Intro
For most of human existence in organised society, most societies have punished the perpetrators of serious crimes with the penalty of death. However, the last century has seen a general shift away from the practice of capital punishment. A majority of countries have abolished capital punishment for all crimes, and many others are de facto abolitionist if not de jure abolitionist. In 2019 in a speech condemning capital punishment UN General Secretary Antonio Guterres suggested that it has ‘no place in the twenty-first century’. Nevertheless, several modern democracies, most prominently the USA and Japan, continue to routinely administer capital punishment. The question which thus arises is whether it is justified for such practices to continue.
Before considering whether capital punishment can be justified, it is worth defining some key parameters. Capital punishment refers to the sentencing of a criminal to death for a crime of which they have been convicted. Meanwhile, 21st-century democracies can be characterised as contemporary liberal states involving elections and the promotion of the principles of freedom and equality.
This essay identifies four main points of contention that together determine whether capital punishment can be justified under any circumstances. Firstly, does capital punishment ever adequately fulfil the purpose of punishment? Secondly, does capital punishment during peacetime have any harmful or beneficial secondary effects? Thirdly, do humans have a right to life and dignity that would render capital punishment intrinsically immoral? Finally, does wartime make capital punishment justifiable?
To consider capital punishment, I compare it throughout this essay to its main alternative – permanent or temporary imprisonment.
The Purpose of Punishment
To understand whether capital punishment is justified, it is worth defining what the just objective of punishment is. There are broadly considered to be four main purposes of punishment within punishment theory – incapacitation, rehabilitation, deterrence, and retribution.
It is unlikely that capital punishment can provide incapacitation value in a manner that is more meaningful than life in prison. When a prisoner is in prison, their capacity to commit crimes is all but eradicated, meaning that society is protected from their potential to offend again.
With perhaps the exception of some spiritual or moral forms of rehabilitation, capital punishment eliminates all possibility of individual rehabilitation for a crime. When an individual is dead, they lose the capacity to return to society as a functioning member.
Deterrence, at least theoretically, provides perhaps the strongest pragmatic sanction for capital punishment. If capital punishment were to truly reduce the frequency of crimes, the state may have a moral duty or, at the very least, a limited reason to consider the introduction of the death penalty.
Cass Sunstein and Adrian Vermeule argue that capital punishment is justified on the grounds of deterrence, suggesting that its deterrent effect can lead to an 18-1 life-life trade-off, and that we should favour the preservation of more lives. However, Sunstein’s and Vermeule’s arguments rest upon shaky premises.
There is little evidence that the death penalty substantially reduces crime rates. Recent studies within the US have been inconclusive, and crude mechanisms to evaluate crime rates, such as, for instance, evaluating crime rates before and after the abolition of the death penalty, often find decreasing crime rates following abolition, not increasing rates, as a deterrence theory may suggest. There thus appears to be little reason to justify the death penalty based upon deterrence alone.
The second, and perhaps strongest overall argument often made in favour of the death penalty is that of retributivism. Retributivism, unlike deterrence and incapacitation, has a fundamentally moral basis. Many deontological advocates of the death penalty often posit that an immoral deed warrants proportional retribution. For a crime as heinous as mass murder, this may be the death penalty. Immanuel Kant believed in capital punishment as the culmination of his capital imperative.
The idea of retributivism has a particular intuitive appeal. Anecdotally in one’s personal life, there seems to be something disagreeable about individuals who have acted immorally receiving some kind of reward, even if in isolation this would be beneficial for the maximisation of utility. I may perhaps intuitively believe it to be a miscarriage of justice if somebody who cheated in a test received a reward for their high score, even if their success were to affect nobody but themselves.
However, retributivism is limited in a few key respects. Firstly, if retributive punishment should be equal to the seriousness of a crime based on moral desert, which was suggested by Kant as the strongest foundation for retributivism, capital punishment would immediately be ruled out for all crimes excluding murder.
More fundamentally, I quite simply fail to see the supposed moral force underlying retributivism. The first principles of retributivism seem both weak and uncompassionate, and while as individuals we may have an emotional aversion to those who have committed misdeeds having pleasant lives, this does not mean morally such emotions are justified. It seems likely that, rather than stemming from concrete benefits, the desire for retributive justice as an intrinsic good is built upon a morally dubious vindictive psychological tendency that Nietzsche calls ‘resentissement’.
It would surely be more beneficial to ensure that all individuals, even if they have done something wrong, have their utility and personal happiness maximised. Camus plausibly suggests that punishment without forestalling is little more than revenge, rather than justice.
Therefore, I find the basis for capital punishment contained within the four purposes of punishment to overall be lacking. While deterrence would potentially provide a pragmatic sanction for capital punishment, there is insufficient evidence to suggest that the deterrence value of capital punishment is sufficient to deter large-scale crime. Equally, the moral basis of the doctrine of retributivism is insufficient to justify taking a life and generally seems to be predicated upon revenge rather than justice.
Other cases for capital punishment
In addition to retributivism and deterrence, there are a few arguments for capital punishment that advocates typically propose. John Stewart Mill suggested that it is more humane than lifelong imprisonment as it would inflict less suffering throughout a lifetime. However, this argument can immediately be discounted, as it appears to be in favour of voluntary euthanasia rather than capital punishment. Even if some criminals would be woefully unhappy in prison, some would live lives that are satisfying enough to create a positive balance of utility, thus implying that a choice between imprisonment and voluntary euthanasia would be more humane than forced execution.
A second argument in favour of capital punishment is based on the idea that carrying out life sentences puts an undue strain upon societal resources. The maintenance of the average prisoner in the United States costs $33,274 per annum. This is while they will contribute in very limited ways to society. By contrast, a single dose of the lethal injection, while having increased in recent years is typically substantially lower. Executing prisoners for capital offences would thus seem to imply a lower societal cost than life in prison.
However, this figure is misleading. Court cases involving capital punishment typically are extremely expensive, thus meaning that capital punishment tends to be substantially more expensive for society than short-term prison sentences. An average federal court case where the death penalty is sought is 8 times more expensive than a murder trial in which the death penalty is not sought. While, on the whole, life in prison is likely nevertheless more expensive for society, the disparity is less than one may initially believe.
More importantly, to execute convicts because of the cost to maintain them seems unnecessarily inhumane for liberal democracies considered in this question. As this essay expands on later, killing an individual causes extensive harm for a range of actors. It is clear that all liberal democracies in question have sufficient resources to uphold life in prison, as evidenced by the smooth functioning of nearly all penitentiary systems, and to execute prisoners for their costs appears especially inhumane once an individual right to life is established.
The Procedural Limitations of Capital Punishment
Thus far, I have mostly considered arguments in favour of the situational or widespread use of the death penalty. However, it is clear that, even if one does not maintain a moral aversion to killing those who have done something wrong, there are procedural reasons to consider when justifying the morality or immorality of the death penalty.
There are several problematic consequences of allowing a state to kill its citizens. Firstly, due to flaws within the justice system, there is a substantial share of those convicted of the most serious crimes who are wrongfully accused. DNA based exonerations suggest that 3-5% percent of those convicted for capital crimes in the US are wrongfully convicted. Even if one accepts the retributivist argument, it is difficult to justify killing innocents to retaliate against those who are guilty. This is particularly problematic since, unlike other miscarriages of justice, misguided executions cannot be reversed upon the discovery of later evidence. Once a capital sentence is carried out, the person in consideration is quite simply dead.
Even if guilty, a perpetrator of a capital crime will often have a great number of close relations who care about them and are not complicit in the crime itself. Examples of such close relations include friends and family members. The execution of the perpetrator of the crime would likely cause substantial trauma and suffering for these close relations and it is once again difficult to justify retribution against the perpetrator when such retribution would additionally cause suffering to those unrelated to the crime.
Moreover, when considering issues of capital punishment, there are inequalities that permeate its administration. Firstly, in nearly all administration of capital punishment, certain minorities are more likely to be wrongly convicted of crimes. According to a report by the University of Michigan, in the United States, black minorities convicted of murder are 50% more likely to be innocent than their white counterparts. Moreover, these racial injustices also mean that those who are put on death row tend to be disproportionately black. In the US in 2019, about half of all murder victims were black, yet only 15% of convictions involved black victims. The death penalty often thus exacerbates existing racial divisions which necessitates severe caution when considering the application of the death penalty.
In addition to the procedural issues which I have described above, Amnesty International posits two substantive arguments suggesting that capital punishment should be abolished. Firstly, they argue, capital punishment tends to be carried out within skewed justice systems, which should lead us to be cautious about its application. This, however, is a generally lacking argument because the correlation between the two does not imply capital punishment mechanistically causes a skewed justice system. It seems more likely that certain characteristics of government unrelated to capital punishment are instead responsible, which do not intrinsically discredit capital punishment as a practice.
Secondly, Amnesty International suggests that we should abolish the death penalty due to its capacity to be used as a political tool, citing how it is often used to punish dissenters in states such as Iran and South Sudan. However, for liberal democracies, which I consider within this essay, this seems to be a lesser problem. While a turn towards autocracy is always possible, it seems unlikely that the death penalty will be used to directly punish dissenters any time soon in states such as the US or Japan, as even in authoritarian states alternate mechanisms to punish dissenters tend to be more effective.
Human Right to Life
Above, I identified several reasons to believe that secondary consequences of the implementation of the death penalty may ultimately be problematic and lead one to oppose its implementation. However, some contend that the very nature of the death penalty itself is fundamentally immoral.
The European Union contends that even the worst criminal perpetrators inherent and inalienable. This stems from the Kantian conception of dignity as a universal right that all humans should be entitled to.
This seems to be supported, depending on one’s interpretation, by Article 3 of the Universal Declaration of Human Rights, which stipulates that ‘everyone has a right to life’. Considering the typical conception of rights as inalienable, the declaration would seem to imply that even felons who have committed the most heinous crimes have an inherent right, stemming from dignity, to not be killed by the State.
Since convicts could continue to live prosperous and happy lives if they were not capitally punished, even within the confines of a prison cell, it is unnecessarily inhumane to end an individual life. While I refute the concept within many religious circles that human life is immutably sacred due to such claims' questionable basis upon religious values, it is correct to suggest that it is a violation of fundamental autonomy to force an individual to die when they would prefer to live. Of all human rights, the right to life is perhaps the most fundamental as, without it, none of the other rights can be lived out. It is wrong to trivialise all of an individual’s rights to pursue capital punishment.
The importance of allowing some form of right to life is amplified by the fact that, as I have highlighted, there is no strong argument in favour of the death penalty, at least during times of peace.
Capital Punishment During Wartime
Currently, a substantial number of nations retain the death penalty solely for use in times of war. During wartime, there are two main types of potential capital punishment: capital punishment directly in a war zone and capital punishment at home or outside a war zone.
It is difficult to justify capital punishment outside the direct considerations of a war zone. Even if societal resources may be strained during wartime, a total war that collapses the justice system so far as to justify capital punishment seems extremely unlikely. In modern warfare, most states retain the ability to continue to sustain their prison population. There also remains insufficient evidence to justify the concept that deterrence is more effective in wartime. Meanwhile, the numerous reasons that I have laid out above for why capital punishment is immoral retain their moral force during wartime. It thus is wrong to suggest wartime should suddenly justify the execution of prisoners.
The strongest argument for capital punishment occurs in direct war zones. In regions of conflict, immediate military concerns may prevent individuals from properly referring to courts and judicial systems, as would be done during peacetime. In such a case, incapacitation of prisoners may be impossible, and prisoners could escape and recommit crimes. Such a possibility necessitates the calculation of a life-life trade-off that could potentially lead to the harrowing conclusion that capital punishment could be justified.
However, for the reasons established earlier in this essay, such a killing would still be extremely undesirable. Considering how undesirable it would be for a nation to be in such a situation in the first place, it seems wrong to enshrine such a possibility in the legal code. Extreme contingencies during warfare should be arrived at only if they are absolutely necessary, and not be pre-planned in peacetime in law.
Conclusion
Thus, there appears to be little substantive reason to support capital punishment in 21st-century democracies, while there are numerous reasons to oppose it. Deterrence is of limited efficacy, and retributivism has a questionable moral basis. Capital punishment typically unnecessarily affects numerous innocent individuals, both through wrongful convictions and emotional effects on those close to the perpetrator of a crime, disproportionately affects minorities, and, perhaps most fundamentally, violates a right to life which we should try to uphold wherever possible. While capital punishment may be justified in extreme wartime scenarios, such scenarios should not be mundanely enshrined within law. Thus, capital punishment should have no place in 21st-century democracies, even for the most heinous of crimes.
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