Capital punishment reconsidered

The Department of Justice placed a moratorium on federal death penalties in 2003. That ruling was overturned in December 2018 when U.S. Attorney General William Barr announced that the federal government will resume executions. Unsurprisingly, the passage of 16 years has not attenuated the passionate debate surrounding the effectiveness and propriety of the death penalty. 

The death penalty is often referred to as “capital punishment.” Thomas Hobbes defined punishment in the following manner: “A punishment, is an evil inflicted by the public authority, on him that hath done, or omitted that which is judged by the same authority to be a transgression of the law; to the end that the will of men may thereby the better be disposed to obedience.” According to Hobbes, punishment by definition must benefit the punished by consequently disposing them to obedience. 

This definition of punishment, as necessarily beneficial, is older than Hobbes. Plato, philosophizing in the fifth century B.C.E., similarly conceptualized punishment. In the Republic he writes that “if [the wrongdoer] is found out and punished, the brute part of him is quenched and tamed, and the tame part is liberated, and the whole soul is moulded to the loftiest disposition.” Punishment, according to Plato, must re-mold and refine the punished. 

By these accounts, then, capital “punishment” is not punishment. It’s hard to refine the soul of one who is condemned to die, much less dead. This dilemma is especially perspicuous in the U.S., where time between sentence and execution can exceed 10 years, according to Without serious hope of pardon, the condemned have no reason to reform their soul; and when dead, the condemned obviously have no ability to do so. 

Truman Capote believed he circumvented this dilemma. In a September 1968 interview with William F. Buckley, Capote elucidated a theory of punishment for all homicide cases. “There would be two federal prisons, which their entire operation would be the handling of homicidal cases,” he said. “Now, when a person was sentenced in a homicide case, he would be sentenced to an indefinite term … These two prisons … would be really, in effect, hospitals with bars.”

According to Capote, a woman who killed her husband in an extraordinary, drunken fit of rage would go to the prison-hospital for “treatment” by psychiatric professionals and would be released in weeks or months. Criminals with “genuinely homicidal minds like, say, Perry Smith” would never be released – but would never be told so. 

“As long as [homicidal criminals] can hope that they’re going to be released, they constantly are changing and evolving themselves and do, in many cases, make quite extraordinary rehabilitations. But if you once remove the element of hope of getting out of this prison, then you would have destroyed the possibility of rehabilitation,” Capote said. 

Of course, the difficulty then becomes evaluating who precisely is curable and who is not. Even psychiatric professionals are prone to mistakes.

A minute detail of Plato’s Republic foreshadows Capote’s theory. Plato counsels “Putting to death those who are naturally corrupt and incurable in soul” rather than punishing them. Translating this to our secular, soulless postmodernity we would say “those incurable in psyche” e.g. sociopaths like Ted Bundy, Israel Keyes and Jeffrey Dahmer. Plato and Capote both recognized that certain individuals are not so much corrupted as inhuman. But while Plato would execute them, Capote would punish them – reform them, albeit for life. 

Hobbes also recommends the death penalty but on a technicality. According to Hobbes, a traitor “may lawfully be made to suffer whatsoever the [authority] will: For in denying subjection, he denies such punishment as by the law hath been ordained.” In other words, a traitor or rebel becomes a “declared enemy” by rejecting their states’ authority and laws and by consequence renouncing their citizenship. 

It follows, then, that the traitor may be punished however, or even executed. “For the punishments set down in the law, are to subjects, not to enemies; such as are they, that … deliberately revolting, deny the sovereign power.” The government is responsible for punishment, for the reforming of its wrongdoing citizens; it is not responsible for the reforming of its enemies, and may therefore execute them if necessary.

The question then becomes “What constitutes rebellion?” Sin is often defined as a cosmic rebellion against God. Is all, or only some, wrongdoing a rebellion against the authority, the government? If the answer were easy, death sentences wouldn’t be the subject of over 2,000 years of debate.