Minimal Invasion Argument

In his paper, “The Minimal Invasion Argument Against the Death Penalty”, Hugo Adam Bedau argues against the death penalty. Bedau’s purpose is to convince people to favor the lifetime imprisonment over the death penalty with an argument that had been previously used by other authors called “The minimal Invasion Argument”, which he considers to be “the best argument against the death penalty”(Bedau, 4). In this paper I will describe Bedau’s argument and show how he has some weaknesses addressing the concept of the minimal invasion argument by ignoring what in my opinion is the main reason why the death penalty has not been abolished; this reason being our incapacity as humans to “define” our environment. When we call one thing by a name we believe this thing is the name by which we have called it. For example when we call somebody a criminal we take away many of the characteristics that make us equal to the criminal and then just call him or her a criminal. With this essay I want to prove that in some cases as human beings we need to believe in re-definition, in change; all this in order to build a better society.

To do this I will first explain Bedau’s argument as best as possible and then conclude with the issues I found on it that are based on our language as the interpreter of our world. The Minimal invasion Principle as is described by Bedau goes as follows: (1) The Principle: Governmental invasions of an individual’s privacy, liberty, and autonomy (or other fundamental values) are justified only if no less invasive practice is sufficient to achieve an important social goal. (2) Therefore, punishment is justified only if it is necessary as a means to some socially valid end. (3) The death penalty is more severe–more invasive–than long-term imprisonment. (4) To achieve valid social goals, long-term imprisonment is sufficient as an invasion of individual liberty, privacy, and autonomy (and other fundamental values). (5) Therefore, society ought to abolish any lawful practice that imposes greater violation of individual liberty, privacy, or autonomy (or other fundamental value) in cases in which a less invasive practice is available. (6) Conclusion: Society ought to abolish the death penalty. The principle in Bedau’s argument comes from an argument used previously to oppose the death penalty in the Furman v. Georgia case (Bedau,

4). The argument used by the judges, Brennan and Marshall, during the case states that, “by the fundamental normative principle: given a compelling state interest as the goal or purpose, the government must use the least restrictive means sufficient to achieve that goal or purpose” (Bedau, 4). In Bedau’s words, the first premise of the argument would be, “governmental invasions of an individual’s privacy, liberty, and autonomy (or other fundamental values) are justified only if no less invasive practice is sufficient to achieve an important social goal” (Bedau, 5). In his opinion, the first premise alone would be enough to convince more liberal and democratic governments but the purpose of the argument is not to convince the ones that could easily believe it so more evidence will be needed to convince governments with a more totalitarian and fascist point of view (Bedau, 5). Premise two, serves to affirm that the role of government to prevent future crimes to occur is undeniable because if done by citizens they can be considered crimes, and punishment to such crimes need to be implemented and both supporters and the ones that oppose the death penalty would most likely agree with this (Bedau, 5).

The supporters of the death penalty see in this premise yet another way in which the offender should pay with his life for the crime committed in order to prevent further crimes to occur. In this case it would not only be justified to punish the criminal but executions seems to be the only way in which the offender could pay for such crime according to the retributive argument that by definition implies that “murderers deserve to die” in order to establish social order and deter future criminals from acting (Bedau, 7). To Bedau, it is at the moment of selecting the right punishment when people tend to make the mistake, ignoring some constraints applied by the moral beliefs that our society is ruled under in which punishment should not be treated as an end itself but the mean to an end due to the lack or unawareness of more efficient methods to construct a better society (Bedau, 5). Premise three, might be obvious to some but there are still people that deny the “greater brutality and violence of the death penalty when compared to” life imprisonment (Bedau, 5). In response to those in favor of the death penalty, Bedau, replies with reasons why lifetime imprisonment is less severe and invasive than execution:

“Few death-row prisoners try to commit suicideVerb 1. commit suicide – kill oneself; “the terminally ill patient committed suicide” kill – cause to die; put to death, usually intentionally or knowingly; “This man killed several people when he tried to rob a bank”; “The farmer killed a pig for the holidays” ….. Click the link for more information. and fewer keep trying until they succeed. Few death-row prisoners insist that all appeals on their behalf be dropped. Few convicted murderers sentenced to life in prison declare that they wish they had been sentenced instead to execution.

Few if any death-row prisoners refuse executive clemencyexecutive clemency n. the power of a President in federal criminal cases, and the Governor in state convictions, to pardon a person convicted of a crime, commute the sentence (shorten it, often to time already served), or reduce it from death to another lesser ….. Click the link for more information. if it is offered to them.” (Bedau, 5). He will later say to those that believe the death penalty is a better way to keep people from wrong doing, that if one were to agree to execute somebody for a capital crime committed, the same person could also agree to torture the criminal before the actual execution in order to impose what in the death penalty supporters’ eyes could appear as a fair punishment due to the extremity of the crime committed and would have a greater deterrent effect (Bedau, 6).

The fourth premise is based on Bedau’s research by the Bureau of justice which shows that “the rate of murder in death-penalty jurisdictions is typically higher than in abolitionist jurisdictions” (Bedau, 6). He also points out how pro executions, lack the evidence to show how much more exposed to murder capital punishment free states are and how on the other hand states that support and apply the death penalty continue having homicides every year (Bedau, 7). Based on all the information given Bedau concludes that the death penalty represents a more severe punishment than necessary and that our society must in all cases, aim to the less invasive legal punishment like lifetime imprisonment to restore order in our society without ignoring our moral principles (Bedau, 8).

From reading his essay I can see why many people would agree that death penalty or life-time imprisonment needs to be abolished, however I can also see the reason why we have not abolished them, a reason that Bedau does not consider. What I think we are missing out is the real purpose of the punishment that we apply to wrong doers and the reason why we make this mistake is based on our definitions. First, like I said before, when we call somebody, lets say John, a criminal we not only give John the properties that belong to the definition of criminal, but we also take away the non-criminal properties that belong to John. John could also posses the properties of being a husband, a son, a brother and so on. He can also be intelligent or not, caring or not, or “have” so many other characteristics that we “give” to other people or not “have” such qualities, but he is not just a criminal. Before John was accused of his crimes he was just another person in the world living his life, John did not “have” the criminal stamp on his record. Here is where I see the problem and so I see it on premise one, two, and four of the “Minimal Invasion Argument”. They all refer to punishment as a means to achieve a valid social goal.

If I understand this correctly, we punish people because they became criminals, but we expect that “future” or possible criminals do not become a reality. Then we say that capital criminals should either be executed or be put in jail for the rest of their lives, but with what criteria? It seems to me that on one side we are judging criminals in a very deterministic way and we judge society in a not so determined way. Lets go back to John, before he was recognized as a criminal nobody specifically declared what type of person John was. Now that he has committed a crime everybody seems to know what he is and what he will do. Then could not we also say that John was a criminal even before he committed the crime? To me it seems that when people are executed or given life-time imprisonment they are judged by the “rule”; “once a criminal always a criminal”. Then if this was the case he was also a criminal even before he committed the crime. If that is not the case then we could also see how from being a criminal he could also go back to be a “normal” citizen again.

The other issue deals with the social goal or the valid end our laws are trying to achieve in our society. Here too, our laws seem to lack the amount of information necessary to decide whether or not a man should be free after being found guilty. John, for example, is put in jail for a capital crime he has committed under the assumption that this will make only other people think twice about their actions and not John. It is true that the citizens that heard about the case might keep themselves away from situations as the one in which John committed his crime, but it is also true that some people even after hearing what happened and finding themselves in similar situation will still commit the crime they were going to commit anyways. The difference here is that we are giving people a chance to show how from past events one can learn, opportunity that is not given to John (he has to die either by execution or time spent in jail). That is why I think that when we define the term criminal, in a subliminal way we define him as something separate from society but we still want him to be an example for the society he has been excluded from. John, is supposed to motivate change in society, the person that we can only see as a criminal and that will die either executed or by time spent in jail, is supposed to show us how change is possible.

Bedau to be successful with his argument he will first have to revise and find out what we as a society mean by criminal, then define punishment, and then define what a valid end or social goal is. As Hobbes said on “Leviathan”, “for a word, besides signifying what we imagine to be the nature ·of the thing to which the word applies·, also signifies the nature, disposition, and interests of the speaker” (Bennett, 16). I could try to attempt to give these terms a new definition, but by doing so I would contradict myself because I know I’m incapable of defining social terms with my single mind. Instead I would prefer to propose lawmakers, judges and citizens in general to re-evaluate the meaning of these terms to something closer to our beliefs and our society. We believe in change, for if we did not what would be the point of having jails and capital punishments if they were not going to change the minds of those that have not committed but are thinking about committing a crime?

A society that for so long has been fighting for equality, fairness, and opportunity should not stop at the “outside” (people that are not in jail) level, but also fight for those (people in jail) that once belonged to the society they are now being excluded from. The new meanings should represent both sides of the problem and not just one. The problem obviously started while the criminal was still a part of the society and developed into something we now consider only to be the criminal’s problem. Therefore, the new meanings should include criminal and society as part of the end result and not just one sided results. Just like our society can learn from the criminal, the criminal can learn from society. We have created a huge gap, where all the capital criminals fall, between the society before the crime was committed and the society after the criminal is executed or given life-time imprisonment. I know it is difficult to think of a criminal as someone else once the person is given the title considering how language has made us think of things in the way language describes them instead of the way things are, but by trying so we would get closer to a more just society and closer to true meanings about the society itself.

I know some people will disagree with me, thinking that it is too risky to give a criminal a second chance and that our kids and families would not feel safe knowing that a “known” criminal has been released. And I do agree with them in that it would be risky to release somebody if that person still thinks like a “criminal”. That’s why I mentioned before that just like society can be educated by using the criminals as examples, the criminals can also be educated using society as an example. Our society is obviously not only composed of good but also bad. So our criminals can also have two parts to them that need to be explored and understood. But how would somebody know if the criminal does not think as a criminal anymore one might ask. And the answer is we would not know and might be that we will never be able to know whether the criminal is ready to face society again, but it is also true that we do not know whether or not executions keep other people from committing crimes. We need to see in the criminals what we see in society; the capacity of change. We need to see them as the responsible of one another, where society caused the criminal and the criminal causing society and not just the criminal improving society and not improving the criminal from society.

Works Cited

Bedau, Hugo Adam. “The Minimal Invasion Argument against the Death Penalty.” Criminal Justice Ethics21.2 (2002): 3-8. Philosopher’s Index. EBSCO. Web. 15 Feb. 2011.

Bennett, Jonathan. “Leviathan by Thomas Hobbes.” Early Modern Texts –
Philosophers and Philosophy Topics. July 2006. Web. 29 Mar. 2011. .