A Cheer for Administrative Law

Administrative law can only do so much to avert injustice―but what it can do still matters

I’d like to come back, however belatedly (sorry!) to an interesting post by Paul Daly at Administrative Law Matters. Professor Daly uses the example of Novak Djokovic’s ultimately unsuccessful challenge to the Australian government’s cancellation of his visa to illustrate “the value of administrative law”. He writes:

Immigration has traditionally been a prerogative of the executive, an island of unregulated discretion in the legal system. But over the last half century or so, courts around the common law world have landed on this island, wielding principles of procedural fairness and substantive reasonableness. Several generations ago, it would have been unthinkable that a Minister would give any reasons — still less 10 pages of reasons! — to support a decision to cancel a visa. Yet because the courts now stand ready to scrutinize executive action, ministers can no longer rely on authority alone to make decisions. They must engage in the reasoned exercise of public power.

Professor Daly acknowledges that “[a]dministrative law is no panacea. Hardly any immigrant has Djokovic’s resources and will receive the Cadillac justice he has been receiving.” That’s true of course. Still, he concludes that Mr Djokovic’s case “is an important reminder of the value of administrative law in pushing ministers and others to justify their exercises of public power in reasoned terms”. This also is true. And one might even add that, in law as elsewhere, those who cannot afford the Cadillac will often benefit from the ability and willingness of others to shell out for one.

Yet despite this I think that Mr Djokovic’s case shows at least as much that administrative law is, at best, only a partial remedy to injustice. Granting the point that it can force officials to “engage in the reasoned exercise of public power” (which is often though not always true), it does comparatively little to ensure that the power is exercised justly, and nothing at all to ensure that its existence is just. The latter of course is not administrative law’s role. But it’s a point that we should not lose sight of if we choose to celebrate administrative law. In a just world, there would be a great deal less administrative law than we need in ours.

In our world, it is indeed an achievement that immigration decisions have to be reasoned and justified. After all, the founding father of Canadian administrative law scholarship evidently lamented the fact that, although the government “regards immigration as a privilege, not as a right, and wants to avoid having to disclose to a court its sources of information about the political colour of immigrants”, courts lack the good sense to see the point: “On the other side of the ideological fence, a court , with the sweating immigrant before it, sometimes sets aside a deportation order on very flimsy grounds, for instance, that it was made on a Sunday”. (John Willis, “Administrative Law in Canada” (1961) 39:2 Can B Rev 251 at 258) It’s good that we’ve moved that ideological fence some way towards decency.

But let’s not kid ourselves. We haven’t moved it very far. As Maria O’Sullivan explains in The Conversation, the reasons that ostensibly motivated the cancellation of Mr Djokovic’s visa were that his ― presumed ― opposition to vaccination against the present plague might encourage similar opposition among Australians and might undermine “social order”. Professor O’Sullivan points out that ministerial explanations were questionable on their own terms. But she also notes that, perhaps more importantly for the future, the precedent set in Mr Djokovic’s case means that people’s ability to come to Australia might be taken away on account of their actual or even perceived views being a hypothetical source of possible trouble in the opinion of a minister. What starts with an arrogant fool of a tennis player won’t stop there. Yet substantive Australian immigration law seems to allow for precisely this result, and administrative law offers no redress.

Redress will come, not any further development of administrative law, but from substantive law being such to prevent this sort of injustice. In this regard, it is telling that Professor Daly sets his reference point to 50 or 60 years ago, when immigration restrictions ― and the government’s willingness to treat immigration as a privilege to be granted or withheld on a political whim ― had become generally accepted. But let’s not stop 50 years ago; let’s go back another century. In 1872, English-speaking countries simply did not restrict immigration, though health measures and quarantines did exist. (Hence let me note: I’d have very little sympathy for Mr Djokovic if he had been barred from Australia due to not being vaccinated. But that’s very much not what has happened.) In North America, immigration controls were the product, first, of anti-Asian racism in the late 19th century, and then of more generalized xenophobia in the first decades of the 20th. On the other side of the pond, as David Cannadine writes in The Victorious Century, the closing of the UK’s borders at the turn of the 20th century was the result of bigotry against the Irish and, especially, of anti-Semitism. Australia too implemented and long held to an overtly racist immigration policy.

Of course, contemporary immigration law does not discriminate as overtly. But the idea that movement across borders is something that can be regulated in the first place comes from that evil and unjust source. And it still means that people can be stopped from doing the same (often stupid) things that we are allowed, even though they are in all particulars bar their failure to have been born in the right place or to the right parents the same as us, for no reason other than that failure. The old-school racism may be gone, but the xenophobia inherent in the idea of immigration restrictions remains. And it is not administrative law that will purge it, but the realisation that the closing of the borders 120, 140 years ago was an injustice, and that it must be ended.

Hence I will only give one cheer for administrative law. Not two, for administrative law is not meant to reform repressive substantive laws, and certainly not three, for it is powerless to mend injustice raised up to the rank of political philosophy. The trouble with cheering too loudly for administrative law is that this risks making us forget these deeper injustices; we might be content with bringing order and reason to what remains, at bottom, a logic of repression.

But my cheer for administrative law ― at least, for robust administrative law, which truly holds the administrative state to its legal and constitutional duties, rather than for the all-too-often diluted version that many administrative lawyers prefer ― will be a loud one. As E.P. Thompson famously said,

We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretentions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power.

Administrative law is an essential component of the Rule of Law, and so of the unqualified human good that Thompson had the wisdom to discern amid what he saw amid great substantive injustice. Hooray for it.

Sed Lex?

Thoughts on Ilya Somin’s defence of non-enforcement of the law

In a recent Volokh Conspiracy post, Ilya Somin argues against the common view that laws ought to be enforced and obeyed regardless of their moral flaws. On this view, the existence of a law is warrant enough to inflict punishment on anyone who breaks it. Professor Somin cites the case of Tammie Hedges, a woman from North Carolina who looked after two dozen pets whose owners could not take them with them when fleeing the recent hurricane and, for her troubles, has been arrested and charged with 12 counts of practising veterinary medicine without a license.

Professor Somin argues

that the mere fact that there is a law on the books does not mean that it should be enforced, and certainly does not mean we should pursue all violators. This is easy to see in a case like that of Tammie Hedges … . But the same principles apply far more broadly.

Professor Somin refers to the historical example of the legislation that required fugitive slaves to be returned to their “owners”, pointing out that “[t]oday, we praise … antislavery activists who” broke them, “and condemn government officials who tried to prosecute” these activists. And, in our own time, Professor Somin cites immigration and anti-drug laws as examples of legislation whose enforcement deserves condemnation, not praise.

I have a great deal of sympathy for the position Professor Somin advances, but I think that things are a bit more complicated than he lets on. Professor Somin recognizes that “there is room for reasonable disagreement about which laws are justifiable to enforce”, but does not consider the implications of such disagreement beyond saying that “[i]n a world with numerous unjust laws and ethically suspect politicians, we cannot accept a categorical ‘enforce the law’ approach to political morality”. Accepting that this is so does not really make the question of when it is possible to excuse or justify non-enforcement ― and of who is supposed to be making such judgments ― go away.

Consider the subject of my last post: the prospect of enforcement by Québec’s Chief Electoral Officer of legislation that effectively bans interventions in election campaigns by civil society actors, except if a “periodical” or a “radio or television station” agrees to carry it free of charge, as part of its news or editorial content, against an environmentalist NGO, Équiterre. Équiterre’s offence is that it has had the temerity of posting, on its own website, a questionnaire detailing the policies of the main provincial parties on various environmental issues, and expressing approval or disapproval of these positions. I argue, in my post, that Québec’s legislation outlawing such perfectly justifiable attempts to influence public opinion is draconian, and that it should be repealed and/or challenged in court and declared unconstitutional. Yet I also say that the Chief Electoral Officer is justified in enforcing the law until, in one way or another, it is law no longer. I made the same argument in a very similar situation four years ago, during the last provincial election campaign, and criticized the Chief Electoral Officer for backtracking on the basis of what I thought was a tortured interpretation of the applicable legislation.

On Professor Somin’s view, I am probably wrong. I think that the law at issue is morally unjustified. Why should I want the authorities to enforce it and put the people who quite rightly object to it to the trouble, expense, and uncertainty of litigating against it or lobbying for its repeal? If the Chief Electoral Officer declines enforcing an unjust law, shouldn’t I be happy? The reason I’m not has to do with the interaction between law and reasonable disagreement.

I have strong views about the injustice (and unconstitutionality) of Québec’s legislation, but others do not share them. The leader of Québec’s Green Party, for instance, has denounced what he sees as “meddling” by Équiterre and other environmentalist groups in elections, claiming “these groups have chosen to exclude the Green Party of Québec from their analysis”, and that this “exclusion … is a political act that undermines our credibility among the voters in the midst of an election campaign”. This nicely captures the policy of Québec’s legislation (and its federal analogue too, albeit that the latter is less draconian): achieving fair competition among political parties, at the expense of everyone else’s liberty. Plenty of people support this policy, at least in the abstract (though many get queasy when they discover that it can actually be applied to people and groups with whom they sympathize).

As I said in my recent talk on the Trinity Western cases at the Centre for Constitutional Studies, in a pluralistic society we constantly disagree about values and justice, and the law for the time being is the one thing we have in common. I take Professor Somin’s point that law is not like the rules of a club that we have knowingly joined and are free to leave; its claims to our assent are incomparably weaker. Still, we do benefit from the existence of this common reference point, which allows us to maintain a well functioning community despite our sometimes radical disagreements.

Consider, for example, one of Professor Somin’s example: immigration laws. I happen to agree with him that they are unjust in preventing persons “fleeing violence and oppression” ― includig economic oppression that typically doesn’t give rise to an entitlement to refugee protection ― from obtaining safety. Sadly, plenty of people think that the problem with existing immigration laws is the opposite: they still allow some people to come to Canada or the United States. If these people take it upon themselves to remedy what they see as injustice ― say by preventing prospective refugee claimants from reaching a border, or by hacking into a government computer system to destroy would-be immigrants’ applications ― how would we feel about that? We want, I think, to be able to say more than “your sense of justice is wrong”, and get into a shouting match about whether we or they are right. Pointing to the law is the best we can do ― but we can only do it if we too are law-abiding. The point, of course, is not that the existing immigration law is, substantively, a sort of half-way house between the wishes of open borders types and wall-builders; it’s that, to repeat, it is a common reference point that exists independently of our subjective views about justice.

Now, it is essential that opportunities to revise the law exist, and highly desirable that some of involve counter-majoritarian procedures, such as judicial review of legislation. The rules that provide these opportunities are valuable ― indeed, probably more so than any substantive laws by themselves ― and worth supporting. When people disobey the law instead of using these procedures, they undermine not only the law that they are actually disobeying, but the whole system of law as the means of provisional resolution of our disagreements with our fellow citizens, as well as the normal procedures for revising this settlement from time to time.

This is especially so when the people at issue are not ordinary citizens, but the very persons charged with implementing the law. Professor Somin does not really address this distinction, but I think it is important. Civil disobedience by a citizen (or a business) can be admirable, but I am very skeptical indeed of civil disobedience by officials. Unlike citizens, officials who decline to enforce the law, if they do it consistently, can effectively change the law ― even though in most cases they are not authorized to do so. This subversion of the normal procedures for changing the law, whether democratic or judicial, risks doing more harm in the long run than it does immediate good.

But of course it is just as, and perhaps more, likely, that the disregard of a law by official charged with enforcing it will not consistent and even-handed. Sympathetic law-breakers ― sympathetic, that is, either in the eyes of the officials themselves, or in those of the public, like Équiterre ― will get a pass, while others will not. How many of Équiterre’s defenders would take the same position of the Chief Electoral Officer went after a right-wing think-tank? Non-enforcement of the law is likely to be arbitrary, and that too is a long-term evil that has to be weighed against any short-term benefits it may have in particular cases.

Now, of course there are extreme cases. Slavery is one. In a very different way, of course, the story of Tammie Hedges is another ― extreme in its senselessness if not in its savagery. As I said at the outset, I am sympathetic to Professor Somin’s view that law does not have an automatic claim to obedience ― certainly not from citizens, and perhaps not even from officials, though I think that it is often the case that an official ought to resign from his or her position rather than subvert the law by selective non-enforcement. The trouble is that any line one draws between extreme cases is likely to be subjective and blurry. I don’t have a good way of dealing with this problem, which probably takes away from whatever force my objections to Professor Somin’s position might otherwise have had. Still, I wanted to explain my disquiet in the face of what strikes as a far-reaching argument against the authority of law. “The law is harsh, but it’s the law” can indeed be a callous and highly objectionable position. And yet, the law has a value of its own that appeals to justice are liable to disregard, and it’s a value that I would like to hold on to, even though I too think that many of our laws, considered individually, are seriously unjust.

Le langage de la justice

Un article paru sur le site de Radio-Canada parle d’une étude réalisée par un avocat, Mark Power, de Heenan Blaikie, pour le compte de la Fédération des associations des juristes d’expression française de common law, portant sur la constitutionnalité de nominations de juges unilingues à la Cour suprême. Selon Me Power (ou du moins selon l’article de Radio-Canada, puisque l’étude n’est pas disponible en ligne) de telles nominations contreviendraient à la garantie du bilinguisme officiel enchâssée à l’article 16 de la Charte canadienne des droits et libertés.  Dans la mesure où la chance d’être compris par un juge de la Cour suprême dépend de la langue dans laquelle on s’adresse à lui, tous les juges parlant l’anglais, mais pas tous parlant le français, les deux langues officielles ne sont pas égales. Certes, la Cour dispose de traducteurs et d’interprètes, mais ceux-ci feraient des erreurs et ne seraient donc pas des substituts adéquats à des juges bilingues. Ce raisonnement et cette conclusion, à supposer qu’ils sont bien présentés par Radio-Canada, soulèvent plusieurs questions.

Il y a des questions pratiques, celle par exemple de savoir ce qui constitue un niveau de bilinguisme adéquat. Ainsi, l’article mentionne deux juges unilingues. (Il s’agit des juges Rothstein et Moldaver.) On juge donc le niveau de bilinguisme de la Juge en chef suffisant, mais l’ayant entendu prononcer un discours et répondre aux questions en français, je me demande si je ne préférerais pas, si je devais plaider en français devant elle, qu’elle ait recours aux services d’un interprète. Son français n’est pas mauvais―il remarquablement bon même, considérant qu’elle ne l’a appris qu’après sa nomination à la Cour suprême―mais il est loin d’être parfait, et je serais peut-être rassuré si les détails de ma plaidoirie lui étaient traduits par un spécialiste.

Il y a des questions d’interprétation constitutionnelle. Certaines de celles-ci concernent l’enchâssement du processus de nomination des juges de la Cour suprême dans la Loi constitutionnelle de 1982. L’alinéa 42(1)(d) de celle-ci semble élever “la Cour suprême du Canada” au rang constitutionnel, mais la Loi sur la Cour suprême ne fait pas partie de la liste de lois faisant partie de la Constitution du Canada selon l’Annexe de la même Loi constitutionnelle, si bien qu’on ne sait pas vraiment si la Cour suprême est enchâssée ou non. Cependant, si elle l’est, la règle selon laquelle une partie de la Constitution (en l’occurrence, l’article 16 de la Charte) ne peut modifier ou invalider une autre (les règles concernant les qualifications et la nomination des juges de la Cour suprême) empêcherait la conclusion que la nomination de juges unilingues est inconstitutionnelle. Une autre question d’interprétation concerne le libellé du paragraphe 16(1) de la Charte, qui dispose « [l]e français et l’anglais … ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions du Parlement et du gouvernement du Canada ». La références aux « institutions du Parlement et du gouvernement du Canada » se retrouve aussi dans le texte de l’article 32 de la Charte, en vertu duquel celle-ci « s’applique … au Parlement et au gouvernement du Canada ». Or, cette disposition a été interprétée comme ne s’appliquant pas directement aux tribunaux, le Parlement et le gouvernement faisant référence aux branches législative et exécutive du gouvernement, et la branche judiciaire étant manifestement omise. Si les termes identiques utilisés par le constituant au paragraphe 16(1) de la Charte reçoivent la même interprétation, alors il faudrait conclure que cette disposition est silencieuse quant au statut des langues officielles devant les tribunaux.

Et puis il y a la question de principe. Est-il raisonnable de nommer des juges bilingues de préférence à des juges unilingues mieux qualifiés―car c’est ce qu’exigerait l’introduction d’une exigence de bilinguisme? Selon Me Power, il y aurait un risque d’injustice résultant d’erreurs de traduction. Peut-être bien. Mais n’y a-t-il pas aussi un risque d’injustice résultant de la nomination de juges qui ne sont pas d’aussi bons juristes? Et ce risque-ci serait présent non seulement dans la petite proportion d’affaires plaidées en français où le vote d’un juge unilingue anglophone est déterminant, mais dans chaque dossier traité par la Cour suprême.

À qualité égale, un juge pleinement bilingue serait peut-être préférable à un collègue unilingue. Et encore. Comme je le mentionnais plus haut, la Juge en chef McLachlin n’était pas bilingue au moment de sa nomination, mais elle a appris le français. Idéalement, son exemple devrait inspirer ses collègues unilingues. Mais le plus important n’est pas que les neuf juges de la Cour suprême parlent tous le français et l’anglais. C’est qu’ils parlent tous le langage de la justice.

Mass Confusion

There is a long article in the New York Times about the increasing opposition to the use of exceedingly long prison sentences―often life imprisonment without parole―as punishment for all sorts of crimes, often not involving any violence, including drug-related offences, resulting in the phenomenon of “mass incarceration.” The article highlights the findings of social scientists that mass incarceration has long stopped contributing to the ongoing fall in crime rates, if it ever did, and that it may even be creating more crime than it prevents, by destroying the “social fabric.” At the same time, it results in enormous increases in public spending on prisons. And many people, including judges, feel that it is simply unjust to put people away, often forever, despite their very limited culpability. It is an interesting piece, but I would like to highlight a few distinctions which it blurs or does not make at all.

One concerns the label “non-violent crime”. There are many crimes not involving violence, or even threats of violence,―fraud, for example, or blackmail. I don’t think it is very helpful to confuse acts of that kind, which would be considered crimes on any, including the most libertarian, account of criminal law, with things like drug possession or trafficking. We can of course debate the appropriate penalties for fraud, but I doubt that many would argue that it should never be punished with imprisonment. Drug crimes are another matter. So I think that the category of “victimless crimes” is a better focus of concern than that of non-violent crimes.

A related point is that a discussion of penalties for victimless crimes, especially drug-related crimes, feels incomplete without any mention of the question whether these should be criminalized at all. Yet that is exactly what the Times‘ article manages. For all the discussion of the costs, human, social, and economic, of mass incarceration, it never really raises the issue of decriminalization. The closest it comes is by mentioning the fact that some now advocate “diverting” those found guilty of drug crimes from incarceration to treatment―but of course this implies that what these people did was a crime to begin with.

Another point of confusion concerns different sentences that the article lumps together as contributing to mass incarceration. There are simply very long sentences, mandatory minimum sentences, and specifically life imprisonment without parole. Yet these three types of sentences can raise different issues. Sometimes a sentence will be unjust because it is disproportionate to the crime, regardless of whether it is mandatory or the product of judicial discretion. With a mandatory sentence, the lack of such discretion will sometimes be a problem, but perhaps not always―I’m not aware, for instance, of people arguing that the mandatory sentence of life imprisonment with no possibility of parole for 25 years, which Canada imposes for premeditated murder, is unjust. Life imprisonment without parole, whether or not it is a mandatory sentence for any give crime, raises issues of its own. In Germany, for example, it has been held to be an unconstitutional violation of human dignity. I’m rather skeptical about such claims, but they are out there―and they are only made, so far anyway, with regard to life without parole, not any other sentence, except the death penalty of course.

The final point I want to make is, as it happens, one I previously raised (here, here, and here) with respect to the death penalty. Most arguments about it―in favour or against―are either consequentialist or deontological/justice-based, and it is sometimes remarkable how arguments of one or the other sort are made in specific contexts. With the penalties that contribute to creating mass incarceration too we see both sorts of arguments. Social scientists whom the Times quotes stay in the realm of consequences, as do the politicians who are now beginning to reverse some “tough-on-crime” policies. On the other hand, those who deal with specific cases―a prisoner interviewed by the Times and the judge who imposed a mandatory sentence of life imprisonment on her―speak of the injustice of that sentence.

Mass incarceration is a huge problem, and a disgrace, for the United States―and also to Canada insofar as our government seems keen to import some of the policies that create it. All the more important to think clearly about it.

Death Penalty and Dignity

The topic of tomorrow’s class in Jeremy Waldron’s Human Dignity seminar is the death penalty and, having blogged about the sorts of arguments that are made for and against it here and here, I want to come back to the topic, because a couple of things caught my eye as I was doing the readings.

One is a passage in Justice Brennan’s opinion in Furman v. Georgia, 408 U.S. 238 (1972), a case in which a majority of the Supreme Court of the United States declared the death penalty unconstitutional in that country. Justice Brennan has no doubt about the sort of arguments that really count in the death penalty debate:

From the beginning of our Nation, the punishment of death has stirred acute public controversy. Although pragmatic arguments for and against the punishment have been frequently advanced, this longstanding and heated controversy cannot be explained solely as the result of differences over the practical wisdom of a particular government policy. At bottom, the battle has been waged on moral grounds. The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death. (296)

Now I don’t know whether this is true as an empirical matter. Perhaps, up to 1972, “the battle” always had “been waged on moral grounds.” But, as my previous two posts suggest, it does not really seem to be the case anymore, at least not in the political realm, as opposed to philosophical discussions. If Justice Brennan’s reading of the debate was correct at the time, this means there has been an important change in the way Americans argue about the death penalty. But perhaps he was wrong, deliberately or not, mistaking what he wanted to be the case for what actually was.

Yet it may well be that―as my previous posts suggest―moral grounds are not those on which opponents of the death penalty ought to be fighting if they care to win. Justice Brennan’s victory in Furman was short-lived, Merely four years later that decision was (partially) overturned in Gregg v. Georgia, 428 U.S. 153 (1976) which held that the death penalty was not unconstitutional provided that its imposition was surrounded with certain safeguards.

And the story of two Canadian cases discussing the death penalty, in the context of challenges to decisions of the Canadian government to extradite to the United States people who are at risk of being executed there is interesting too. In Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, a 4-3 majority held that extradition in these circumstances did not breach s. 7 of the Canadian Charter of Rights and Freedoms, the dissenters’ furious invocations of human dignity notwithstanding. 10 years later, in United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, the Court effectively reversed Kindler, in a unanimous judgment that did not discuss human dignity at all. And while it does invoke some arguments that appeal to considerations of dignity and justice―the risk that innocents will be put to death if the the death sentence is applied, and the irremediable cruelty of the “death row phenomenon”―its makes them look as though they are almost secondary. The first argument is that Canada’s law and public policy (especially in foreign affairs) consistently condemn the death penalty, so that its rejection ranks among the basic tenets of the Canadian legal system. (Possibly, probably even, that is because Parliament and the government of Canada came to regard the death penalty as morally wrong, but the Supreme Court doesn’t say that!)

All that is not to say that this is how things should be. If one is philosophically inclined, one is likely to regret the avoidance of the “moral ground” in favour of “merely” practical considerations. On the other hand, perhaps there is in fact good reason for that avoidance. Moral arguments can cut both ways―Kant, the great moralist and champion of human dignity, thought that the death penalty was not just permissible, but absolutely required in cases of murder―and there is no good way of proving their correctness to everyone’s satisfaction, and so to persuade people. (People still can change their minds of course. Justice Harry Blackmun did so famously. He dissented in Furman and, much later in life, dissenting again from a denial of certiorari (the U.S. equivalent of a leave to appeal to the Supreme Court) in Callins v. Collins, a death penalty case, where he wrote that “[f]rom this day forward, [he] no longer [would] tinker with the machinery of death” (par. 7) and that his court’s continued willingness to do so “lessens us all” (par. 40).) Maybe there is more agreement, or at least less intractable disagreement, to be found on the ground of practical considerations.

Arguing with Death, Again

I wrote, three months ago now, about the sorts of arguments people make for and against the death penalty. Contrary perhaps to our intuitions, from at least the times of Thucydides, death penalty’s opponents have tended to resort to consequentialist arguments, while its supporters have relied on appeals to justice. A couple of interviews the BBC has taken in California, where the abolition of death penalty is going to be the subject of a referendum in the fall, confirm this trend – mostly.

The mother of a murdered child, who supports the death penalty, talks about justice for the killer. “He deserves” to be put to death; he ought to pay for the victim’s suffering. The former warden of a prison who once oversaw executions and now opposes the death penalty talks about its expense and ineffectiveness.

Things are more complicated though. The mother (perhaps prompted by the interviewer, whom we don’t hear) speaks of lethal injection being “humane,” the “most humane” thing that can be done to the murderer. Never mind whether this is really so. What I want to emphasize is that, despite appealing to justice in the shape of retribution, she is not calling for him to be tortured and brutalized as he tortured and brutalized her son. The ex-warden, for her part, brings up the irrevocable injustice of innocents possibly being executed.

And then there is, on both sides, an argument that I hesitate classify as being either about justice or about consequences – the one about “closure.” The mother says she needs the death penalty inflicted on her son’s killer to have it; the ex-warden says that’s a “false hope.”

So the issue is complex. Still, a point a made in my original post might be true. Arguments made for the sales pitch to the electorate might (need to be) different from those that avail in philosophical disputations or even in a personal reflection on a fraught moral issue. (This might, incidentally, be a partial response to the worry, expressed for example by Jeremy Waldron, that judicial resolution of moral issues like the death penalty takes them from the realm of serious thinking into that of legal technicalities. It seems that the political process isn’t much better than the judicial one, since also transforms the way these issues are considered, albeit in a different way.)

How to Argue about the Death Penalty

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.