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Extended Examples: Capital Punishment

GENERAL ISSUES: THEORIES OF PUNISHMENT

Punishment and its justification

The deliberate infliction of deprivation and hardship on a person; hence, it has great disutility.
“Not the sort of thing one would freely consent to have imposed on oneself” (Bedau, "Capital Punishment", p. 170); hence, potentially, it violates autonomy.
It may violate human rights, including the rights to freedom (liberty), happiness, and even life.

Some general constrains :

Can I defend CP to the society of rational beings who are well informed and rational? Why or why not?
If I were to talk to someone who is innocent yet sentenced to death, how would I defend (justify) what the society does to him or her?
What to the best ethical theories we know imply about CP?

Forward Looking (Consequentialist) Reasons for Punishment

Bentham: “If it ought at all to be admitted, it ought to be admitted in as far as it promises to exclude some greater evil.” (p.134)

Rehabilitation Theory : Punishment reforms (rehabilitates) offenders and corrects their actions.
Social Defense Theory : Punishment prevents crimes by a) deterring potential criminals, and b) incapacitating past and potential offenders.
Punishments brings comfort to the families and friends of the victims and may benefit society in some other way.

A Retributive Theory of Punishment (or backward looking reasons for punishments)

The reason for punishment is that a crime was committed, and that crimes ought to be punished. The idea is that punishment is fair/just repayment for some wrong (or crime) being done. It’s a non-consequentialist reason.

Kant: "If he has committed a murder, he must die. In this case, there is no substitute that will satisfy the requirement of legal justice. There is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is no equality between the crime and the retribution unless the criminal is judicially condemned and put to death. But the death of the criminal must be kept entirely free of any maltreatment that would make an abomination of the humanity residing in the person suffering it. Even if a civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves around the world), the last murderer remaining in prison must first be executed, so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do this, they may be regarded as accomplices in this public violation of legal justice." (The Metaphysical Elements of Justice (1797), translated (1965), p. 102; see Rachels, p. 142)

For Kant, punishment should be retributive as well as exactly proportional to the crime.

Retributivizm and revenge

Some people look upon capital punishment as a form of vengeance or violent revenge. But for Kant, capital punishment was a way of respecting the criminal as a person. You use the criminal’s “maxim” (permitting killing) when you deal with him. Kant: “His own evil deed draws the punishment upon himself.”

But does it mean that punishment is just revenge ? There are some similarities but there are also very important differences

Retribution is done for wrong, while revenge may be done for an injury, harm, or slight.
Retribution sets an internal limit to the amount of the punishment.
There is (or ought to be) a "fair process" determining what the proper punishment is. Such process does not exist in so far as revenge is considered.

So, revenge is not the same thing as fair (just) punishment.

THREE GENERAL POSITIONS REGARDING CP

(AR) Absolute (Extreme) Rejectionism : No matter what, CP is not (and cannot be) justified. (An analogous view in the domain of "Just War Theory" is an absolute pacifism imp-lying that no war, not even a defensive one, is ever justified.)

CP involves a deliberate and intentional killing of a person; according to some, such an act is never justified (it’s murder); it undermines the ideal of the sanctity (special worth) of human life (because of various slippery slope considerations);

(EP) Extreme Proportionalism : CP is always justified; it is the only fitting form of punishment for the cases of murder, for it is only form of punishment that is proportional to the harm inflicted in such cases.

Se Kant above.

(C) Contextualism : Whether CP is justified or not depends on the circumstances, including the possible effect of punishment, whether or not it can be administered fairly, alternatives, and similar factors.

CONSEQUENTIALIS ARGUMENT ABOUT CP

Alleged Benefits:

Rehabilitation : It may apply to some forms of punishment but it does not apply to CP. An executed person is killed rather than rehabilitated.

Social defense : Allegedly, CP incapacitates a person and deters others. In fact, there is no empirical (scientific) evidence that CP prevents future crimes, lowers the rate of violent crimes, etc.

Closure : Maybe, but usually what works is some counceling and therapy.

Real Harms :

Is Capital Punishment Especially Cruel (and Unusual)?

Jonathan Glover : What seems particularly cruel and horrible about CP is that the condemned man has the period of waiting, knowing how and when he is to be killed. Many of us would rather die suddenly than linger for weeks or months knowing we were fatally ill, and the condemned man's position is several degrees worse than that of the person given a few months to live by doctors. He has the additional horror of knowing exactly when he will die, and of knowing that his death will be a ritualized killing by other people, symbolizing his ultimate rejection by the members of his community. The whole of his life may seem to have a different and horrible meaning when he sees it leading up to this end. ("Execution", in Causing Death and Saving Lives )

Wrongful convictions and executions:

Even according to the most pro-CP organizations, at least 39 innocent people have been executed in the United States from 1992 through 2004. Between 1973 and 2005, 123 people in 25 states were released from death row when new evidence of their innocence emerged.

These numbers seem way too conservative. A recent study implies that about 4% executed people are innocent.

Some additional special reasons against CP:

It is not (and it can hardly be) applied fairly. It involves the discrimination against the minorities and poor people.

It is expensive (at least 2.5 more expensive than life in prison w/o parole); see " Financial Facts about the Death Penalty " ( http://www.deathpenaltyinfo.org/costs-death-penalty ).

We can achieve the very same benefits without imposing on people the death penalty. The life in prison would achieve just that. So, based on the consequentialist considerations, CP is not justified when this alternative exists.

CAPITAL PUNISHMENT AS RETRIBUTION

Retributivizm requires that past crimes are punished. But it does not tell us in and of itself how to punish them.

So, is CP justified? To use Kant's Imperative (the formula of respect), an act or a policy is justified when they do not involve treating anyone merely as a means. CP is an extreme infringement on persons autonomy. In many cases, it is a violation of autonomy of innocent people. And there is no reason to to impose such an extreme punishment (given there are better alternatives). It does not seem like it can be justified on Kantian (retributive) grounds either.

SOME FINAL THOUGHTS:

Some questions to ask yourself

1. Am I willing to allow innocent people to be killed by the state in order to maintain capital punishment when I know that, comparing to the life in prison without a parole, it has no positive social effects (and it has some negative social effects)?

2. Would I still be willing to accept those 39 deaths (in facts 100s of deaths, according to the recent study) if those individuals wrongly executed were all people that I know and love, such as my parents, or children, of friends?

3, If I were to meet one of these innocent person who are about to be executed, could I honestly look into his eyes and say we have to do it because _________ (fill in the blank)?

Additional readings and recourcess :

Cass R. Sunstein* and Adrian Vermeule**, Is Capital Punishment Morally Required? Acts, Omissions, and Tradeoffs (prominent lawyers argue for CP on both Kantian and consequentialist grounds).
Carol S. Steiker, No Capital Punishment is not Morally Required: Deterrence, Deontology, and the Death Penalty (a prominent lawyer responds to teh above essay; this reply includes a part questioning the empirical evidence offered by Sunstein and Vermeule). \
Cass R. Sunstein and Justin Wolfers , A Death Penalty Puzzle (Sustein's and co. again on CP)
John Paul Stevens, “On the Death Sentence” ( link ) (a retired Justice of SCOTUS comments history and social issues related to CP)
A.M. "Marty" Stroud III ( the lead prosecutor) apologizes for role in sending man to death row ( https://www.shreveporttimes.com/story/opinion/readers/2015/03/20/lead-p… )
Highlights: A.M. “Marty” Stroud III on the wrongful conviction and exoneration of Glenn Ford (youtube: https://www.youtube.com/watch?v=5ZeJ46XE-Zc )
An essay published in the "Guardian"
US death row study published in the Proceedings of the National Academy of Sciences
88% of criminologists do not believe the death penalty is an effective deterrent ( link )
Do Executions Lower Homicide Rates? The Views of Leading Criminologists (a link to the original study)
States Without the Death Penalty Have Had Consistently Lower Murder Rates
" Financial Facts about the Death Penalty "
"At the Death Hose Door" (a documentary about Corpus Christi case of wrongful conviction told from a point of view of a pastor who mistered to this person and other similar cases; available on Netflix, Venmo, and so on; many clips on youtube).
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The Philosophy and Literature of the Death Penalty: Two Sides of the Same Sovereign

2012, The Southern Journal of Philosophy

Related Papers

Chung Chin-Yi

Samuel A Bassey

This paper, an Evaluation of Jacques Derrida's position on Death Penalty; A case against the Abolitionist, is aimed at raising logical arguments against the abolitionist by providing basis for the justification of Death penalty, while exposing the merits and demerits of the argument of Jacque Derrida in support of the abolition of capital punishment. Responding to Derrida Death penalty Seminar of 1999/2000 which took an abolitionist stance against the practice of death penalty, this paper argued that, Derrida's de construction of theologico-Political concept of the sovereign right over life and death in view of abolishing capital punishment, should be understood in terms of the unconditional renunciation of sovereignty as called for in Derrida's later political writing, Rogues in particular. This paper thus, adopted the overlapping philosophical method of historical, critical and hermeneutical analysis, evaluation and prescription to web together its arguments in support of Capital Punishment while giving special attention to the positions of Jacque Derrida with regards to the idea of death penalty. The work made a case against the Abolitionist by providing basis for the justification of Death penalty. It is the opinion of this paper that, even the capital punishment is not enough to right a wrong or engender justice. Rather restitution should also be made on the side of the offender in other forms while also giving his life as a punishment. It is often perceived that the lextalions is principle is the apogee of punishment when applied to serious crimes, especially culpable homicide. This work sets up yet a higher bar anchored on the perspective of critical cogitation and replaces this prescription of " tooth for a tooth and eye for an eye " with some teeth for teeth and the eyes for an eye " advancing arguments to move the frontiers of debate on capital punishment forward

Theresa Calvet

Reading Derrida’s 1999-2000 Death Penalty Seminar, this paper presents a very brief discussion (with long quotations) of how Derrida juxtaposes Kant’s defense of the death penalty with Victor Hugo’s vote for the pure, simple and definite abolition of the death penalty. If one wants to ask what is the death penalty, one has to reconstitute the history of sovereignty as the hyphen in the expression “theologico-political”, and try to think the theologico-political in its possibility beginning from the death penalty. Deconstruction is thus perhaps, perhaps insists Derrida in this seminar, the deconstruction of the death penalty. Published in Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies: Proceedings of the XXVI World Congress of Philosophy of Law and Social Philosophy of the Internationale Vereinigunf für Rechts- und Sozialphilosophieas. Marcelo Galuppo, Mônica Sette Lopes, Lucas de Alvarenga Gontijo, Karine Salgado and Thomas Bustamante (eds.). Belo Horizonte/MG: Initia Via, 2015 (E-book), pp. 1013-1029.

Philosophy Today

Robert Trumbull

This paper looks at the recently published text of Derrida’s 1999–2000 Death Penalty Seminars, reading it alongside a key text from the early 2000s, Derrida’s address to the Estates General of Psychoanalysis. Tracking Derrida’s insistent references to psychoanalysis in his writings on the issue of capital punishment, I argue that the deconstruction of the death penalty, in its full scope, can perhaps best be approached in the terms emerging out of Derrida’s engagement with psychoanalysis in this period. If this is the case, it is because the way psychoanalysis conceptualizes cruelty ultimately opens onto to a particular thinking of life, one that serves as the crucial lever in Derrida’s treatment of the death penalty. What emerges in Derrida’s engagement with psychoanalysis in this period, then, I argue in conclusion, is the radical thinking of finitude and mortality at the core of the deconstruction of the death penalty.

The Undecidable Unconscious

Ryan Gustafson

Deconstructing the Death Penalty: Derrida's Seminars and the New Abolitionism, ed. Kelly Oliver and Stephanie Straub

Lisa Guenther

In Derrida’s lectures on the death penalty, the United States figures as “both exemplary and exceptional” (79). Derrida acknowledges the racist structure of state violence in the United States, and he cites data and specific cases to support this point, but he does not develop a critical analysis of race or racism in the lecture series. Drawing on the work of incarcerated intellectual Mumia Abu-Jamal, critical race theorists Cheryl Harris and Angela Davis, and contemporary prison abolitionists, I argue that racism is an issue, not only in the particular context of the United States, but also for the logic of the death penalty that Derrida proposes to deconstruct. Derrida’s own account of indemnity, interest, and condemnation in the Tenth Session is incomplete without a supplementary analysis of black civil death and the construction of whiteness as property. In conclusion, I argue that an abolitionism worthy of the name would have to move beyond the death penalty, towards the (im)possible project of prison abolition and the abolition of white supremacy.

Mosaic: an interdisciplinary critical journal

Gwynne Fulton

By way of a double reading of the temporality of guillotine and photography in the anonymous 1939 film of the execution of Eugène Weidmann, this essay examines the putative instantaneity of death, which posits life as that which happens only before death.

Agata Bielik-Robson

Derrida’s The Death Penalty seminar puts capital punishment and the sovereign violence that administers it into the very center of the deconstructive enterprise. My essay emphasizes this connection, by arguing that the positive – messianic – stake of deconstruction is the philosophical defense of the finite life. In order to prove that, I will first focus on Derrida’s notion of life as elaborated in his late writings, most of all “Faith and Knowledge,” then link it with his interpretation of Khora as the horizontal republic of the living, and finally, apply these concepts to my reading of The Death Penalty seminars, in which they will resurface as Derrida’s fundamental confrontation with philosophy as the “discipline of death” to be counteracted only by the literary intervention of writers. I will claim that the gist of this intervention consists in arresting the sacrificial logic which life brings on itself while attempting to preserve itself, i.e., the aporetic logic of auto/ immunity.

Deborah Goldgaber

This is the second and final volume of Jacques Derrida's seminar on the death penalty, given at the École des hautes études en sciences sociales (Paris) from December 2000-March 2001. (The first volume of the seminar, covering the previous year's lectures, was published in both French and English (and reviewed in this journal). In this second volume, Derrida argues that justifications for retributive justice and the death penalty (DP) are indissociable and that this poses a particular problem for death penalty abolition. If retributivism and DP are indissociable, then abolition of DP would necessarily involve a radical re-assessment of the value and meaning of retribution. Insofar as this has not occurred—even where we have seen de jure abolition—we should, Derrida suggests, be suspicious of progressivist interpretations of global trends towards abolition. Before turning to its main claims, some context for this seminar. Derrida's two-year research project on the death penalty was his penultimate seminar; it was followed by the Beast and the Sovereign (2001-2003) and preceded by Perjury and Pardon (1997-1999). Broadly speaking, in these seminars Derrida is concerned with traditional attributes of sovereign power: the right to take life—to let live or let die—to pardon, to penalize, and punish. The constellation of questions around sovereignty connects Derrida's late research to Michel Foucault's work on disciplinary and bio-power, and Agamben's work on sovereignty, political theology and, more specifically, homo sacer. Though Derrida does little to bring the results of his research in conversation with these other philosophers, these seminars provide rich material for scholars interested in making these connections explicit. This volume will be of particular interest to those interested in how Derrida's work on sovereignty intersects with Continental philosophers such as Foucault and Agamben, and to Derrida scholars interested in this last phase of his thought. It should also be of interest to at least two other groups: 1) those concerned with philosophical justifications for retributive justice and 2) scholars working in the area of political theology interested in tracing what Derrida refers to as the " filiation " between philosophical, theological and political ideas about power and punishment. **** Philosophical accounts of retribution distinguish between legitimate forms of retribution—legally administered punishment based on the principle of jus talionis—and illegitimate forms of retribution—based on desire for revenge, or blood-lust. In terms of jus talionis, Derrida writes, the death penalty (DP) is " the legal phenomenon, distinct from simple murder in principle, intention, and spirit, distinct from vengeance and sacrifice, inscribed in a law applied by a state " (40). As this definition makes explicit, the principle of retributive justice is rigorously distinguished from vengeance or sacrifice. Jus talionis, like for like or " eye for an eye " demands penalties unstintingly proportioned to guilt.

Oxford Literary Review 35.2

Ronald Mendoza-de Jesús

This essay seeks to account for Derrida's striking claims towards the end of The Death Penalty, Volume I concerning the survivability of the death penalty. Why will the death penalty live on, even beyond its end? How should we understand this claim? And what are the implications of the death penalty's survival for any attempt to continue Derrida's on-going efforts to deconstruct sovereignty in the name of what he often calls ‘the unconditional’? I suggest that the survivability of the death penalty is a crucial element in Derrida's attempt to articulate a different abolitionism, an abolitionism that has parted ways with all certainty concerning the death penalty's ‘end’.

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Examining the Death Penalty: An Argumentative Perspective

Table of contents, death penalty arguments: deterrence and prevention, ethical considerations: the value of human life, implementation complexities: ensuring fairness, conclusion: weighing the arguments.

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The Philosophy of Death Penalty

Anant Deogaonkar, R

Description

The death penalty debate is the most generally relevant debate, keeping in mind the situation that has been brought about by today. Death penalty is an integral part of the Indian Criminal Justice System and of many other retentionist countries. This article argues that death penalty is a philosophical issue no doubt, but it also draws inspiration from Durkheim’s discussion to the impact of political organization on penal evolution. It suggests that the most serious punishment i.e., death penalty is the first to grow milder, then to disappear with the progressive weakening of punishment. The author has drawn the conclusion with few suggestions at the end of this article.

DeogaonkarVol15Issue1IJCJS.pdf

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Capital Punishment Is Not Morally Permissible.

Capital Punishment is a matter that has been in several debates over the years in society. It has attracted several arguments from various parts of society, including philosophical practical, and ethical fields. From my moral perspective, capital Punishment should not be morally permitted. This is because the act of punishing individuals through the death penalty deprives them of their fundamental right to life (Amnesty International, 2021). It would also be an open violation of a fundamental right preserved in many international human rights associations and treaties. I will defend this position using the utilitarianism argument that capital Punishment does not maximize happiness in any way but rather brings suffering of some kind.

First, the result of Capital Punishment is not happiness. Utilitarianism focuses on bringing, improving, or maximizing happiness and the overall welfare of individuals, which Capital Punishment does not. It does not bring the involved community any benefit that pays for the life taken because the community cannot be a happy or safer place even after execution (Hoag, n.d.). This means that even upon executing the convicted criminal or murderer, the community is not outweighed by the loss of life caused; therefore, no happiness is gained. Capital Punishment brings a lot of suffering and pain to the individual being executed and his or her loved ones in several ways, which may include; being deeply grieved and traumatized, especially if the executed was so close, being seen as associatively guilty hence isolated, stigmatized and discriminated, getting financially burdened due to legal fees involved in the process, burial expenses and losing income especially if the executed person was the family’s breadwinner. Other issues with higher chances of rising from the execution include long-term mental issues such as anxiety and depression.

Secondly, there is the unfortunate chance of executing an innocent person, which is always present in any legal justice system, no matter how thorough or fair. Another goal of utilitarianism is to maximize every means that can minimize the harm resulting from a decision or act (Amnesty International, 2021). The most severe harm that can be inflicted on any community or individual is executing an innocent person. Since none of the world’s justice systems could be infallible no matter what, it makes capital Punishment a morally detestable act and an abhorrent one in administering justice. There are several cases across the world where individuals have been wrongfully found guilty and sentenced to death, only to be vindicated later in life due to fresh pieces of evidence. The irreversibility of capital punishment consequences makes it the most unreliable and limited punishment method, even in the world’s purportedly most rigorous legal system. This kind of execution can cause social disorderliness and public mistrust in the judicial system, therefore, harming the overall well-being of society.

Probability of rehabilitation. Due to the fact that utilitarianism aims to maximize overall happiness, it accepts Punishment as a means of providing justice but also focuses on the possibility of the convict changing into a better person and hence believes in giving everyone a second chance. It provides that the aims of Punishment include preventing a future repetition of the same crime or harm and not for revenge. The utilitarian argument, therefore, is that the death penalty denies the convict a chance of rehabilitation and positively contributes to the society. Therefore, this makes Capital Punishment a corrupt and continuous revenge system rather than promoting rehabilitation and an overall happy society. The most productive and safe means of Punishment and correction is one that focuses on addressing the root cause of the crime rather than the offender. The result should be to prevent future occurrences rather than conducting revenge on the convict. This would bring about general satisfaction in the community, making everyone happy and hence increasing overall happiness. Additionally, addressing the root causes of crimes would bring solutions and means of preventing future occurrences hence eventually making the society a safer and better place.

In conclusion, Capital Punishment is morally unacceptable as it is against the fundamental right to life of every individual. It is a morally defenseless act that shamelessly undermines the dignity a human life carries and perpetuates a terrible culture of vengeance and violence. It also leads to the execution of innocent individuals and, either way, causes shattering and permanent effects on the lives of the loved ones of the executed. It is important for policymakers to consider these effects in a push to make capital Punishment illegal. Capital Punishment is also against the utilitarian emphasis on the importance of rehabilitation and provision of second chances rather than Punishment of the offender. Capital Punishment is often flawed and always against the less advantaged in society. Despite the presence of arguments favoring the death penalty as a means of Punishment, the weight of the violation of human rights and the risk of injustices resulting from it outweigh the potential benefits. The overall result of capital Punishment is neither happiness nor satisfaction, thus inappropriate means of punishing.

Amnesty International. (2021). Death Penalty . Amnesty International. https://www.amnesty.org/en/what-we-do/death-penalty/

Hoag, R. (n.d.). Capital Punishment | Internet Encyclopedia of Philosophy . Internet Encyclopedia of Philosophy. https://iep.utm.edu/death-penalty-capital-punishment/

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Comparing Voltaire’s Crime and Punishment

This essay about Cesare Beccaria’s beliefs explores the significant impact of his philosophies on the modern criminal justice system. Beccaria, an 18th-century philosopher, introduced groundbreaking ideas in his work “On Crimes and Punishments,” advocating for a utilitarian approach to law where the primary goal is to deter crime and maintain social order. He strongly opposed capital punishment, arguing that it was neither humane nor effective as a deterrent. Instead, he believed that the certainty of punishment was more important than its severity. Beccaria also championed a fair, clear, and proportionate legal system, emphasizing the importance of public laws, quick judicial proceedings, and punishments that match the severity of the crime. His advocacy for the presumption of innocence and the right to a fair trial laid foundational principles that have been incorporated into modern legal frameworks. The essay underscores Beccaria’s lasting influence on contemporary legal practices and human rights, highlighting his call for rational and humane responses to crime.

How it works

Cesare Beccaria, an illustrious thinker of the 18th century, revered for his contributions to philosophy and criminology, stands as a towering figure in the evolution of contemporary criminal justice paradigms. His seminal treatise, “On Crimes and Punishments” (1764), delineated a series of fundamental principles that wrought a profound transformation upon legal theory and practice worldwide. This discourse delves into the cardinal tenets espoused by Cesare Beccaria, spotlighting his fervent advocacy for judicial reform, his strident opposition to capital punishment, and his propositions pertaining to crime prevention.

Central to Beccaria’s doctrine was the doctrine of utilitarianism, which posits that the moral worth of an action should be gauged by its consequences, with the paramount goal being the maximization of happiness among the populace. This philosophical standpoint formed the bedrock of his legal philosophy, contending that the primary aim of the law should be to deter crime and uphold social cohesion, eschewing notions of retributive justice.

A cornerstone of Beccaria’s philosophy was his resolute condemnation of capital punishment. He posited that the imposition of the death penalty not only transgressed the bounds of humanity but also proved futile as a deterrent. Beccaria argued that capital punishment represented an excessive response to criminal transgressions that yielded no tangible societal benefits. He propounded that the certainty of punishment, rather than its severity, constituted the linchpin in deterring criminal conduct. This stance was groundbreaking in an era characterized by public executions and draconian penal sanctions.

Furthermore, Beccaria championed the establishment of a legal system characterized by clarity, equity, and proportionality. He advocated for laws to be transparent and comprehensible, punishments to be commensurate with the gravity of the offense, and legal proceedings to be expeditious and efficacious. He viewed crime prevention as superior to punitive measures and urged for the overhaul of the criminal justice apparatus to engender fairness and equity. His proposals contended that judicial magistrates should confine themselves to ascertaining guilt based on evidentiary standards, refraining from judicial interpretation or discretionary sentencing.

Additionally, Beccaria’s oeuvre laid the groundwork for seminal legal principles such as the presumption of innocence and the right to a fair trial. He insisted that no individual should be deemed culpable absent conclusive proof obtained through due process, vehemently opposing clandestine accusations and torture as instruments of justice. These principles would later become pillars of modern legal systems, permeating seminal documents such as the U.S. Constitution and the Declaration of the Rights of Man and of the Citizen in France.

In summation, Cesare Beccaria emerges as a visionary luminary whose doctrines continue to exert a profound influence upon the edifice of the criminal justice system. His fervent advocacy for reform, his steadfast opposition to capital punishment, and his insistence on rational, humane, and efficacious crime prevention strategies endure as enduring legacies. Beccaria’s intellectual legacy transcends temporal confines, shaping the contours of contemporary legal thought and advocacy for human rights. His enduring legacy serves as a testament to the transformative potency of ideas in sculpting a justice system that upholds the sanctity of human dignity and reason.

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Ethics Of The Death Penalty Philosophy Essay

Sparking much controversy and anxiety in the hearts of American citizens is the ethical dilemma of the death penalty. The death penalty, as a form of punishment, is given to those who commit crimes deemed by society and government as deserving the infliction of death. Termed “death penalty”, “death sentence”, and “execution”, the issue is not a newfangled idea, rather a form of punishment that actually dates back to the ancient laws of China. Actively controversial, the death penalty serves as a divider among many political ideologies, religions, and cultures. This essay will assess the ethical issues associated with the death penalty from the views of ancient thinkers, as well as modern principles.

Historically, the first recorded punishment of death was sentenced to a man of nobility who was accused of magic. Punishment by death was frequently cruel and included crucifixion, drowning at sea, burial alive, beating to death, and impalement (Reggio). The most infamous death sentence in BC was given to the Greek philosopher Socrates, who was forced to drink poison for heresy and “corruption of youth”. Used by almost all societies, the death penalty has been the consequence of many crimes, for example, the first crimes associated with the punishment of death included: publication of libels and insulting songs, the cutting or grazing of crops planted by a farmer, the burning of a house or a stack of corn near a house, cheating by a patron of his client, perjury, making disturbances at night in the city, willful murder of a freeman or a parent, or theft by a slave (Reggio). The punishment for these crimes, though often cruel, included: boiling to death, dismemberment, sawing, breaking wheel, crucifixion, slow slicing, and decapitation. Some speculate that British influence of the time can account for the large majority of countries that adopted the penalty. Up until about the 1700’s, Britain had named upwards to two hundred and twenty-two crimes that were punishable by death, including cutting down a tree or counterfeiting tax stamps (Reggio). Around 1823, many laws were passed exempting crimes from capital punishment. Capital punishments were abolished exponentially during the nineteenth and twentieth centuries, and the era was marked by a transition from cruel and violent punishment to humane forms of “executions” in Britain and many other European countries.

The first recorded execution in America was documented in 1608 when officials executed George Kendall of Virginia for alleged plots to betray the British to the Spanish. The first legal execution occurred in 1620 for the crime of theft. The severity and frequency of the death sentence varied from colony to colony. For example, in Massachusetts, the only recognized capital crimes were these seven: murder, sodomy, burglary, buggery, arson, rape, and treason; while in other colonies, one could be executed for something as simple as stealing grapes. By the late 1700s, the colonies in America shared common capital crimes, with the exception of a few, and later reforms were foreseeable. The first series of significant reforms arose during the period of 1833-1853 (Reggio). The practice grew dangerously close to a spectator sport until this time. People would flood the streets to get a glimpse at the hangings. As fights and brawls would break out, the local merchants would feed the frenzy by serving alcohol and offering souvenirs. During the era of reform, private hangings became the alternative to the mayhem of public hangings. 1846 marked the first step toward abolishment of the death penalty. Michigan abolished the death penalty (except for treason), followed by severe limitations by Massachusetts, and abolishment by Wisconsin.

The electric chair came in an odd way in 1888 after Edison Company began public demonstrations by electrocuting animals. The reasoning was that if it could kill animals, it could probably kill people. Hanging was almost unseen after a hangman misjudged a drop and a woman’s head was ripped from her body. The majority of people from this era were opposed to certain forms of death sentences, but few were opposed to the practice altogether. The majority of the world has moved toward more humane forms of punishment in response to the disorder associated with the dated forms of capital punishment. Currently, the United Nations passed a nonbinding resolution to promote the abolishment of the death penalty across the world, yet approximately 60% of the population of the world lives in countries where executions take place (Reggio).

Immanuel Kant’s categorical imperative seeks to act with accordance to a general rule. The general rule applied here is very difficult, given the different capital crimes in the world, and the vast forms of achieving death. He would also pose the question of whether or not the death penalty is using a human as a means to an end. According to the categorical imperative, “society and individuals must act in such a way that you can will that your actions become a universal law for all to follow” (Kant on Capital Punishment) (Kant, 2004). Kant’s view on crime is that society makes laws that, if they are broke, punishment must follow. The purpose of punishment is not to benefit anyone (deterrence or to teach a lesson), but rather a form of penalization. It is essential to see Kant’s view with regard to only murder. He works on the basis that we cannot punish for the sake of the benefit of society, because some innocent people can be deemed unnecessary for society and still remain innocent of crime. Kant works on the view that society and government have laws – and should those laws be broken, there will be penalization. Laws that are broken without punishment are flimsy (Kant, 2004). A weak law is then an indication of a weak society.

In the words of Jeremy Bentham, “All punishment is mischief; all punishment in itself is evil. (Bentham)” The utilitarian view of punishment is that punishment causes unhappiness and pain, therefore it, for the most part, is a bad thing. Punishment can only be justified if the benefits outweigh the costs. For example, does the punishment of a man who has broken into several houses cause good for a society? The answer is yes because he will no longer break into houses if he is punished by being thrown in jail. Most utilitarians would oppose any form of punishment, especially the death penalty because it causes suffering. Principally, the main standard that utilitarianism is based on is that pleasure should outweigh pain. On this cost benefit analysis, the death penalty can go either way. Capital punishment reduces crime in some aspects, but it also is taking the life away from the criminal. The argument that capital punishment deters crime is hard to prove, but would be an argument in favor for utilitarianism, but just as the categorical imperative fails logically, the execution of the innocent can be justified in utilitarianism as well.

In the Aristotelian tradition, humans should act rationally accompanied by appropriate amounts of courage, self-control, and fairness (Aristotle, Nico.) He strongly believed in the necessity for society to enact laws with teeth in them, for the purpose of creating citizens with good habits of character. When a crime in enacted, Aristotle believes that the balance must be restored between the one doing the harm and the victim. I believe that capital punishment can be justified in the Aristotelian tradition because no other justification can be explained. Aristotle, like Immanuel Kant, believes that governments and societies need laws and no action against those laws should go unpunished. “It is in justice that the ordering of society is centered (Aristotle),” in other words, every human should act in a just manner, and those who act unjustly should be chastised accordingly by their society. Retributive justice, or if the punishment is an acceptable form of response to a crime, Aristotle believed was essential to a good society.

Ron House, the faculty of Sciences at the University of Southern Queensland, offers a new prospective by which we can look at all the death penalty using a principle known as the “Principle of Goodness” (House, 2007). His theory beautifully encompasses the philosophers that preceded him. “We must act so as to accord with a general rule, and the Principle of Goodness is a general rule (Or becomes one as soon as we say “act such as to avoid evil and pursue goodness”); stricter because not any general rule satisfies the Principle (House, 2007).” The theory assumes that the world is not perfect, just as utilitarianism does. There will always be exceptions to every rule, just as murder in self-defense has now been accepted as ethically acceptable. House points out that the critics of the death penalty often claim that it is simply a form of retribution, but if retribution, or eye for an eye, was the only factor, wouldn’t we give terrible torture for torture or mutilation for mutilation? We seem to stop short somewhere, but where do we draw the line – a difficult question to answer. House also points out that societies are ever changing, and one solution is never the answer to a problem like the death penalty. The principle of goodness helps us make clear the important considerations and proposals to the issue. Tremendous protection of the innocent must be present along with logic based arguments absent of emotions based on the race of an offender or outrage towards her/him (House, 2007). Today, the absence of bias or irrational emotion is impossible. Other factors, although irrational and illogical, will always play a part in the decisions of a courtroom.

From a moral point of view, Steffen Lloyd stresses the problem with the death penalty. How do we know 100% that every man on death row is guilty? He also allows the viewer to relate the unjust crucifixion of Jesus Christ to the possibly innocent individuals on death row. His argument was that there can be just execution, but the American legal system prevents just execution (Lloyd, 1998). Despite whether or not it is ethical or moral, as Bill Mears points out in his CNN study, some states just cannot afford the death penalty. “Thirty-five states still retain the death penalty, but fewer and fewer executions are taking place every year,” said Richard Dieter, executive director of the Death Penalty Information Center. “But the overall death row population has remained relatively steady. At a time of budget shortfalls nationwide, the death penalty is turning into an expensive form of life without parole.” The same information center conducted a study that suggested capital punishment costs can average $10 million more per year per state than life sentences. He suggests that the death sentence provokes more plea bargaining and appeals than any other sentence, therefor driving up the cost of such a penalty (Mears, 2009).

Whether you are a proponent of the death penalty, or an opponent, there remains to be several difficult questions to answer with regards to this controversial practice. How can one be certain the cost of the death penalty? Or the cost of life in prison? Whether it actually deters crime or not? Does race play a factor or not? Or whether we can be certain enough that someone committed a crime? The answer to these questions can go either way and it seems difficult to prove with absolute certainty any of them, but the death penalty remains to be agreed upon and disagreed upon everywhere in the world. Rasmussen reports that as of June of 2010, 62% of Americans supported the death penalty, but were unsure of its effectiveness and its ability to deter crime. The truth of the matter remains to be that we will never universally agree on any one item, especially the death penalty, but the great thinkers I have described before help us to assess the ethical perspectives that help us form a stance on the debated issue.

1.) Aristotle, Nicomachean Ethics, transl. C. Rowe, Oxford Univ. Press paperback

2.) House, R. (2007). The death penalty and the principle of goodness. Manuscript submitted for publication, Faculty of Sciences, University of Southern Queensland, Australia. Retrieved from http://principleofgoodness.net/files/papers/death-policy-US- paper.pdf

3.) LLoyd, S. (1998). Executing justice : the moral meaning of the death penalty . Cleveland, Ohio: Pilgrim Press.

4.) Mears, B. (2009, Oct.). Study: states can’t afford death penalty. CNN

5.) Reggio, M. H. (1997). History of the death penalty. PBS (Magazine article)

6.) Jones, E. (2000). Capital punishment. International Debate Education Association

7.) Kant, I. The Right of Punishing, Retrieved on April 1st, 2004. From: http://w1.155.telia.com/~u15525046/ny_sida_9.htm

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Home / Essay Samples / Social Issues / Death Penalty / Is Death Penalty Ethical

Is Death Penalty Ethical

Category: Social Issues , Crime
Topic: Death Penalty , Punishment

Pages: 4 (1628 words)

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