Just finished this great book written by Walter Berns in 1979. I support the death penalty and wanted to fortify my ability to meet arguments against it. This book is a work of scholarship on a deep subject.
A fair review by Peter L. Berger appeared in Commentary Magazine shortly after the book was pujhlished and is available here. Berns lists all the arguments against capital punishment and delves deeply into them. Berns is for capital punishment, as the title suggests, and he deals fairly with the arguments against. He successfully refutes them one by one, in my view.
Berger points out, however, that Berns left out one of the against arguments which says is an important one. I’ll have more to say about Berns’ book later. For now I want to discuss the imporatant argument that Berger says Berns left out.
As Mr. Berger explains it:
Berns’s argument is unlikely to convince anyone who was not in favor of capital punishment before reading it. What is at issue is not this or that line of reasoning, but a vision of the human condition and of the boundaries of the humanly tolerable. It is noteworthy, however, that Berns appears unable to perceive this point. Missing from his otherwise fair list of the grounds cited in opposition to the death penalty is the one that is probably the most important among abolitionists—that the death penalty is an act of intolerable cruelty, and therefore should not be imposed in a society that deems itself civilized. This, to be sure, is a sentiment. But so is every outrage against acts of cruelty. [emphasis added]
Actually, Berns did not leave this argument of the abolitionists out. He also didn’t focus on it separately from the others, and that may be why Berger may have thought it was left out. Berns weaves the idea of that the death penalty as an act of cruelty throughout, specifically with regard to the Constitution prohibiting of cruel and unusual punishments. Clearly, Berns notes, America’s founding fathers did not believe the death penalty was cruel. Neither does Berns. Berns is mostly concerned with justice and he fervently believes there are instances in which justice demands the death penalty, and to refuse it in those cases is itself an act of cruelty disguised as compassion and sentimentality. Neither will wash away the stain of injustice. Intolerable cruelty occurs when a criminal is allowed to avoid just punishment for the truly intolerable cruelty he committed against his innocent victims.
Berns believes a civilized society must be capable of anger at criminals because without anger we are incapable of the moral indignation which is needed to inflict punishment. Without moral indignation punishment is inflicted only reluctantly. One can be against the death penalty for aggravated murder and torture of innocents if one thinks of the criminal only and puts the suffering of the victims out of their mind. That is intolerable cruelty. That is moral blindness.