Why capital punishment is wrong, but its opponents are too
Image: World Coalition Against the Death Penalty/flickr
My original plan for this week was to write about spending cuts and the right’s hysteria over government debt, but after Touchstone, Seumas Milne, and especially Duncan’s recent posts did a much better job than I could ever hope to, I decided against it. So, after seeing this story in today’s Independent, I’ve gone for capital punishment instead. On balance, I’m fairly definitively against the State having the legal power to execute people, but there are some pretty unconvincing arguments on both sides of the debate.
First, let’s look at the pro-death-penalty case. Proponents of the death penalty often claim that if a loved-one of ours was raped or murdered then we in the ‘anti’ (or should that be ‘pro-life’?) camp would abandon our smug liberal ways of thinking and come round to their point of view pretty quickly. This might or might not be true but either way it misses the point; if someone I loved had just been the victim of a terrible crime then I’m pretty certain that clear-headed reflection on complex ethical issues would be quite some way beyond my capabilities. If I want something (vengeance, in this case) as the result of severe emotional trauma, it doesn’t follow that I should get it. Someone who’s just had a loved one raped or murdered should get a lot of things – grief counselling, for one – but a change in the law according to how distressed or angry they feel isn’t one of them, no matter how justifiable the anger and distress they’re feeling might be.
Then there’s the claim that it acts as a deterrent. If this was true then the pro-death-penalty cause would have some merit, but from a few quick searches on Google and Wikipedia there really doesn’t seem to be any consensus either way. (Moreover, as that Wikipedia link points out, it’s also possible that capital punishment could have precisely the opposite effect, “brutalising” society and making killing less taboo.)
Finally, there’s that perennial favourite, Old Testament-style retributivism: eye for an eye, tooth for a tooth, life for a life. But no system of punishment could possibly work like this. Murderers face the death penalty, fine. What about someone who commits assault? Do they get a state-sanctioned beating? And how would any punishment at all make sense for conspiracy to murder? Or perjury? Or indecent exposure? The whole idea is farcical.
The case for the death penalty, then, seems to amount to two arguments which don’t stack up, and one which is totally unproven either way. But opponents of the death penalty don’t have it all their own way. This is the justification Amnesty International gives for its opposition to the death penalty:
The death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state. This cruel, inhuman and degrading punishment is done in the name of justice.
It violates the right to life as proclaimed in the Universal Declaration of Human Rights.
I’m not a lawyer, so anyone who knows more about this is welcome to correct me, but I find that last claim unconvincing. The right to life is mentioned in Article 3 of the Universal Declaration, which reads:
Everyone has the right to life, liberty and security of person.
If the right to liberty isn’t infringed by legally-sanctioned imprisonment then I really don’t see how the right to life can be infringed by capital punishment. The claim that it’s cruel, inhuman and degrading punishment is perhaps more plausible, especially when you consider the gruesome description of execution by lethal injection in the Independent story I linked to above. But does Amnesty intend that as a claim just about certain methods of execution like lethal injection, or as a blanket claim about capital punishment per se? If the former, it stands just as well as an argument for more humane methods of execution as it does as an argument against capital punishment. If the latter, is capital punishment really any crueller than keeping someone in prison until they die of natural causes? It’s hard to judge which would be a worse punishment.
Another argument (implicit in the Amnesty quotation above and explicitly stated by other death penalty opponents) is that there’s something inherently wrong with the State having the power to take someone’s life. But the State can take life pretty uncontroversially in ways that have nothing to do with capital punishment – by the action of armed police, for example. Certainly there are any number of controversies about whether particular killings by police are justified, but I’m pretty confident most people support the general principle that officers of the law may on occasion have to take the life of a criminal to protect their own lives or those of the public. And once again, I still don’t see why it’s morally any worse for the State to take someone’s life than it is to keep them imprisoned until they die.
The important difference, of course, (which the Independent article highlights) is that no justice system is infallible. If someone’s discovered to have been wrongly imprisoned, they can be released. Sure, they can’t get back the time spent in prison, but some form of redress can be made. If that same person is instead executed, there’s absolutely no way to correct that. This, in my view, is by far the most convincing argument against capital punishment. Humans are fallible, so when we design our institutions there should be as much scope as possible for us to rectify things when, by malice or incompetence, they go wrong. It goes without saying that this is particularly important when it comes to questions of life or death. That really is all the argument we should need.
Reader Comments
I ultimately agree with your conclusion, and many of your points. The ‘moral’ argument against the DP (as put by Amnesty) is unconvincing for a number of reasons, not least because it’s question-begging, and an appeal to vague deontological authority. Death is ‘bad’, but that simply isn’t an argument against the DP.
The DP is, frankly, a prima facie legitimate form of punishment *qua punishment*: it serves every one of the purposes of punishment (retribution, solidarity with the victim, authority ‘signalling’, elimination of a threat to society and deterrence — though the extent is debatable, that it is a deterrent is hardly controversial — etc). In addition, I think that too much focus is made on an essentially artifical distinction between “good punishments” (life imprisonment) and “bad punishments” (perhaps flogging or death). Coupled with my beliefs that, from a metaphysical perspective, any action is prima facie permissable, and that justice isn’t a product of pure reason, then the burden of argument is heavily on those who oppose it.
Yet I do oppose it — not for moral reasons (from a purely emotive point of view, there are a lot of people for whom the punishment is entirely condign. From a justice point of view, as I suggest above, it fits the bill and is pretty efficent). My reasons are much the same as yours with an added couple of points. First, (as you note) the apparatus of justice is imperfect. But even in a hypothetical infallible justice system — one that never makes mistakes on guilt and innocence — I think there’s the additional problem of intolerably fine distinctions of interpretation and evidence, in the judicial process prior to punishment. For such a ‘final’ punishment, the moral distinction between, say “killing with intent” and “wounding with intent [leading to death]“, is virtually non-existent, yet such a distinction may well be the determinant factor in whether the punishment is served or not. That would, I think, be morally unjustifiable.
Second, I think there’s something to be said about the brutalising argument. It may sound a bit airy-fairy, but I’d argue that the state’s moral authority is enhanced when the death penalty is not employed as a state-sanctioned punishment: a self-imposed restraint by authority capable of such a brutal exercise of its power, affirms both the seriousness with which killing is viewed, and also the idea that the state rests on moral authority, not merely on its own might.
In a final point, I’ve been considering the DP from a preference-utilitarianism. Perverse as it may sound that what are often brutal criminals should have a ‘preference’, I think that many punishments other than the DP more fully account for all possible concerns, without poisoning the (ideally) dispassionate concerns of justice, with emotive overreactions.
I think the most compelling argument against the death penalty asks the question, what purpose does punishment serve? Is it to reform the offending individual? Is it to keep dangerous people away from society? Or is it simply to destroy them in order to meet a desire for vengeance? If it’s for reform or protection, then imprisonment is the logical course of action. If it’s for vengeace, it points to a pretty crude and barbaric justice system.
Salman,
I’d say justice serves all of those purposes. It’s hard to escape the conclusion that we’re simply trying to justify what we already do (and want to do), when speaking of justice as though it’s some abstract product of pure reason: such a concept of justice would be “nonsense on stilts”, in Bentham’s words. Following from this, I don’t think there is any logical way of sort of ‘discovering’ the foundational requirements of justice (though reasoning its applications can be done entirely through deductive argument), as I think we stumble on the is-ought problem pretty quickly if we were to try and make any claims of that nature. In other words, the question, “what does justice [or punishment] demand, generally” is less reducible than the question “what does justice [or punishment] demand of this particular situation”. That’s why I think a preference-ultility argument is the most successful when arguing against the DP (or any punishment at all).
Since killing is such a terrible thing, I’d say it’s only justifiable if there is no alternative. If the police kill someone when there’s no reasonable alternative, that’s justified, but in the case of punishment for a crime there is always the alternative of prison.
Tendai, I’m going to have to take my hat off to your knowledge of Bentham. Naturally one has to judge each situation on its own merits. There are those for which reform is highly preferable – and I believe Bentham’s panopticon was a primary tool of reform. There are others in which society simply would not be safe with an individual free amongst it and the only recourse is to separate them. But the only purpose the death penalty serves is to satisfy a societal desire for vengeance. Justice should never be submitted to the whims of the people.
Salman,
My views here are more focussed on the philosophical problems that opponents would have to get over in order to succeed, rather than advocating we should actually have the DP. If we are to take moral imperatives seriously (‘do not kill’) we should minimise the excuses we use to contravene them. I wouldn’t actually want such a punishment as part of our justice system, but in a purely philosophical sense, it seems to me that some of the anti arguments just happen to be bad arguments even if I agree with their conclusions.
Turning to your last statement, do you not think a distinction can be made between justice on the whim of the people, and harsh punishments but through consistent, thorough, even objective state institutions? In other words, capital punishment could be exercised just as legitimately as any other punishment, without getting the mob involved. Also, I think you make the point that death is ‘vengeful’, but, I’m not sure that other punishments should be automatically ennobled by being presumed to be free from vengeance: “I Hope s/he rots in jail!” seems pretty vengeful to me. Furthermore, it could well be wondered whether removing justice from the whims of the people necessarily substitutes a less harsh justice just because the operations of the state are capable of being consistent and detached. One of the chilling aspects of capital punihsment, to me, is just how clinical and detached it actually can be.
So some of the arguments against captial punishment seem to be begging the question without acknowledging or realising it. I can’t help but feel that if one is to be intellectually honest, the DP should be argued around, from the same ground as other punishments, rather than against, by various forms of special pleading from vague notions of wrong and justice. This, and I think you said it earlier, calls for questions on what we actually want (and what we really don’t want) out of a system of public punishment. I don’t want the state killing people, but I’d shy from appealing to special moral authority to support that view.
The arguments that I tend to find convincing are those that argue for ‘punishments preferable to death’, rather than relying on the logical sleight of hand that death is somehow an inherently less legitimate form of punishment than imprisoning somebody for life.
As an aside, I think there are lots of more useful and efficient forms of state sanction than prison (and capital punishment probably isn’t one of them).
I think I broadly agree with the points Tendai’s made, though I’m generally very dubious about utilitarianism despite being a consequentialist. Just one minor point, though – if we’re being at all consequentialist about criminal justice, then victims’ (or their relatives’) desire for justice *should* surely be given some weight too. Probably not that much in the grand scheme of things, but some. Just throwing that out there.
Without needing to invoke, admittedly dubious, conceptions like justice there is a very simple argument against capital punishment.
It is never legitemate to take someone’s life from them unless you are in a situation where greater harm is prevented by so doing (armed police/war etc).
No harm is prevented by capital punishment. (given the case about deterrance is not proved either way)
Far greater harm is caused by capital punishment particularly since it precludes any possibility of redemption and assumes that no positive use could have been made of the life that is now being taken.
Furthermore, given the injust behaviour of most modern states as well as their general illegitemacy – what really distinguishes capital ‘punishment’ from mere revenge killings?
Good, smart piece! Bravo! I’d add one more demurrer on the side of prohibiting capital punishment. Here in the US (and presumably in the UK, too) there is no equal justice under the law. Both the US prison population’s composition and those on death row are overwhelmingly people of color (read: social class matters) and working class whites (ditto.) Until justice truly is blind and all have access to an excellent defence –and I’m not holding my breath– state killings will remain selective. Bad enough that incarceration is weighted against the poor, but as long as murder as state-sanctioned punishment is dispensed inequitably, it’s a monstrously discriminating practice that must be outlawed. Will there be capital punishment under socialism? That’s for those generations to decide, but I think they’ll likely take vengence out of the equation and be in a position to redefine what constitutes crime.
i do agree with all of the readders comment writer too
Most countries that have abolished capital punishment have less murders than the US.