Camus On The Death Penalty And The Right To Make Amends

In Reflections on the Guillotine Albert Camus writes:

Deciding that a man must have the definitive punishment imposed on him is tantamount to deciding that that man has no chance of making amends….none among us can settle the question, for we are all both judges and interested parties. Whence our uncertainty as to our right to kill and our inability to convince each other….Now, we have all done wrong in our lives….There are no just people merely hearts more or less lacking in justice. Living at least allows us to discover this and to add to the sum of our actions a little of the good that will make up in part for the evil we have added to the world. Such a right to live, which allows a chance to make amends, is the natural right of every man, even the worst man. The lowest of criminals and the most upright of judges meet side by side, equally wretched in their solidarity. Without that right, moral life is utterly impossible. None among us is authorized to despair of a single man, except after his death, which transforms his life into destiny and then permits a definitive judgment. But pronouncing the definitive judgment before his death, decreeing the closing of accounts when the creditor is still alive, is no man’s right. On this limit, at least, whoever judges absolutely condemns himself absolutely.

The strongest ‘practical’ i.e., quasi-consequentialist argument against the death penalty is that it it is irreversible. No amends, no reparations can be made to the condemned if the sentencing is incorrect; the price that might be paid for the satisfaction of the impulse to seek retribution is too high.

To that familiar argument, Camus adds two interesting embellishments. First, there is the Biblical ‘let him who is without sin cast the first stone’, which indicts the accusers and condemners of inevitable hypocrisy and sanctimony (there is an interesting echo here of Tolstoy‘s reading of the Gospels’ ‘Judge not, condemn not’ in My Religion).

And then there is a ‘right to live, which allows a chance to make amends’ for past wrongdoings, which Camus describes as a ‘natural right of every man’. The denial of the right to live, to make amends, amounts to a premature condemnation, a denial of the right to live  a ‘moral life.’

These are novel rights. (They might especially seem novel in the context of an agent accused of a crime terrible enough to warrant consideration of the death penalty.) But their grounding seems clear enough: we are condemned to be free, to bear the burden of our actions’ consequences, to live a life of trials, of making choices. There is no afterlife; this is all there is, the here and now. This world is the only one in which our wrongs may be redressed by us. And since we are all together, condemned to the same fate, the same imperfections present in varying degrees in each of us, we owe a duty to our fellow beings to allow them this chance at redemption.

Buber, Eichmann, and the Death Penalty

As part of the discussion generated by my posts on the death penalty (prompted by the Anders Behring Breivik case; here and here), my colleague, the brilliant Noson Yanofsky, wrote in to say,

This reminds me of Martin Buber’s fight to keep Israel from executing Eichmann. His reasoning was not practical but moral. He lost the fight but generated a lot of discussion.

I’d like to thank Noson for pointing me to that episode in Buber’s life; its details are worth revisiting.

After his capture and kidnapping by Israeli agents in Argentina in 1961, Adolf Eichmann was brought to Israel and placed on trial.  The resultant high-profile prosecution by an Israeli court, needless to say, generated intense debate in both philosophical and legal registers (Hannah Arendt‘s memorable Eichmann in Jerusalem anyone?). Initially, Buber resisted the idea of trying Eichmann in an Israeli court rather than an international one; for him, the ‘victims’ had  mistakenly cast themselves as judges. While making it clear he was not advocating a pardon he suggested too that the idea that Eichmann had indulged in a unique evil was mistaken. Buber met David Ben-Gurion to ask the death sentence not be carried out, who replied that while he personally didn’t care about the sentence, the then Israeli President Yitzhak Ben-Zvi most assuredly did.

Buber’s opposition to the death penalty for Eichmann, unsurprisingly, was grounded in his reading of the Scriptures. In particular, that the Commandment, ‘Thou Shalt not Kill’ applied to the state just as much as it did to the individual. As Buber said, ‘I do not accept the state’s right to take the life of any man.’ He noted that though observance of the Commandments could often be intractable, ‘as far as it depends on us, we should not kill, neither as individuals nor as a society.’ Later, after Time would quote Buber as quoting Rabbi Mendel of Kotsk, “What the Torah teaches us is this: none but God can command us to destroy a man”, Buber wrote in response that the sequel to these words was even more significant: ‘And if the very smallest angel comes after the command has been given and cautions us: Lay not thy hand upon…, we should obey him.’ Buber would also say to Newsweek, ‘The death sentence has not diminished crime–on the contrary, all this exasperates men…Killing awakens killing.’

Notably, Buber believed that executing Eichmann could lead German youth to believe that by this ‘symbolic justice’ they had been relieved of the guilt for the Holocaust. Presumably, this would also relieve them of the need to engage in moral reflection about the larger German role in it, over and above the actions of the National Socialists.

(Source: Maurice Friedman, Martin Buber’s Life and Work, Wayne State University Press, 1988, pp 355-359)

Buber’s opposition, then to the death penalty, invokes theological, practical and moral considerations, the same ones that continue to inform all thoughtful opposition to the death penalty today. While this case is an unusually high-profile one, and the magnitude of Eichmann’s crimes throws Buber’s opposition into particularly sharp focus, the same issues recur in every dramatic, supposedly singular instance of human wrongdoing thought to be punishable by the death penalty.

Update: Noson has pointed me to a very interesting paper by Erica Weiss titled ‘Finding Neo-Israelite Justice for Adolph Eichmann‘. (Journal of Hebraic Studies, Vol. 4, No. 2 (Spring 2009), pp 169–188)

The Death Penalty Revisited

My post on Anders Behring Breivik and the argument his case provided against death penalty sparked some very interesting responses. Will Schenk described an interesting–and from the sound of it, extremely disturbing–meeting with a person whom he felt ‘deserved’ to be destroyed. I don’t think I’m exaggerating; please correct me if so. For Will did say,

It’s not my place to pass these judgements, not really sure if it’s anyones place, but there’s a sense of letting my fellow people down by not acting on the impulse to destroy this person. It’s not retribution nor even a matter of breaking the law, it’s a impulse that there needs to be some level of common humanity between everyone for us to live together, and that on some level this person wasn’t really Human. He was too Different.

Will’s comment expresses the feeling that the death penalty should be deployed against those who are not part of our ‘community of persons’ (that is what the capitalized ‘Human’ is pointing to in his comment). The failure to abide by some agreed upon standard of membership–in this moral community–is the disqualification for further continuance of life. But of course, the decision to act on what might be a flawed assessment of this failure to achieve a ‘level of common humanity’,  or not a universally shared one, is what is problematic: Why is destruction an appropriate response to this recognition of an Other? That still needs an added argument – we share our world with many creatures that are not persons and do not share our common humanity (and many of them are dangerous to us) – but we do not destroy them all, surely?

Noah Barth also wrote, expressing another intuition that might be familiar, that the death penalty could be brought out for those ‘beyond redemption’:

I think that Breivik illustrates the most cogent argument I have heard in favor of the death penalty. Namely, that some people are beyond retribution. On some level or another any moratorium campaigner is anti-capital punishment because they want to believe in the sacredness of human life. Part of this is the assumption of one’s ability to redeem oneself. But what about a case of a clear, absolute sociopath such as Breivik? He undoubtedly will never be able to re-enter society.

Note that Noah links the argument against death penalty to a belief in the ‘sacredness of human life.’ This might be implicit in my earlier post and if so, there is a flaw in my argument. I don’t think human life is ‘sacred’ in any way. There is moreover, another problem: How are we to gauge the possibility of redemption? On a case-by-case basis? That seems intractable especially since it is not clear how such evaluations could be carried out; they appear subject to too many prejudices. Which brings me to the next comment.

Daniel Kaufman wrote in to say,

The death penalty is unacceptable for one simple reason: it is an irreversible punishment. Given the inherent fallibility of human institutions, states should never issue punishments that cannot be taken back later, if it turns out that a mistake was made. The death penalty is such a punishment and for that reason alone, is indefensible..

This argument has some very desirable features: it avoids mention of the intrinsic value of human life, avoids difficulties in assessing membership of a moral community and in ascertaining possibilities of redemption. It concentrates on an undeniable aspect of the death penalty: it cannot be reversed. Of course, neither can time spent in a jail, but there at least the possibility of release remains a ‘live’ one. (No pun intended!)

Anders Behring Breivik: An Argument Against The Death Penalty

Anders Behring Breivik has complicated matters for us. Most killers like him are not brought to justice; they kill themselves or are killed in the fracas following their murders. They do not create the opportunities that Breivik has created for us to think about appropriate punishments for those accused of heinous crimes. Breivik is now on the stand, equipped with a megaphone with which to articulate his homicidal world view. And one prominent reaction–at least in the US–to the cold-blooded pronouncements of this racist mass-killer is, ‘If anyone deserves the chair (or the injection or whatever) it’s this guy’.

But I think Breivik provides us with a very good argument against the death penalty. (Norway does not have the death penalty; it is unclear at this point what the maximum sentence for Brevik could be.)

Breivik committed his murders in the service of an ideology: quite simply, he was killing on the basis of principle. These principles had as their consequence the conclusion that some people deserved to die, that their actions–or intellectual subscriptions–made them unworthy of living. The death penalty functions in much the same way: We take retribution, we seek to deter, we ensure the killer does not kill again. No matter what the motivation, the killer has died for his actions. And in order to make this happen, a massive, often opaque, expensive, and cumbersome machinery of policing and law swings into action; the state deploys its considerable energies and monies to make this come about. But in doing so, the state and its criminal justice resembles nothing quite as much as it does the killers that it puts to death. For in so acting, the state has acted to instantiate some ideology or the other: perhaps that of retribution, perhaps that of a theory of deterrence growing out our criminological theorizing. The death penalty is these ideologies put into effect and brought to bear on some human being.

The law makes distinctions in its reckonings of homicide by distinguishing the premeditated murder from the crime of passion, by distinguishing conspiracy from second-degree murder. It is the deliberateness of the killing that makes the conspiratorial or premeditated murder more punishment-worthy. In carrying out the death penalty, the state and its people engage in an act of pre-meditated killing, carried out for a purpose, to make a point. We can dress it up in retribution or deterrence but it remains premeditated killing. (Declarations of war lead to mass murders too.)

So send Breivik to jail; lock him up; prevent him from impinging on the freedoms of others; don’t let him interrupt the lives of others, or disrupt the projects that people have made for themselves; study him in a pyschiatric ward if needed in order to understand how this mind works; but stay away from the business of ‘putting to death’. The moment that step is taken, the state and Breivik land up in the same docket: they are both guilty of taking deadly action on behalf of an argument, of killing for the sake of principle.