Written by Georgiana Andra Liciu
for Prof. Isabelle Johnston
Capital punishment is one of the most—if not the most— controversial penal law practice in the U.S. today. The whole country is divided in its opinion about the death penalty; 31 states still use capital punishment, while in 13 states, this practice has been outlawed (“States”). This topic is socially relevant because an execution is an irreversible punishment. I am interested in this topic because I believe that justice is essential for an ethical society, but mostly because I believe that justice is categorical; thus, differences between interstate and intrastate laws in U.S. cause grey areas in the assessment of justice and morality. By categorical, I simply imply that there cannot be two truths for an issue, and not that law is static. On the contrary, the feature that fascinates me the most about law is the fact that law is never static. Throughout history, law has continuously changed, being reinterpreted and redefined to ensure that it constantly reflects changes in society itself. Thus, supposing that I am a regulator or a judge, I will answer the following question: is it ethical for a U.S. state to condemn a person who committed murder to the death penalty in the 21st century? The innocence of the person is not in doubt here; the person is undoubtedly culpable of murder. To answer the question I will develop a discussion based on three ethical theories: the divine command theory, Kantian retributivism, and utilitarianism. Further, I will reflect on the retribution and deterrence effect of the death penalty in society. Based on the discussion and the critical reflection, I conclude, taking into consideration that the reasons behind the practice of death punishment are stated to be deterrence and retribution in proportion to the crime, that even if the person is undoubtedly culpable of murder it is immoral for a state to condemn that person to capital punishment, since it is unnecessary for morality and justice in the society.
The history of criminal punishment in the U.S. paints the portrait of a revolutionary Western society that is still addicted to brutality. The movement towards ethical punishments started with Cesare Beccaria’s Dei delitti e delle pene (Essay on Crimes and Punishments), which was published in 1764 in Italy. Amongst other punishments, Beccaria discussed capital punishment and said that it is only an example of barbarity: “if human passions or the necessities of war have thought men to shed one another’s blood, the laws, which are intended to moderate human conduct, ought not to extend the savage example, which in the case of a legal execution is all the more baneful in that it is carried out with studied formalities” (45-52). Beccaria was very popular in America. In fact, he was the one who “inspired reforms in the United States when this country was still a very young republic” (Maestro 468). Later on, the death penalty passed through a “period of unarticulated acceptance in the nineteenth century” (Karge 196). It was followed by the Furman v. Georgia 1972 case when the “Court invalidated Georgia’s death penalty statute because … [it] was being imposed “freakishly”” (Powell 1036). Shortly after, in 1976, the case Gregg v. Georgia re-established the death penalty statute with new “protective refinements” such as the protection of underage criminals and mentally ill individuals (Powell 1036-7). Today, the Eighth Amendment to the United States Constitution “passed by Congress on September 25, 1789” states, according to the National Constitution Center, that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (“Amendment”). The major problem with this law is that it is left open to interpretation due to its ambiguity. One is left asking: what method of punishment is considered too cruel and unusual to be used in modern society? Also, since the Supreme Court itself has undergone periods of divided opinion about capital punishment throughout the history of the United States, it is imperative to discuss whether this punishment is morally right and just, or if it is merely due to the lack of empathy of the jurors.
In order to assess if capital punishment is an ethical practice in the U.S., or if the Supreme Court should review the 8th Amendment, the death penalty, as a punishment, will be considered, based on the supporters’ arguments of deterrence and retribution, in the context of three ethical theories: the divine command theory, Kantian retributivism, and utilitarianism.
A. Divine Command Theory
Capital punishment is not moral according to the divine command theory, and by consequence it should not be a part of the 8th Amendment. The divine command theory states that one should not commit murder because life is sacred. This theory implies that “right conduct is right because God commands it” (Rachels 52). This notion is problematic because the conception implies that morality is arbitrary, mysterious, and it “provides the wrong reasons for moral principles” (Rachels 53). To solve this problem, we need a standard evil or good independent of God. While a standard morality can cause a conceptual slippery slope situation for the other nine commands of the theory, it does not affect the command stated above. It is unanimously accepted in the society that killing is bad. If God did not exist, then killing would still be wrong. Therefore, it becomes a standard evil that must be avoided at all costs to ensure that a society survives for more than one generation. Since the divine command theory does not fail by the independent standard evil or bad for the command “you shall not commit murder,” it is morally wrong to take the life of another person because God said so, and society agrees. According to this statement, the person that commits murder is culpable of an immoral act. However, can this person be punished with the capital punishment? The answer is no, because capital punishment implies a state taking the life of the murderer. Regardless of his status in the society, murderer or innocent, criminal or not, it is immoral, according to the divine command theory, to take the life of a person. Therefore, no state holds power over the life of a citizen. The divine command theory is not bound by conditions regarding its applicability. Thus, this theory weighs lives equally (innocent or not), and proves that for a person culpable of murder, the death penalty is still an immoral punishment even after taking into consideration deterrence and retribution.
B. Kantian Retributivism
Kantian retributivism supports capital punishment without taking into consideration deterrence. Retributivism goes far back in the Western world, to the ancient biblical saying, “an eye for an eye, and a tooth for a tooth” (Rachels 140). Retributivism implies that the sentence should match the offense, or as Kant says, “wrongdoers must be punished and the punishment must fit the crime” (Rachels 144). Thus, small punishments must fit small crimes and big punishments must fit big crimes. Since killing is the absolute evil, then killing must be punished severely considering that criminals are “rational agents” (Rachels 146) who are responsible for their acts. For Kant, morality is categorical; thus, one must do something out of duty and based on reason. Deterrence is not driving capital punishment because Kantian retributivism does not take into consideration the consequences of an act. Rather, Kant suggests that there are two factors that must be taken into account when dealing with punishment. First, “people should be punished simply because they have committed crimes,” and second, “punishment should be proportionate to the seriousness of the crime” (Rachels 143). By proportionality, Kant implies that the murderer be executed as a fair and just punishment. It is the duty of the government to kill the murderer. Also, according to Carol S. Steiker, author of the article “No, Capital Punishment Is Not Morally Required: Deterrence, Deontology, and the Death Penalty,” “the government is a moral agent that must treat the death penalty as a “‘life-life tradeoff’” (Steiker 754). Steiker further adds to the discussion by suggesting that the singularity of the government as a moral agent makes it responsible for “things it lets happen as for things it does” (Steiker 756). If the government acts and executes the murderer, then a number of deaths are prevented, since “each execution on average prevents 18 murders”* (Sustein and Vermeule 706). If the government does not act, leaving the murderer alive, then it may cost 18 lives. Consequently, regardless of whether the government acts or remains passive, deaths will occur. The only difference is that the government would then be “culpable [of] ‘omissions,’ [which] count as ‘acts’ for the purposes of individual criminal liability whenever an individual has duty to act” (Steiker 757). The uncertainty of the results is why the government decides to apply retributivism. By applying retributivism, the government acts out of its duty “to act on behalf of its citizens [which implies that it] cannot evade responsibility for omissions merely because they are omissions” (Steiker 757). While retributivism might be the safest choice, it might not be the most ethical, nor the most practical choice, as will be further analyzed.
Utilitarianism demonstrates through hedonistic calculus that capital punishment is not categorical for morality and justice in society. Utilitarianism responds to the ancient saying adopted by retributivism with Ghandi’s saying that “An eye for an eye will make the world blind.” This quotation implies that instead of treating someone as they treat us, we should treat them based on our nature and based on what will bring the best outcome. Formally, utilitarianism implies a “duty to do whatever will increase the amount of happiness in the world” (Rachels 141). Therefore, to assess if capital punishment is justified, one must calculate whether the benefits outweigh the costs. Bentham’s hedonistic calculus is based on intensity, duration, certainty, propinquity, purity / impurity, and extent. Capital punishment does not bring more happiness based on intensity; executions “derive their power from the grievous harms suffered by murder victims and their loved ones” (Steiker 752). But does this punishment bring more comfort and satisfaction than other alternative punishments? Capital punishment is fast and brutal; thus one might think that justice is served for the family. However, this comfort can be amplified, for example, by the long-term satisfaction of lifetime incarceration. Duration also supports the utilitarian position against the death penalty, because the temporary pain of killing a murderer is less durable than the torment of a lifetime of prison. However, the certainty component of the hedonistic calculus brings retributivism back into the game; it is certain that the culpable will suffer when killed, while it is uncertain that the criminal would suffer in prison or that he / she will remain in prison. On the other hand, capital punishment has high propinquity and low purity. Last but not least, the extent component of the calculus supports the utilitarian view against the death sentence. The extent of the death penalty is based on the “comfort and gratification provided to victims and their families” (Rachels 141) and the protection of society due to deterrence. To this extent, the death penalty is supposed to result in less unhappiness. However, the feelings of comfort, gratification, and protection that support the death sentence violate human dignity by “suppressing our ordinary capacities for compassion and empathy” and “weakening …important psychological constraints against brutality” (Steiker 773). Thus, it would bring much more happiness to society overall if instead of the death penalty, there would be “a well-designed system of punishment which might help to rehabilitate wrongdoers” (Rachels 142). Based on the hedonistic calculus, the utilitarian theory would not support capital punishment.
In a critical reflection, I will prove that capital punishment is not an ethical practice in the U.S. in the 21st century, even as a punishment for murder. Applying ethical theories to analyze capital punishment provides a rather conceptual and ambiguous view. In order to better assess this type of punishment, one must look at factual evidence. For that, I will explain why deterrence and retribution are not working towards morality and justice in society, and why capital punishment can give way to the “conceptual slippery slope” (Steiker 775) of using other extreme punishments.
A. Retribution and Deterrence: Negative correlation
Retribution fails to meet its deterrent effect and thus does not contribute to morality and justice in the society. Despite popular belief, retribution and deterrence form a negative correlation. Retribution is based on a “life-life tradeoff.” However, in many cases, it fails to provide “equality” between the victim and the murderer. This can be demonstrated using the Sandy Hook Elementary shooting in Connecticut from December 14, 2012, as an example. As stated in the CNN article “Sandy Hook Elementary shooting: What happened?”, Adam Lanza, aged 20, killed his mother and 26 others in the elementary school (20 children aged 6-7 and 6 adults). He killed himself at the end. For the purpose of this reflection, I will note that, coincidentally, Connecticut abolished the death penalty in 2012 (“States”), and I will analyze what would have happened if Lanza would have had to face his charges, had he not killed himself. By law, Lanza would have been condemned to capital punishment. Since, in this situation, one life would have equalled the 27 lives of his victims, this is not a proper “life-life tradeoff” because each victim is not proportionately assigned one life. Thus, retributivism fails to provide justice. Another reason for the use of the death penalty in the 31 states is deterrence, which derives its morality from the prevention of future killings by threatening the possible offenders with death. However, according to the Death Penalty Information Center website, “states without the death penalty have had consistently lower murder rates” (“Deterrence”). Therefore, retribution is not positively correlated with deterrence. Capital punishment consequently fails to contribute to morality and justice in society and is not an ethical practice.
B. Conceptual slippery slope: Retributivism and deterrence of other extreme punishments
Retribution and deterrence used as reasons for capital punishment are not ethical because they imply the acceptance of some conceptual slippery slope arguments such as the “imposition of other extreme punishments” (Steiker 778). If the “life-life tradeoff” argument holds, then “we would have a similar prima facie moral duty to employ any punishment practices when “life-life tradeoffs” balance in their favour” (Steiker 775). Since we kill a murderer, we should also rape a rapist and torture a torturer. If the deterrent effect would be possible, then should not the government prevent the occurrence of such events by “life-life tradeoffs”? This situation is very similar to Room 101 in the Ministry of Love in George Orwell’s dystopia. This room is the basement for torture in order to train people to obey by subjecting them to their worst nightmare. They find out what the individual fears most and they use it as a torture. In this book, the morality or justice of the torture does not matter as long as the Party gets to control the citizens. While this is highly fictional, and not possible under the law in U.S., it still suggests a positive pattern between deterrence and extreme punishment which would be ethical if only bounded by retribution. This proves once again that there must be other deontological objections than retributivism and deterrence to the imposition of extreme punishments, like capital punishment, in order to secure morality and justice in society and provide an ethical penalty for the defendant.
This paper explores the ethical choice that is at stake when deciding to condemn a criminal to the death penalty. There were two factors taken into consideration throughout this research, retribution and deterrence of future murderers, since these are the common reasons implied by the supporters of the death penalty for the necessity of this punishment. In this discussion, three ethical theories were used – the divine command theory, Kantian retributivism and utilitarianism – to decide if killing is contributing to morality and justice in society. Consideration of the first and the last of the theories proved that capital punishment is not ethical, while Kantian retributivism proved to be a theory supporting executions. The critical reflection argued, through data and moral arguments, that since retribution is not causing deterrence, and it can support other extreme punishments, the death penalty is not contributing to morality and deterrence in society and therefore is not an ethical practice. The research proved to be enlightening regarding true human agency and how the psychological faculties of a society
influence the choice of punishment. More often than not, this choice is based on how we feel about a type of punishment rather than how effective it is for deterrence in society. In the U.S., it seems that brutality has affected human agency due to the weakening of the ability to feel empathy and thus the death penalty is more widely accepted than not (31 states versus 13 states, respectively). Further research can be conducted about alternative choices to the death penalty that would work towards effective deterrence such as arms control (the Second Amendment of the American Constitution), better health care, and better correctional facilities.
* This is based on uncertain studies. This will be proved wrong in the Critical Reflection, part A. based on data collected by the Death Penalty Information Center. For the sake of the discussion, we will use the data suggested by Sustein and Vermeule.
“Amendment VIII: Excessive Fines, Cruel and Unusual Punishment.” National Constitution Center, https://constitutioncenter.org/interactive-constitution/amendments/amendment-viii. Accessed 1 Dec. 2016.
Beccaria, Cesare. On Crimes and Punishments. Translated by Henry Paolucci, Prentice Hall, 1963.
“Deterrence: States Without the Death Penalty Have Had Consistently Lower Murder Rates.” Death Penalty Information Center, http://www.deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates#stateswithvwithout. Accessed 1 Dec. 2016.
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“Sandy Hook Elementary Shooting: What Happened?” CNN, http://www.cnn.com/interactive/2012/12/us/sandy-hook-timeline/. Accessed 2 Dec. 2016.
“States With and Without the Death Penalty.” Death Penalty Information Center, http://www.deathpenaltyinfo.org/states-and-without-death-penalty. Accessed 2 Dec. 2016.
Steiker, Carol S. “No, Capital Punishment Is Not Morally Required: Deterrence, Deontology, and the Death Penalty.” Stanford Law Review, vol. 58, no. 3, 2005, pp. 751–789. JSTOR.
Sunstein, Cass R., and Adrian Vermeule. “Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs.” Stanford Law Review, vol. 58, no. 3, 2005, pp. 703–750. JSTOR.
About the Author:
My name is Georgiana Andra Liciu. Dawson College has been a period of transition and exploration for me. I started in Health Science and I graduate from General Social Science this summer. Being brave enough to explore my talents and to find my passions has been the best thing I did during the 3 years that I’ve been at Dawson. Some of my passions today include reading, writing, history, yoga, politics, human rights, and activism. I am proud to announce that I will be continuing my academic pursuit in one of the three law schools in Montreal. I hope you enjoy my essays.