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),  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,  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.