A breakdown of the arguments given in favour of abolishing (or against reintroducing) the death penalty.
A breakdown of the arguments given in favour of abolishing (or against reintroducing) the death penalty.
Everyone thinks human life is valuable. Some of those against capital punishment believe that human life is so valuable that even the worst murderers should not be deprived of the value of their lives.
They believe that the value of the offender's life cannot be destroyed by the offender's bad conduct - even if they have killed someone.
Some abolitionists don't go that far. They say that life should be preserved unless there is a very good reason not to, and that the those who are in favour of capital punishment are the ones who have to justify their position.
Everyone has an inalienable human right to life, even those who commit murder; sentencing a person to death and executing them violates that right.
This is very similar to the 'value of life' argument, but approached from the perspective of human rights.
The counter-argument is that a person can, by their actions, forfeit human rights, and that murderers forfeit their right to life.
Another example will make this clear - a person forfeits their right to life if they start a murderous attack and the only way the victim can save their own life is by killing the attacker.
The medieval philosopher and theologian Thomas Aquinas made this point very clearly:
Therefore if any man is dangerous to the community and is subverting it by some sin, the treatment to be commended is his execution in order to preserve the common good... Therefore to kill a man who retains his natural worthiness is intrinsically evil, although it may be justifiable to kill a sinner just as it is to kill a beast, for, as Aristotle points out, an evil man is worse than a beast and more harmful.
Thomas Aquinas, Summa theologiae
Aquinas is saying that certain contexts change a bad act (killing) into a good act (killing to repair the violation of justice done by the person killed, and killing a person who has forfeited their natural worthiness by killing).
The most common and most cogent argument against capital punishment is that sooner or later, innocent people will get killed, because of mistakes or flaws in the justice system.
Witnesses, (where they are part of the process), prosecutors and jurors can all make mistakes. When this is coupled with flaws in the system it is inevitable that innocent people will be convicted of crimes. Where capital punishment is used such mistakes cannot be put right.
The death penalty legitimizes an irreversible act of violence by the state and will inevitably claim innocent victims. As long as human justice remains fallible, the risk of executing the innocent can never be eliminated
There is ample evidence that such mistakes are possible: in the USA, 130 people sentenced to death have been found innocent since 1973 and released from death row. Source: Amnesty
The average time on death row before these exonerations was 11 years. Source: Death Penalty Information Center
Things were made worse in the USA when the Supreme Court refused to hold explicitly that the execution of a defendant in the face of significant evidence of innocence would be unconstitutional [Herrera v. Collins, 560 U.S. 390 (1993)]. However many US lawyers believe that in practice the court would not permit an execution in a case demonstrating persuasive evidence of "actual innocence".
The continuous threat of execution makes the ordeal of those wrongly convicted particularly horrible.
Many people believe that retribution is morally flawed and problematic in concept and practice.
We cannot teach that killing is wrong by killing.
U.S. Catholic Conference
To take a life when a life has been lost is revenge, it is not justice.
Attributed to Archbishop Desmond Tutu
The main argument that retribution is immoral is that it is just a sanitised form of vengeance. Scenes of howling mobs attacking prison vans containing those accused of murder on their way to and from court, or chanting aggressively outside prisons when an offender is being executed, suggest that vengeance remains a major ingredient in the public popularity of capital punishment.
But just retribution, designed to re-establish justice, can easily be distinguished from vengeance and vindictiveness.
In any case, is vengeance necessarily a bad thing?
The Victorian legal philosopher James Fitzjames Stephens thought vengeance was an acceptable justification for punishment. Punishment, he thought, should be inflicted:
for the sake of ratifying the feeling of hatred-call it revenge, resentment, or what you will-which the contemplation of such [offensive] conduct excites in healthily constituted minds.
Sir James Fitzjames Stephens, Liberty, Equality, Fraternity
But the issue of the execution of innocent persons is also a problem for the retribution argument - if there is a serious risk of executing the innocent then one of the key principles of retribution - that people should get what they deserve (and therefore only what they deserve) - is violated by the current implementation of capital punishment in the USA, and any other country where errors have taken place.
It's argued that retribution is used in a unique way in the case of the death penalty. Crimes other than murder do not receive a punishment that mimics the crime - for example rapists are not punished by sexual assault, and people guilty of assault are not ceremonially beaten up.
Camus and Dostoevsky argued that the retribution in the case of the death penalty was not fair, because the anticipatory suffering of the criminal before execution would probably outweigh the anticipatory suffering of the victim of their crime.
Others argue that the retribution argument is flawed because the death penalty delivers a 'double punishment'; that of the execution and the preceding wait, and this is a mismatch to the crime.
Many offenders are kept 'waiting' on death row for a very long time; in the USA the average wait is 10 years. Source: Death Penalty Information Center
In Japan, the accused are only informed of their execution moments before it is scheduled. The result of this is that each day of their life is lived as if it was their last.
Some lawyers argue that capital punishment is not really used as retribution for murder, or even consistently for a particular kind of murder.
They argue that, in the USA at least, only a small minority of murderers are actually executed, and that imposition of capital punishment on a "capriciously selected random handful" of offenders does not amount to a consistent programme of retribution.
Since capital punishment is not operated retributively, it is inappropriate to use retribution to justify capital punishment.
This argument would have no value in a society that applied the death penalty consistently for particular types of murder.
Some people who believe in the notion of retribution are against capital punishment because they feel the death penalty provides insufficient retribution. They argue that life imprisonment without possibility of parole causes much more suffering to the offender than a painless death after a short period of imprisonment.
Another example is the planner of a suicide bombing - execution might make that person a martyr, and therefore would be a lesser retribution than life imprisonment.
The death penalty doesn't seem to deter people from committing serious violent crimes. The thing that deters is the likelihood of being caught and punished.
The general consensus among social scientists is that the deterrent effect of the death penalty is at best unproven.
In 1988 a survey was conducted for the UN to determine the relation between the death penalty and homicide rates. This was then updated in 1996. It concluded:
...research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole still gives no positive support to the deterrent hypothesis.
The key to real and true deterrence is to increase the likelihood of detection, arrest and conviction.
The death penalty is a harsh punishment, but it is not harsh on crime.
NB: It's actually impossible to test the deterrent effect of a punishment in a rigorous way, as to do so would require knowing how many murders would have been committed in a particular state if the law had been different during the same time period.
Even if capital punishment did act as a deterrent, is it acceptable for someone to pay for the predicted future crimes of others?
Some people argue that one may as well punish innocent people; it will have the same effect.
This isn't true - if people are randomly picked up off the street and punished as scapegoats the only consequence is likely to be that the public will be frightened to go out.
To make a scapegoat scheme effective it would be necessary to go through the appearance of a legitimate legal process and to present evidence which convinced the public that the person being punished deserved their punishment.
While some societies have operated their legal systems on the basis of fictional evidence and confessions extracted by torture, the ethical objections to such a system are sufficient to render the argument in the second paragraph pointless.
Statistics show that the death penalty leads to a brutalisation of society and an increase in murder rate. In the USA, more murders take place in states where capital punishment is allowed. In 2010, the murder rate in states where the death penalty has been abolished was 4.01 per cent per 100,000 people. In states where the death penalty is used, the figure was 5.00 per cent. These calculations are based on figures from the FBI. The gap between death penalty states and non-death penalty states rose considerably from 4 per cent difference in 1990 to 25 per cent in 2010. Source: FBI Uniform Crime Report, from Death Penalty Information Center
Disturbed individuals may be angered and thus more likely to commit murder.
It is also linked to increased number of police officers murdered.
Capital punishment may brutalise society in a different and even more fundamental way, one that has implications for the state's relationship with all citizens.
...the state's power deliberately to destroy innocuous (though guilty) life is a manifestation of the hidden wish that the state be allowed to do anything it pleases with life.
George Kateb, The Inner Ocean 1992
Capital punishment is said to produce an unacceptable link between the law and violence.
But in many ways the law is inevitably linked with violence - it punishes violent crimes, and it uses punishments that 'violently' restrict human freedoms. And philosophically the law is always involved with violence in that its function includes preserving an ordered society from violent events.
Nonetheless, a strong case can be made that legal violence is clearly different from criminal violence, and that when it is used, it is used in a way that everyone can see is fair and logical.
Civilised societies do not tolerate torture, even if it can be shown that torture may deter, or produce other good effects.
In the same way many people feel that the death penalty is an inappropriate for a modern civilised society to respond to even the most dreadful crimes.
The murder that is depicted as a horrible crime is repeated in cold blood, remorselessly
Beccaria, C. de, Traité des Délits et des Peines, 1764
Because most countries - but not all - do not execute people publicly, capital punishment is not a degrading public spectacle. But it is still a media circus, receiving great publicity, so that the public are well aware of what is being done on their behalf.
However this media circus takes over the spectacle of public execution in teaching the public lessons about justice, retribution, and personal responsibility for one's own actions.
In the USA capital punishment costs a great deal.
For example, the cost of convicting and executing Timothy McVeigh for the Oklahoma City Bombing was over $13 million.
In New York and New Jersey, the high costs of capital punishment were one factor in those states' decisions to abandon the death penalty. New York spent about $170 million over 9 years and had no executions. New Jersey spent $253 million over a 25-year period and also had no executions. Source: Death Penalty Information Center
In countries with a less costly and lengthy appeals procedure, capital punishment seems like a much cheaper option than long-term imprisonment.
Those in favour of capital punishment counter with these two arguments:
This is not an argument against capital punishment itself, but against applying it wrongly.
Some countries, including the USA, have executed people proven to be insane.
It's generally accepted that people should not be punished for their actions unless they have a guilty mind - which requires them to know what they are doing and that it's wrong.
Therefore people who are insane should not be convicted, let alone executed. This doesn't prevent insane people who have done terrible things being confined in secure mental institutions, but this is done for public safety, not to punish the insane person.
To put it more formally: it is wrong to impose capital punishment on those who have at best a marginal capacity for deliberation and for moral agency.
A more difficult moral problem arises in the case of offenders who were sane at the time of their crime and trial but who develop signs of insanity before execution.
There has been much concern in the USA that flaws in the judicial system make capital punishment unfair.
One US Supreme Court Justice (who had originally supported the death penalty) eventually came to the conclusion that capital punishment was bound to damage the cause of justice:
The death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake ... Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death ... can never be achieved without compromising an equally essential component of fundamental fairness - individualized sentencing.
Justice Harry Blackmun, United States Supreme Court, 1994
Jurors in many US death penalty cases must be 'death eligible'. This means the prospective juror must be willing to convict the accused knowing that a sentence of death is a possibility.
This results in a jury biased in favour of the death penalty, since no one who opposes the death penalty is likely to be accepted as a juror.
There's much concern in the USA that the legal system doesn't always provide poor accused people with good lawyers.
Out of all offenders who are sentenced to death, three quarters of those who are allocated a legal aid lawyer can expect execution, a figure that drops to a quarter if the defendant could afford to pay for a lawyer.
Regardless of the moral status of capital punishment, some argue that all ways of executing people cause so much suffering to the condemned person that they amount to torture and are wrong.
Many methods of execution are quite obviously likely to cause enormous suffering, such as execution by lethal gas, electrocution or strangulation.
Other methods have been abandoned because they were thought to be barbaric, or because they forced the executioner to be too 'hands-on'. These include firing squads and beheading.
Many countries that use capital punishment have now adopted lethal injection, because it's thought to be less cruel for the offender and less brutalising for the executioner.
Those against capital punishment believe this method has serious moral flaws and should be abandoned.
The first flaw is that it requires medical personnel being directly involved in killing (rather than just checking that the execution has terminated life). This is a fundamental contravention of medical ethics.
The second flaw is that research in April 2005 showed that lethal injection is not nearly as 'humane' as had been thought. Post mortem findings indicated that levels of anaesthetic found in offenders were consistent with wakefulness and the ability to experience pain.
This is really more of a political argument than an ethical one. It's based on the political principle that a state should fulfil its obligations in the least invasive, harmful and restrictive way possible.
Most people will not want to argue with clauses 1 and 2, so this structure does have the benefit of focussing attention on the real point of contention - the usefulness of non-capital punishments in the case of murder.
One way of settling the issue is to see whether states that don't use capital punishment have been able to find other punishments that enable the state to punish murderers in such a ways as to preserve an orderly and contented society. If such states exist then capital punishment is unnecessary and should be abolished as overly harmful.
The idea that we must be punished for any act of wrongdoing, whatever its nature, relies upon a belief in human free will and a person's ability to be responsible for their own actions.
If one does not believe in free will, the question of whether it is moral to carry out any kind of punishment (and conversely reward) arises.
Arthur Koestler and Clarence Darrow argued that human beings never act freely and thus should not be punished for even the most horrific crimes.
The latter went on to argue for the abolition of punishment altogether, an idea which most people would find problematic.
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