| Capital Punishment |
The applied
ethics issue of capital punishment involves determining whether the
execution of criminals is ever justified, and, if so under what
circumstances it is permissible. Philosophical defenses of capital
punishment typically draw from more general discussions of punishment.
The issue of corrective justice in legal philosophy
distinguishes between two principal theories of punishment: utilitarian
and retributive. Accordingly, defenses of capital punishment are usually
either utilitarian or retributive in nature. By contrast, most criticisms
of capital punishment seek to expose flaws in popular justifications of
capital punishment. Thus, in the absence of any good reason for executing
a criminal, the critic of capital punishment concludes that the criminal
should be allowed to live.
Table of Contents (Clicking on the links below will take you to that part of this article)
Perhaps the most common defenses of capital punishment are on utilitarian grounds. For utilitarians, punishment in general is justified only insofar as it creates a greater balance of happiness vs. unhappiness. From the utilitarian perspective, then, capital punishment is justified if it (1) prevents the criminal from repeating his crime; or (2) deters crime by discouraging would-be offenders. For, both of these contribute to a greater balance of happiness in society. There are several immediate problems with this line of reasoning. First, the burden of proof is on the defender of capital punishment to show that the same effects could not be accomplished with less severe punishment, such as life imprisonment. This is especially pertinent since the goal of utilitarianism is to reduce as much unhappiness as possible and this entails imposing the least severe of two possible punishments when everything else is equal. Italian political theorist Cesare Beccaria (1738-1794) argues this point in On Crimes and Punishment (1764), one of the first systematic critiques of capital punishment from the utilitarian point of view. According to Beccaria, capital punishment is not necessary to deter, and long term imprisonment is a more powerful deterrent since execution is transient.
A second and more basic problem with utilitarian defenses of capital punishment involves the fact gathering process. Since the utilitarian is making a factual claim about the beneficial social consequences of capital punishment, then his claim should be backed by empirical evidence. In the absence of such reliable empirical evidence, the utilitarian position must be dismissed, as is the case with any unverified factual claim. "Empirical evidence" in general is of two varieties: anecdotal evidence and scientific evidence. Anecdotal evidence involves isolated observations which appear to correlate two states of affairs, which, in this case, would be (a) capital punishment, and (b) improved social conditions. Given the gravity of the issue at stake with capital punishment, namely, people's lives, anecdotal evidence is an insufficient ground for establishing a causal connection between capital punishment and improved social conditions. Instead, scientific studies are needed. Several studies have been conducted in the past few decades regarding such a connection, but, unfortunately, the methodology used on social questions of this nature is necessarily imprecise. Ideally, a truly scientific study of the question would involve a comparison between two otherwise identical societies in which capital punishment was not used in the control group but was used in the test group. The problem, though, is that it is a practical impossibility to isolate two otherwise identical societies upon which to conduct the study. An almost endless variety of differing factors in the respective groups will make the results inconclusive. Not surprisingly, the recently conducted empirical studies in fact draw conflicting conclusions. This basic problem in the fact gathering process not only applies to the utilitarian defender of capital punishment, but also to the utilitarian critic of capital punishment who might, for example, argue that society benefits more from life imprisonment sentences.
A third problem with utilitarian justifications of punishment, as pointed out by contemporary political philosopher Adam Bedeau, concerns the ratio of innocent lives saved per execution. Perhaps, in the best possible situation, executing five of the most dangerous convicts will result in saving five innocent lives in the future. As the number of executions increases, however, the number of innocent lives saved will not increase proportionally. Eventually, it may take one thousand additional executions to save only one additional innocent life. So, eventually it must be determined how many executions justify the saving of one innocent life. This, though, is virtually impossible to determine, yet utilitarians need this information to successfully calculate the overall social benefit of capital punishment.
Finally, critics of capital punishment sometimes argue on
utilitarian grounds that the expense involving executions is substantially
greater than the cost of life imprisonment. The costs of appeals and legal
counseling are the principal expenses. Thus, the extra financial burden of
capital punishment contributes to a greater balance of unhappiness vs.
happiness. There are three problems with this argument. First, such
financial calculations typically do not take into account that much of the
legal counseling for death row inmates is pro bono which does not
cost the taxpayer. Second, even if this is a true description of the cost
of capital punishment in the United States and other developed countries,
it is not representative of the cost of criminal executions world wide.
Indeed, one might reasonably expect that in many developing countries
executions are substantially cheaper than life imprisonment costs.
Assuming that critics of capital punishment object to its practice in any
country, this argument not only lacks universal application, but might in
fact be used as an argument in favor of capital punishment in countries
with less expensive appeals processes. Finally, even if executing
criminals is more costly than life imprisonment, it is not immediately
obvious that the extra expense either contributes to a greater balance of
social unhappiness or even tips the balance towards unhappiness. Society
may actually be pleased with, or at least content with, the value it is
getting for its capital punishment dollar.
Retributive Arguments Concerning Capital Punishment
The retributive
notion of punishment in general is that (a) as a foundational matter of
justice, criminals deserve punishment, and (b) punishment should be equal
to the harm done. In determining what counts as "punishment equal to
harm," theorists further distinguish between two types of retributive
punishment. First, lex talionis retribution involves punishment in
kind and is commonly expressed in the expression "an eye for an eye."
Second, lex salica retribution involves punishment through
compensation, and the harm inflicted can be repaired by payment or
atonement. Historically, capital punishment is most often associated
lex talionis retribution. One of the most early written statements
of capital punishment from the lex talionis or "eye for an eye"
perspective is from the 18th century BCE Babylonian Law of
Hammurabi:
Immanual Kant offered an alternative retributive justification of
capital punishment which is not rooted in vengeance. Instead, for Kant,
capital punishment is based on the idea that every person is a valuable
and worthy of respect because of their ability to make rational and free
choices. The murder, too, is worthy of respect; we, thus, show him respect
by treating him the same way he declares that people are to be treated.
Accordingly, we execute the murderer. A key problem with Kant's
justification of capital punishment is that it tells us what to do with
only ideally rational killers, although many killers are not rational.
Other Arguments for Capital Punishment
Some standard arguments
for capital punishment do not fall neatly into either the retributive or
utilitarian categories. For example, John Locke's famous defense of capital
punishment has both a retributive and utilitarian component. Locke argued
that a person forfeits his rights when committing even minor crimes. Once
rights are forfeited, Locke justifies punishment for two reasons: (1) from
the retributive side, criminals deserve punishment, and, (2) from the
utilitarian side, punishment is needed to protect our society by deterring
crime through example. Thus, society may punish the criminal any way it
deems necessary so to set an example for other would-be criminals. This
includes taking away his life. Under the influence of Locke's theory of
the forfeiture of rights, English law had some 200 capital offenses by
1800. Critics of Locke argue that there are alternatives to his
assumption that criminals forfeit their right to life. It may be, instead,
that criminals forfeit other rights (such as freedom to travel), yet the
right to life is simply not forfeitable. Beccaria, for example, argued
that people did not sacrifice their rights to life when entering into the
social contract.
Another defense of capital punishment is based on an analogy
that capital punishment is to the political body just as self-defense is
to the individual. The reasoning is that, in dangerous circumstances, the
individual is justified in protecting himself by self-defense with deadly
force. Since society (or the political body) is like a large person,
society, too, is justified in using deadly force through capital
punishment. However, for this analogy to be a successful, it must parallel
the accepted principle that self-defense with deadly force is justified
only when there is no alternative open to us (such as fleeing). This means
we must see whether any alternative to capital punishment is open (such as
long term imprisonment). Further, the self-defense with deadly force is
grounded in the moral right of self-preservation. However, only people,
properly speaking, have moral rights; abstract entities and institutions
such as governing bodies do not. Consequently, the analogy between
capital punishment and self-defense fails it a basic level.
Direct Attacks on Capital Punishment
As noted, most arguments
against capital punishment are based on exposing flaws in defenses of
capital punishment. However, some are more direct attacks, such as that
capital punishment should be abolished since it is undignified, inhumane,
or contrary to love. Corporal punishment, such as flogging, and extreme
types of capital punishment, such as burning at the stake, are no longer
accepted practices because of their indignity. By parity of reasoning,
capital punishment should be abolished too. However, even if we grant that
capital punishment violates our duty to treat people with dignity,
humanity, and love, that alone may not be a sufficient reason for
abolishing the practice. Dignity, humanity and love are foundational moral
goods and as such are prima
facie in nature. That is, they are each morally binding on face
value until a stronger duty emerges with which it conflicts, thereby
creating a moral dilemma.
Defenders of capital punishment argue that retributive justice is one such
conflicting duty. For, even though we are duty bound to acknowledge a
criminal's dignity, the duty of retribution is also present and is in fact
outweighs the other duties.
A second direct attack on the practice of capital punishment is
that, at least at present, it is virtually impossible to apply death
sentences fairly. People on death row are typically poor and thus could
not afford the best defense at their initial trial. They are also
disproportinately Afro-American or Hispanic which raises larger issues of
racial inequality in the US. As ethnic minorities, they are also likely
to receive more strict judgments from juries than their white counterparts
who commit the same crime. These considerations recently prompted a US
Supreme Court Justice to change his own views on capital punishment and
reject the practice. In addition to problems of class bias, the practice
of capital punishment is further tainted by the tragic fact that innocent
people are sometimes executed. Eliminating capital punishment not only
prevents their wrongful execution, but gives them more time to to clear
their names and return to society.
See also
Beccaria.
If a builder builds a house for someone, and does not construct it
properly, and the house which he built falls in and kills its owner, then
that builder shall be put to death. If it kills the son of the owner, then
the son of that builder shall be put to death.
Critics of classic lex talionis-oriented capital punishment point
out several problems with this view. First, as a practical matter, lex
talionis retribution cannot be uniformly applied to every harm
committed. The second sentence in the above quote from the Law of
Hammurabi shows the inherent absurdity of consistent application: "If
it [i.e., a collapsed house] kills the son of the owner, then the son of
the builder shall be put to death." Second, as a strict formula of
retribution, lex talionis punishment may even be inadequate. For
example, if a terrorist or mass murderer kills ten people, then taking his
single life is technically not punishment in kind. Third, foundational
beliefs in general have the unfortunate consequence of appearing
arbitrary. If a belief in lex talionis retribution is foundational,
then, by definition, it cannot be defended by appealing to a prior set of
reasons. The arbitrary nature of this is particularly clear when we see
that there is an alternative retributive view of punishment which is
equally foundational, yet which does not require capital punishment,
namely lex salica retribution. Finally, critics of capital
punishment argue that the true basis of retributive justifications of
capital punishment is not at all foundational, but instead rooted in
psychological feelings of vengeance. Even if we grant that vengeance is a
natural human emotion, critics argue that it is an impulse which should be
tempered, just as we do natural feelings of fear, lust, and greed. Laws
about punishment, then, should not be grounded in our extreme feelings,
but should instead be based on our more tempered ones. When we moderate
our natural feelings of vengeance, there should be little inclination to
execute criminals.