Capital Punishment 1984

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Any discussion of capital punishment must acknowledge three things which can be said quickly and firmly against it.

First, capital punishment consists in bringing about the death of someone. Since death is normally regarded as an evil, and since it is always prima facie wrong to inflict anything evil on anyone, capital punishment is always prima facie wrong.

Second, capital punishment is an unusually cruel form of punishment. The actual mode of execution may be relatively humane, but the waiting period, and knowledge of how and when one is to be killed, is an unacceptable torture.

Third, there is always the danger that an innocent person may be executed. The German Federal Ministry of Justice is quoted, in the Council of Europe’s report entitled The Death penalty in European Countries, as saying that in the hundred years to 1953, there were twenty seven death sentences “now established or presumed” to be miscarriages of justice.

It does not follow from the above facts that capital punishment is always actually wrong, only that there is a weighty prima facie case against it. From this it does follow that the onus of justification lies on the defenders of the practice. Abolitionists only have to show those arguments to be inadequate to their task. In what follows, we will consider what we take to be the main arguments brought in support of capital punishment, and argue that none succeeds. This will leave that prima facie case in sole possession of the field, and thus we will arrive at the conclusion that capital punishment is not an acceptable practice.

One more preliminary remark. Historically, the lists of both capital crimes and alternative punishments have varied enormously. But today the situation is quite different—serious proponents of capital punishment (hereafter called, albeit mistakenly, a “retentionist”) have only a very small list of capital crimes, and all of us, whatever our position, have only incarceration on our list of alternative punishments. Therefore, we suggest limiting ourselves to a comparison of capital punishment versus incarceration as punishment for obviously seriously crimes. We now turn to the arguments.

The deterrent argument

We are asked here to consider two possible worlds: one in which there is capital punishment and a reduction in the murder rate, the other in which there is no capital punishment and no such reduction. Which world would we prefer to live in? Since it is better to kill a murderer to save innocent lives than to allow the deaths of innocent people to preserve the life of a murderer, the former wins out, and hence capital punishment is a practice our society should have.

This argument presupposes that capital punishment deters. But even if we grant that, not everyone will admit that capital punishment is justifiable. Two main arguments stand in the way. First, one could adopt a hard pacifist stance which condemns all killings. But we do not find this position acceptable, for we are then committed to the view that killing in defence and self defence is always wrong, and this seems mistaken. To say that we cannot kill people to prevent them from killing others or ourselves requires us to regard our killing them as much worse than their killing us or those for whom we care, and there does not seem any reason to hold this. Second, one may argue that, just as disembowelling and then strangling persons with their own intestines cannot be justified, whatever the deterrent effect, neither can capital punishment be justified, because it is so intrinsically cruel that reasons of deterrence are never sufficient to justify it. We must concede that capital punishment is cruel, but it is not clear that it is so cruel that it cannot be justified whatever the deterrent effect may be. If the execution of the murderer would save the lives of a dozen innocent persons, could we still say that the process was so cruel that it was not justified? Our view is that we cannot.

But while deterrence is a legitimate ground for justifying capital punishment, the deterrence argument fails. No statistical study has ever turned up any striking correlation between the absence of capital punishment and an alteration in the curve of the murder rate, and hence there is no reason to think that capital punishment is any more effective a deterrent than long-term imprisonment. One might intuitively think it would be, but we cannot always trust our intuitions; empirical evidence is needed, and in this case it is not forthcoming.

In light of this, the retentionist may move from the argument that capital punishment deters, to the argument that capital punishment might deter. According to this, even if we grant that there is no firm statistical evidence to establish that capital punishment does deter, it must still be admitted that it might. And if so, we should gamble on the side of saying it does, on the ground that it is a good tradeoff to execute murderers on the chance that innocent lives will thereby be saved. If we only save one, so the argument goes—and who can deny we might?—capital punishment is justified.

There are two replies to this. First, the wager is not stated properly. For by having capital punishment, we not only have a chance of saving some innocent lives, we also risk putting innocent people to death, so it is not a “no lose” gamble as the argument suggests. Second, capital punishment is not only a practice which puts the innocent at risk, it is also, as contended above, an enormously cruel one. To justify it on the grounds of deterrence calls for clear and substantial benefits. It is not sufficient merely to hold out the possibility that some good may come of it, especially when we know that some bad might too.

The retributive argument

The retributivist justification for capital punishment is backward looking: it seeks to justify the practice by pointing to some past action of the agent. Strong retributivists argue that the fact that a person has killed another morally requires us to kill that person. This is Kant’s theory, but held by no one in the contemporary philosophical world, though it still survives outside that world. Weak retributivists argue for the more modest and plausible claim that the fact that a person has killed another morally entitles us to kill that person. On both accounts, however, we do not justify capital punishment in terms of any future beneficial consequences. The mere fact that a person has done evil makes it morally fitting that the person suffer in return.

This argument presupposes that people deserve things, and that, in turn, presupposes a particular view of human beings. Specifically, it presupposes that human beings are capable of determining their destiny by free choices. This, however, can be challenged, as it was with conspicuous courtroom success by Clarence Darrow. Darrow took the determinist view that all our actions are the inevitable upshot of our genetics and environment, and hence we are not agents but objects, who are pushed and pulled through the world by forces beyond our control. If this account is right, the retributive argument clearly must be rejected, for it would then be inapt to say that anyone ever deserves anything in the sense that it is morally fitting to return acts in kind. We can still punish people to reform them, or to deter others, or to protect society from dangerous individuals by isolating them, but we cannot do so because they deserve it.

No one can insist that the determinist account of human actions is true. But equally, no one can, without arrogance, deny that it may be true. This possibility, however, is sufficient reason to reject the retributivist argument, for it thus emerges that whenever we Punish at all, we are at serious risk of punishing people when they do not deserve it. It does not follow that we should immediately abolish the practice of punishment altogether, for the consequences of doing that are predictably bad, and it is plausible to say that the risk may be run to avoid such consequences. It is not, however, similarly plausible to say we can run that risk just in order to give the offenders the due of their deeds. To risk punishing persons when they do not deserve it, just in order to try to ensure they are not punished less harshly than they deserve, is to place remarkable and implausible importance on giving people what they deserve. It thus appears that, once we have punished to the extent required to secure the beneficial consequences of deterrence, reformation, and banishment, we have punished as heavily as we are entitled to. If so, the retributive justification for capital punishment in general fails, and hence that justification for capital punishment must do so as well.

But even if it could be demonstrated that the concept of desert has application, and that people who do evil deserve evil in return, it is still not clear that capital punishment for murder is justified. We do not think that one who intentionally blinds another should be blinded, or one who kills another by setting fire to his house should be burnt to death, or one who commits rape be raped in return. We cannot find what punishment fits what crime by simply reading off the statement of the crime. But once we depart from this simple match-up, why should we think that a life for a life is apt? Why should we not say that capital punishment, along with the above, is not an option for any civilized society? We do not have any compelling argument to rule out capital punishment as uncivilized, but neither do we have such to rule out the more barbarous suggestions above. It seems to us that judgements of what fits and what is too much are matters of intuition, and to that extent, the maxim “a life for a life” is not firmly grounded, for not everyone has that intuition. But if this is so, no one can properly insist it is an uncontroversial moral truth that justice entitles us to visit capital punishment on murderers.

Finally, even granting that the concept of desert has application and we are entitled to take a life for a life, it is simple vengeance to exact that when no good will come from it. Vengeance is not always without justification, for as John Stuart Mill has argued, it likely has its basis in self defence. But once we factor that out, we are left with pure vengeance, and it does seem always repugnant to act on that.

The denunciation argument

This argument is stated clearly by Lord Denning in the Report of the Royal Commission on Capital Punishment:

The ultimate justification of any punishment is not that it is a deterrent, but that it is the emphatic denunciation by the community of a crime: and from this point of view, there are some murders which, in the present state of public opinion, demand the most emphatic denunciation of all, namely the death penalty.

The problem with this argument is that capital punishment is not the only forceful way of expressing our outrage—we can also do so by declaring a person no longer fit to live amongst us. Nor is it the most emphatic way of doing that—we could sentence a person to torture, followed by capital punishment, followed by ignominious burial. Why, then, should we think that capital punishment is just the right thing to say, so to speak, in certain circumstances? Meaningful speech, whether symbolic or otherwise, must serve a function. What is the purpose of emphatically denouncing murder? If it is to remind the community of the heinousness of certain deeds with a view to reducing their incidence, the denunciation argument reduces to the deterrence argument, and fails for the same reason. On the other hand, if that is not the function, the denunciation argument seems to be the retributive argument all over again—we express the outrage of the community in a way which fits the crime—and likewise fails, for capital punishment must then not only appear to be an arbitrarily chosen mode of expression, but also one used at the risk of doing a grave injustice to an individual.

The protection argument

This argument begins with the claim that some murderers are truly dangerous characters who can never again be trusted in society. But insofar as they are incarcerated in a way that keeps the risk of escape and injury to other prisoners and officials at an acceptable level, this is both enormously cruel to the prisoner and costly to society. Thus, capital punishment is suggested as a solution to these very real problems.

There is, first off, a problem of saying who should be executed on this basis. Even if we grant what seems untrue—that all first degree murderers continue to be dangerous characters—there are all kinds of non-murderers who are equally dangerous. So if the argument is to be taken seriously, it cannot apply only to murderers. But if we do suitably extend it, the hangman will have very full days, and the civil nature of our society will be seriously called into question.

Perhaps it will be responded that, while it is arbitrary to limit capital punishment to murderers, there is a certain utility in doing so, for it enables us to garner some benefits while avoiding difficult judgements about who is dangerous enough to be put to death. There is sense in this, but it also takes much of the sting out of the argument. First degree murderers in prison are not numerous as compared to dangerous people in general, and if the community is prepared to bear the cost and risk the actions of the latter—as it seems it is and should—it is no significant extra burden to do the same for the former.

It should also be noticed here that the protection/economic argument draws much of its force from the retributive argument. If murderers deserve to die, and keeping them alive has heavy social costs, it is plausible to contend that they should be put to death. But if we reject, as we have, the retributive argument, and hence the view that murderers deserve to die, the strength of the protection/economic argument is seriously sapped. For we are then left with the repugnant principle that if a person has committed murder, whether or not he is criminally insane, he can properly be executed to save social costs.

The claim that permanent maximum security incarceration is a fate worse than death has force, but it hardly amounts to an argument for capital punishment for murder. It should apply equally to all persons subject to such imprisonment, and we are thus back to the dilemma of discrimination or wholesale slaughter. We are sympathetic to the view that certain classes of prisoners should be given the choice of death (although there are formidable problems in securing suitably voluntary consent in such a setting). But this is euthanasia, not punishment, and should follow from a general social policy, which our community has not yet seen fit to allow.

This brings us to the end of what we regard as the main retentionist arguments. We do not find in them anything sufficient to overturn the prima facie case against capital punishment.

Even if we are wrong about this, and capital punishment has some legitimate social function, there is one final consideration which should still give us pause in adopting that practice: it is liable to serious abuse and haphazard application. It can be used as an instrument of oppression, and this, according to Amnesty International, is the main use to which capital punishment is put around the world today. It is also a practice which, perhaps partly for this reason, perhaps for some others, gets applied in a discriminatory manner: the socially disadvantaged, the inarticulate, the uneducated, the ethnically unattractive, the poor, the disenfranchised, are all enormously more vulnerable than their more fortunate counterparts who commit the same crime. Add to this other contingencies of circumstance, such as variations in the willingness of prosecutors to plea bargain, in their eagerness to ask for the death penalty, and in the sanguinity of juries and judges, and we have what, in our view, is in itself a decisive reason against capital punishment.