Capital Punishment

A third problem with utilitarian justifications of punishment, as pointed out by contemporary political philosopher Adam Bedeau, concerns the ratio of innocent lives saved per execution. Perhaps, 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 may take one thousand additional executions to save only one additional innocent life. So, eventually it must be determined how many executions justify the saving of one innocent life. This, though, is virtually impossible to determine, yet utilitarians need this information to successfully calculate the overall social benefit of capital punishment.

Finally, critics of capital punishment sometimes argue on utilitarian grounds that the expense involving executions is substantially greater than the cost of life imprisonment. The costs of appeals and legal counseling are the principal expenses. Thus, the extra financial burden of capital punishment contributes to a greater balance of unhappiness vs. happiness. There are three 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 which does not cost the taxpayer. 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 representative of the cost of criminal executions world wide. Indeed, one might reasonably 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 universal application, but might in fact 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.

Retributive Arguments Concerning Capital Punishment

The retributive notion of punishment in general is that (a) as a foundational matter of justice, criminals deserve punishment, and (b) punishment 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 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 payment or atonement. 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 BCE 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 classic lex talionis-oriented 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 consistent application: "If it [i.e., 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 kind. 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, just as we do natural feelings of fear, lust, and greed. 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 inclination 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. 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 are not rational.

Other Arguments for Capital Punishment

Some standard 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: (1) from the retributive side, criminals deserve punishment, and, (2) 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 to set an example for other would-be criminals. This includes 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 (such as freedom to travel), 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.

Direct Attacks on Capital Punishment

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, that 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 Afro-American or Hispanic which raises larger issues of racial inequality in the US. 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 gives them more time to to clear their names and return to society.