No, it isn't. For him what makes an action right or wrong has nothing to do with the consequences. His original moral code is a rational principle that governs the morality of action, and that has nothing to do with consequences. We might argue about whether he is right or not, but I don't think we could really argue about what you call his original moral position on this.
When I find myself considering individual cases like the BTK killer and Reinhard Heydrich, I find myself sympathetic to just the sort of argument you present and animated by the feeling that there's really no compelling reason against executing them. But when I think things through more soberly and consider the death penalty as a policy or institution, I find a number of objections compelling.
First, let's look at your principle. You present three necessary conditions that must be met for the death penalty to be morally permissible (which I take you to mean when you say "there is a reasonable argument for"). In other words:
(A) THE DEATH PENALTY IS PERMISSIBLE ONLY IF THE THREE CONDITIONS CAN BE MET. [DP-->3 CONDITIONS]
I take it that this implies the following: if any one of the three conditions can't be met in a particular instance, then (by modus tollens) the death penalty can't be justified in that particular instance; and if any of the three can't ever be met, then the death can never be justified.
It seems to me that condition 3 cannot ever be met. That is, it seems that (at least under normal social conditions) incarceration always offers an alternative to execution. Therefore, (at least under normal social conditions) the death penalty can never be justified.
I do, as you'll notice, leave an escape hatch with the qualifier of "normal social conditions." I understand that social conditions could become so chaotic, dangerous, impoverished, and unstable that condition 3 might conceivably be met. Those circumstances are, however, so rare and improbable that with regard to conditions of public policy they are irrelevant.
It also seems to me that 2 is dubious. "Real likelihood" is of course vague; but here it at least seems to mean that rehabilitation or significant change is not possible. I think it important for various reasons to think that most people can change sufficiently to reduce the probabilty of future objectionable conduct. Those that can't ought to be thought, in general, as ill and therefore not candidates for execution, anyway.
Second, let's consider the implications of principle. My first objection involved conceding that ONLY IF the conditions of your principle can be met that the death penalty would be permissible. I argued simply that the those conditions cannot be met. But notice that even if I'm wrong and the conditions CAN all be met, it doesn't follow that the death penalty is permissible. Notice that necessary conditions are different from sufficient conditions. It's necessary for me to drive my car that these three conditions be met: (1) that the engine receives fuel; (2) that the engine can ignite the fuel and produce internal combustion; and (3) that the moving parts of the engine (the pistons, etc.) can move freely. But notice that even if these three necessary conditions are met, I still might not be able to drive my car--that is, while these three conditions are necessary, they're not sufficient. The car might not have wheels; the drive transmission might be broken; I might not be able to get into the car to start it.
Third, not only is it the case that even if all three of your conditions are met, the death penalty MIGHT NOT be permissible. There are compelling reasons to think that the death penalty actually IS NOT morally permissible. Briefly I'd state these:
1. Its costs. Among them I'd point to the damaging effects of the death penalty on those who perform it, even on those who countenance it, and on the families and dependents of the executed. That is to say, the benefits of eliminating a problematic individual through execution are offset by the harms done to those who execute him or her and those who endorse the execution. In short, putting human beings to death erodes civilization as well as the moral and psychological fabric of society. The financial costs are excessive, as well.
2. The flaws of the judicial system. Even if the death penalty is theoretically sound and even if there are clear cases (like Heydrich or Eichmann) where it is is warranted, the police forces and judicial systems of contemporary nation states are far to unreliable to ensure that only the guilty are punished. Judicial systems are far too influenced by prejudice, irrationality, error, negligence, and incompetence to place peoples lives in their hands. Depriving people of property and liberty is one thing; depriving them of their lives quite another.
3. Mercy. I'd point out that even if the death penalty is permissible, it doesn't follow that it's obligatory (or "mandatory" as you say). The virtues of mercy and compassion militate against its application, even where it's application is permissible and warranted.
4. Totality. As Helen Prejean argues, it is morally perilous to eliminate an entire life because of perhaps a single act in that life. Even the worst of criminals may be capable of contributing some good.
5. Deterrence. There seems little reason to think that the death penalty actually deters crime. It may even produce crime by normalizing violence.
The two statements in quotes are surely different. But the first can also express a moral standpoint: that it is morally important to achieve a low murder rate. This moral standpoint is reflected in various more specific claims.
1. We should not inflict punishment or pain on anyone unless doing so produces some good for others (e.g., by preventing the person from offending again or by deterring others).
2. We should inflict pain whenever doing so produces some greater good for others.
This second claim is highly problematic insofar as it may justify "punishing" the innocent when doing so helps deter real criminals. For this reason, those who hold deterrence to be morally important often claim instead:
3. In deciding how severely to punish specific types of crime, we should take into account how much of an impact greater severity would have on the frequency of this crime.
This third claim is consistent with the idea that people may be punished only for having done something wrong. But it allows two kinds of conduct that are equally wrong to be punished differently. One crime is punished lightly, yet some equally bad crime is punished more severely because here such punishment is more effective in getting the crime rate down. Moral arguments are made both for and against this claim.
It's apparently really expensive to shepherd a capital case all the way through to eventual execution--some say, much more expensive than life in prison.
That aside, there are plenty of other ethically relevant considerations. You can free a prisoner if the conviction is overturned, but you can't bring him back to life. Few of us, when actually faced with a choice, would choose death over life in prison. Nasty as it is, prison is not necessarily intolerable, and it may allow for the pursuit of important aspects of a good life. And even if capital punishment is already used for some particularly horrible crimes, expanding it to others may face objections of the sort people raise against capital punishment in the first place, to do with fairness of application, the value of life, the inhumanity of easily avoidable killing, and the merits of mercy. Even if these objections did not convince you to keep the mass murderer alive, they might move you with respect to the enraged spouse or the drug dealer or the white-collar felon. They might not, certainly, but they need at least to be considered before you can reasonably judge that it's at least as good to kill these people as to lock them up.
Any realistic criminal justice system will make both types of error: T-errors (terrible future crime committed by one wrongly acquitted) and I-errors (innocent person wrongly convicted).
It seems morally more appropriate here to compare alternative systems feasible for the same society in terms of the total number of errors, not in terms of the ratios you focus on (ratio of T-errors to total number of acquitted, ratio of I-errors to total number of convicted). To see this, take a criminal justice system under which 100,000 are acquitted of whom 2000 are wrongly acquitted and go on to commit a terrible crime. Now suppose we modify this system so that many more innocent people are tried and properly acquitted. So now we have 200,000 acquitted of whom 2000 are wrongly acquitted and go on to commit a terrible crime. So we got the T-error rate from 2 percent down to 1 percent. But have we improved the system? Surely not.
So I rephrase your question this way: In designing our criminal justice system, should we give greater weight to avoiding T-errors or to avoiding I-errors?
There is a widely held view bearing on this question. In one famous formulation by William Blackstone (www.law.ucla.edu/volokh/guilty.htm), it says: “It is better that ten guilty persons escape than one innocent suffer.” I think what stands behind this view is the idea that we as a society bear a far weightier responsibility for harms to innocents that we directly bring about than for harms to innocents that we merely might have prevented.
This idea is familiar in pedestrian contexts. It would be wrong to kill one innocent person in order to save another. It would be wrong to harm one innocent person in order to rescue another from a similar harm. It would be wrong to risk the life of one innocent person to prevent a risk to the life of another (risks being equal). And it would be wrong to cause a risk of harm to one innocent person in order to prevent the same risk of harm to another. In all these cases, agents ought to give more weight to harms and risks of harm they directly bring about than to similar harms or risks of harm that they merely fail to prevent.
This almost answers the reformulated question: We should give greater weight to avoiding I-errors than to avoiding T-errors. I say "almost", because the average harm associated with errors of each kind may not be equal. So the conclusion might conceivably be overturned if the harm done by the average I-error is just a few days in jail without public stigma while the average harm resulting from the average T-error is a minor massacre. But this is not true in the real world. Here, in order seriously to reduce the number of terrible crimes committed by persons wrongly acquitted, we would have to make it easier to convict people accused of very serious crimes and then take those convicted out of circulation for very long periods or forever. And doing this will inevitably increase the number of innocent people who, wrongly convicted, are locked up for very long periods or even executed.
I agree that your solution works as well or better. Here are two different arguments a consequentialist might make.
(1) Suppose all attempted murders are punished equally, regardless of success, with each attempt being punished with 6 years in jail and 30% of punished attempts successful. Now consider this reform: We increase punishment for successful attempts from 6 to 13 years and decrease punishments for unsuccessful attempts from 6 to 3 years. This reform leaves constant the jail time per punished attempt (which consequentialists typically count as a negative): 13 x 30% + 3 x 70% = 6. (Obviously, the numbers here are just for illustration.) But the reform is likely to increase deterrence, because prospective murderers are going to focus more on the "successful" outcome that risks a 13 year penalty than on the (actually more likely) "unsuccessful" outcome that risks a 3 year penalty. As a result of better deterrence, fewer murder attempts are made, fewer people are murdered, and fewer years are spent in jail. (Obviously, for this argument to work, I must be right about the psychology of prospective murderers.)
(2) Whether an attempted murder succeeds or not is sometimes due to luck. But it is often correlated with features of the agent (greater relevant abilities, will power, nerve, lesser moral scruples, and so on). Therefore, those whose murder attempt succeeds tend to be more dangerous, on average, than those whose murder attempts fail. Also, given that criminals often commit further crimes, an extra year in jail for a more dangerous criminal better protects the public from repeat offenses than an extra year in jail for a less dangerous offender. It therefore makes sense to shift jail time from unsuccessful to successful attempters.
..... But, if these are good arguments, might consequentialists want to advocate that only successful attempts should be punished?
An interesting thought. My suspicion, however, is that most sentenced to death would prefer life in prison. That may not conclusively demonstrate much, but if true it at least shows that those convicted of crimes regard life in prison as a less severe punishment. Keep in mind that even inside a cell the mind may enjoy wide expanses, and if Aristotle is correct there are even very simple pleasures bound up with the mere act of living and perceiving the world. Then, of course, prison does offer some opportunities for sociability, for reading, for entertainment, and for contemplation.
There is a sense, however, that you are right in saying that the criminal has still gotten away with it--namely, no punishment or repentance can fully restore the state of affairs that preceded the crime. Those murdered, for example, can never be brought back. In a sense, despite their defeat the Nazis did "get away" with killing millions and millions of innocent people. But this defficiency remains true of all options in dealing with crime. It's one of the central thoughts driving Ivan Karamazov's moral rebellion againnst God in Dostoevsky's "The Brothers Karamazov." The only perfect form of restoration would be to make so the crime didn't happen in the first place.
On the former question, how much I pay for car insurance is a function of how much accident claims cost insurance companies. People who do not wear seatbelts cause themselves greater injuiries, which lead to higher insurance claims, which lead to higher rates for me. So it's far from clear that one who doesn't wear a seatbeltharms only h'erself (even waiving the harm s'he might be doing to family and friends). The same is true in the latter case: It's not entirely obvious that people who abuse cocaine, say, harm only themselves. More needs to be said, obviously.
No, of course not! ...or so I first thought; but then your argument moved me; but now I again think...
No, of course not!
A's first punishment was probably unjust--certainly unfortunate. But if A now kills B, then A should be punished anew on any of the four halfway-plausible and at-least-sometimes-applicable justifications for punishment that I can think of.
Deterrence: If we don't punish A anew, then we'll experience a crime-wave of similarly pardoned ex-cons (assuming certain ugly things about human nature).
Rehabilitation: Well, incarceration didn't exactly work any criminal tendencies out of A, did it? (And it doesn't generally seem to accomplish much rehabilitation, at least in the U.S..) But if incarceration would promote rehabilitation, which A surely needs, then A should be incarcerated.
Public safety: Things didn't go so well when A was let out, so we're all better off keeping him in the slammer.
Retribution: Here's where your argument has some force. If the score for B's death is properly settled by a certain punishment of A, then why does it matter when this punishment takes place? A punishment delayed is not a punishment denied, so why not one ahead of time? If it's eye for an eye, does it matters which gets poked out first?
The retributivist might say that we need to distinguish carefully between the different killings of B, actual and merely possible. A's first punishment was for one (supposedly by poison) that didn't take place, but that can't be used to settle a different killing--the one that actually took place (by shooting). But this doesn't seem so convincing, particularly if you think of different types of punishments, like fines. Why can't I apply my credit for the fine the IRS now admits I needn't have paid to the fine it might charge me if it audits the bogus tax-return I'm about to send in? (Although here there's the possibility of applying the credit to something other than a potential fine, like a better tax accountant; but the years poor A lost during the first punishment can't now be spent in some other way.)
The retributivist might also say that retribution requires that the punished suffer the punishment knowing that the punishment is for a certain crime. I'm not sure, though, that retribution is always thought to work this way (consider trans-generational retribution); and in any case, you can easily concoct cases where the criminal knows exactly what crime s/he wants to commit (and exactly when), and then calculates that it's more efficient to pay the price ahead of time.
The retributivist might also say that a punishment can't really count as retribution--as a making of amends--if it happens before the crime. But this seems just to answer your question by stipulation.
Finally, the retributivist might just bite the bullet: in so far as punishment is about retribution, then A has, in fact, pre-paid for the killing of B. That's what I think the retributivist should say.
So...Nice argument. And so much the worse for retributivism. Good thing we needn't hold that justified punishment is entirely about retribution. Good thing I don't think any is: it's not clear to me that retribution promises to improve the world's future in any way. And even when--especially when--it comes to punishment, we have to move on.