16th Street Forum

In my previous posts – here and here – I commented on the interesting similarities between debates during the Peloponnesian War, as recounted by Thucydides in The History of the Peloponnesian War, and modern political debates. I looked at the arrogant rush to invade Sicily in 413 BCE, and at the cheapening of political discourse during the debate on the punishment of the Mitylenean revolt in 427.

There is an additional element of relevance in the Mitylenean debate on the question of capital punishment – not surprising, given that the question at hand was whether to execute the entire adult male population!

As in the last post, the debate is between Cleon and Diodotus, in Book 3, Chapter IX; as before, I am using the Richard Crawley translation posted on the MIT Internet Classics Archive.

Cleon first argues that the crime of the Mityleneans is thoroughly heinous and thus deserving of the severest penalty. Furthermore, the penalties they had seen others suffer had been insufficient to deter them.

[I]t is deliberate and wanton aggression; an attempt to ruin us by siding with our bitterest enemies; a worse offence than a war undertaken on their own account in the acquisition of power. The fate of those of their neighbours who had already rebelled and had been subdued was no lesson to them; their own prosperity could not dissuade them from affronting danger; but blindly confident in the future, and full of hopes beyond their power though not beyond their ambition, they declared war and made their decision to prefer might to right, their attack being determined not by provocation but by the moment which seemed propitious. … . Let them now therefore be punished as their crime requires, and do not, while you condemn the aristocracy, absolve the people.

Then, in an argument that could have been taken from a modern op-ed, Cleon asserts that failure to apply the strongest penalty in this case will only encourage others to commit similar crimes.

Consider therefore: if you subject to the same punishment the ally who is forced to rebel by the enemy, and him who does so by his own free choice, which of them, think you, is there that will not rebel upon the slightest pretext; when the reward of success is freedom, and the penalty of failure nothing so very terrible?

Diodotus, in his response, notes that the attempt to use punishment for its supposed deterrent effect has only led to harsher and harsher punishments; the death penalty is but the last step in the cycle, and that only because there is nothing worse to apply. Yet still, crimes happen.

Now of course communities have enacted the penalty of death for many offences far lighter than this: still hope leads men to venture, and no one ever yet put himself in peril without the inward conviction that he would succeed in his design. Again, was there ever city rebelling that did not believe that it possessed either in itself or in its alliances resources adequate to the enterprise? All, states and individuals, are alike prone to err, and there is no law that will prevent them; or why should men have exhausted the list of punishments in search of enactments to protect them from evildoers? It is probable that in early times the penalties for the greatest offences were less severe, and that, as these were disregarded, the penalty of death has been by degrees in most cases arrived at, which is itself disregarded in like manner.

The end-point, then, is the realization that the death penalty is no deterrent, because of the many factors in human nature that inevitably lead to crime.

Either then some means of terror more terrible than this must be discovered, or it must be owned that this restraint is useless; and that as long as poverty gives men the courage of necessity, or plenty fills them with the ambition which belongs to insolence and pride, and the other conditions of life remain each under the thraldom of some fatal and master passion, so long will the impulse never be wanting to drive men into danger. Hope also and cupidity, the one leading and the other following, the one conceiving the attempt, the other suggesting the facility of succeeding, cause the widest ruin, and, although invisible agents, are far stronger than the dangers that are seen. Fortune, too, powerfully helps the delusion and, by the unexpected aid that she sometimes lends, tempts men to venture with inferior means; and this is especially the case with communities, because the stakes played for are the highest, freedom or empire, and, when all are acting together, each man irrationally magnifies his own capacity. In fine, it is impossible to prevent, and only great simplicity can hope to prevent, human nature doing what it has once set its mind upon, by force of law or by any other deterrent force whatsoever.

What can be done?

We must not, therefore, commit ourselves to a false policy through a belief in the efficacy of the punishment of death, or exclude rebels from the hope of repentance and an early atonement of their error. … And how can it be otherwise than hurtful to us to be put to the expense of a siege, because surrender is out of the question; and if we take the city, to receive a ruined town from which we can no longer draw the revenue which forms our real strength against the enemy? We must not, therefore, sit as strict judges of the offenders to our own prejudice, but rather see how by moderate chastisements we may be enabled to benefit in future by the revenue-producing powers of our dependencies; and we must make up our minds to look for our protection not to legal terrors but to careful administration.

This is the point at which many readers become unhappy, as the argument Diodotus puts forward appears to concentrate on base utility. Indeed, within the rhetorical framework available to him, which includes the nature and emotional state of his audience, this may have been his only clear course. But from the modern standpoint, I think it also holds up if we think thusly: If you no longer have an option that deters crime, then you are better off concentrating on containing it. And, if you no longer have a means for addressing the moral state of the criminal, then you are better off opting for a course that best satisfies your own moral interests. If the death penalty cannot deter others from killing, then you yourself might as well adopt the course that preserves your own moral state, and not kill.