From Moral Issues that Divide Us
Punishment in General
Aims of Punishment
What People Think
Public Policy Issues
Executing the Innocent
Common Arguments Pro and Contra
The Conservative Position
The Liberal Position
A Middle Ground
Reading 1: Beccaria Against the Death Penalty (On Crimes and Punishment, 1764)
In 1896, America’s first serial killer, Herman Webster Mudgett, was executed. During the Chicago World’s Fair in the early 1890s, Mudgett opened a small hotel, later nicknamed the “Murder Castle,” to which he lured unsuspecting female guests. Part of his motivation was sexual, and part involved a financial scheme in which his victims would take out life insurance policies and name him as beneficiary. Once inside the Castle, he tortured and killed them, and sometimes dissected their bodies, selling their skeletons to medical schools. When eventually arrested on charges of insurance fraud, police linked him to the murder of his business associate, and in the course of their investigation they discovered the Murder Castle. There they found bones of many victims mixed together, a dissection table covered with blood, and burnt body parts. Mudgett confessed to 27 murders, writing a detailed account of those activities, but the actual number may have reached over 100. He was tried, then hanged.
When reading accounts of serial killers like Mudgett, we often have a sense of satisfaction that he was caught and executed. Some people are so irredeemable and their actions so horrendous that we feel that justice demands that they die. The death penalty, we think, is a critical part of the criminal justice system, specifically reserved for the worst possible offenders. The death penalty has been common practice around the world as far back as history records, and it is easy to imagine primitive social environments in which dwellers would have no choice but to kill criminals. Nomadic tribes, for example, would lack permanent facilities to lock up murderers and thieves, and setting offenders free would only give them a chance to do more damage. Small jungle villages might lack the financial resources to build detention centers and post guards to keep them from escaping. In these environments, even minor offenses might need to be punished with great severity in order for these societies to simply survive.
But the story is different today: maximum security prisons are readily available for detaining the most violent criminals. In recent decades the trend around the world has been to abolish the death penalty. Of the 195 countries today, 103 do not allow it, and only 54 actively practice it. European countries have all but eliminated the death penalty and, among all industrialized countries, the U.S. stands virtually alone. According to Amnesty International, in 2015, at least 3,000 people were executed worldwide, and the five leading countries were these:
Saudi Arabia: 158+
United States: 28
Critics of the death penalty argue that these are not particularly good countries for the U.S. to be grouped with when it comes to matters of criminal justice. In this chapter we will look at the arguments for and against retaining the death penalty.
Since the death penalty is a specific type of punishment, some of the controversy surrounding it can be illuminated by considering the nature of punishment in general. Thus we will begin by looking more broadly at the notion of punishment.
Punishment in General
A basic definition of punishment is that it involves the deliberate infliction of suffering on a supposed or actual offender for an offense such as a moral or legal transgression. Punishments can be imposed by anyone in a position of authority—parents, teachers, bosses, friends—it is criminal punishment that is of issue here, namely, the punishment imposed by governments for legal infractions. When imposing punishments, governments have a range of options that differ in severity. At the low end, punishments of community service require offenders to participate in some activity that benefits their local community, such as picking up litter, working at animal shelters, or assisting nonprofit organizations. Financial penalties, such as fines, are common particularly with non-violent crimes. Acts of public humiliation, while more common in previous eras, are still sentencing options today, such as when convicted drunk drivers are required to put DWI stickers on their cars. The use of corporal punishment, such as caning, is still an option in some countries today. Incarceration in jail or prison is among the harshest form of punishment because of the serious restrictions that it places on the offender’s liberty.
Many harsh forms of punishment that were commonplace in the past have since been banned in most countries. A major liberalizing influence in this direction was a book called On Crimes and Punishments (1764) by Italian political philosopher Cesare Beccaria (1738-1794), which drew attention to injustices within Europe’s criminal court systems and the appalling condition of its prisons. The entire concept of criminal punishment, he believed, needed major rethinking, and society needed to shift away from severe methods to ones that would have a more lasting psychological impact on both the prisoner and the public. He writes,
The intent of punishments is not to torment a sentient being, nor to undo a crime already committed. . . . Instead of being influenced by passion, such institutions should be the cool moderator of the passions of individuals. Can the groans of a tortured wretch bring back the time past, or reverse the crime he has committed? The end of punishment, therefore, is no other than to prevent the criminal from doing further injury to society, and to prevent others from committing the same offense. Such punishments, therefore, and such a manner of inflicting them ought to be chosen in a way that will make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal. [On Crimes and Punishments, 12]
Beccaria was also adamantly opposed to the death penalty and felt that long term imprisonment was more effective than execution. The only exception, he believed, was with rebel leaders or criminal bosses who even behind bars continue to seriously disrupt society through their influence.
Inspired by Beccaria’s arguments, political rulers throughout Europe instituted more humane punishment policies, and in 1786 Leopold II of Tuscany became the first European ruler to abolished capital punishment. Among European countries, Britain had the largest amount of capital offenses, which by 1800 numbered over 200, many for minor crimes including theft of an animal. A prominent case was that of London clergyman William Dodd who was executed in 1777 for check fraud, despite the protests of his influential friends in government. A consequence of the quantity of Britain’s capital offenses was that only one-tenth of such cases resulted in executions, since sympathetic judges would either pardon the accused or intentionally undervalue the cost of stolen property to bring it below the level at which the death penalty would legally apply. A reform act in 1832 reduced the number of capital offenses in Britain by two-thirds, and by the mid twentieth-century that country abolished it, as did Italy, Germany, Spain and France around the same time.
Aims of Punishment
All punishment has some aim which serves to justify the suffering that is inflicted on the offender. The main aims are retribution, incapacitation, rehabilitation, and deterrence.
With retribution, punishment is a matter of what is deserved in return for a wrongful act. The punishment is proportionate punishment to the crime, and imposed on the offender for its own sake rather than to bring about a larger social benefit. The retributive theory of punishment is most often associated with the notion of “eye for and eye” justice, where the imposed punishment is equal to the harm done. The Latin expression for this is lex talionis, which literally means “law of retaliation”. Sometimes the “eye for an eye” concept of punishment is taken literally, such as the following from the ancient Babylonian Law of Hammurabi (c. 1750 BCE): “If a man puts out the eye of another man, then his eye shall be put out. If he breaks another man's bone, then his bone shall be broken.” The concept is probably most known from its appearance in the Hebrew Bible, that "Anyone who injures their neighbor is to be injured in the same manner: fracture for fracture, eye for eye, tooth for tooth. The one who has inflicted the injury must suffer the same injury" (Leviticus. 24:19–21). By today’s standards, though, strict adherence to “eye for and eye” justice in all cases can be cruel and even irrational: we do not punish rapists by raping them, or punish arsonists by burning down their houses. Rather, we seek redress through more humane types of suffering that we can impose on offenders.
With incapacitation, punishment keeps offenders from repeating similar crimes, typically by physically restraining them. When we catch violent criminals, one of our first thoughts is to get them off the street before they harm others. With rehabilitation, punishment aims to change the offender’s predisposition towards criminal behavior, and thus keeps him from becoming a threat to others when released into the community. Sometimes rehabilitation is facilitated through psychological counseling or other types of behavior-modification therapy. However, the assumption here is that any type of punishment, if it is memorable enough, will in and of itself discourage criminals from repeating crimes. We expect convicts to have learned their lesson and mended their anti-social ways.
With deterrence, punishment is a means of discouraging others from committing similar offenses. If I see that an armed robber was punished with prison time, I will be less likely to commit armed robbery myself. The aim here is to use the criminal as an example from which others can learn.
It is difficult to talk about the aims of punishment without mentioning the motive of revenge, which involves doing something from anger or resentment as a retaliatory measure. In our ordinary lives, revenge often plays a role in our motivations to have someone punished. Suppose, for example, that a mugger stabs you and leaves you with a life-threatening wound, or that you are brutally raped, or that a drunk driver crashes into your car killing one of your family members. In each of these cases you would likely want the perpetrator to not only be caught, but to suffer for his crime and, in essence, get what he deserves. By harshly punishing the perpetrator, you have the opportunity to vent your rage and get some sense of satisfaction and closure from your ordeal. What distinguishes revenge from retributive aims of punishment is impartiality. Revenge stems from an individual’s personal desire for retaliation, whereas retribution considers more abstractly what justice calls for in a specific situation. Similarly, revenge involves negative emotional states of anger or resentment, which should not be part of retributive reasoning.
Let’s grant that revenge is a normal part of our drive to punish offenders; the critical question, then, is whether revenge is a valid aim of punishment. On the one hand, part of our justice system aims to give satisfaction to the victims of crime, and it is routine for victims and their family members to testify at trials to help sway judges and jurors regarding the severity of the punishment that is handed down. There is a sense in which victims need to be avenged for the wrongs done to them, and that should be factored into the courts’ judgment. On the other hand, we often associate revenge with uncivilized societies that have tribal wars and blood feuds that last generations. It is also associated with vigilante justice, lynching, and mob rule. As normal as feelings of revenge are when we are victimized, in a civilized society and justice system, it is not typically considered a legitimate aim of punishment. The more cool-headed we can be in judging guilt and handing out punishment, the better. One of the tasks of the criminal justice system is to protect society from our extreme emotional reactions to criminals, and instead make more impartial rational judgments. Thus, the more that we can leave out feelings of revenge from decisions about punishment, the better.
All of the above aims of punishment, except reform, have been used as justifications for the death penalty, particularly with murders. It is eye for eye retribution: if you take someone’s life, justice demands that society takes your life. It is incapacitation in the most extreme possible way since executed murderers can never repeat their crimes. Executing murderers is also a deterrent to other would-be murderers. Finally, the death penalty is a way for family members of murder victims to vent their rage. Whether any of these are good justifications for the death penalty, though, remains to be seen and is at the center of the death penalty controversy.
What People Think
Most people in the U.S. today favor the death penalty and appear to be reasonably satisfied with the number of executions that take place, as reflected in the following surveys (www.pollingreport.com):
"Do you believe in capital punishment -- that is, the death penalty -- or are you opposed to it?" (2/5-11/08)
Believe In It: 63
"Do you feel that executing people who commit murder deters others from committing murder, or do you think such executions don't have much effect?" (2/5-11/08)
Deters Others: 42
Not Much Effect: 52
"In general, would you like to see an increase or decrease in the number of convicted criminals who are executed, or no change?" (2/5-11/08)
No Change: 31
"Do you think that innocent people are sometimes convicted of murder, or that this never happens?" (2/5-11/08)
The philosophical component of the death penalty debate concerns whether executing criminals is ever a morally defensible form of punishment. In this section we will examine four traditional justifications: retribution, the social contract, rights forfeiture, and social benefit.
The first traditional justification of the death penalty is that it is a direct application of the retributive conception of punishment: the death penalty is justified as a proportionate punishment for a serious crime, which should be carried out because it is deserved for its own sake, and not because of any benefit that it might bring to society. The oldest example of this is the “eye for an eye” principle of retaliation, which when applied to murder means “a life for a life”. It again appears in both the Law of Hammurabi and the Hebrew Bible:
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. [Law of Hammaurabi, 229]
Whoever kills an animal must make restitution, but whoever kills a human being is to be put to death. [Leviticus, 24:21]
Advocates of retributivist capital punishment, past or present, do not often explain the moral foundation of the “eye for an eye” principle of retaliation, or present any compelling argument. Instead, it is often appealed to as time-honored common sense or an article of religious faith: the idea has been around with us for thousands of years and has become a normal part of our thinking when it comes to punishment. An important exception to this, however, is German philosopher Immanuel Kant (1724-1804) who offers a thoroughly original argument in its defense.
For Kant, the death penalty is grounded in the idea that every person is valuable and worthy of respect because of their ability to make rational and free choices. The murderer, too, is worthy of respect, and we consequently show him that respect by treating him the same way he declares that people are to be treated. Accordingly, we execute the murderer. At first, Kant's theory seems backwards. Ordinarily we might think that murderers are worthless beasts, deserving of no dignity, and should therefore be executed. Kant, though, disagrees. If I, as a rational person, choose to behave towards you in a particular manner, I am declaring more generally that in my assessment this is how everyone should be treated, including myself. It is as though I am making a request whereby through my actions towards others I tell others how I should be treated. If I behave badly towards others, then that behavior should come right back on me in the form of a comparable punishment. I am deciding for myself how I am to be treated, and society is respecting my decision in how it reacts to my bad behavior. This, then, is what happens when people commit murder. Because every person is a valuable human being who is worthy of respect, including the murderer himself, the dignity of a murderer demands that he be executed. Kant writes,
the undeserved evil which any one commits on another, is to be regarded as perpetrated on himself. Hence it may be said: If you slander another, you slander yourself; if you steal from another, you steal from yourself; if you strike another, you strike yourself; if you kill another, you kill yourself. [The Philosophy of Law, 2.49.e.1]
Thus, according to Kant, whoever commits murder must die. However, his execution must be human and as painless as possible: “His death must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable” (ibid). Kant's account of capital punishment is retributive insofar as society is merely giving the criminal what he deserves.
There are three problems with retributivist capital punishment, particularly when based on the “eye for an eye” principle. The first criticism is that a strict application of “eye for an eye” justices leads to counterintuitive judgements. As we have seen, in non-death penalty cases it leads to the troublesome judgement that arsonists should have their homes burned down or that rapists should be raped. This problem also applies to Kant’s version: we do not punish an arsonist by burning down his house, even if that is how the arsonist himself deems that people should be treated. In death penalty cases, we find the same problem, such as this from Hammaurabi: “If it kills the son of the owner, then the son of that builder shall be put to death” (230). If this sentence was carried out, the pain of the builder would be parallel to the pain of the owner, but, at least by today’s standards, the builder’s son is an independent person from his father and killing him would be wrong. The problem is that mechanically applying the “eye for an eye” formula will not guarantee that the punishment will be always an appropriate or even logical one. If we did start out by using the formula, we would then need to make an independent moral judgment about whether that application of the formula was a good one. If we are then reliant upon that independent moral judgment for a proper assessment of a punishment, then the “eye for an eye” formula is not only unnecessary, but harmfully misleading. It distracts from the assessment of true justice and should be set aside.
The second criticism of retributivist capital punishment is that a strict application of the “eye for an eye” formula may even be inadequate. If a mass murderer kills ten people, then taking his single life is technically not punishment in kind. Think of how many times we would need to have executed Hitler to balance out the murders that he is responsible for. Some people are so bad that there is no way of retributively balancing the scales of justice. Part of the appeal of retributivism is that it makes punishments proportional to the crimes and thereby balances the scales. But this feature is lost with the worst criminals. Again, this problem also applies to Kant: even if Hitler proclaims through his conduct that this is the way people should be treated, a single death would be nowhere sufficient.
While these two criticisms of the eye for an eye principle seem persuasive enough, contemporary American philosopher Christopher Wellman is not so sure. Wellman states that he is “no cheerleader for the death penalty” and for at least practical reasons he would not support the idea of government officials “raping rapists or torturing torturers.” However, he believes that the wrongness of doing so is not immediately evident from typical retributivist reasoning:
it is not clear how one could establish the unreasonableness of the claim that Hitler, for instance, forfeited his right not to be tortured to death. How can one rationally defeat the claim that the members of the paramilitary groups in the former Yugoslavia who engaged in mass rape as an element of their campaign of so-called ethnic cleansing forfeited their rights against being raped?” [“The Rights Forfeiture Theory of Punishment” Ethics, Vol. 122, 2012]
Some actions are so horrendous that balancing the scales of justice through “eye for an eye” retribution seems like a reasonable idea, and the examples that Wellman cites are good ones. Suppose, though, that we caught Hitler and brutally killed him the same way that he killed millions of people in death camps. It would quickly become evident that this punishment was woefully insufficient for balancing the scales of justice, and the punishment did not come close to fitting the crime. What then did we accomplish through our efforts? Probably not much more than the venting of our feelings of anger and vengeance towards Hitler, which, as we have seen earlier, is not what true retribution is about. That is, retribution is not about appeasing our negative feelings towards criminals, but carrying out what is deserved. Contrary to Wellman’s observation, it is precisely cases like Hitler’s that reveal the wrongness of torturing tortures, or raping rapists. Our “eye for an eye” response would not really be about justice, but about our vengeful retaliation, and thus not in the spirit of true retribution.
There is yet a third criticism of the strict “eye for an eye” punishment which may be even more damaging than the first two. Society has in fact already moved beyond strict “eye for an eye” punishment” for less serious crimes, and this suggests that it is also time to do so with murder. The Law of Hammurabi reveals a time in human history when the “eye for an eye” formula was applied to many crimes. It may have been too severe by our current standards, but at least it attempted to formulate a consistent system of justice. Sections 191-282 of Hammurabi layout appropriate punishments for crimes. Several follow the strict “eye for an eye” formula, such as a broken bone for a broken bone, and a knocked out tooth for a knocked out tooth. Others follow it only symbolically, such as cutting off the tongue of a son who denounces his father, or the fingers of a son who hits his father. When evaluating acceptable forms of punishment, one Supreme Court justice famously referred to “evolving standards of decency that mark the progress of a maturing society,” where some types of punishment can be “more primitive than torture” (Trop v. Dulles). One indication of this evolution is how far we have moved away from the Law of Hammurabi, with the last vestige being the “eye for an eye” justification of capital punishment. It may be time to abandon this rationale as a relic from a less civilized period of human history.
If we do set aside the strict application of “eye for an eye” justice, what then remains of the retributive justification of capital punishment? Not much, since retributivism would no longer require the death penalty in cases of murder. The larger retributivist intuition is an important and indispensable one, namely, that criminals should be punished as deserved, and the scales of justice need to be balanced. To accomplish this we need to make a moral assessment about what would count as adequate compensation for a crime. Maybe that assessment will lead to the conclusion that the death penalty is deserved, but, without the strict “eye for an eye” formula, it is not necessarily required, since other types of adequate compensation are available, particularly long term imprisonment.
A second traditional defense of the death penalty is that it is justified through the social contract: to preserve the peace, citizens contractually agree to set aside their hostilities and set up a government that will punish lawbreakers, including executing them if deemed necessary. As Thomas Hobbes describes the situation, prior to the creation of governments, humans lived in a hostile natural condition in which we competed for survival, which made our lives “solitary, nasty, brutish and short.” Our natural desire for a long and productive life motivates us to seek the best means of living peacefully with our fellow humans, and the social contract is the mechanism to accomplish this. According to Hobbes, for the government to effectively assure that citizens abide by the terms of the contract, it must have the authority to punish criminals who break the rules, and sometimes this requires capital punishment.
So far this social contract justification of capital punishment sounds reasonable, considering that the alternative is to have society collapse, which would throw us back into a state of nature. But Hobbes himself points out two problems with justifying the death penalty through the social contract. First, my purpose for entering into the contract to begin with is to preserve my life, and, thus, it is contrary to that purpose if I agree to a death penalty for myself. He writes that “No man is obliged by any contracts whatsoever not to resist him who shall offer to kill, wound, or any other way hurt his body” (De Civi, 18). Hobbes’s solution to this problem is that I may accept a contract that permits the government to attempt to kill me if I commit a serious crime, but I cannot accept a contract that requires me to passively allow the government to kill me. The most that I can do is agree to not help some other criminal escape punishment, but I am entitled to do everything that I can to escape punishment for myself.
The second problem with justifying capital punishment through the social contract concerns how the government got permission to kill us to begin with. If the contract stipulates that we all need to relinquish our rights to kill each other, then this should apply to the government too. Hobbes’s solution is that the government did not sign that version of the contract. Imagine that you and I agree to get along with each other, but, to guarantee this, we hire a bully to beat us up if we break our agreement. The bully himself, though, is not part of that agreement, but only part of a different agreement that gives him policing powers over us. Similarly, the government is not part of the same contract that you and I are, and, technically speaking, the government is still in the warring state of nature and can kill whoever it wants. Rather, the government agreed to a different contract by which we give it the authority to police us, even under threat of the death penalty. Hobbes writes, “the subjects did not give the sovereign that right” to punish us by death, but, instead, it is a right that it still has from the state of nature (Leviathan, 28).
Thus, Hobbes’s version of social contract theory does justify capital punishment, but only barely so, and in a convoluted way. We find a much tidier justification in of the death penalty in French philosopher Jean Jacques Rousseau (1712–1778) who argued that, when signing the social contract, I am indeed agreeing to allow the government to execute me if I interfere with the larger social good. Rousseau raises the problem that first bothered Hobbes: how can individuals, who have no right to dispose of their own lives, transfer to the government a right which they do not possess? Rousseau’s answer is that I am entitled to put my life at risk for the prospect of achieving a better situation for myself, and people do this all the time. To avoid being burned in a fire, I may rightfully jump out a window even if it results in my death. If I need to make an important trip when the traveling conditions are dangerous, I am entitled to do that too. For Rousseau, the situation is the same when we sign the social contract:
The social treaty has for its end the preservation of the contracting parties. He who wills the end wills the means also, and the means must involve some risks, and even some losses. He who wishes to preserve his life at others expense should also, when it is necessary, be ready to give it up for their sake. [The Social Contract, 2.5]
By signing the social contract, I take on the risk that the government may judge my actions to be criminal and execute me. But it is a risk that I am willing to take since the rewards of living in a peaceful society are worth it, especially considering that the alternative is to live a miserable life outside of society.
Rousseau’s reasoning is more straightforward than Hobbes’s, and has become the standard social contract justification of capital punishment. It is also Rousseau’s version that critics of the death penalty attack. We see this first with Beccaria who argued that no one would ever agree to give up his right to life as a requirement for entering society: “Each person gives only the smallest portion of his liberty over to the good of the public. Is it possible that this small portion [of liberty] contains the greatest good of all, namely, that person's life?” (On Crimes and Punishment, 28). I may agree to the idea of forfeiting some of my rights if I violate the law, if that is what is needed to become a member of society. I may be willing to risk jail time for the benefits of living within a peaceful and well governed society. However, it is not reasonable for me to risk being executed to receive society’s benefits. The whole point of entering society is to get some benefit, and I get no such benefit if I am dead.
Beccaria provided only a short critique of Rousseau’s position, but a more detailed one was offered by American statesman Robert Rantoul (1805-1852). It is not reasonable, he argues, that we consented to place our lives “at the discretion, or the caprice of a majority, whose erratic legislation no man can calculate beforehand.” Rantoul cites the French Revolution itself as an example, when, during the Reign of Terror, 17,000 people were executed, with its leaders using Rousseau’s social contract theory as its philosophical defense. Further, he argues, considering how zealously the government protects the rights of property, liberty and personal security, it makes no sense that the government should so easily discard the right to life. Finally, Rantoul argues that no reason can be given why a person would trade in his right to life under one social contract system, when under a different social contract he could retain the right to life while still receiving the necessary benefits of a government:
Let there, at least, be shown some reason for supposing that any sane man has of his own accord bartered away his original right in his own existence, that his government may tyrannize more heavily over him and his fellows, when all the purposes of good government may be amply secured at so much cheaper a purchase. In no instance can this preposterous sacrifice be implied. [“Report on the Abolition of Capital Punishment”, 1836]
While Rousseau’s social contract defense of capital punishment is simple and organized, it now seems almost naive in the face of Beccaria’s and Rantoul’s criticisms. There is no obvious reason why we should willingly hand our right to life over to an impulsive and unpredictable government when we might obtain comparable security from an alternative government without relinquishing that right. If capital punishment can be reasonably defended by social contract theory, it may be only through a complicated one like Hobbes’s. The effect of Hobbes’s account is that, when no better alternative is available, yes, we will sign a social contract that is managed by a bully who might impose the death penalty, but if it ever comes to that, we do not have to cooperate with the bully and passively accept our death.
A third traditional justification of the death penalty is that when people commit serious crimes, they forfeit their rights to life, and thus may be executed. The concept of rights forfeiture is frequently appealed to as a justification for other forms of punishment, such as imprisonment. If you commit a violent crime, you forfeit your liberty rights, and society may place you in prison where you no longer have the freedom of movement and expression. The idea of rights forfeiture was first articulated by British philosopher John Locke (1632-1704), who argued that from birth I have natural God-given rights to life, health, liberty and property. I retain these rights throughout my life, Locke says, unless I violate the fundamental rights of others, in which case I enter a condition of war with my victim, and I forfeit my right to life. This entitles my victim to kill me, just as he would be entitled to kill a dangerous animal that threatened him. Locke argues,
For man, not having such an arbitrary power over his own life, cannot give another man such a power over it, but it is the effect only of forfeiture which the aggressor makes of his own life when he puts himself into the state of war with another. For having quitted reason . . . he renders himself liable to be destroyed by his adversary whenever he can, as any other noxious and brutish creature that is destructive to his being. [Second Treatise on Government, 172]
Locke held that I forfeit my right to life not only if I attempt to murder someone, but also if I forcibly rob someone, even when I have no intention of killing my victim. This is because I have my victim within my power when I take his possessions, and my victim can reasonably assume that, when he is under my power, I will “take away everything else,” including his life. From Locke’s time onward, rights forfeiture has been a popular reason given in support of capital punishment. At the same time, though, it has been persistently criticized, and we will consider two recurring objections.
First, there is the criticism that rights forfeiture allows for vigilantism: if I forfeit my life by killing someone, then anyone may hunt me down and kill me. We presume that only the state has the authority to do so, but if I am now without any right to life because of my violent conduct, then my life is in a sense part of the public domain and free for the taking by anyone, and not just the state. Clearly, this is an unsustainable position: we in fact do not permit vigilantism and, more importantly, we believe that vigilantism is wrong. Rather, we believe that the authority to carry out executions must rest within the state, not within private initiative. Thus, the theory of rights forfeiture is inherently flawed. While Locke did not directly address this issue, there is enough in his political theory to develop a plausible response to this problem of vigilantism. For Locke, rights forfeiture is built into the very concept of natural rights as devised by God (or, alternatively, by nature), who also made the rules and conditions of natural rights. If I am living in a pre-society natural condition and I attempt to kill someone, then, according to the rules of natural rights, I forfeit my right to life specifically to my victim, who in turn has the authority to kill me. At best, it is only my victim, and by extension his family or associates acting on his behalf, that have the right to vigilante justice. But even that right to vigilantism is short-lived. Once societies are established, we hand over our right to vigilante justice to the state, and governments then have the sole authority to execute the aggressor. We add a layer of civility over top of the rights that we have in a natural condition, and, in the interest of law and order, give up some of the freedoms that we previously had. Thus, within Locke’s theory, we can find a plausible response to this first criticism.
A second criticism of rights forfeiture is that it is inherently at odds with the concept of rights inalienability, which most generally means that rights cannot be given up. The notion of inalienability is a fuzzy one that is open to interpretation, and the tension between forfeiture and inalienability emerges if we make a distinction between what we may call “weak” inalienability and “strong” inalienability:
• weak inalienability: an inalienable right is one that may not be voluntarily relinquished or transferred by the right-holder, but may be forfeited by the right-holder by committing a crime
• strong inalienability: an inalienable right is one that may not be separated from the right-holder for any reason whatever.
On these definitions, weak inalienability is compatible with rights forfeiture, but strong inalienability is incompatible with it. The intuition behind weak inalienability is that liberty rights, such as the right of free movement, are forfeitable if I commit a crime like theft and am locked up in prison as a punishment. The same can be said if I commit murder and am executed as a punishment. In each case the rights are both inalienable and forfeitable. By contrast, the intuition behind strong inalienability is that the right to life is completely non-negotiable, regardless of what crimes we may have committed. If I commit theft, I still retain my liberty rights, although the government can justly restrict my exercise of it by putting me in prison. It is like the way your boss restricts your liberty to wander around the office building when you should be at your desk. However, if I commit murder, I still retain my right to life, but the government cannot execute me since this would annihilate my right to life, not merely restrict it. They can still restrict my liberty by putting me in prison for murder, but the idea of a right to life is not meaningful if it can have exceptions here and there. It is, instead, exceptionless.
Locke himself does not use the expression “inalienable right”, which was only introduced a half-century after him, and quickly attained an almost magical significance by Jefferson in the Declaration of Independence. But Locke does advocate the key features of weak inalienability in his account of rights theory. According to him, even though I might forfeit my right to life to someone that I attack, I still cannot voluntarily transfer that right over to someone, such as by selling myself into slavery:
a man, not having the power of his own life, cannot, by compact, or his own consent, enslave himself to any one, nor put himself under the absolute, arbitrary power of another, to take away his life, when he pleases. Nobody can give more power than he has himself; and he that cannot take away his own life, cannot give another power over it [Second Treatise on Government, 23]
Even though Locke sides with weak inalienability, not everyone after him did. Accordingly, defenders of capital punishment held to weak inalienability, and critics of it held to the strong version. Here are short examples of each from nineteenth-century writers on the subject:
• pro capital punishment (weak inalienability): “Is not liberty and every other right as inalienable as that of life? . . . If the murderer takes the life of his brother, you say he does not forfeit his own. We ask then, does he forfeit his liberty? Does he forfeit any thing?” [Plummer, Defense of Capital Punishment, 1846]
• contra capital punishment (strong inalienability): “opponents [of the death penalty] stand on the admitted general rule that human life is sacred; or, as it is stated in our national declaration, that the right to life is among the ‘inalienable rights’ with which ‘all men are endowed by their Creator’.” [Burleigh, Thoughts on the Death Penalty, 1847]
So, does rights forfeiture succeed as a justification for capital punishment? That depends. Rights theory is a flexible notion that, with enough creativity, can be shaped in different ways. If it is formulated in a way that accepts weak inalienability, then, yes, it may justify capital punishment. However, if it is formulated differently so that it accepts strong inalienability, then, no, it does not justify capital punishment. This flexibility of rights theory, where it might be formulated in either direction, raises a red flag. It would be nice if we could know the exact features of rights, but unfortunately there is no universal consensus about exactly which rights we have, which beings or entities have rights, and whether forfeiture or inalienability are part of the rights package. Because of this, we often bend rights theory to support our own moral convictions, rather than consult it as an impartial tool for determining what is right or wrong, just or unjust. This seems to be the case when examining the morality of capital punishment, and, as such, rights theory is not much help.
A fourth traditional defense of capital punishment is that society is better off with it than without it. This approach is sometimes called the argument from “expediency”, but the rationale is most associated with utilitarian philosophers. Utilitarianism as a general moral philosophy holds that an action is morally right if the consequences of that action are more favorable than unfavorable to everyone. In determining whether capital punishment is morally justified, then, we need to consider both the beneficial and harmful consequences of it: if it is on balance more beneficial, then it is permissible, if not, then it is impermissible. The utilitarian approach to capital punishment substantially differs from the ones that we have examined so far. Considerations about retribution, the social contract and rights forfeiture are based largely on foundational ideological convictions, with minimal emphasis on whether capital punishment in fact will improve the world. The utilitarian approach to capital punishment, though, is all about gathering facts and performing a cost-benefit analysis to determine whether the death penalty will indeed make the world a better place.
Among the classic utilitarian philosophers, Jeremy Bentham (1748-1832) produced the most systematic analysis of capital punishment. At the time Bentham wrote, English law had the enormous number of capital offenses noted earlier, and this factored into his analysis. Below is a summary of his list of both the advantages and disadvantages of the death penalty, which includes special disadvantages of capital punishment for minor crimes:
Advantages of Capital Punishment
• It is analogous to the offense in cases of murder (i.e., a death for a death)
• It has popular appeal in cases of murder
• It prevents criminals from repeating their crimes
• It deters others by making a lasting impression on them
Disadvantages of Capital Punishment
• It eliminates any restitution or special service that the criminal might perform
• It creates a financial loss to society by permanently removing criminals from the work force
• It is not a heavy punishment to criminals who have little to live for
• It is irreversible in cases of error
Special Disadvantages of Capital Punishment for Minor Crimes
• It makes perjury appear meritorious when compassionate judges intentionally undervalue the cost of stolen items
• It produces a general disrespect for the law since such a small percentage of convicted criminals receive the full sentence
• It makes convictions arbitrary and pardons necessary
[paraphrased from Bentham, Rationale of Punishment, 1775, 12]
Bentham’s final assessment is that capital punishment has more disadvantages than advantages, and, thus, it should be abolished for all crimes.
Regarding his list of advantages of capital punishment, he has a criticism of each one. First, concerning the analogy of a death for a death, Bentham states that “analogy is a very good recommendation, but not a good justification.” That is, it is an initially plausible suggestion since the punishment would be proportional to the crime, but further reasons would be needed to implement it. We have seen this in our analysis of “eye for and eye” retributivism above. Second, regarding the popularity of capital punishment in murder cases, he argues that “Every other mode of punishment that is seen to be equally or more efficacious will become equally or more popular”. He also argues that the current popularity of the death penalty can be explained by the desire for vengeance among citizens, and the deficiency of prisons to hold criminals (“On Death Punishment”, 1831).
Thirdly, Bentham considers the commonly held view that capital punishment is absolutely necessary in cases of murder, since it is believed that this is the only way to assure that the criminal will not murder again. However, he argues, we will find that this assertion is “extremely exaggerated” when considering how we punish murderers who are insane:
it is never thought necessary that madmen should be put to death. They are not put to death: they are only kept in confinement; and that confinement is found effectually to answer the purpose. [Bentham, 1775]
This is all the more telling, he argues, since insane murders act arbitrarily and are thus more dangerous than murderers who kill merely for money and only do so when the believe that their crimes will go undetected. The fourth and final advantage of the death penalty that Bentham evaluates is that it deters others from committing crimes. Yes, he says, it “is true with respect to the majority of mankind: it is not true with respect to the greatest criminals”. Criminals, he argues, lack the discipline and desire to obtain a living through consistent employment, and consequently “look upon the pleasures to be obtained by honest industry as not worth living for.” The only pleasures that they enjoy are those attainable through crime. Further, “their very [criminal] profession leads them continually to put their existence in jeopardy” and life itself does not have the same appeal to the criminal as it does for the noncriminal. Consequently, these criminals will be deterred more by the threat of permanent imprisonment in a structured work environment than they will by the death penalty.
Again, Bentham’s conclusion is that the disadvantages of capital punishment far outweigh the advantages, and thus capital punishment should be abolished. But that is the analysis of just one utilitarian philosopher. Utilitarian approaches to moral decision making do not necessarily come with fixed judgments about any issue, whether it is capital punishment, sexual morality, or euthanasia, just to name a few. Instead, utilitarianism simply offers a formula for solving moral problems once we supply the relevant facts. British utilitarian philosopher John Stuart Mill (1806–1873) also examined the issue of capital punishment and arrived at a different conclusion: the death penalty is justified because of its deterrence value. Like Bentham, Mill argues that to the criminal himself, the death penalty may not seem as severe as permanent imprisonment:
What comparison can there really be, in point of severity, between consigning a man to the short pang of a rapid death, and immuring him in a living tomb, there to linger out what may be a long life in the hardest and most monotonous toil, without any of its alleviations or rewards [Speech before Parliament, April 21, 1868]
Capital punishment, then, is more merciful to the criminal than the alternative. Further, Mill continues, to the outsider, the death penalty is much more horrifying than permanent imprisonment, and thus makes a stronger and more lasting impression. For Mill, then, the formula is simple: the death penalty is less painful to the criminal and has greater deterrence on the public, whereas imprisonment is more painful to the criminal and has lesser deterrence on the public. Accordingly, Mill concludes that he defends the death penalty “when confined to atrocious cases, on the very ground on which it is commonly attacked -- on that of humanity to the criminal; as beyond comparison the least cruel mode in which it is possible adequately to deter from the crime.” Between Bentham and Mill, then, the utilitarian question of capital punishment comes down to its level of deterrence. It is not merely utilitarian philosophers who examine the deterrence value of the death penalty, but much of the debate today focuses on just that question, which we turn to next.
As we have seen from the utilitarian discussion, the question of capital punishment and deterrence is not whether the death penalty has any deterrent value at all, for it undoubtedly does. Rather, it is a question of whether executing criminals does a better job at deterring others than does long-term or permanent imprisonment. Common sense suggests that the death penalty should be more effective. A parking fine of $100 will do a better job of deterring me from illegal parking than a mere fine of $10. Imagine how much more I would be deterred if the penalty for illegal parking was the death penalty: I might give up driving altogether. As compelling as this intuition might seem, there are other psychological factors at play. Beccaria argued that in time we will naturally grow accustomed to increases in severity of punishment, and consequently the initial increase in severity will lose its effect:
In proportion as punishments become more cruel, the minds of people grow hardened and insensible; this is just as a fluid rises to the same height with that which surrounds it. And because of the continual force of the passions, in a period of a hundred years, the wheel terrifies no more than the prison did before. [On Crimes and Punishments, 27]
Thus, over time we would get used to the idea of the death penalty, and it would deter us no more than we previously would have been deterred by life imprisonment. The burden of proof, then, seems to be on the defender of capital punishment to show that the same deterrent effects could not be accomplished with a less severe punishment of long-term or life imprisonment.
How, though, might a defender of the death penalty demonstrate that it really does have greater deterrence value? 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. There would be an almost endless variety of differing factors in the respective groups, such as differing rates of unemployment, drug use, education, gun ownership, church attendance, single parenthood, gang membership. In the absence of being able to conduct a scientifically perfect experiment to test the deterrence value of capital punishment, researchers have tried other approaches. A common method is to compare the murder rates of states that have the death penalty to those that do not. Another is to compare whether murder rates have increased or decreased when those same states have increased or decreased the number of executions. Again, though, it is nearly impossible to remove the impact of other influences, such as cultural and economic ones, which differ from state to state and also differ over time within the same state. Not surprisingly, then, most studies on the deterrence value of capital punishment are either inconclusive or methodologically flawed.
A case in point is the work done on this subject by the National Research Council (NRC). In 1978 they published a detailed analysis of the evidence and concluded that “available studies provide no useful evidence on the deterrent effect of capital punishment” (Deterrence and Incapacitation). In 2012 the NRC revisited the issue by evaluating dozens of recent studies on the issue. They found that the results of those studies varied dramatically, with some maintaining that the death penalty saves large numbers of lives, others that it increases homicides, and still others that it has no effect. In view of these conflicting results, the NRC drew the pessimistic conclusion that research on the subject was useless for proving the issue one way or another:
The committee concludes that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates. Therefore, the committee recommends that these studies not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide. Consequently, claims that research demonstrates that capital punishment decreases or increases the homicide rate by a specified amount or has no effect on the homicide rate should not influence policy judgments about capital punishment. [NRC, Deterrence and the Death Penalty, 2012]
The NRC found two major flaws in the examined studies. First, none specified “the noncapital sanction components of the sanction regime for the punishment of homicide”. That is, in evaluating the deterrence of the death penalty, the studies did not take into account the fact that the criminal was alive in prison for a lengthy period of time awaiting execution. That time in prison likely had at least some deterrence value in and of itself, but the studies failed to differentiate this from the deterrence value of the execution in and of itself. This oversight, then, might have artificially inflated the deterrence value of a capital punishment program. The second flaw in the studies was “the use of incomplete or implausible models of potential murderers’ perceptions of and response to the capital punishment component of a sanction regime.” That is, the studies had inadequate psychological explanations of what takes place in the minds of potential criminals when they know that the death penalty is a possible consequence of criminal conduct.
For the sake of argument, let us suppose that the death penalty has some extra deterrent value beyond imprisonment. A question still remains about how frequently it needs to be imposed to successfully deter others. Perhaps, in the best possible situation, executing five of the most dangerous convicts will result in deterring five would-be murderers in the future, and thus saving five victims’ lives. As the number of executions increases, however, the number of victims’ lives saved will not increase proportionally. It may be that executing 100 criminals will still only deter five would-be murderers. According to American philosopher Hugo Adam Bedau (1926-2012), if society chooses to execute criminals because of its deterrence value, then we need to know the acceptable ratio of victims’ lives saved per execution. Otherwise we may be executing hundreds of criminals with no increase in saved lives whatsoever. Bedau asks, “Would it be worth it to execute so many more murderers at the cost of such a slight decrease in social defense? How many guilty lives is one innocent life worth?” (Matters of Life and Death, ed. Tom Regan). The problem, according to Bedau, though, is that we do not know what that ratio is, and it may be nearly impossible to calculate it. Thus, all that we are left with are uninformed hunches, which are not sound foundations for social policies as important as this one.
In sum, the current evidence for the deterrence value of capital punishment is weak, and defenders of the death penalty cannot draw on this in their arguments. For utilitarians, Mill’s justification for capital punishment is impaired by this limitation, and, at least for now, Bentham’s critique appears to be the victor in the contest between the two philosophers. We have seen that the moral arguments for capital punishment from retribution, the social contract, and rights forfeiture have their own sets of problems, and now we also find this with the utilitarian arguments. This does not mean that no successful moral argument for the death penalty exists, but the ones that we have examined so far are not compelling.
PUBLIC POLICY ISSUES
Let’s set aside the moral issue of capital punishment and, for the sake of argument, even concede that there may be some moral justification for it that we have not examined. The question now is whether the death penalty is good public policy and can be implemented in a fair way, considering all the flaws that exist in the criminal justice system. Public policy discussions about capital punishment in the U.S. often focus on three specific issues: proportionality, executing the innocent, and racial bias. Much of the debate centers on Supreme Court decisions. While individual states decide whether or not to implement the death penalty, Supreme Court cases have done much to set the parameters of when capital punishment is permitted throughout the country.
An initial legal issue regarding the death penalty involves the notion of proportionality, that is, whether death penalty sentences are handed down uniformly in similar situations. The issue surfaced in the Supreme Court decision Furman v. Georgia (1972), in which the Court ruled that the death penalty was unconstitutional because it was imposed capriciously and arbitrarily. Justice Potter Stewart famously expressed the problem here:
In the first place, it is clear that these sentences are "cruel" in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary. . . . In the second place, it is equally clear that these sentences are "unusual" in the sense that the penalty of death is infrequently imposed for murder, and that its imposition for rape is extraordinarily rare. But I do not rest my conclusion upon these two propositions alone. These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . . the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed. [Furman v. Georgia, concurring decision]
Stewart’s criticism in the above parallels Bentham’s attack on the old British system of capital punishment in that it “renders convictions arbitrary” and “produces contempt for the laws”. The result of this Supreme Court decision was that over 600 criminals on death row were resentenced to life imprisonment.
This court case came at a time in the early 1970s when there was little public support for the death penalty, and there had not been any executions for five years anyway. For a time it seemed that the U.S. had joined European countries in abolishing the death penalty. But as crime in the U.S. quickly increased, public attitudes changed. Reflecting this, in the 1976 case Gregg v. Georgia the Supreme Court reversed its 1972 decision, essentially declaring that States had fixed the problem and the death penalty was no longer arbitrarily imposed. New rules pertaining to executions provided “objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death.” Among these new rules were proportionality reviews that various states required in capital cases, which would evaluate whether a particular crime warrants the death penalty. The very following year the Supreme Court determined that capital punishment in cases of rape is unconstitutional because the sentence was disproportionately carried out in only a minority of states (Coker v. Georgia, 1977). In subsequent cases, the Court ruled against executing mentally retarded people, juveniles under age 18, nonhomicidal crimes (Atkins v. Virginia, 2003; Roper v. Simmons, 2005; Kennedy v Louisiana, 2008).
The function of proportionality review systems is to determine whether a death sentence is consistent with the sentences imposed in factually similar cases. For example, if most people who kill someone in a bar room fight do not get executed, then it would be disproportional if I was sentenced to death for a similar crime. The challenge, though, is to devise a comprehensive list of the relevant factors in various crimes which can then be used to compare the similarity of one crime to another. Obvious factors would include the criminal’s motivation and level of violence. Less obvious factors would be whether the defendant had a troubled childhood, poor education, drug addiction, or mental impairment. Some proportionality review systems have attempted to make the comparison process as mechanical as possible. A judge or review panel would simply plug the relevant factors of a case into a statistical formula, and out would come an answer, such as whether the crime is typically punishable through death, or through long-term imprisonment.
Critics of proportionality review systems charge that it is nearly impossible to make a comprehensive list of all the relevant factors and to assign to them the appropriate weight. One study concluded that “the implementation of comparative proportionality review over the last three decades has not provided, and indeed cannot provide, an adequate safeguard against the arbitrary and capricious administration of capital punishment” (Timothy V. Kaufman-Osborn, “Capital Punishment, Proportionality Review, and Claims of Fairness,” 2004).
Executing the Innocent
Throughout history there have been concerns about innocent people being wrongfully executed. As Justice Stewart stated, “The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability” (Furman v. Georgia). In 2000, such worries prompted Governor George Ryan to call a moratorium on all executions in his state of Illinois. His decision was the result of disturbing evidence that many inmates on death row were in fact innocent of the crimes they were convicted of, or at least accused of based on faulty evidence. According to Ryan, the criminal justice system is so flawed that innocent people are regularly given the death penalty. While many steps can be taken to improve the system, given human frailty, he maintained, we can never guarantee that only the guilty will be executed. His decision sparked a national debate on the issue.
One response to the problem of executing the innocent is to deny that this ever really happens, which Mill does in the following:
Our rules of evidence are even too favorable to the prisoner; and juries and Judges carry out the maxim, “It is better that ten guilty should escape than that one innocent person should suffer,” not only to the letter, but beyond the letter. Judges are most anxious to point out, and juries to allow for, the barest possibility of the prisoner’s innocence. No human judgment is infallible; such sad cases as my hon. Friend cited will sometimes occur; but in so grave a case as that of murder, the accused, in our system, has always the benefit of the merest shadow of a doubt. [Parliamentary speech, April 21, 1868]
Mill’s point is that, yes, wrongful executions do unfortunately take place in other European countries, and in those places that is a decisive argument against the death penalty. But thankfully the British judicial system is so vigilant to avoid such errors that it does not happen there. In more recent times George W. Bush, when governor of Texas, expressed a similar attitude regarding the large numbers of executions in his state:
We had a series of people executed in my state. These are people who were found guilty by a jury of their peers. These are people who have had full access to the courts of law. There's no doubt in my mind that each person who's been executed in our state was guilty of the crime committed. [CNN, February 17, 2000]
Even now defenders of the death penalty argue that there is no absolute proof that any innocent person has been executed in recent decades. What are their names and where is the evidence? No one is stepping forward with that information.
Death penalty opponents recognize the difficulty in definitively naming innocent people who have been executed, and much of the reason for this, they argue, is that in most capital punishment cases there is no DNA evidence available from the crime scene. Nevertheless, the fact remains that many people on death row have been proven innocent through DNA testing. An organization called the Innocence Project is devoted to setting free wrongfully convicted people with the help of such tests, most of whom, they explain, “are poor, forgotten, and have used up all legal avenues for relief.” It is unreasonable to think that we have so far been lucky enough to rescue every innocent person from death row. Indeed, as the survey cited at the outset indicates, most people in the U.S. believe that innocent people have been executed.
Death penalty defender John McAdams concedes that innocent people may have been executed. However, he argues, the numbers are probably very small, perhaps only a few during the entire 20th century, and none in more recent decades. Further, he maintains, many public policies result in the deaths of innocent people, such as when governments set highway speed limits, automobile safety standards, building safety codes, and prescription drug testing procedures. These decisions may result in the deaths of thousands of innocent people, and, by comparison, the number of innocent people executed is negligible. Although the criminal justice system is flawed, McAdams argues, “there is every reason to believe that the rate of error is much lower for the death penalty than for imprisonment” and until the system can be fixed, “the death penalty” will remain the fairest penalty we have” (An Examination of the Death Penalty in the United States, U.S. Senate, Judiciary subcommittee hearing, 2006).
As expected, critics of the death penalty have a response to McAdams: the comparison between governmental policies about speed limits and the death penalty is a bad one. Individual citizens know the risks of driving and decide for themselves to take that risk or attempt to minimize it. However, an individual citizen who is innocent of a crime can do nothing in advance to minimize his false arrest, conviction and execution. Unlike driving, the wrongly-convicted citizen is in no way a voluntary participant in the circumstances leading up to his death. Society may never be able to fully eliminate wrongful convictions. However, by removing the death penalty, society can at least allow the wrongly-convicted citizen the life-long opportunity to prove his innocence. The question comes to what society values more: giving the wrongly-convicted a life-long chance of exoneration, or bringing a speedy end to the lives of rightly-convicted killers.
Another critical public policy issue surrounding the death penalty in the U.S. is whether it is imposed unfairly with racial bias. The issue first came to light in the 1987 Supreme Court case, McCleskey v. Kemp. The defendant, Warren McCleskey, was a black man who was sentenced to death some years earlier in Georgia for killing a white police officer. On appeal to the Supreme Court, McCleskey’s attorney argued that the sentence was the result of racial bias. To support his case, he relied on research by law professor David Baldus who studied over 2,000 murder cases that went to trial in Georgia during the 1970’s, the period in which McCleskey committed his crime. Among Baldus’s findings were, first, murderers were 4.3 times more likely to receive the death penalty if their victims were white rather than black. Thus, in the eyes of the justice system, the lives of black victims count less than the lives of white ones. Second, when victims were white, the murderers who were black were more likely to receive the death penalty than white murderers. Thus, in the eyes of the justice system, more leniency was shown to white killers than to black ones. Ultimately, the Court ruled against McCleskey. While the Court agreed that there were racial disparities in how the death penalty was carried out in Georgia, they held that it did not violate McCleskey’s constitutional right of equal protection under the law. Convicts like McCleskey cannot argue that they have been wronged because of a general pattern of racial bias; rather, a convict must show that race affected his or her specific case. McCleskey was executed in 1991.
Although Baldus’s findings were restricted to Georgia’s death penalty cases in the 1970s, other studies draw similar conclusions about more recent death penalty convictions nationwide. Currently more than half of all people on death row are people of color, most of whom are black. A 2006 study by a Stanford University research team concluded that black male murderers found guilty of killing a white person were more than twice as likely to get the death penalty when they had stereotypically black-looking features, such as darker skin (Jennifer Eberhardt, "Looking Deathworthy”).
In response, McAdams concedes that there is an element of racial bias when the death penalty is handed down, but it is actually a bias against white killers, not against black killers. The reason is that, first, the criminal justice system under-punishes those who kill blacks, just as Baldus indicated. Second, most killings occur within racial groups; that is, blacks typically kill blacks, whites typically kill whites. The result is that black killers are on the whole punished more lightly than white killers, both with the death penalty and the length of prison terms. McAdams writes,
What the studies do show is a huge bias against black victims. Offenders who murder black people get off much more lightly than those who murder whites. Since the vast majority of murders are intraracial and not interracial, this translates into a system that lets black murders off far more easily than white murderers. [An Examination of the Death Penalty in the United States]
According to McAdams, there are racial disparities throughout the criminal justice system, particularly insofar as the punishments are stiffer when the victim is white. This is certainly unfortunate and it exposes an imperfection in the system as a whole. Nevertheless, McAdams argues, this does not mean we should stop punishing people altogether or stop executing convicted killers.
COMMON ARGUMENTS PRO AND CONTRA
The Conservative Position
The conservative view of capital punishment is that it is at least sometimes morally justifiable and it should be legal. Advocates of this view are often called “retentionists”, indicating that they seek to retain the practice of capital punishment in society. The main arguments for the conservative position are these.
1. Retribution: the death penalty is deserved and ultimately balances the scales of justice. A criticism of this argument is that, while justice demands that murderers be punished, literal eye for an eye retribution is not an acceptable means of punishment in civilized societies.
2. Incapacitation: the death penalty keeps the murderer from killing again. A criticism of this argument is that murderers aren’t often repeat killers, and the public overestimates the danger.
3. Deterrence: the death penalty deters crime. A criticism of this argument is that there is no conclusive evidence that the death penalty deters more than long term imprisonment.
4. Financial Costs: Detaining criminals in prison for life is very expensive, and society should not have to pay those costs for murderers. A criticism of this argument is that justice should not be determined by financial considerations. We could cut the costs of the criminal justice system even more by eliminating juries and appeal processes for all crimes. We could cut back on food and cell space in all prisons. We could, in short, have our criminal justice system be like those in third world countries, which are much more cost-effective than ours. In an advanced society, though, there is always a high financial price that we pay for being just and humane, and that price is worth it.
The Liberal Position
The liberal view of capital punishment is that it is never morally justifiable and it should be illegal. Advocates of this position are sometimes called “abolitionists” in the sense that they seek to abolish the practice of the death penalty. The chief arguments for the liberal position are these.
1. Proportionality: the death penalty is imposed arbitrarily, depending on the state in which one resides, the attitudes of specific prosecutors, judges, jurors, and one’s ability to afford a good defense. As one Supreme Court justice said, the death penalty should be imposed with “reasonable consistency, or not at all.” A criticism of this argument is that many states have proportionality reviews to check that the death penalty is appropriate to the crime.
2. Executing the innocent: mistakes are made in the criminal justice system that sometimes result in innocent people being executed. Would you be willing to personally throw the switch to execute someone knowing that there’s a real possibility that he could be innocent? Probably not. A criticism of this argument is that it is difficult to identify clear cases of innocent people being executed, and, even if it does occasionally happen, many public policies result in the deaths of innocent people.
3. Racial bias: Capital punishment is imposed with racial bias. A criticism of this argument is that the real bias appears to be against white killers (who typically kill whites), and not against black killers (who typically kill blacks). Typical black killers get the lighter sentences.
4. International Standards: The most industrialized and advanced countries around the world have abandoned the death penalty, and by retaining the practice the U.S. places itself in the same category as under developed countries. This is particularly so with the quantity of executions we carry out, which compares to the most tyrannical governments today. A criticism of this argument is the American culture is not completely comparable to that of other developed countries. Our per capita murder rate is among the highest in the world, and by far the highest of the most developed countries. Perhaps when our crime rates drop to those of the United Kingdom or France we can follow their lead with the death penalty.
A Moderate Compromise
Technically, there is no true middle position on the issue of the death penalty since abolitionists on the liberal side believe that it is never justified under any circumstance. Nevertheless, there is room for at least some compromise by making the system less arbitrary and prone to error. For example, some states overuse the death penalty, most notably Texas which, since 1976, has been responsible for one-third of all executions in the U.S. Other heavy users of the death penalty are also Southern states. Bringing these states more in line with national averages would eliminate some charges of disproportionality. To accomplish this, the Supreme Court could set strict guidelines to assure that the death penalty is imposed proportionally, only on the truly guilty, and without racial bias.
READING 1: BECCARIA AGAINST THE DEATH PENALTY (On Crimes and Punishment, 1764)
We Do not Give Up our Right to Life
The useless profusion of punishments, which has never made people better, induces me to inquire whether punishment by death is really just or useful in a well-governed state. What right, I ask, do people have to cut the throats of their fellow-creatures? Certainly not the right on which the sovereignty and laws are founded. The laws, as I have said before, are only the sum of the smallest portions of the private liberty of each individual, and represent the general will which is the aggregate of that of each individual. Did anyone ever give to others the right of taking away his life? Each person gives only the smallest portion of his liberty over to the good of the public. Is it possible that this small portion contains the greatest good of all, namely, that person’s life? If this were so, how can it be reconciled to the principle which tells us that a person has no right to kill himself? Certainly he must have this if he could give it away to another.
Only One Justification of Capital Punishment
But the punishment of death is not authorized by any right, for I have demonstrated that no such right exists. It is therefore a war of a whole nation against a citizen, whose destruction they consider as necessary, or useful to the general good. But if I can further demonstrate that it is neither necessary nor useful, I will have gained the cause of humanity.
The death of a citizen cannot be necessary except in one case. This is when he is deprived of his liberty and yet still has enough power and connections to endanger the security of the nation, that is, when his existence may produce a dangerous revolution in the established form of government. But even in this case, it is only necessary when a nation is on the verge of recovering or losing its liberty, or, in times of absolute anarchy, when the disorders themselves hold the place of laws. But this is not so in a reign of peace, or in a form of government approved by the united wishes of the nation, or in a state well-fortified from enemies without, and supported by strength within (and, even more effectively, by popular opinion), or where all power is lodged in the hands of the true sovereign, or where riches can purchase pleasures and not authority. In these there can be no necessity for taking away the life of a subject.
Capital Punishment Does Not Deter
Consider whether the experience of all ages is not sufficient to prove that the punishment of death has never prevented determined people from injuring society. Look, for example, at the Romans, or the twenty-year reign of Elizabeth, empress of Russia, in which she gave the fathers of their country an example more memorable than many conquests bought with blood. If, I say, all this is not sufficient to persuade people, who always suspect the voice of reason and who chose rather to be led by authority, then let us consult human nature in proof of my assertion.
It is not the intenseness of the pain that has the greatest effect on the mind, but its continuance. For our sensibility is more easily and more powerfully affected by weak but repeated impressions, than by a violent, but momentary, impulse. The power of habit is universal over every sentient being. It is by habit that we learn to speak, to walk, and to satisfy our necessities. So too the ideas of morality are stamped on our minds by repeated impressions. The death of a criminal is a terrible but momentary spectacle, and therefore a less effective method of deterring others, than the continued example of a person deprived of his liberty and condemned (as a beast of burden) to repair by his labor the injury he has done to society. “If I commit such a crime,” says the spectator to himself, “I will be reduced to that miserable condition for the rest of my life.” This is a much more powerful preventive than the fear of death, which people always see in distant obscurity.
The terrors of death make so slight an impression that it does not have enough force to withstand our natural human forgetfulness, even in the most essential things and when assisted by the passions. Violent impressions surprise us, but their effect is momentary. They are suited to produce those revolutions which instantly transform a common person into a [brutal] Lacedemonian or a Persian. But in a free and quiet government, such impressions should be frequent rather than strong.
To the masses, the execution of a criminal is entertainment, and in some it excites compassion mixed with indignation. Both of these sentiments fill the mind with a greater terror than the needed terror which the laws try to inspire. But in the contemplation of continued suffering, terror is the only (or at least the predominant) sensation. The severity of a punishment should be just sufficient to excite compassion in the spectators, as it is intended more for them than for the criminal.
Advantages of Long-Term Imprisonment
For a punishment to be just, it should have only that degree of severity that is sufficient to deter others. Now there is no person, with the least reflection, who would jeopardize the total and continual loss of his liberty for the sake of the greatest advantages he could possibly obtain resulting from a crime. Consequently, perpetual slavery [i.e., long-term imprisonment] contains all that is necessary to deter the most hardened and determined, as much as the punishment of death. In fact, I say it has more. There are many who can look upon death with courage and steadfastness. Some approach it through fanaticism, and others through vanity that attends us even to the grave. Others approach it from a desperate resolution either to get rid of their misery, or cease to live. But fanaticism and vanity abandon the criminal in slavery, in chains and fetters, in an iron cage. Despair seems rather the beginning than the end of their misery. By collecting itself and uniting all its force, the mind can momentarily repel the attack of grief. But its strongest efforts are insufficient to resist perpetual misery.
In all nations where death is used as a punishment, every example requires a new crime committed. However, in perpetual slavery, every criminal affords a frequent and lasting example. And if it is necessary for people to frequently be witnesses of the power of the laws, then criminals should frequently be put to death. But this supposes a frequency of crimes, and for that reason this punishment will cease to have its effect, and thus it becomes useful and useless at the same time.
Suppose you say that perpetual slavery is as painful a punishment as death, and therefore as cruel. I answer that if all the miserable moments in the life of a slave were collected into one point, it would be a more cruel punishment than any other. But these are scattered through his whole life, whereas the pain of death exerts all its force in a moment. There is also another advantage in the punishment of slavery, which is that it is more terrible to the spectator than to the sufferer himself. For the spectator considers the sum of all his miserable moments, whereas the sufferer, by the misery of the present, is prevented from thinking of the future. All evils are increased by the imagination, and the sufferer finds resources and consolations, of which the spectators are ignorant (judge by their own sensibility of what passes in a mind, by habit grown callous to misfortune).
Long-Term Imprisonment Counteracts the Easy Security of Religious Repentance
Let us, for a moment, note the reasoning of a thief or assassin, who is deterred from violating the laws [because of execution] by the gibbet or the wheel. (I am aware that developing the feelings of one’s own heart is an art which education only can teach; nevertheless, although a villain may not be able to give a clear account of his principles, they still influence his conduct.) He reasons as follows: “What are these laws that I am obligated to respect which make so great a difference between me and a rich man? He refuses me the pocket change I ask of him, and excuses himself by instructing me to get a job, with which he is unacquainted. Who made these laws? The rich and the great, who never stooped to visit the miserable huts of the poor, who have never seen a poor person dividing a piece of moldy bread, surrounded by the cries of his starving children and the tears of his wife. Let us break those ties that are fatal to the greatest part of humankind, and only useful to a few indolent tyrants. Let us attack injustice at its source. I will return to my natural state of independence. I will live free and happy on the fruits of my courage and industry. A day of pain and repentance may come, but it will be short. And for an hour of grief I will enjoy years of pleasure and liberty. As king of a small number of people who are as determined as myself, I will correct the mistakes of fortune, and I will see those tyrants grow pale and tremble at the sight of him, whom with insulting pride, they would not even rank with their dogs and horses.”
Religion then presents itself to the mind of this lawless villain by promising him almost a certainty of eternal happiness upon the easy terms of repentance. This contributes much to lessen the horror of the last scene of the tragedy.
Consider now the villain who foresees that he will pass many years, even his whole life, in pain and slavery. He will be a slave to those laws by which he was protected, in sight of his fellow citizens with whom he lives in freedom and society. He thus makes a useful comparison between those evils, the uncertainty of his success, and the shortness of the time in which he will enjoy the fruits of his crime. The example of those miserable criminals continually before his eyes makes a much greater impression on him than a punishment, which instead of correcting, makes him more hardened.
Harmful Effects of the Death Penalty
The punishment of death is harmful to society from the example of cruelty that it presents. If the passions, or the necessity of war, have taught people to shed the blood of their fellow-creatures, the laws, which are intended to moderate the savagery of humankind, should not increase it by examples of cruelty, which is even more horrible since punishment is usually accompanied with formal ceremony. Is it not absurd that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves? What are the true and most useful laws? Those compacts and conditions which all would propose and observe in those moments when private interest is silent, or combined with that of the public. What are the natural feelings of every person concerning the punishment of death? We may read them in the contempt and indignation with which everyone looks on the executioner, who is nevertheless an innocent executor of the public will. In this light, the executioner is a good citizen, who contributes to the advantage of society and is the instrument of the general security within, just as good soldiers are without. What then is the origin of this contradiction? Why is this sentiment of humankind permanent, even though contrary to reason? It is that in a secret corner of the mind in which the original impressions of nature are still preserved, people discover a sentiment which tells them that their lives are not lawfully in the power of anyone, except only that necessity which with its iron scepter rules the universe.
What must people [i.e., potential criminals] think when they see wise magistrates and grave ministers of justice, with indifference and tranquility, dragging a criminal to death? Or consider, while a condemned person trembles with agony expecting the fatal stroke, the judge who has condemned him leaves his tribunal to enjoy the comforts and pleasures of life, with the coldest insensibility, and perhaps with no small gratification from the exertion of his authority? They will say, “Ah! Those cruel formalities of justice are a cloak to tyranny. They are a secret language, a solemn veil, intended to conceal the sword by which we are sacrificed to the insatiable idol of despotism. Murder, which they would represent to us as a horrible crime, we see practiced by them without repugnance, or remorse. Let us follow their example. A violent death appeared terrible in their descriptions, but we see that it is the affair of a moment. It will be still less terrible to him, who not expecting it, escapes almost all the pain.” Such is the fatal, though absurd reasoning of people who are disposed to commit crimes, on whom the abuse of religion has more influence than religion itself.
Overcoming the Tradition of the Death Penalty and Inspiring Rulers to Change
If it is objected that almost all nations in all ages have punished certain crimes with death, I answer that the force of these examples disappears when opposed to truth, against which it is pointless to offer further recommendation. The history of humanity is an immense sea of errors in which a few obscure truths may here and there be found.
Consider that human sacrifices have also been common in almost all nations. That some societies only, either few in number, or for a very short time, abstained from the punishment of death, is in fact favorable to my argument. For such is the fate of great truths, that their duration is only as a flash of lightning in the long and dark night of error. The happy time is not yet arrived when truth will be the portion of the majority (as falsehood was previously).
I am aware that the voice of one philosopher is too weak to be heard when surrounded by the uproar of a multitude, blindly influenced by custom. But there are a small number of wise people, scattered around the earth, who will echo my views from the bottom of their hearts. If these truths should happily force their way to the thrones of princes, let it be known to them that they come attended with the secret wishes of all humankind. Tell the sovereign who patronizes them with a gracious reception that his name will outshine the glory of conquerors, and that equal fame will elevate his peaceful trophies above those of a Titus, an Antoninus or a Trajan.
How happy humankind would be if laws were now first formed, especially since we see benevolent monarchs on the thrones of Europe. They are friends to the virtues of peace and to the arts and sciences; they are fathers of their people and, though crowned, remain citizens. The increase of their authority enhances the happiness of their subjects by destroying that transitional despotism which intercepts the prayers of the people to the throne. If these humane princes have allowed the old laws to continue, it is undoubtedly because they are deterred by the numberless obstacles, which oppose the subversion of errors established by the sanction of many ages. Accordingly, every wise citizen will wish for the increase of their authority.
Please answer all of the following questions.
1. What is Beccaria’s view of punishment?
2. Describe the four principal aims of punishment.
3. What is Kant’s retributive argument for capital punishment?
4. What is Hobbes’s social contract argument for capital punishment and the two problems that he himself points out with it?
5. What is Rousseau’s social contract argument for capital punishment and what is Rantoul’s criticism of it?
6. What is Locke’s forfeiture argument for capital punishment?
7. What are the two problems with the rights forfeiture defense of capital punishment?
8. What are Bentham’s criticisms of the four advantages of capital punishment?
9. What is Mill’s utilitarian defense of capital punishment?
10. Explain the National Research Council’s and Bedau’s criticisms of capital punishment as a deterrence.
11. Explain the Furman v. Georgia and Gregg v. Georgia court cases on proportionality and capital punishment.
12. What are proportionality review systems, and what problems do they face?
13. What are the two key points of David Baldus’s studies of the death penalty in Georgia?
14. What are the criticisms of the four conservative arguments against the death penalty?
15. What are the criticisms of the four liberal arguments in favor of the death penalty?
[Reading 1: Beccaria against the Death Penalty]
16. According to Beccaria, what is the one justification of capital punishment?
17. According to Beccaria, why does capital punishment not deter?
18. According to Beccaria, what are the advantages of long-term imprisonment?
19. According to Beccaria, what are the harmful effects of the death penalty?
20. According to Beccaria, how might we overcome the custom of the death penalty?
21. Short essay: pick any one of the following views in this chapter and criticize it in a minimum of 150 words. The argument for capital punishment by Kant, Hobbes, Rousseau or Locke; Bentham’s argument against capital punishment; Mill’s argument for capital punishment; the view of capital punishment as a deterrence; the ruling in one of the Supreme Court decisions on capital punishment.