Retributive Justice

Can a system of punishment that takes the categorical imperative seriously really permit the death penalty?

Kant offers a pure statement of the retributive theory of punishment. The idea is that it is wrong to punish people for utilitarian reasons and therefore any sort of legal punishment must always be a response to guilt. If the only motive in punishing someone is to deter others, set an example or protect others or society in general, then the person who is punished is punished is punished wrongly. Thus punishment must always be in response to guilt. However, Kant goes deeper into this in so far as the guilty must be punished for justice and equality to be served. Equality is the principle that must be used in selecting a punishment. Kant uses a metaphor. He refers to the principle of equality as the one by which the pointer of the scale of justice is made to incline no more to one side than to the other.

One idea of Kant's theory on punishment is the familiar "an eye for an eye". Thus, the evil that a wrongdoer inflicts is the measure of how severely so/he should be punished. Kant's requirement is that the pain inflicted on the criminal should be equivalent to the pain inflicted on the victim. That is one part of the jus talionis -- the right of retaliation. Kant's second idea on punishment is found in the statement:

If you steal from another, you steal from yourself.

This statement infers that by stealing, criminals make property insecure in general. They act on a motive that, if it were universalized, would make their own property insecure and similarly, people who slander others make their own good names insecure in the sense that they operate from a maxim that, if it were made universal, would make it acceptable for anyone to slander anyone, themselves included.

The connection between this and the right of retaliation seems to be this: it shows that the wrong of stealing, for example, is the sort that the thief would suffer himself if his maxim were generalized. So the appropriate punishment for a robber should be that he is derived of his property. These two ideas link in a moral union between crime and punishment. What is less clear is how it leads to the conclusion that we must extract a punishment proportional to the crime. So again, if we don't punish the wrongdoer, something is out of balance; justice has not been served. When we come to the particular case of capital punishment, we see that Kant thinks it is both permissible and obligatory in the case of murder. The only thing that is proportional to the crime of killing another person is the execution of the murderer. Kant asserts that if a society were abut to dissolve itself, but it had murderers awaiting execution, "the last murder lying in prison ought to be executed" before the society dissolves itself. According to Kant, the two primary reason for this : "That everyone may realize the desert of his deeds". Kant goes further: "for otherwise they might all be regarded as participators in the murder as a public violation of justice."

But just exactly how far can the principle of retaliation go? If a murderer tortures his victim painfully before killing him, and if we take the jus talionis seriously, we would conclude that the murderer should be tortured before being executed. Torture is inhuman. Those who torture others are showing us their inhumanity. But if by doing as they do, even if its in retaliation, we sink to their immoral. We become morally polluted by the very evil that we respond to. Kant does touch slightly on this matter when we writes about the condemned person:

His death... must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable.

Kant is unclear here. The idea seems that even a person guilty of murder is to be treated with a certain sort of dignity, because even the murderer is still a person -- still an end in himself and therefore punishments that don't respect the humanity of the criminal are outside the pale of morality. They are not justice, they are pure, unadulterated revenge . Thus, it would be a mistake to confuse what Kant means by "retribution" with revenge. Revenge is a natural response, but so is stealing at times.We therefore must rise above our moral instincts. This rise is what makes it hard to be a virtuous person. And in the sphere of punishment, morality requires that we respect the humanity of the person we are punishing. In punishing a wrongdoer, we do respect their freedom: we take seriously the idea that she is responsible for what she did, and was free to do otherwise.So punishing a wrongdoer amounts to respecting his or her "rational will".

So on one hand, punishing a person may be a way of respecting his or her humanity. On the other hand, some forms of punishment violate the humanity of the person being punished, and in the process debase us. It is mostly universally accepted that punishing a torturer by torture is not an acceptable form of punishment. A wrongdoer who is tortured is a person who has, at least for the time being, had their humanity expunged. However, an opponent of capital punishment could ask: Isn't murder like torture in this respect? Doesn't a murderer rob his victim entirely of their humanity and by punishing a murder, we in return are robing him of his humanity? A counter response question could be, well if we execute murderers, might this not be one of those very cases, like torture, in which the jus talionis goes too far? Suppose a super inhumane criminal left his victims alive, but performed inhuman experiments on them that destroyed their mental capacities, leaving them catatonic state. Here, Kant would insist that it would not be appropriate to punish the wrongdoer by subjecting him to the same procedure. The fact that the criminal did not respect the humanity of his victims does not entitle us to rob him of his humanity. But if this is so, then one particular question arises: how could capital punishment be justified? When the state kills a murderer, the state take it upon itself to extract his humanity from him in the most final way. So in return, we must ask: can a system of punishment that takes the categorical imperative seriously really permit the death penalty? If torture and inhuman experiments are not acceptable forms of punishment, why is it that execution is an acceptable form of punishment?