserve the death penalty. Supporters of the government’s decision to allow Elsheikh and Kotey to be tried in the United States have pointed out that they are accused of especially serious crimes such as beheadings and torture. For many, the death penalty seems a deserved response for people found guilty of such heinous acts. Opponents of the death penalty obviously disagree. But can we make any progress on the question of what punishment offenders deserve, beyond just these competing intuitions?

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"However incorrigible some people may seem, everyone has the capacity to reconsider their past decisions."

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The most famous philosophical retributivist was the German philosopher Immanuel Kant, who endorsed the principle of lex talionis, or ‘an eye for an eye’. According to lex talionis, whatever crime you commit, your punishment should take the same form. Few philosophers today embrace strict lex talionis, because its prescriptions are either unclear (what would be an appropriate punishment for a childless kidnapper) or unpalatable (torture as the punishment for a torturer, or rape for a rapist). Instead, some philosophers contend that punishment should inflict a similar amount of suffering on the offender as he inflicted on his victim. This view faces its own problems: It’s not clear what punishment is deserved for crimes that inflict no obvious suffering on anyone, like tax evasion. And for people who commit heinous crimes such as mass murder or torture, it’s not obvious that capital punishment inflicts a similar amount of suffering.

There are other types of retributivism on offer, but retributivists themselves disagree about whether capital punishment can ever be morally deserved. Thus it may be useful to look elsewhere for guidance.

mitchel lensink 220106 unsplash Do You Have to Kill to Be a Murderer? Read more Kant himself offered some direction. He wrote that the ‘censure of vice’ should ‘never break out into complete contempt and denial of any moral worth to a vicious human being; for on this supposition he could never be improved’. For Kant, to be a human being is to be a free moral agent capable of reform and redemption. So when he famously wrote that we should respect people as ends in themselves, part of what he meant was that we should always take seriously people’s capacities, as free moral agents, for repentance and self-reform. As the philosopher Jean Hampton put it, ‘the state’s assumption that the people it is entitled to punish are free means it must never regard any one it punishes as hopeless.’

Hampton contends that punishment should actually promote offender repentance and reform. But we don’t need to go that far to acknowledge that respect for offenders as moral persons requires at least that punishment not get in the way of their reform. Capital punishment does exactly this. It doesn’t just undermine the prospect of reform, it extinguishes it altogether.

It may seem naïve to talk about repentance and reform for people who have committed heinous crimes of the sort that Kotey and Elsheikh are accused of committing. Surely many criminals are unlikely to turn over a new leaf. But this misses the point. However incorrigible some people may seem, everyone has the capacity to reconsider their past decisions, to regret what they did, and to commit to making amends. If we take seriously the moral ideal that all people ought to be treated as capable of repentance and reform, then no state has the right to treat people in ways that destroy this capacity.

A commitment to respect for persons as free moral agents thus provides a basis for opposing capital punishment even for those accused of heinous crimes. This conforms to the UK’s own longstanding stated policy of endorsing global abolition of the death penalty. But if the government means what it says, then this must apply even to those accused of especially terrible crimes. To make an exception in Kotey’s and Elsheikh’s cases — to strip them of citizenship to facilitate their trial and punishment in the United States — casts doubt on the UK’s commitment to treat offenders, all offenders, in ways consistent with respect for them as moral persons. In a July 1910 speech to the House of Commons, then Home Secretary Winston Churchill said that the ‘mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.’ More than a century later, we would all do well to heed Churchill’s words, and to demand that the current Home Secretary do the same.

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