My suspicion is that if (philosophically-speaking) all other crimes cannot be punished with death, then Dan Kahan is right and deterrence (whether or not proven) is not doing the work and the position (of whether capital punishment is permissible for murderers) actually boils down to one’s stand on whether a murderer deserves the penalty or not.

That is caught up in it, but it isn’t the locus of the argument in this case.

My point, before I got too long-winded, was that it is wrong to claim that the idea of punishing an innnocent person for the effect that would have on the community is a retributivist concept. It is a utilitarian concept, and in most cases their arguments are strongly opposed to each other.

This isn’t such a slam-dunk as Lewis and Sebastian seem to think. No government ever claims, or believes, that it must eliminate some practice because it’s inconvenient; always, rather, because it’s dangerous to public safety. And every such claim has to be examined (with extreme skepticism, of course, given everything known about non-Scandinavian governments). What Lewis is really up here to is a defense of metaphysical free will—what’s essential, for him, is that evil is not caused but chosen. Otherwise, how could the all-loving God condemn sinners to eternal torture?

…

I think that a lot of the retributivists are at a pretty primitive level this way. And I also think that “closure” for society or the victims is a treacherous justification for any kind of punishment.”

You aren’t really grasping the retributivist concept if you frame it that way because you are actually smuggling in retributivist concepts in the discussion on your side. The idea that you could punish an innocent person to get the same ‘effect’ as punishing a guilty person (so long as no one finds out) is a utilitarian argument, not a retributive one.

The retributive argument is based on what people deserve as punishment. Your insight that it is wrong to punish an innocent person for the ‘effect’ of the punishment on the rest of the community buys in to that concept. The innocent person does not ‘deserve’ the punishment. It can also serve to temper ‘rehabilitation’ arguments. If for some reason or another you can’t rehabilitate someone from their propensity to make minor legal violations, retributive theory notices that it isn’t just to lock them up until you fix them—they haven’t done enough to deserve that.

See for example C.S. Lewis on “The Humanitarian Theory of Punishment“. (He has a longer essay somewhere, but I can’t find it. Hmm, that essay must have impacted me more than I thought, because it says what I did only much better).

You shouldn’t be put off by the defense of Christianity here, because it applies just as well to government control of other modes of thought that progressives might be more interested in:

“For if crime and disease are to be regarded as the same thing, it follows that any state of mind which our masters choose to call ‘disease’ can be treated as a crime; and compulsorily cured. It will be vain to plead that states of mind which displease government need not always involve moral turpitude and do not therefore always deserve forfeiture of liberty. For our masters will not be using the concepts of Desert and Punishment but those of disease and cure. We know that one school of psychology already regards religion as a neurosis. When this particular neurosis becomes inconvenient to government, what is to hinder government from proceeding to ‘cure’ it? Such ‘cure’ will, of course, be compulsory; but under the Humanitarian theory it will not be called by the shocking name of Persecution. No one will blame us for being Christians, no one will hate us, no one will revile us. The new Nero will approach us with the silky manners of a doctor, and though all will be in fact as compulsory as the tunica molesta or Smithfield or Tyburn, all will go on within the unemotional therapeutic sphere where words like ‘right’ and ‘wrong’ or ‘freedom’ and ‘slavery’ are never heard. And thus when the command is given, every prominent Christian in the land may vanish overnight into Institutions for the Treatment of the Ideologically Unsound, and it will rest with the expert gaolers to say when (if ever) they are to re-emerge. But it will not be persecution. Even if the treatment is painful, even if it is life-long, even if it is fatal, that will be only a regrettable accident; the intention was purely therapeutic. In ordinary medicine there were painful operations and fatal operations; so in this. But because they are ‘treatment’, not punishment, they can be criticized only by fellow-experts and on technical grounds, never by men as men and on grounds of justice.”

I presume that is tongue in cheek, but in case it isn’t, no. The insight that the government is awful at certain things does not automatically imply that privatization makes it work either. To my knowledge, the government sucks at faster-than-light travel, but I don’t hold out much hope for the private market on the score either. We are talking about the limits of human knowledge here. Torture might be defensible in certain cases of absolute certainty and high pressure time intensive necessity that don’t actually occur in the world.

That is why getting sucked into a pure ‘torture is always wrong’ fight with people who don’t share that particular moral axiom (and don’t fool yourself, that is a lot of people—including some you otherwise like) is silly when ‘torture as applied ends up being wrong when actual human institutions try to use it’ is much more effective.

As to #62, don’t the same observations hold for imprisonment?

In the extreme case it can be like a purposeless kind of public drama of human sacrifice, like sacrificing a scapegoat to the rain gods.

I think that a lot of the retributivists are at a pretty primitive level this way. And I also think that “closure” for society or the victims is a treacherous justification for any kind of punishment.

If capital punishment can be demonstrated to have a deterrence effect, then why limit capital punishment only to murderers?

I say this noting a few items. First, from what I have seen, the evidence is far from conclusive anyway. Secondly,—as highlighted by Dan Kahan in “The Secret Ambition of Deterrence” Harv. L. Rev.—people may claim that a view one way or another on deterrence supports why they support or oppose the death penalty, but when asked if the empirical evidence were different virtually no one changes their position. His view was then that support or opposition was linked, not to the empirical evidence, but retributivism, etc. which served as a primary justification for whichever position a person held.

This might suggest that those who support capital punishment for murderers alone on the grounds that it deters might actually be supporting capital punishment primarily on the grounds that murderers, not rapists or traitors, deserve death. The argument then is about desert, not what is/is not deterrable. If one is a retributist, then why not simply admit it…?

It’d be kind of a state-run execution-based murder-deterrent system, and the great thing is that there is no chance of government incompetence preventing its success. The only thing the government can do wrong is accidentally randomly kill someone who actually committed the murder, in which case presumably that execution saved 4 lives instead of 3. This would have to be the only govt program to promote a social good (less murders) which cannot be ruined by mismanagement – even Sebastian would be happy. And if the deterrent effect is more like 18 lives per execution, by executing less than 100 innocent people Texas could reduce their murder rate by nearly 95%. Brilliant!

sure, government-subsidized execution-based murder-prevention does smack a little of social engineering, but all the utilitarians out there would have to be happy with the results. Practical libertarians would even be able to give up all those guns which they have only been keeping in the house for vital self-defence. Think of the boost to the economy of people spending savings previously sequestered for personal defence on productive economic activity.

It’s a win-win! I might suggest it to Rudy Giuliani to help him win the presidency…