Ethics Of Capital Punishment Essay, Research Paper

Ethical Evaluation Of Capital Punishment

Agape, Christian love, is unconditional. It does not depend on the worthiness or merit of those to whom it is directed. It is persistent in seeking the good of others, regardless of whether they return the favor, or, as in most cases, even deserve to be treated well on the basis of their own incessant wrongdoing. An ideal community would be made up of free and equal citizens, devoted to a balance between individual self-fulfillment and the progression of the common good. Everyday life would be based on mutual love in which the equality of giving and receiving was the status quo of social society. Everyone would contribute to the best of his or her ability, and each would receive in accordance with legitimate claims to available resources.

What would a community based these standards do with those who committed brutal acts of terror, violence, and murder? Put negatively, it would not live by the philosophy of “an eye for an eye, a tooth for a tooth, and a life for a life.” It would act to protect the members of the community from further destruction. Those who had shown no respect for life would be held in reserve, permanently if necessary, so that they could no longer endanger other members of the community. But, the purpose of confinement would not be vengeance or punishment. Rather, an ideal community would show mercy: even to those who show no mercy. It would return good for evil. The aim of isolation is reconciliation and not revenge. Agape never gives up. It is ever hopeful that even the worse among us can be redeemed so that their own potential contribution to others can be realized. Opportunities for confronting those who had been hurt by the action could be provided to encourage remorse and reconciliation. If a life has been taken, no full restitution can ever be made, of course. A price, or punishment for that matter, could never justify the taking of someone s life. But some kind of service to the community might be required as a way of partially making amends.

The ethical issue of capital punishment involves determining whether the execution of criminals is ever justified, and, if so under what circumstances it is permissible. Philosophical defenses of capital punishment usually draw from more a broad discussion of punishment. The subject of corrective justice in legal philosophy distinguishes between two principal theories of punishment: utilitarian and retributive. Most criticisms of capital punishment seek to expose flaws in popular justifications of capital punishment. Thus, in the absence of an exceedingly good reason for executing a criminal, the critic of capital punishment concludes that the criminal should be allowed to live.

The most common defenses of capital punishment are based on utilitarian beliefs. For utilitarians, punishment in general is justified if and only if it creates a greater balance of happiness as opposed to unhappiness. So, from the utilitarian perspective, capital punishment is justified if it prevents the criminal from repeating his crime, or, if it prevents crime in general, by discouraging would-be offenders. Both of these contribute to a greater balance of happiness in society. There are several immediate problems with this line of reasoning though. First, the burden of proof is on the defender of capital punishment to show that the same effects on society could not be accomplished with a less severe punishment: such as life imprisonment. This is especially significant since the goal of utilitarianism is to reduce as much unhappiness as possible, and this would entail sentencing the less severe of two possible punishments. Italian political theorist Cesare Beccaria argues this point in On Crimes and Punishment, one of the first critiques of capital punishment from the utilitarian point of view. According to Beccaria, capital punishment is not necessary to deter crime, and long-term imprisonment is a more powerful deterrent, since execution is transient.

A second and more basic problem with the utilitarian defense of capital punishment involves the fact gathering process. Since the utilitarian is making a factual claim about the beneficial social consequences of capital punishment, then his claim should be backed by empirical evidence. In the absence of such reliable empirical evidence, the utilitarian position must be dismissed. “Empirical evidence” in general is of two varieties: anecdotal evidence and scientific evidence. Anecdotal evidence involves isolated observations, which appear to associate two states of affairs, which, in this case, would be capital punishment, and improved social conditions. Given the seriousness of the issue at stake with capital punishment, namely, people’s lives, anecdotal evidence is an insufficient ground for establishing a causal connection between capital punishment and improved social conditions. Instead, scientific studies are needed. Several studies have been conducted in the past few decades regarding such a connection, but unfortunately, the methodology used on social questions of this nature is almost absolutely imprecise. Ideally, a truly scientific study of the question would involve a comparison between two, otherwise identical, societies in which capital punishment was not used in the control group but was used in the test group. The problem, though, is that it is a practical impossibility to isolate two otherwise identical societies upon which to conduct the study. An almost infinite variety of conflicting factors in the groups will make the results inconclusive. Not surprisingly, the recently conducted empirical studies in fact draw conflicting conclusions. This basic problem in the fact gathering process not only applies to the utilitarian defender of capital punishment, but also to the utilitarian critic of capital punishment who might argue that society benefits more from life imprisonment sentences. Both sides are equally affected by this argument.

A third problem with utilitarian justifications of punishment, as pointed out by political philosopher Adam Bedeau, relates to the ratio of innocent lives saved per execution. Conceivably, in the best possible situation, executing five of the most dangerous convicts will result in saving five innocent lives in the future. As the number of executions increases, however, the number of innocent lives saved will not increase proportionally. Eventually, it could possibly take one thousand executions to save only one innocent life. So, eventually it must be determined how many executions justify the saving of one innocent life (this parallels the Indian execution story). This, though, is virtually impossible to determine, yet the utilitarian needs this information to successfully calculate the overall social benefit of capital punishment.

Finally, utilitarian critics of capital punishment sometimes argue that the expense involving executions is considerably greater than the cost of life imprisonment. The costs of appeals and legal counseling are the primary expenses. Thus, the extra financial burden of capital punishment contributes to a greater balance of unhappiness to society as a whole. There are three apparent problems with this argument. First, such financial calculations typically do not take into account that much of the legal counseling for death row inmates is pro bono, or free, which does not cost the taxpayer anything. Second, even if this is a true description of the cost of capital punishment in the United States and other developed countries, it is not a good representation of the cost of criminal executions worldwide. Naturally, one might logically expect that in many developing countries, executions are substantially cheaper than life imprisonment costs. Assuming that critics of capital punishment object to its practice in any country, this argument not only lacks a universal application, but also might actually be used as an argument in favor of capital punishment in countries with less expensive appeals processes. Finally, even if executing criminals is more costly than life imprisonment, it is not immediately obvious that the extra expense either contributes to a greater balance of social unhappiness or even tips the balance towards unhappiness. Society may actually be pleased with, or at least content with, the value it is getting for its capital punishment dollar.

The retributive notion of punishment in general is that as a foundational matter of justice, criminals deserve punishment, and the punishment itself should be equal to the harm done. In determining what counts as punishment equal to harm, theorists further distinguish between two types of retributive punishment. First, lex talionis retribution, which involves punishment in kind and is commonly expressed in the expression “an eye for an eye.” Second, lex salica retribution involves punishment through compensation, and the harm inflicted can be repaired by a payment. Historically, capital punishment is most often associated lex talionis retribution. One of the most early written statements of capital punishment from the lex talionis or “eye for an eye” perspective is from the 18th century BC Babylonian Law of Hammurabi:

If a builder builds a house for someone, and does not construct it properly, and the house, which he built, falls in and kills its owner, then that builder shall be put to death. If it kills the son of the owner, then the son of that builder shall be put to death.

Critics of the lex talionis idea of capital punishment, point out several problems with this view. First, as a practical matter, lex talionis retribution cannot be uniformly applied to every harm committed. The second sentence in the above quote from the Law of Hammurabi shows the inherent absurdity of a universal application: “If it (a collapsed house) kills the son of the owner, then the son of the builder shall be put to death.” Second, as a strict formula of retribution, lex talionis punishment may even be inadequate. For example, if a terrorist or mass murderer kills ten people, then taking his single life is technically not punishment in this degree. Third, foundational beliefs in general have the unfortunate consequence of appearing arbitrary. If a belief in lex talionis retribution is foundational, then, by definition, it cannot be defended by appealing to a prior set of reasons. The arbitrary nature of this is particularly clear when we see that there is an alternative retributive view of punishment, which is equally foundational, yet which does not require capital punishment, namely lex salica retribution. Finally, critics of capital punishment argue that the true basis of retributive justifications of capital punishment is not at all foundational, but instead rooted in psychological feelings of vengeance. Even if we grant that vengeance is a natural human emotion, critics argue that it is an impulse, which should be tempered. Universal laws about punishment, then, should not be grounded in our extreme feelings, but should instead be based on our more tempered ones. When we moderate our natural feelings of vengeance, there should be little desire to execute criminals.

Immanual Kant offered an alternative retributive justification of capital punishment, which is not rooted in vengeance. Instead, for Kant, capital punishment is based on the idea that every person is a valuable and worthy of respect because of their ability to make rational and free choices. The murder, too, is worthy of respect; we, thus, show him respect by treating him the same way he declares that people are to be treated. Accordingly, we execute the murderer. This seems to be a twisted version of the Golden Rule. A key problem with Kant’s justification of capital punishment is that it tells us what to do with only ideally rational killers, although many killers, in fact most, are not rational.

Some typical arguments for capital punishment do not fall neatly into either the retributive or utilitarian categories. For example, John Locke’s famous defense of capital punishment has both a retributive and utilitarian component. Locke argued that a person forfeits his rights when committing even minor crimes. Once rights are forfeited, Locke justifies punishment for two reasons: from the retributive side, criminals deserve punishment, and, from the utilitarian side, punishment is needed to protect our society by deterring crime through example. Thus, society may punish the criminal any way it deems necessary so as to set an example for other would-be criminals. This includes even taking away his life. Under the influence of Locke’s theory of the forfeiture of rights, English law had some 200 capital offenses by 1800. Critics of Locke argue that there are alternatives to his assumption that criminals forfeit their right to life. It may be, instead, that criminals forfeit other rights, yet the right to life is simply not forfeitable. Beccaria, for example, argued that people did not sacrifice their rights to life when entering into the social contract.

Another defense of capital punishment is based on an analogy that capital punishment is to the political body just as self-defense is to the individual. The reasoning is that, in dangerous circumstances, the individual is justified in protecting himself by self-defense with deadly force. Since society (or the political body) is like a large person, society, too, is justified in using deadly force through capital punishment. However, for this analogy to be a successful, it must parallel the accepted principle that self-defense with deadly force is justified only when there is no alternative open to us (such as fleeing). This means we must see whether any alternative to capital punishment is open (such as long term imprisonment). Further, the self-defense with deadly force is grounded in the moral right of self-preservation. However, only people, properly speaking, have moral rights; abstract entities and institutions such as governing bodies do not. Consequently, the analogy between capital punishment and self-defense fails it a basic level.

As noted, most arguments against capital punishment are based on exposing flaws in defenses of capital punishment. However, some are more direct attacks, such as that capital punishment should be abolished since it is undignified, inhumane, or contrary to love. Corporal punishment, such as flogging, and extreme types of capital punishment, such as burning at the stake, are no longer accepted practices because of their indignity. By parity of reasoning, capital punishment should be abolished too. However, even if we grant that capital punishment violates our duty to treat people with dignity, humanity, and love, which alone may not be a sufficient reason for abolishing the practice. Dignity, humanity and love are foundational moral goods and as such are prima facie in nature. That is, they are each morally binding on face value until a stronger duty emerges with which it conflicts, thereby creating a moral dilemma. Defenders of capital punishment argue that retributive justice is one such conflicting duty. For, even though we are duty bound to acknowledge a criminal’s dignity, the duty of retribution is also present and is in fact outweighs the other duties.

A second direct attack on the practice of capital punishment is that, at least at present, it is virtually impossible to apply death sentences fairly. People on death row are typically poor and thus could not afford the best defense at their initial trial. They are also predominately African-American or Hispanic, which raises larger issues of racial inequality in the United States. As ethnic minorities, they are also likely to receive more strict judgments from juries than their white counterparts who commit the same crime. These considerations recently prompted a US Supreme Court Justice to change his own views on capital punishment and reject the practice. In addition to problems of class bias, the practice of capital punishment is further tainted by the tragic fact that innocent people are sometimes executed. Eliminating capital punishment not only prevents their wrongful execution, but also gives them more time to clear their names and return to society.

I began my essay with a small insight into my moral belief, as a Christian, that a society based on Agape love, while not extremely practical these days, would nonetheless flourish. Thus, I choose to end my essay by saying that a society based on the ideals of Agape love is the best possible scenario in my opinion. I see no use for countering aggression with aggression in a society that urges its citizens to do the exact opposite. According to the Declaration of Independence, every man is entitled to, life, liberty, and the pursuit of happiness. But these unalienable rights that are endowed by the Creator may be revoked when the government deems necessary. I personally find it alarming that the government has enough power to negate our right to life. If there is one thing that I have learned throughout the course of my life, it is that the eye for an eye attitude will not get you very far. People, as a whole, are born morally neutral. It is their life experiences that make them who they are and teach them what they believe. Persons who commit vicious crimes have often suffered from neglect, emotional trauma, violence, cruelty, abandonment, lack of love, and a host of destructive social conditions. These extenuating circumstances may have damaged their humanity to the point that it is unfair to hold them fully accountable for their wrongdoings. Relative and proportional responsibility must somehow be factored in to the equation. In my opinion, no greater challenge to social wisdom exists than this.