From this jumping-off point, it is possible to analyse the death penalty from a utilitarian perspective. This perspective does not exclude a principled objection to the death penalty. It simply allows that an objection to the death penalty must depend on harm and benefits to the criminal and society, and not on an unsupported statement of opinion or principle.
The argument for non-biblical retribution draws upon practical utilitarian principles. Much of what is labelled retribution is actually a simple but extended application of purely utilitarian principles. Kant argues the true retributive stance: “Even if a civil society were to dissolve itself… the last murderer in prison would first have to be executed in order that each should receive his just desserts and that the people should not bear the guilt of a capital crime through failing to insist on its punishment; for if they do not do so, they can be regarded as accomplices in the public violation of justice” At least explicitly, the use of putting a killer to death had nothing to do with the decision to do so. A true utilitarian might reject this argument but, on closer examination, he might be wrong in doing so. Kant repeatedly emphasizes the importance of dignity and character, and in his argument for capital punishment suggests that retribution is not suitable because it is right, and right because it is suitable (as such circular reasoning could never lead to an intellectually defensible position), but that its actual benefit is the symbolic but essential use in confirming respect for society, law, and the victim. He can therefore be seen as arguing that capital punishment has a unique, long-term utility in maintaining dignified, respectful relations among humans.
One might argue for pure retribution by disregarding the good of society and insisting that the crime of murder demand the punishment of death, because a criminal must be punished in proportion to his crime. It would thereby save him entirely from any charge of utilitarianism. But even if the principle is not conceptually flawed, it remains utterly unworkable. For the crime of assault and battery, it would be impractical to beat and then release the offender. It might be possible to bend the rule and equate jail time with the crime as just punishment. In that case, assault and battery could be punished. In either case, the punishment, while arguably just, does nothing to recompense the victim, and nothing to prevent the criminal from doing further crime. Murder, unlike assault and battery, demands exact retribution, the death penalty, because no amount of jail time or other punishment can be realistically equated with the loss of the victim’s life. The murderer is executed, and the principle stands. What happens, then, to a man convicted of rape, torture, and murder? His crime is clearly greater than that of the man who simply killed quickly and painlessly, albeit in cold blood. How should he be punished? Death is the punishment for simple murderers, and is therefore insufficient to answer as a punishment for him. Society could choose to rape, torture, and kill the man, but no modern society yet has chosen to do this openly. Why? Because there comes a point where society cannot stomach any greater, more horrific punishment, no matter how evil the crime. In some cases, proportional punishment would be impossible, no matter what the mores of society. How could we punish Hitler? At this point, the principle of retribution and proportional punishment breaks down. This need not mean giving up a principle of just punishment, but it would be silly to advocate proportional punishment when, in its most liberal incarnation, it can punish crimes up to simple murder, but fails entirely for the whole disturbing class of greater crimes. Retributive justice would be poorly served by letting many of these criminals off with so light a sentence as painless death when they justly deserve much more.
According to the moderate theory of retribution, punishment serves the purpose of satisfying a sense of social justice and therefore of maintaining social stability. From this perspective, death, and no more, is appropriate for the worst of crimes, but this stance admits that what is really being considered is not retribution, but the utility to society in exacting punishment on a criminal.
III
Having shown that absolute retribution is unworkable and moderate retribution works on the principle of utility, it is fair to treat retribution as a principle of utility, and to then balance the latter arguments against the anti-capital punishment arguments.
Moderate retributionism is a utilitarian argument that it promotes the long-term stability of society and the respect towards others to put murderers to death. One can little doubt the value in such a position. The death penalty is a clear message that society values the life of the victim enough to kill the criminal, and this message is a good one: good conduct is valued over bad; the lives of the good are valued over the lives of the bad. The magnitude of the good provided, how it is provided, and its side effects then become the important issue.
Retribution is only an abstracted separation of deterrence. It seeks to deter would be murderers by setting a societal standard of conduct and respect for life, and an expectation of just punishment of transgressions. Deterrence may also have short-term value. Although no hard data indicates that the death penalty prevents murders, it is sensible to say that it may. Some argue that even if the deterrence value of capital punishment cannot be determined exactly, it should still be used as the Best Bet: “If we were quite ignorant about the marginal deterrent effects of execution, we would have to choose-like it or not-between the certainty of the convicted murderer’s death… and the likelihood of the survival of future victims of other murderers on the one hand, and on the other his certain survival and the likelihood of the death of new victims” (Van Den Haag ).
The greater penalty offers the greater deterrence, but there is likely a point of diminishing returns. That convicted murderers prefer ninety-nine to one to spend life in prison rather than be killed does not provide convincing proof that the death penalty is the greater deterrent. Life in prison in not an insignificant punishment, and if a rational person would not be deterred by fifty or sixty years and eventual death in a small concrete box, it seems surprising that a painless death would have a much greater effect. For an irrational person, the issue of deterrence is debatable. Short of violent, public executions, capital punishment will not have much deterrent effect on the irrational.
Retribution raises another important question. Why do we seek justice? “Because it is just” is not a sufficient answer. In order to protect the innocent and the hated, it is necessary to define justice logically, not emotionally. That it may make us feel good that we have punished for a crime is not sufficient justification for punishing with death. To do so is to say that we as a society place our self-gratifying sense of justice above the rights of the accused or the good of society. Though a murderer may well deserve any such punishment, it is unhealthy and indulgent to mete out such god-like justice unless it serves some demonstrable good. Such justice borders on societal revenge, and any time the anger of society is, with legal approval, brought down on an individual, he has little chance for defense. For this reason, our legal system is supposed to be impartial. Pojman argues that retribution is different from revenge because it is impartial, impersonal, and not motivated by anger. In this case, it cannot have the uncertain utility of a release of anger. Such a release would have negative utility as well; it smacks of lynch mob mentality and allows emotion to interfere with justice.
IV
The very principal of utilitarianism might suggest certain callousness towards the individual. Securing the greatest good for the greatest number, seemingly risks sacrificing individuals for the good of society. This is not the case. The rights of the individual must be upheld absolutely, on threat of societal collapse. Without guaranteed individual rights, society cannot function effectively. In totalitarian societies where these rights are not recognized, the whole of society suffers wretchedly. These rights take precedent, then, in all but the most extreme cases. Society cannot, therefore, execute an innocent person for the good of society unless the magnitude of that good is titanic. The sacrifice of an innocent life undermines respect for the innocent individual and his rights.
Van Den Haag’s Best Bet argument suddenly becomes less appealing in this light. In instituting capital punishment, we know that innocent persons will be executed. Against this sickening travesty of justice, we bet that we will deter some murders. Without the death penalty, no innocent people will be executed, but there may be some murders not deterred. The best bet here seems to be against the death penalty. Nobody has been able to convincingly support the assertion that capital punishment has a deterrent effect. Nobody knows whether it might even cause murders, especially among the suicidal and mentally ill, who, unable to kill themselves, might kill so that society would arrange their deaths for them. Others might imagine that they, like the state, could kill justly. Here the odds are one hundred percent against the innocent people who the state will kill, balanced against the unsupported hope that somebody will not be murdered because of the death penalty’s deterrent effect. Taking that bet is playing the role of a callous, careless God.
To put a murderer behind bars for life instead of killing him is not, as some argue, a morally cheaper or less meaningful punishment than death. Especially in this country, founded on the backs of men and women willing to sacrifice life for liberty, there should be no ambiguity about the severity of the permanent loss of liberty as a meaningful form of punishment. Life imprisonment assures society that the murderer will never again commit crime against innocent victims, and satisfies the requirement that response to crime upholds society’s values. Additionally, a person falsely accused and imprisoned may be released, but digging up someone wrongly killed and buried will do him little good.
By risking doing irrevocable harm when there is a reasonable alternative, the State loses its absolute innocence in meting out punishment. When the state chooses a path that will cause the deaths of innocent people over one that will not, it becomes directly culpable. But a state itself cannot be responsible. When a man or woman is executed in this state, it is done in the name of the people of the state of Illinois. Everyone who lives in the state is responsible for the just execution of a murderer, or horrendous travesty of justice when an innocent person is put to death. In accepting the reality of these mistakes, the state, and the people of the state, write off the lives of innocent people as a regrettable side effect. This writing off, far from upholding the sanctity of innocent life, puts the state in a position of admitting that it mistakenly kills people sometimes, but will not give up the system which makes such sickening, irreparable mistakes possible.
A second, more common flaw in the criminal justice system destroys any chance that capital punishment might uphold the sanctity of life. Only a small fraction of murderers are sentenced to death. If the death penalty is a vindication of the victim’s dignity, what of the victims of all the murderers who are not sentenced to die? The inconsistent use of the death penalty lessens the symbolic condemnation of the crime. An attempt at consistency would lead to unpleasant consequences for all of society. Every first-degree murderer would have to be executed. The number of people wrongly executed now is small, but if the state began to execute murderers by the thousand, that small number would skyrocket. It would also become painfully clear that as far as justice is concerned, the death penalty is inappropriate for many first-degree murderers. We would be putting to death many people who could (and under the current system do) become safe and productive members of society.
The death penalty is not completely arbitrary, though. A poor black male is many times more likely than a white man to be put to death for the same crime. Though the black man was not individually wronged, the aggregate effect is that race is an issue in deciding who lives and who dies. This inequity raises the basic question: can we choose consistently and appropriately who should die and who should live? The answer is no. In some cases the choice of life or death is clear, but more often, confounding circumstances of race, finance, and lack of good counsel make the difference between life in prison and death. Minorities and the poor suffer disproportionately under the death penalty. The unequal use of this punishment makes it a frightening weapon of social opinion, which does nothing to uphold the innocence and purity of the state, or the dignity of the victim’s memory.
V
No defensible argument for or against the death penalty can be taken as an absolute. The harm caused or prevented by the death penalty and the utility in using or not using it must be considered the final arbiters of the acceptability of the punishment.
The death penalty, exacted for retributive or more directly deterrent reasons, has a significant value to society. The symbolic importance of taking the life of the killer does, in a way, express society’s belief in the sanctity of innocent life. These benefits come at a high price. For what is a useful symbol and a hope of some prevention, society pays in the hard currency of life, of criminals and innocent victims of the state. The death penalty is a last resort punishment when the worst of crimes has been committed, and in invoking it we as a society must recognize that we have failed in making other preventive measures and punishments effective. Such a thing is not impossible; other countries have done it. The death penalty represents the frightened, fortress mentality of a society pushed to kill in order to punish murder, of a society incapable of finding better, more humane, more effective means of punishment than those was used in committing the crime.
We must recognize that innocent people die when the death penalty is used. We must deal with the fact that its application is influenced by race, gender, and economic status. We must recognize that when a man is injected with poison for his crime, it is done in our name, as our judgment. Is everyone that sure of the verdict?
