A Basic Bibliography on Capital Punishment

As a small tribute to Hugo Adam Bedau, who died this past Monday, I thought I’d post this basic bibliography on capital punishment. First, a few observations, followed by material from Bedau’s obituary in The New York Times.

As Timothy Gorringe reminds us in his important book, God’s Just Vengeance (1996),[1] “Attitudes to crime and punishment in the West are, beyond argument, rooted deep in the Christian Scriptures [which of course includes the Hebrew Bible or ‘Tanakh’ of Judaism]. Here, alongside the ordinary punishments of criminal law, we find notions of expiation and atonement.” With regard to the retributivist justification of capital punishment, which is typically discussed in normative terms generated from the philosophical language of consequentialism and deontololgy, we also find presuppositions and assumptions of religious origin: “Retributivists, ancient and modern, have always been lured by one or another form of lex talionis, despite objections dating from post-biblical times to the present. Nor does it suffice to abandon like-for-like retaliation in punishment in favor of restating the basic retributive principle in nontalionic form: Severity in punishment must be proportional to the gravity of the offense.”[2] In fact, as Gorringe explains,

“Only murder always involves the lex taliones. This crime can neither be commuted nor expiated. ‘You shall accept no ransom (kopher) for the life of a murderer. You shall not pollute the land in which you live; for blood pollutes the land, and no expiation can be made, for the land, for the blood that is shed in it, except by the blood of the one who shed it’ (Num. 35:33. A Similar sentiment is expressed in Deut. 32:43). In these texts guilt is understood as pollution, which therefore needs to be dealt with liturgically [cf. the ritual of capital punishment, which begins with the trial]—a notion which survived…even into the work of Kant.”[3]

The criminal justice system’s conception of punishment is an “an inherently retributive practice, whatever may be the further role of retribution as a (or the) justification or goal of punishment,”[4] and both that system and its forms of punishments have ancient, and in this case, disturbing pedigree:

“According to Eichrodt there was from a very early period an analogy drawn between the legal system and God’s activity as ‘Judge of all the earth.’ ‘It was in keeping with the living juristic element in the terms of the covenant …that men sought to elucidate Yahweh’s judicial activity by means of the fundamental principles of human retributive punishment. Above all, it was by applying the maxims of the talion that they tried to illustrate God’s irreproachable righteousness.’”[4]

As is plain, capital punishment is sodden with religious myths, symbols, and ideas, some of which have been given theological articulation since Anselm, only later to crystallize in Calvinism, thereby according them some semblance of intellectual respectability. Drawing on the seminal studies of René Girard,[5] we might view the criminal sentenced to capital punishment as the central figure in a “scapegoat ritual” of sorts, for Girard “illustrates the way in which the scapegoat is, as it were, the reverse side of expiation. If expiation is the voluntary addressing or bearing of guilt, scapegoating copes with it by loading guilt onto the other.”[6] Gorringe combines elements from Girard’s theory with G.H. Mead’s analysis of the public’s response to criminals, citing Mead’s Freudian-sounding argument that “the righteous indignation felt by the public is a sublimation of people’s self-assertive instincts and hostilities,” although I would replace “self-assertive” with “aggressive” and use “violent dispositions” in place of “hostilities.” In short, the aggressive instincts and violent dispositions of individuals are sublimated and projected—by way of the collective or the system of retributive criminal law in general and capital punishment in particular—onto the offender convicted of a capital offense, the death by execution a ritual atonement for both his sins and ours, an account which incorporates features of Durkheim’s understanding of crime as well, for we witness “its [putative] positive social effects in the reinforcement of solidarity, the release of collective emotion, and the symbolic display of collective sentiments. [….] The offender’s suffering, in other words, is a form of propitiatory offering.”[7] Gorringe is right to invoke both Durkheim and Girard, whatever their theoretical differences, but I think the latter enables us to see with pristine lucidity precisely how and why “‘expiation’ is an ideological rationalisation of collective violence, the attempt to give moral cover to an intrinsically immoral act.”[8]

Notes:

[1] Timothy Gorringe, God’s Just Vengeance (Cambridge, UK: Cambridge University Press, 1996).
[2] Bedau, Hugo Adam and Kelly, Erin, “Punishment,” The Stanford Encyclopedia of Philosophy (Spring 2010 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/spr2010/entries/punishment/.
[3] Gorringe, 43.
[4] Ibid.
[5] See Girard’s Violence and the Sacred. Patrick Gregory, tr. (Baltimore. MD: Johns Hopkins University Press, 1977), The Scapegoat. Yvonne Frecceru, tr. (Baltimore, MD: Johns Hopkins University Press, 1986), and Things Hidden since the Foundation of the World… (Stanford, CA: Stanford University Press, 1987).
[6] Gorringe, 45.
[7] Ibid., 56.
[8] Ibid.

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“Hugo Bedau, Philosopher Who Opposed Death Penalty, Dies at 85”

The New York Times (August 16, 2012)
By William Yardley

“Hugo Bedau, a philosopher who preferred to wrestle with the knottiest of public policy issues rather than reason from the remove of academia — most notably in confronting capital punishment, which he opposed as immoral, unjust and ineffective — died on Monday in Norwood, Mass. He was 85.

The cause was complications of Parkinson’s disease, said his wife, Constance E. Putnam. Professor Bedau’s half-century career encompassed several cycles in the national debate over the death penalty: its decline and eventual rejection by the Supreme Court in 1972, its resurrection by the court later that decade, and its suspension in several states more recently. His most ambitious work, ‘The Death Penalty in America,’ revised several times, has been a standard text since it was first published in 1964.

Professor Bedau took up the issue as well in ‘The Case Against the Death Penalty,’ a pamphlet distributed widely for many years by the American Civil Liberties Union. Written with the help of Henry Schwarzschild, a former director of the group’s Capital Punishment Project, the publication brought together a number of arguments against the death penalty: that it failed to deter crime (using supporting data); that it was fraught with racial bias, wrongful convictions and excessive financial costs; and that it was ultimately an act of ‘barbarity.’

‘The history of capital punishment in American society clearly shows the desire to mitigate the harshness of this penalty by narrowing its scope,” the pamphlet said in a section titled “Unfairness.’ ‘Discretion, whether authorized by statutes or by their silence, has been the main vehicle to this end. But when discretion is used, as it always has been, to mark for death the poor, the friendless, the uneducated, the members of racial minorities and the despised, then discretion becomes injustice. Thoughtful citizens, who in contemplating capital punishment in the abstract might support it, must condemn it in actual practice.’

The essay, heavily footnoted, was less than 9,000 words long. Professor Bedau’s curriculum vitae was more than 13,000.

‘We called him the dean of death penalty scholarship,’ said Michael Radelet, a death penalty expert at the University of Colorado who began working with Professor Bedau in the 1980s. ‘Bedau was the first guy to put it all together and the first to make the general empirical argument against the death penalty — that is, a little race, a little deterrent, a little innocence.’ [….]

Professor Bedau lectured at several universities but spent most of his career in the Boston area as an anchor of the philosophy department at Tufts, beginning in 1966. Among the many awards he received was the Abolitionist Award, given in 1989 by the National Coalition to Abolish the Death Penalty.” [….]

The full New York Times obituary is here.

[A list of our bibliographies to date is found here. There is also a small list of forthcoming compilations.]