Correspondence
C O R R E S P O N D E N C E Just Deserts Peter J. Rusthoven's excellent essay (February 1977) places the debate over capital punishment in its proper moral context. His conclusion, which...
...We were very close, he as a tutor in Leverett House where I lived just above his office, from 1931 to 1934...
...I do not propose that we embark on a "rigid adherence to the letter of retribution" that will finally result in the "undoing of its spirit...
...I knew Currie very well and still count him a friend...
...One comment, however...
...Rather, the question must be: Can our society permit itself to impose such a punishment without, at the same time, eroding those very values--respect for moral capacity, and worth of (even murderous) human life --which it is the larger purpose of a retributivist punishment scheme to preserve and affirm...
...Robert A. Pugsley New York University School o fLaw New York, New York Mr...
...It is not mere playing with words to emphasize that executions administered after full and fair trials, and with adequate consideration of the particular and possibly relevant circumstances accompanying individual cases, do no violence to the principle stated above...
...While Kant himself himself concluded that death was the only punishment adequate to rectify the justicial and moral disequilibrium caused by a murder, some modern retributivists have cogently inquired how it is possible to continue to respect the moral capacity of another while we prepare to extinguish it by executing him...
...With Mr...
...And though we almost certainly will not reach the same conclusion, it will be no small gain in itself that our differences will emerge from a common framewbrk, and find expression in a shared vocabulary...
...His conclusion, which rejects the result-oriented rhetoric that too often passes for argumentation on both sides of the issue, is one in which I fully concur: "...even more important than the actual decision we reach is that we discuss the problem in terms which acknowledge its serious moral dimension...
...On the contrary, in meting out the punishment of death to one who we have determined, in Mr...
...With Mr...
...Pugsley's phrase, "justly deserves to die," we in fact acknowledge his moral capacity...
...As Mr...
...Unless one views existence per se as the primary moral value to be servedm which I do not--then I believe the alternative I have suggested here is in fact the relevant value to be considered in the moral debate on capital punishment...
...For it is only on that basis, and not in the mists of unresolvable and diversionary debate about deterrence, that we might reach some sort of morally acceptable resolution of this intractable problem...
...I believe that the more important component of a particular punishment is its expressive function, its symbol!c underscoring of society's serious disapproval of certain conduct...
...Supreme Court's July 2nd [1976] and subsequent decisions, we face the moral issue up, front...
...This capacity must be seriously regarded and accorded respect by all the members of a community, even --and maybe especially--when a particular individual has himself (temporarily) abandoned that capacity by committing an offense against the community, a crime...
...Second, the moral value preserved and affirmed by executions is not simply respect for human life...
...I followed the allegations and his responses...
...Rather, I would advocate consistent application of a morally deserved punishment, while retaining our judgmental capacity to make the individualized determinations appropriate to particular situations...
...Pugsley's thoughtful suggestion of moral arguments against capital punishment...
...We are extinguishing his life, to be sure...
...Never, to the best of my knowledge, was there occasion for such a conclusion...
...More on the Red Scare John Fox's article in the January Alternative ("The Reasons for the Red Scare") is a dandy...
...Pugsley, however, I believe that given the history of the capital punishment debate in this and other countries, it is primarily important that our differences "emerge from a common framework, and find expression in a shared vocabulary"--namely, the framework and vocabulary of serious moral discourse...
...And during the 1930s in and out of Washington I saw him occasionally and on various bases...
...The argument here is not that a particular murderer might not justly deserve to die...
...Less significant is the actual penalty part of the sentence...
...We had some contacts when he lived in Scarsdale and since then at Columbia...
...Rusthoven, I would urge that as we sort through the legal complexities left in the wake of the U.S...
...The notion of man which informs this retributivism is that of a being who possesses the moral capacity for a sense of justice...
...Pugsley's gracious letter reveals that regardless of how one comes out on the question of whether there should be a death penalty, it is possible for those on either side of the debate to discuss the issue in the context of moral consequence rather than utilitarian calculus...
...Their evidence was in his case scarcely deserving of the term "tenuous," if my memory is as good as I think it is on an issue that to me was sensitive...
...Fox includes Lauchlin Currie among those whose disloyal (the sentence does not quite specify) activities were "subsequently documented...
...If he had been a Communist sympathizer, to say nothing of "follower," I think that I should have sensed this in the days of deep depression when we ate together several times a week...
...Simply: might not a rigid adherence to the letter of retribution be, in the case of capital punishment, the undoing of its spirit...
...The concept of just deserts is an essential element in the larger ethical framework of Kantian retributivism...
...As he indicates, this was my primary focus in writing the article...
...I would make only a few points in response to Mr...
...rather, the value being served is more precisely expressed as respect for the principle that human life should not be taken without cause and (save for war, self-defense, or the like) without due process of law...
...but I do not believe this constitutes a societal failure to recognize or respect moral capacity...
...And from what I know of his record as one o f the advisors to the President, I accept his own statements as presented to the committees...
...it should certainly be commensurate with, but need not be exactly proportionate to, the gravity of the offense...
...In this light, there are many other severe, and no less condemnatory ways of punishing murderers available to us than the penalty of death...
...Rusthoven replies: Mr...
...First, I do not believe that executions extinguish respect for "moral capacity...
...That is, we treat him as a responsible adult individual, who is or should be cognizant of the moral significance of his acts, and who therefore merits the consequences appropriate to those acts...
...C. LowelI Harn'ss New York, New York The Alternative: An American Spectator April 1977 37...
...Rusthoven suggests, that one considers the problem in terms of just deserts is not thereby determinative of only one possible resolution...
...If as a society we decide that the death penalty (together with actual executions) is a weapon we want included among our penal arsenal, then let it be on the ethically coherent grounds of just deserts--and not on the empirically inconclusive, morally secondary basis of deterrence...
...Retributivism not only dictates that some punishment must appropriately follow (just deserts), but also suggests the limits of that punishment (lex talionis) consistent with man's nature...
Vol. 10 • April 1977 • No. 7
