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Monday, January 01, 2007

A "tragic" execution?

The other day, a spokesperson for the Holy See, Rev. Federico Lombardi, responded to the Saddam Hussein’s execution with this:  “An execution is always tragic news, reason for sadness, even in the case of a person who is guilty of grave crimes.”  National Review Online has gathered a few reactions to the statement. 

One of the contributors, Prof. Christian Brugger, writes:  "Reasonable opposition to Saddam Hussein’s execution . . . need not entail the conclusion that malefactors of Saddam’s magnitude do not in a distributive sense deserve to die for their crimes; or that their criminal behavior is fundamentally pathological, not moral, and hence beyond their responsibility; or that the concept of retribution is a fiction invented by the medieval mind[.]"  He then concludes:

[A]lthough Saddam, who apparently set his will against innocent human life many times, “deserves” in one sense to die for his crimes; that forfeiture can only be effected through intentionally killing him. But this entails a radical and determinant intention to destroy good human life; and this entails a disorder in the will of those who command it and carry it out.

So, it is (or can be) true that (a) some offenders deserve to be executed and (b) it is immoral for even legitimate public authority to execute such offenders.  Does this make sense?  What do you think?

Posted by Rick Garnett on January 1, 2007 at 02:37 PM in Criminal Law | Permalink


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From a theological perspective, Patrick's comments are actually inaccurate. There are no Biblical passages indicating God says executions are immoral, and quite a few, even in the New Testament, where the power of the state to assert the death penalty is assumed (see, for example, John 19:11, where Jesus responds to Pontius Pilate by noting that Pilate's power to execute Jesus is granted by God). Even if you are a Catholic and believe that divine authority is also revealed by the Holy See (which, clearly, is not the case for Protestants or Orthodox Christians), the Pope would had to have condemned the death penalty ex cathedra -- and no pope has.

Generally speaking, Kant must be spinning in his grave right now over this discussion.

Posted by: M.D. Fatwa | Jan 3, 2007 4:07:35 PM

I came out a few months ago against capital punishment, but only to the extent that I'm concerned about miscarriage of justice. I have no moral objection to capital punishment, and in a case such as this, where there is no question of substantive guilt, I'd say justice is served. Moreover, it's been horribly disappointing (depressing, in fact) that there are many who have no real objection to capital punishment, but who can't get past their hostility to the Iraq War to see how the execution of a murderous tyrant with the blood of thousands on his hands is a good thing. With that having been said, though, I can respect someone who is opposed to the death penalty in all circumstances being opposed to this particular execution, and that appears to be the Vatican's position.

Posted by: Simon | Jan 2, 2007 10:14:56 AM

I think it makes sense from a theological perspective to say that someone deserves to die, but that it would be wrong for legitimate civil authority to execute him.

This conversation is taking place from a catholic perspective, correct? The initial comment is from the Holy See. Assuming the discussion is continuing in that vein, legitimate civil authority is not the only authority. There is also divine authority, ie, god. If god says that executions are immoral in their own right, then it doesn't matter how much the person in question deserves to die, or how legitimate the state authority may be.

Posted by: Patrick | Jan 2, 2007 9:50:33 AM


Pardon me if I don't directly answer your questions (I'm opposed on spiritual and ethical grounds to capital punishment and don't have anything meaningful to contribute, although I'm intrigued by Dan's paper: I confess to being one of those who have conflated retribution's proportionality principle with lex talionis).

However, I implore readers to look at two items with regard to Saddam Hussein's trial and execution by way of useful background information: first, Kevin Jon Heller's essay, 'A Poisoned Chalice: The Substantive and Procedural Defects of the Iraqi High Tribunal,' Case Western Reserve Journal of International Law, Vol. 39, 2007 Available at SSRN: http://ssrn.com/abstract=939909, and Juan Cole's article at Salon.com, 'Saddam: the death of a dictator' http://www.salon.com/opinion/feature/2006/12/30/saddam/

Posted by: Patrick S. O'Donnell | Jan 1, 2007 3:41:44 PM

Rick, I'm glad you posted about this, as I was meaning to and haven't gotten around to it. I address this issue a bit in my retributivism and the death penalty piece in Harvard CRCL. Here's the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=567561

Here's the relevant excerpt of the piece that deals with this challenge of the offender for whom there is no doubt about his guilt.

We must also ask what, if any, good and sufficient retributivist reasons stand in favor of the death penalty. Putting aside the speculative empirical reasons discussed above that have a tangential relation to retributivism, i.e., that capital punishment may prevent fewer innocent people from being wrongfully convicted, I cannot deny that various people believe that some crimes are so bad that the offenders deserve to die and that the execution of these people is
proportionate to the heinousness of their crimes. But what is the reasoned basis for this belief and what makes that reasoned basis a retributivist basis?
*475 Let us suppose that some offender commits truly wicked crimes. Retributivism's commitment to setting the severity of punishment according to the severity of the crime would require that this offender receive the most severe punishment the state imposes. But nothing intrinsic to retributivism says that the most severe punishment the state must impose is the death penalty. Indeed, if we thought of the most severe punishments we could imagine, they might have to do with extended periods of immiseration and torture, or the forced spectacle of watching one's loved ones be immiserated and tortured for
extended periods of time. Nothing about the retributivist answer to why we punish requires that the death penalty be one of
the options in how much we punish.

The reason people think retributivism requires execution of murderers is because of the confusion that associates retribution's proportionality principle--that severe crimes be punished severely--with the separate notion of lex talionis. Lex talionis is not itself a justification for institutions of punishment nor does it provide a basis for understanding why someone should be punished "in-kind." It is merely a notion that says someone should suffer in a way that
mirrors the suffering that person imposed on another person. To the extent it is a principle, it is a principle that imposes a limit or ceiling on the severity of punishment. In any case, one need not be a retributivist to embrace lex talionis, and an embrace of retributivism need not entail a commitment to lex talionis.

Moreover, even if lex talionis were necessarily conjoined to retributivism, it does not follow that execution is the only way
of "repaying" a murderer. As Jeremy Waldron has written, "a defense of LT [lex talionis] (even for murderers) is consistent with a rejection of capital punishment in cases of homicide." On this view, murder is wrong not because it ends life as such, but because it involves the intentional and radical disruption of an "autonomous life. Very well, then let us radically disrupt the autonomous life of the offender. Does this mean we have to kill him? It depends on whether or not we have available some other punishment that shares this abstract feature with acts of killing."

Furthermore, even if an offender may morally deserve death for his actions, it does not follow that the state should be the one inflicting death on him for the same reasons that it would be wrong for the state to torture a sadistic torturer. We could be wrong about the identity of the offender, it requires immodesty, it traumatizes the souls of the punishing agents of the state, and it offends dignity. In addition, death forecloses the opportunity to internalize the ideals animating retribution. To be sure, some crimes are heinous, and severe punishment is warranted for those crimes, and the CCR [the theory of retributivism I defended earlier in the article] explains why that is so. But justice prohibits the execution of an offender when other forms of punishment are available to communicate to the offender (and the polity) the very norms that give rise to the project of retributive justice. *477 For a retributivist to insist upon capital punishment is to move away from the question of why punishment is justified to the questions of how much punishment is deserved and how much punishment the state should impose. This move can only be made, I submit, if the retributivist can point to how the particular punishment is consistent with the underlying
justification of the retributivist account of punishment. Under the CCR, there is a capacious range of punishments that a state may impose after democratic and reasoned deliberation, but the death penalty falls out of that range for the reasons articulated earlier.

To the extent this excerpt is cryptic, I apologize and commend interested readers to see if the arguments in the full article are persuasive. I recognize that the CCR is a theory of punishment that is distinctly embedded in the ideals of liberal democracy, and so its limits may be that it has extra difficulty in appealing to those from non-liberal states, such as Saddam's Iraq. Whether that's a benefit or a shortcoming of a theory of justified punishment is still unclear to me...

Posted by: Dan Markel | Jan 1, 2007 3:09:14 PM

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