The Death Penalty: A Debate

...With each side trying to preempt the moral premises of the other, with both sides conspiring to screen out the broader ideological context, the debate between van den Haag and Conrad offers too few clues about what the death penalty is "symbolic" of...

...He scornfully dismisses those statistical s t u d i e s - - n o t a b l y by economist Isaac Ehrlich--purporting to show that the execution of murderers can measurably reduce the murder rate...

...And he himself has goaded his opponents to admit they would still oppose capital punishment even if the deterrent argument could be proved...

...Van den Haag does occasionally note the parallel between our squeamishness about the death penalty and our reluctance or induced incapacity to impose any real punishment at all for the overwhelming majority of criminal offenses...

...Conrad insists that most citizens are too decent to need the behavioral reinforcement of the lex talionis, while most murderers are too irrational to heed it...

...But both sides in this debate are strangely reluctant to explore the broader "social attitudes" embodied in our national division over the death penalty...

...All admitted this would not change their position and Conrad, too, after some squirming, takes his stand with these abolitionists from "principle...

...Franklin Roosevelt was flexible but superficial...

...He is writing a book about the I984 election...

...None of Wi[lkie's political opponents was an entirely admirable figure...

...Van den Haag disables himself by disclaiming any reliance on the moral "desert" of murderers in his case f o r the death penalty...

...Van den Haag himself remarks near the end of the debate that "the main significance of the death penalty both to retentionists and to abolitionists is symbolic...

...That is the essence o( its appeal to those who cherish liberty...

...But here, too, there is more than rhetorical strategy involved or, at least, more than rhetorical posturing for this particular exchange...

...Reductionism ("how his father beat him, how he ran away," as Auden put it) comes later...

...The Tennessee Valley Authority was many things to many people: a building block of socialism, in the minds of supporters and critics...

...Both their families left Germany after the failed revolutions of the nineteenth century...

...He also made a respectable sum in real estate...

...the annual toll from executions is likely to remain a mere handful...

...Why, for example, should the state conceived in these terms finally have any authority to punish at all--as opposed merely to quarantining aggressors or forcing them to bear the financial costs of their depradations...

...Yet, paradoxically, it is Conrad who associates himself with this moral argument, describing himself as an "unabashed retributivist...

...Protesting efforts "to smother me in a stereotype that is dear to conservatives," Conrad insists he is no softheaded bleeding heart...

...It hardly matters thatnone of the great theorists of "natural rights" doctrine--not Hobbes, not Locke, not Jefferson-thought the doctrine precluded capital punishment...

...Thus van den Haag continually returns to the deterrence argument, for here "one can have facts, not opinions...

...After all, he notes, some 55,000 people die in traffic accidents each year in the United States and more than 20,000 are murdered each year...

...Van den Haag does find merit in these studies but concedes that it has not yet been "proved statistically in a conclusive manner that the death penalty does deter more than alternative penalties...

...Lewis Wendell (an army clerk later reversed the names) was born in 1892, and eventually followed his father into the law...

...Just as van den Haag's hard-headed deterrence argument rests on a moral premise he is unwilling to defend, Confad's moral posture derives from a political perspective he is only intermittently willing to express...

...Or putting it more directly, if van den Haag is squeamish about courtordered torture, how can he begrudge Conrad his moral reservations about capital punishment...

...The "first social function of the prison is to punish" and punishment should be "scaled according to the seriousness of the crimes, not according to opinions about the severity required to deter them...

...C o n r a d ' s confused appeals to morality make it easier to sympathize with van den Haag when he dismisses all moral argument as so much "opinion" or "feeling...

...I was confident that I could demonstrate that capital punishment was morally distinguishable from "murder," whatever its ultimate "justice...

...When the wild Democratic Convention of 1924, Richard Brookhiser is senior editor at National Review...

...Thus he invariably explains the obligation to punish in utilitarian or political terms: Society needs prisons " f o r the maintenance of order...

...From his other writings, it is evident that his position does not derive from complete philosophical innocence or simple mental laziness...

...position on grain sales to the Soviets (this, after sponsoring an embargo), or the Thatcher government's posture on the pipeline...

...Van den Haag carries this positivist argument so far that at one point he casually exTHE AMERICAN SPECTATOR MAY 1984 35 plains the "difference" between murder and execution "is that the former is unlawful and the latter is not...

...There he could profitably have stayed...

...Nor does either take up which crimes ought to receive the death penalty or which ought to be punished as severely as first-degree murder...

...I didn't exactly think of myself as a champion of the death penalty at the time, but I didn't want it said that everyone on our campus agreed with the ACLU...

...So this debate seems to offer a very strange role reversal: the liberal opponent of capital punishment eagerly embracing the moral duty to punish, while its conservative defender urges a program of behavior modification through "disincentives" to wrongdoing--crime control as social engineering...

...In his own introduction to the volume (entitled "Death But Not Torture") van den Haag had urged that "methods of execution that may be painful, such as electrocution, or present an unavoidable psychological burden, such as gassing, ought not to be used" because even advocates of the death penalty "should favor the elimination of unnecessary cruelty...

...a potlatch to the locals, with the prosTHE AMERICAN SPECTATOR MAY 1984 37...

...But it does seem to defy common sense--otherwise a favorite arbiter for van den Haag-along with the currently most powerful schools of philosophy...

...Wendell Willkie did genuine good...

...I read this book with a keen sense of d/j~ vu...

...which he attended as a delegate from Ohio, fought a memorable donnybrook over the renascent Ku Klux Klan, Willkie firmly took the anti-Klan side...

...And what a turkey he was...

...In this written format, van den Haag's crisp analytic rejoinders are often devastating, while, bereft of stage atmospherics, Conrad's Jeremy Rabkin is assistant professor of government at Cornell University...

...The book consists of alternating chapters by Conrad and van den Haag, with each given space to rebut the other's major arguments and then to reply to rebuttals...

...But he can only call this a "feeling" and by his own lights it has no more rational force than the contrary "feeling" or "opinion" of his opponents...

...His employer was a large utility holding company, Commonwealth and Southern...

...But we cannot commit all serious offenders to long prison terms because "we can't afford it"--financially...

...Of course, one does not want to see condemned criminals made the wretched instruments for a reaffirmation of society's "moral fiber...

...The problem is not "structural," but moral...

...Herman Willkie became a lawyer, a liberal Democrat (William Jennings Bryan once stayed in his house), and a reform-minded school superintendent...

...Abuse and distortion come during the lifetime...

...The Death Penalty reveals too little about what is at stake in that larger struggle, even within the confines of its own "debate...

...I n Steve Neal, Wendell Willkie has what every public man deserves--a sympathetic biographer...

...Indeed, Conrad sometimes depicts criminal sanctions of any kind as mere expediential exceptions to "all the doctrines of religion and m o r a l i t y . . , that human beings must not harm one another...

...As a champion of tolerance and limited government, van den Haag may be understandably reluctant to take on such a daunting intellectual and political agenda...

...Conrad seems to have no more than the faintest glimmerings of the moral precipice his argument approaches...

...But I do not think people can be persuaded about the rightness of the death penalty if they are not convinced about the rightness of much else besides...

...Therefore, capital punishment "is important as a sign from which one can infer social attitudes and that is meant to express them...

...Conrad puts this admission in better perspective, however, by challenging van den Haag to embrace torture as potentially an even more effective deterrent than simple execution...

...How did he get that way...

...rhetorical appeals fall rather f l a t . But if Conrad fumbles his side of the debate, it is not clear that van den Haag has really established his own position...

...Neal tells the life of the sixteenth Republican to run for President in a friendly, straightforward, and, with one exception, honest book...

...In the circumstances, his rhetorical embrace of "retributivism" seems not merely a posture to deflect opponents but a formula to reassure himself--and excuse himself from further thinking...

...Van den Haag tries to wriggle out of the challenge by insisting that torture would not be a greater deterrent than death, but he offers no evidence to support this counterintuitive claim...

...She crocheted, played the piano, and left the cooking to a housekeeper...

...And, of course, such thorough-going moral skepticism must finally defeat his own arguments for capital punishment...

...Willkie was an innovating executive, cooking up bonuses and alluring rate schedules...

...Dismissal ends all...

...Nor does one want to see debate on a particular issue turn into a massed confrontation where each participant tries to crush his opponent with the accumulated weight of his own ideological baggage...

...unfortunately one can have nothing else...

...he became president in 1933, at age 41...

...It is not necessarily soft-headed to argue that the secular state lacks the authority to make ultimate moral judgments and should thus be denied the power to enforce ultimate human sanctions...

...He disavows the "naive" expectation that criminals can be "rehabilitated" by prisons and rejects the notion that "malfunctions of society" should be more blamed for crime than the criminals themselves...

...We no longer know how to use our assets because we no longer agree upon what our foreign policies are supposed to do--except avoid immediate discomfort...

...It is left to Conrad to point out that a retributive theory of justice "provides the advocate of capital punishment with the strongest support for his side of the argument...

...John P. Conrad, an academic criminologist, describes himself as an "old-fashioned liberal" (and yes, an ACLU member " f o r many years...

...Van den Haag says that innocent life--which may be saved by deterring would-be murderersm"is valuable to me, whereas in my eyes, the murderer has forfeited his life by taking that of another...

...In truth, Conrad's embrace of "retributivism" is confused, if not disingenuous...

...He reports that in previous encounters, he has pressed a variety of "abolitionist" advocates with this challenge: If you were persuaded that every execution would deter or prevent 500 subsequent murders, would you still urge the abolition of the death penalty...

...If additional torments are "unnecessary" to deter would-be murderers, how can van den Haag be so sure that executions--as opposed, say, to lifeterms in prison--are really necessary...

...but he is content to flourish this as little more than a debater's point, without much attention to its causes or its implications...

...In arguing for the moral obligation to execute murderers, one would have to advance or embrace a moral vision going far beyond govern36 THE AMERICAN SPECTATOR MAY 1984 ment's proper response to homicide...

...His parents seem to have been worthy folk...

...Besides, the organizers were billing the debate as "The Death Penalty: Justice or Murder...

...But even with Neal pulling for him all the way, the man who trounced the first two and threw a momentary scare into the third emerges as vain, impulsive, selfish, shallow, and foolish...

...At bottom, his "abolitionist" stance reflects a revulsion at the moral hubris involved in imposing the death sentence: "Only God can say who is irretrievably evil...

...But the New Deal sucked him into industrial politics...

...The Akron branch of the Invisible Empire wrote to inquire when he had gone on the payroll of the Pope, to which he replied that the Klan could go to hell...

...But such arguments raise a whole host of unsettling questions about the moral status of the law'and the ultimate foundations of public morality...

...I determined to offer a dispassionate, analytical counter to my opponent's demagoguery...

...But this does not change the impression that his opposition to capital punishment has less to do with moral principle than with an abiding fear of moralism...

...A few years ago I was myself recruited into a public debate on the death penalty with a representative of the ACLU...

...perhaps he will yet do so...

...But surely the wider debate on the death penalty continues to engage our political energies and moral passions precisely because it is not an isolated policy dispute, but a piece of a larger struggle over the kind of society or the kind of people we conceive ourselves to be...

...As its subtitle promises, The Death Penalty is arranged as an extended debate, and it is certainly a more balanced contest than my own halfhearted debate...

...Instead, van den Haag appeals to "common sense" and to an uncommonly sophisticated argument about the way in which the threat of extreme sanctions can effect attitudes and behavior in various unconscious or indirect ways...

...I, Few readers are likely to be so reassured, however, by a selfproclaimed "moralist" who can reduce "all the doctrines of religion and morality" into a blanket prohibition on "the infliction of pain or humiliation or deprivation on a fellow human being...

...Van den Haag does not tell us why he thinks it impossible to demonstrate the truth of moral claims...

...Maybe there was something too selfconscious in the do-gooding of the senior Willkies that implanted itself in their son, ultimately to swell to international proportions...

...L i k e so much of the contemporary public debate, most of the argument in The Death Penalty centers on the deterrent effects of the death penalty...

...And in the event, I succeeded to a large degree-allowing the ACLU's man to run away with our college audience.I spoke for defensible distinctions, he argued from passionate convictions, and, after all, it was no real contest...

...But there was something inflated even about these early actions that gives them the puffy appearance of gestures...

...He tells us that he does "share retributivist feelings about what is deserved morally," but "retributivism," he insists, "cannot be right or wrong: it is a feeling and feelings just are...

...One can easily grant him this (his accounts of the condemned murderers he has interviewed do not betray many illusions...

...Calling himself a "natural rights moralist," Conrad maintains that "all human beings, even the least deserving among us, have an equal and inalienable right to live...

...Meanwhile Willkie looked to his career...

...As in the ongoing national debate on this subject, the two sides in this book seem determined to skirt the central issues at stake...

...About the moral "seriousness of crimes," he maintains, "one may have opinions...

...Neither ventures any comment on the moral authority of government to compel military service, to conduct armed interventions abroad or punish "victimless crimes" at home...

...In fact, van den Haag himself shows that the dispute over deterrence is largely beside the point...

...Neither Conrad nor van den Haag suggests any connection between his argument on the death penalty and the ongoing controversy over government's obligation to protect unborn life--or, for that matter, on the controversy over the proper scale of health and safety regulation...

...He worked for _9 Firestone Tire and Rubber until 1929, when he left for Wall Street...

...Classical liberalism, with its depiction of the state as a mere device for the protection of "inalienable" individual rights, does seem to rob the state of ultimate moral authority--of the authority to execute judgment, in the Biblical sense...

...That is a subject about which President Nixon knows a great deal, and about which he could probably write a very good book...

...Henrietta was the first woman admitted to the Indiana bar, and the first woman in the town of Elwood to smoke cigarettes...

...Perhaps the chief interest of The Death Penalty is what.it suggests about the limitations of our public debate on the subject...

...Within the GOP, Thomas Dewey and Robert Taft wielded sharp minds largely untempered by imagination...

...He himself concedes that available evidence--"the facts"--cannot now demonstrate the superior deterrent effect of capital punishment "in a conclusive manner...

...My personal feeling about the League of Nations," he wrote in a letter to a pro-League Democrat for whom he was offei-ing to work, "almost reaches the point of religious conviction...

...Ernest van den Haag is an unapologetic advocate of the death penalty and, as readers of The American Spectator are doubtless aware, an extremely able polemicist...

...But the appearance is misleading...