Summer 2012

Who Better to Punish than the Innocent?

Capital punishment and human sacrifice

Justin E. H. Smith

The Mesoamerican ball game, as imagined by National Geographic in 1936.

In June 2011, US federal judge Larry A. Burns ruled that the schizophrenic, multiple-murder suspect Jared Lee Loughner could be forcibly medicated by prison doctors for his mental illness. This ruling, however, was made not in the interest of alleviating his distressing symptoms but rather in the interest of pursuing justice, or, as the prosecution would hope, pursuing Loughner’s eventual execution. Only sane people can be found guilty; only sane, guilty people can be executed; and it is only with the aid of antipsychotic drugs that Loughner might be considered sane.

How, now, did it come to this? Obviously, there was a time when raving demon-seers were the most likely to be punished. Possession, lunacy, folly, and feeble-mindedness all provided further incentive for penalization, rather than standing as impediments to it. Yet today we suppose that punishability has something to do with responsibility, which in turn is based on the counterfactual supposition that one could have done differently than one did. Being able to do one thing rather than another, as opposed to just going along with the flow of nature is, of course, something only free beings are capable of doing. And freedom, finally, is a condition of the brain, it is supposed, that can be lost with mental illness, and then restored with drugs.

Must one be sane to be guilty? And must one be guilty to be punished? Bernard Williams reminds us that for the Greeks it was enough to be tainted by miasma, which “was incurred just as much by unintentional as by intentional killing.”1 The taint was simply the guilt that comes from bad luck rather than consciously wrong action. If this seems a harsh conception of justice, it is important to remember that, civic law aside, we have traditionally imagined that it is the only one that the cosmos respects or knows: they are punished who do the wrong thing at the wrong time, and the determination of wrongness is independent of malicious intention. Rather, a wrong action is one that sets the cosmos off-balance, such as incest in Oedipus Rex. It matters not at all whether the agent knows what he is getting himself into: these deeds are destabilizing, and the destabilized cosmos does not inquire after the state of knowledge of the actors who carried them out.

Williams considers some peculiar cases, including a certain poor soul in the Second Tetralogy, ascribed to Antiphon, who while practicing the javelin in the gymnasium was unfortunate enough to strike a runner in the distance. Is the javelin-thrower guilty? Whether he is or not, by Greek standards he is inexorably trapped in the miasma his unfortunate throw has produced.

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