The debate around capital punishment attempts to discuss the grounds for a morally justifiable response to the state’s deliberate killing of offenders, even when they commit the most serious and deplorable crimes. From a philosophical perspective, two broadly different approaches are commonly identified: retributivism and utilitarianism (or consequentialism). Retributivism is backward-looking oriented in the sense that it “looks back” at the offense in order to determine the most suitable form of punishment based on the type of wrong committed. Therefore, the retributivism standpoint inquiries as to whether a punishment “fits” the crime and any beneficial effects or consequences of capital punishment are wholly irrelevant or distinctly secondary.Forward-looking justifications of punishment have been labeled ‘utilitarian’ since the 19th century and rely only on assessing the future effects or consequences of capital punishment, such as crime prevention through deterrence and incapacitation.
Capital punishment, or “death penalty,” is an institutionalized practice resulting in the execution of the offender following a conviction by a court of law of a criminal offence. The use of capital punishment is a recurrent theme throughout history. In the ancient world, the Babylonian Code of Hammurabi (circa 1750 B.C.E.) included about 25 capital crimes; the Mosaic Code of the ancient Hebrews identified numerous crimes punishable by death, invoking, like other ancient law codes, lex talionis, “the law of retaliation”; Athens punished most crimes by death, and later Athenian law famously licensed the trial and death of Socrates; the fifth century B.C.E. Twelve Tables of Roman law include capital punishment for such crimes as publishing insulting songs or disturbing the nocturnal peace of urban areas. Medieval and early modern Europe retained expansive lists of capital crimes and notably expanded the forms of execution beyond the common ancient practices of stoning, crucifixion, drowning, beating to death, or poisoning. In the Middle Ages both secular and ecclesiastical authorities participated in executions deliberately designed to be torturous and brutal, such as beheading, burning alive, drawing and quartering, hanging, disemboweling, using the rack, using thumb-screws, pressing with weights, boiling in oil, publicly dissecting, and castrating. Such brutality was conducted publicly as spectacle and ritual—an important or even essential element of capital punishment was not only the death of the accused, but the public process of killing and dying on display.
RETRIBUTIVISM APPROACHES:
The earliest discussion of the topic of capital punishment in Greek literature is found in the speech of Diodotus given in reply to Cleon’s proposal that the Mitylenians be put to death. Diodotus’ main argument was that death is an ineffective penalty since fear or death is not an effective deterrent to human nature. Plato’s view of death penalty is much more positive. He prescribes capital punishment for a wide range of offences including deliberate murder, wounding, brother or sister with intent to kill, persistent atheism, serious acts of impiety, theft from temples, theft of public property, harbouring exiles, waging private war, taking bribes and obstructing the judgment of a court.In his Laws, the Greek philosopher acknowledges that sentencing an offender to death is the most severe punishment but, instead of focusing on the seriousness of the crime in light with a retributivist approach, he claims that this form of penalty should be used as a form of last resort. He claims that priority should be given to forms of punishment that aim at the rehabilitation of the offender but when they fail death penalty would be imposed. He explained that some offenders would be unrehabilitable (or incurable) and the best thing for such people is that they be executed. Their execution will not only be for their own benefit but in these circumstances, and only in these circumstances, the death penalty will also protect society by the elimination of such wicked persons together with the assurance that they never repeat their deeds In trying to justify the death penalty in terms of his curative penology, Plato resorts to a number of paradoxes and it is worth revisiting them in order to their significance. In 862E of the Laws, Plato alleges that it is in the interests of incurable offenders themselves to live no longer. The imposition of the death sentence on them will serve firstly as a warning against injustice and secondly this action will leave the state free of scoundrels. That is why the lawmaker should prescribe the death penalty in such cases, by way of punishment for their crimes. The curable/incurable antithesis is also elucidated in 957E-958A of the Laws by the following statements:
“On the one hand a good judge will confirm and strengthen the virtuous in the paths of righteousness, and do his best to cast out ignorance, incontinence and cowardice and indeed every sort of injustice from the hearts of those criminals whose outlook con be cured. On the other hand when a man’s soul is unchangeably fixed in that condition by decree of fate, good judges and their advisers will deserve the approval of the whole state if they con cure him by imposing the penalty of death”.
Therefore for incurable offenders death is a cure in the sense that they are cured of their bad moral condition.
The philosophical debate on death penalty, however, became more ignited in the 18th century where the two opposite school of thought, retributivism and utilitarianism began to take shape. As previously mentioned, a retributivist perspective justifies the amount and type of punishment by looking at the characteristics of and harm caused by the offence while completely disregarding the effects and consequences of the penalty. In this light, the idea of capital punishment finds support in the principle of lex talionis, or “the law of retaliation,” an idea popularly familiarized in the ancient and biblical phrase, “an eye for an eye and a tooth for a tooth” which considers that punishment inflicted should correspond in degree and kind to the offense of the wrongdoer. A classic expression of retributivism about capital punishment can be found in a late 18th century treatise by Immanuel Kant, The Metaphysical Elements of Justice. After dismissing Cesare Beccaria’s abolitionist stance and reliance on “sympathetic sentimentality and an affectation of humanitarianism,” Kant appeals to an interpretation of lex talionis, what he calls “jus talionis” or “the Law of Retribution,” as justifying capital punishment:
“Judicial punishment… must in all cases be imposed on him only on the ground that he committed a crime.… He must first be found deserving of punishment… The law concerning punishment is a categorical imperative. (100; Ak. 331) What kind and degree of punishment does public legal justice adopt as its principle and standard? None other than the principle of equality….”
Only the Law of Retribution (jus talionis) can determine exactly the kind and degree of punishment.Kant then explicitly applies these principles to determine the punishment for the most serious of crimes:
“If… he has committed a murder, he must die. In this case, there is no substitute that will satisfy the requirements of legal justice. There is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is also no equality between the crime and retribution unless the criminal is judicially condemned and put to death”.
Kant employs a hypothetical case to insist that any social effects of the death penalty, good or bad, are wholly irrelevant to its justification:
“Even if a civil society were to dissolve… the last murderer in prison would first have to be executed so that each should receive his just deserts and that the people should not bear the guilt of a capital crime… [and] be regarded as accomplices in the public violation of justice”.
It can be argued that this “principle of equality” so highly defended by Kant, cannot work as a general principle linking crime and punishment. The implication of the principle, in fact, is that the appropriate punishment for rape is to be raped, for robbery to be stolen from, for fraud to be defrauded, for assault to be assaulted, for arson to be “burned out,” etc. However, for other crimes such as forgery, drug peddling, serial killings or massacres, terrorism, genocide, smuggling it is not at all clear what kind or form of punishment would be adequate based on the lex talionis. Furthermore, the retributivism idea that because the murder victim suffers the harm of a life ended the only equivalent harm to be imposed as punishment must be the death of the killer is in itself flawed. Kant’s argument that “the death of the criminal must be kept entirely free of any maltreatment that would make an abomination of the humanity residing in the person suffering it” is interpreted by some critics as a clear admission of the inequality of experience between between the penal experience of capital offenders and their victims’ suffering in being murdered. Albert Camus, in his “Reflections on the Guillotine” makes the point in a rather dramatic way:
“But what is capital punishment if not the most premeditated of murders, to which no criminal act, no matter how calculated, can be compared? If there were to be a real equivalence, the death penalty would have to be pronounced upon a criminal who had forewarned his victim of the very moment he would put him to a horrible death, and who, from that time on, had kept him confined at his own discretion for a period of months. It is not in private life that one meets such monsters”.
Another observation is that it is highly debatable to consider the current capital punishment practices as the most severe form of punishment. Shooting the offender or lethal injection seem very fast and relatively less brutal when compared with medieval practices of death with torture, or death “with extreme prejudice” . In addition, certain conditions of confinement are possibly more severe than execution, such as years of brutal, solitary confinement or excessively hard labor.
One general concern about appeals to lex talionis, under any interpretation, is that relying on “the law of retaliation” can appear to make capital punishment tantamount to justified vengeance. Kant and other retributivist supporters of the death penalty rightly distinguish principled retribution from vengeance. Vengeance arises out of someone’s hatred, anger, or desires typically aimed at another: there is no internal limit to the severity of the response, except perhaps that which flows from the personal perspective of the avenger. The avenger’s response may be markedly disproportionate to the offense committed, whereas retributivists insist that the severity of punishments must be matched to the misconduct’s gravity. Vengeance is typically personal, directed at someone about whom the avenger cares—it is personal. Retribution requires responses even to injuries of people no one cares about: its impersonality makes harms to the friendless as weighty as harms to the popular and justifies punishment without regard to whether anyone desires the offender suffer. The avenger typically takes pleasure in the suffering of the offender, whereas “we may all deeply regret having to carry out the punishment” (Pojman, 23) or only take “pleasure at justice being done” (Nozick, 367) as a retributivist moral principle requires. Even if desires for vengeance are satisfied by executing murderers, for retributivists such effects are not at the heart of the defense of capital punishment.
Kant’s conclusion on a complete support to the lex talionis and his disregard of any consequences is not fully embraced by other forms of retributivism which are more favourable to the consideration of basic moral principles. In this context, the employment of basic moral rights – such as the right to life – can be considered incompatible with a justification for capital punishment. These two apparently opposite spheres are reconciled by John Locke in his Second Treatiseon Government. Adopting a similar perspective of that exhibited in Thomas Aquinas’s defense of capital punishment (Summa Theologiae II-II, Q. 64, a.2), Locke claims that a murderer violates another’s right to life, and thereby “declares himself… to be a noxious creature… and therefore may be destroyed as a lion or a tiger, one of those wild savage beasts… both to deter others from doing the like injury… and also to secure men from the attempts of a criminal”.
For Locke, murderers have, by their voluntary wrongdoing, forfeited their own right to life and can therefore be treated as a being not possessing any right to life at all and as subject to execution to effect some good for society.This form of retributivism—rights forfeiture and considering consequences of the death penalty—is also explicitly expressed by W. D. Ross in his 1930 book, The Right and the Good:
“But to hold that the state has no duty of retributive punishment is not necessarily to adopt a utilitarian view of punishment.… [T]he main element in any one’s right to life or property is extinguished by his failure to respect the corresponding right in others.… [T]he offender, by violating the life or liberty or property of another, has lost his own right to have his life, liberty, or property respected, so that the state has no prima facie duty to spare him as it has a prima facie duty to spare the innocent. It is morally at liberty to injure him as he has injured others, or to inflict any lesser injury on him, or to spare him, exactly as consideration of both of the good of the community and of his own good requires”.
The retributivist argument, then, is that murderers forfeit their own right to life by virtue of voluntarily taking another’s life. Since a right to life, like other rights, logically entails a correlative duty of others, by forfeiting their right to life murderers eliminate the state’s correlative duty not to kill them; the murderer’s forfeiture makes morally permissible the state’s putting them to death, at least as a means to some good. Thus, capital punishment is not a violation of an offender’s right to life, as the offender has forfeited that right, and the death penalty is then justifiable as a morally permissible way to treat murderers in order to effect some good for society.
These assumptions raise some philosophical objections. First of all, they do not expand as to whether the right, once forfeited can be restored, by whom and under which conditions. Furthermore, as many maintain, the right to life is a fundamental nature or human rights and given this characteristic it cannot be forfeited thus even killers retain it and the state remains bound by the correlative duty not to kill a murderer, and capital punishment, then, is a violation of the human right to life.From this consideration, the justification of capital punishment shifts from the logic and mobility of rights to the moral standing of human beings. The point of a human right to life is that it “draws attention to the nature and value of persons, even those convicted of terrible crimes.… Whatever the criminal offense, the accused or convicted offender does not forfeit his rights and dignity as a person” (Bedau, “Reflections,” 152, 153). This view reflects at least the spirit of the 1948 United Nations Universal Declaration of Human Rights: the right to life is universal, is rooted in each person’s dignity, and is unalienable (Preamble; Article 3). But this view of offenders’ moral standing can be challenged if one considers the implication that, of equal standing with any of us, then, are masters of massacres or genocide (for example, Hitler, Stalin, Pol Pot), serial killers, terrorists, rampant rapists, and pedophiliac predators.
Within retributivism, a recently revived school of thought has moved away from the principles of individual rights in favour of the “principle of fairness” that is to say those engaged in a mutually beneficial system of cooperation have a duty to obey the rules from which they benefit. Therefore, in this context, punishment is not only how offenders pay for their crimes but it is also they’re paying for unfair advantages gained. Its application to punishment finds roots in the notions of justice as re-establishing an equilibrium as mentioned in Aristotle’s Nichomachean Ethics whereby treatment of justice requires state corrective action to rectify the imbalances created by criminal misconduct and to Hegel’s claim in The Philosophy of Right that to punish “is to annul the crime… and to restore the right”. This principle can be smoothly applied to petty theft or possibly “free-loading” in cooperative schemes where it is easy to identify the unfair advantage gained and the amount of punishment tied to what is unfairly gained. However the fairness approach encounters difficulties in relation to violent crimes such as murder. In this context it is problematic to determine how lengthy incarceration or even execution can erase the unfair advantage gained, annul the crime, or re-establish any prior balance between perpetrator and victim.
UTILITARIAN APPROACHES:
The forward looking nature of the utilitarian perspective justifies capital punishment only insofar as the amount of punishment for murder best promotes the total happiness, pleasure, or well-being of the society. The idea is that the inherent pain and any negative effects of capital punishment must be exceeded by its beneficial effects, such as crime prevention through incapacitation and deterrence; and furthermore, the total effects of the death penalty—good and bad, for offender and everyone else—must be greater than the total effects of alternative penal responses to serious misconduct, such as long-term incarceration.
A classic utilitarian approach to punishment is that of Jeremy Bentham. In An Introduction to the Principles of Morals and Legislation Bentham focuses on the suitable amount of punishment for crimes:
“The general object which all law have, or ought to have in common, is to augment the total happiness of the community.… But all punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil”.
Bentham explains the importance of “the ends of punishment”:
“The fundamental end of punishment is to control action.… [T]hat of the offender it controls by its influence… on his will, in which case it is said to operate in the way of reformation; or on his physical power, in which case it is said to operate by disablement: that of others it can influence no otherwise than by its influence over their wills; in which case it is said to operate in the way of example”.
It ensues the presence of three major ends of punishment related to controlling people’s action aimed at promoting the total happiness of the community through crime reduction or prevention: reformation of the offender, disablement (that is, incapacitation) of the offender, and deterrence (that is, setting an example for others). Of these three ends of punishment, Bentham highlights the superior importance of “example” (or deterrence) over the others.
Since “all punishment is mischief [and] an evil,” any amount of punishment, then, is justified only if that mischief is exceeded by the penalty’s good effects, and, most importantly for Bentham, only if the punishment reduces crime by deterring others from misconduct and does so better than less painful punishments. In his work, Bentham praises and acknowledges Cesare Beccaria’s On Crimes and Punishments, its utilitarian approach to penal reform, and its call for abolishing capital punishment. Beccaria called for abolition of the death penalty largely by appealing to its comparative inefficacy in reducing the crime rate. In Chapter XII of his essay, Beccaria says the general aim of punishment is deterrence and that should govern the amount of punishment to be assigned crimes:
“The purpose of punishment… is nothing other than to dissuade the criminal from doing fresh harm to his compatriots and to keep other people from doing the same. Therefore, punishments and the method of inflicting them should be chosen that… will make the most effective and lasting impression on men’s minds and inflict the least torment on the body of the criminal”
. He then argues that “capital punishment is neither useful nor necessary” in comparison to the general deterrent effects of lengthy prison sentences:
“[T]here is no one who, on reflection, would choose the total and permanent loss of his own liberty, no matter how advantageous a crime might be. Therefore, the intensity of a sentence of servitude for life, substituted for the death penalty, has everything needed to deter the most determined spirit.… With capital punishment, one crime is required for each example offered to the nation; with the penalty of a lifetime at hard labor, a single crime affords a host of lasting examples”.
The idea here is that an execution is a single, serious event, perhaps not long remembered by others, whereas life imprisonment provides a continuing reminder of the punishment for misconduct. In general, Beccaria says that it is not the severity of punishment that has the greatest impact on the human mind, but rather its duration, for our sensibility is more easily surely stimulated by tiny repeated impressions than by a strong but temporary movement.Beccaria adds to this thinking at least two claims about some bad social effects of capital punishment: first, for many the death penalty becomes a spectacle, and for some it evokes pity for the offender rather than the fear of execution needed for effective deterrence of criminal misconduct. Second, capital punishment is not useful because of the example of cruelty which it gives to men. Thus, Beccaria opposes capital punishment by employing utilitarian thinking: the primary benefit of deterrence is better achieved through an alternative penal response of “a lifetime at hard labor,” and, furthermore, the cruelty of the death penalty affects society in ways much later called “the brutalization effect.”
Another major utilitarian, John Stuart Mill, also exemplifies distinctive facets of a utilitarian approach, but in defense of capital punishment. In an 1868 speech as a Member of Parliament, Mill argues that capital punishment is justified as penalty for “atrocious cases” of aggravated murder. Mill maintains that the “short pang of a rapid death” is, in actuality, far less cruel than “a long life in the hardest and most monotonous toil… debarred from all pleasant sights and sounds, and cut off from all earthly hope”. As Sorell succinctly summarizes Mill’s position, “hard labor for life is really a more severe punishment than it seems, while the death penalty seems more severe than it is”. Since the deterrent effect of a punishment depends far more on what it seems than what it is, capital punishment is the better deterrent of others while also involving less pain and suffering for the offender. A utilitarian approach to capital punishment depends essentially on the effectiveness of this type of measure to incapacitate or deter potential offenders. Therefore, if it does not fulfil its purpose better than penal alternatives such as lengthy incarceration, then capital punishment is not justified on utilitarian grounds.
CAPITAL PUNISHMENT AS COMMUNICATION:
A group of separate approaches to issues of justifying punishment and, at least by implication, the death penalty, consider the idea of punishment as expression or communication. Often labelled as “the expressive theory of punishment,” such views to punishment are sometimes classified as utilitarian or consequentialist, sometimes as retributivist, and sometimes as neither. The basic assumption is that punishment is not limited to “the infliction of hard treatment” by an authority for prior misconduct; it is also a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation. Punishment, in short, has a symbolic significance. Hard treatment, deprivations, incarceration, or even death can be, and perhaps are, vehicles by which messages are communicated by the community. To see capital punishment as a deterrent is to see it as communicative: the death penalty communicates to the community—at least potential killers—that murder is a serious wrong and that execution awaits those who kill others. Various developments of punishment as communication, though, attend to other messages expressed, some emphasizing the sender and others the recipient of the message.One version of this kind of approach emphasizes that, with capital punishment, a community is expressing strong disapproval or condemnation of the misconduct.
STATE AUTHORITY AND CAPITAL PUNISHMENT:
The discussion of the moral justifications of capital punishment brings us to analyse the modern state, its foundations, proper functions, and penal powers. The application of death penalty, in fact, requires a state which has the authority to make, administer, and enforce criminal law and procedures and then, if merited, impose the it to address serious misconduct. From this standpoint it is legit to question the grounds possessed by the state to punish by death.
Adherents to the social contract theory share the view that a state’s authority is the result of a contract by individuals who agree to transfer some of their rights to an authority in exchange for stability and protection. Therefore, a state’s sovereignty is consent based. Under this perspective, in his Second Treatise on Government, John Locke identifies the purpose of the state in the protection of individuals’ rights and in turn, they grant the state the authority to protect those rights through laws and punishments that are effective and comply with natural law principles about the amount of punishment (that is, lex talionis). The view that individuals’ consent justify state authority to punish by death finds resonation in the classic contractarian theories of Jean-Jacques Rousseau and Thomas Hobbes. In the Leviathan, the pre-political state of nature is famously characterized by Hobbes as a life “solitary, poor, nasty, brutish, and short” . This life in the state of nature is so insecure that each person, as a means to self-preservation, authorizes the created sovereign power—the state—to punish by death criminal misconduct “to the end that the will of men may thereby better be disposed to obedience”. Rousseau, in On the Social Contract, holds that “the social treaty has as its purpose the conservation of the contracting parties,” each of whom wills the means to end of preserving his life. “And whoever wishes to preserve his own life at the expense of others should also give it up for them when necessary…. It is in order to avoid being the victim of an assassin that a person consents to die, were he to become one”. And so, Rousseau maintains, the political society has the right to put to death, even as an example, those who cannot be preserved without danger to others or the society itself. In the case of all the classic social contract theories of the state, individuals’ consent to the practice of capital punishment is included in the created authority of the state to rule and to punish.
A quite different approach to justifying state authority to punish by death appeals to the idea of societal self-defense or self-protection. In a short piece, “On Punishment,” John Stuart Mill says, “the only right by which society is warranted in inflicting any pain upon any human creature, is the right of self-defense…. Our right to punish, is a branch of the universal right of self-defence”.
One recent development of this approach argues that a societal right of self-protection entails the right to threaten punishment for misconduct, and that a right to impose punishments follows from the society’s right to threaten sanctions. Whether a society has a right to threaten or impose a death penalty for murder, then, is based on its efficacy for deterrence and incapacitation, that is, as a protector of society. A second, slightly different argument appeals more directly to the model of individual self-defense as a right. Just as an individual has a right to use deadly force to address imminent, unavoidable aggression against self or other innocent parties, so society, as a collective, has a right to employ deadly force to address violent aggression against innocent third parties within that society. The amount of punishment that society has the right to employ is constrained as it is for an individual’s moral right of self-defense: the response must be proportionate to the threatened loss. So, given a moral right of individuals to employ deadly force in defense of their own or other innocents’ lives, by analogy society has such a right to use death as a punishment for murders of innocent third parties in the society. Whether as an exercise of a right of self-protection or self-defense, the state then has the right to institute capital punishment for serious crimes such as murder.
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