The NY Times has an interesting story today about two men who are leading a campaign in support of a ballot initiative that would abolish the death penalty in California – and who, in 1978, played key roles in the adoption of a ballot initiative that was meant to increase the use of the death penalty. They have changed their minds, and hope the people of California will, too. What is remarkable, beyond this change of heart, is that the reasons they give for it have only to do with the costs of the death penalty system: as one of them puts it, “$185 million a year … to lawyers and criminals.” Not a word about the morality of the death penalty, including the risk of killing innocents. Apparently, it is not a political winner, although this post by Janai Nelson at Concurring Opinions suggests otherwise.
It might seem wrong, perhaps even perverse, to argue about the death penalty without discussing its justice. But such argument actually has a very long history. In his History of the Peloponnesian War, Thucydides describes the deliberations of the Athenian assembly on the question of what to do with the Mitylenians, who had revolted against them, and whom the Athenians had again subdued. The first debate on the matter was dominated by Cleon, who argued that the entire male population of Mitylene ought to be butchered (a word Thucydides – or his translator – repeatedly uses; no euphemisms here). His argument was in part consequentialist – “teach your other allies by a striking example that the penalty of rebellion is death” – but mostly appealed to the people’s sense of justice, offended by the Mitylenians’ revolt and clarmouring for treason to be punished with death. The next day, however, the opponents of the butchery succeeded in re-opening the debate. Their case was made by Diodotus, on purely consequentialist grounds. Indeed Diodotus argued strenuously that justice had nothing to do with it: “we are not in a court of justice, but in a political assembly; and the question is not justice, but [expediency].” Justice might say the Mitylenians are guilty and deserve capital punishment, but that would serve no useful purpose, contrary to Cleon’s claim. Death penalty is not a good deterrent: “It is probable that in early times the penalties for the greatest offences were less severe, and that as these were disregarded, the penalty of death has been by degrees in most cases arrived at, which is itself disregarded in like manner. Either then some means of terror more terrible than this must be discovered, or it must be owned that this restraint is useless.” On the other hand, mercy would induce future rebels to lay down arms rather than to resist to the bitter end, and thus save Athens blood and treasure. Diodotus’ arguments prevailed, and only the leaders of the Mitylenian rebellion were executed, rather than the entire people.
Perhaps this story need not change our intuitions – if we have any – about the value of purely consequentialist arguments about the death penalty. But they can work in the political arena if not in philosophy seminars, and in cases where the issues of justice are too politically explosive, they might be the only ones about which rational deliberation and changes of mind among the opposing sides’ supporters are possible.