Bringing Capital Punishment Down to Practicalities While

Bringing Capital Punishment Down to Practicalities

While there are probably as many arguments for and against capital punishment as there are people on earth, historically there are two main philosophical viewpoints on which most arguments are based. These are the utilitarian viewpoint and the retributive viewpoint. Either one can be used to argue for or against capital punishment.

For example, the utilitarian argument holds that, "capital punishment is justified if it (1) prevents the criminal from repeating his crime; or (2) deters crime by discouraging would-be offenders," writes James Feiser in the Internet Encyclopedia of Philosophy.

Feiser also writes that, "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." He subdivides this philosophical basis for capital punishment into lex talionis retribution, which he describes as "an eye for an eye," and lex salica, which involves compensation for the harm, inflicted. Lex talionis, he advises, was first proposed in the 18th Century BCE in the Code of Hammurabi.

Feiser uses both those philosophical precepts to argue against capital punishment.

Feiser cites Italian political theorist Cesare Beccaria (1738-1794) to counter the apparent pro-capital punishment message of the utilitarian position. Beccaria, Feiser says, proposed that long-term imprisonment was a more powerful deterrent since "execution is transient." It may be transient to society as a whole; no matter how long trials and appeals take, it is transient in that it is over in a minute. People being as they are, it is also forgotten in a relative minute.

But execution is permanent for the person executed. and, in fact, it is permanent even for society; it takes that criminal permanently off the street. In this respect, long-term imprisonment is infinitely more transient, and therefore less useful to society.

Another weakness in the utilitarian philosophy as a reason in favor of capital punishment, Feiser writes, is in the fact-gathering process to determine who has committed a murder. "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." Feiser claims that the processes used to 'prove' the criminal act today are anecdotal, and therefore suspect because of human vagaries in reporting what they see, hear, smell and so on. He admits he might be more in favor of using this philosophy as a basis for capital punishment if there were scientific studies of its deterrent effect to back up its use. But those, he says, have not been completed to anyone's satisfaction.

Feiser attempts to debunk the retributive basis of capital punishment by a practical argument concerning the lex talionis idea. He writes that, "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."

True. But that would be the alternative? Letting him go free because his pitiful life was not the equal of the lives of those he murdered? If one were to extend Feiser's reasoning, then one would have to ask: Should none of the remaining 9/11 conspirators be punished by execution because their few lives could not possibly equal the thousands lost that day? Is it adequate to find and execute Osama bin Laden (or whoever the evidence says was the mastermind), or should we just let the planner of that mass murder go free because it is ludicrous, on a tit for tat basis, to execute one in payment for the lives of so many?

In fact, these two powerful philosophical/legal concepts can both easily be employed to support capital punishment. Even if, for example, one begins to accept that the utilitarian basis for capital punishment may have weaknesses, it also has strengths. Writing for Pro-DeathPenalty.com, political scientist John McAdams points out: "If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call." And it is also wildly utilitarian in a very profound way.

Philosopher Immanuel Kant, regarded as a founder of modern philosophy, argued for the retributive justification for capital punishment in a way that is peculiarly modern in terms of human dignity. Kant believed that capital punishment is not rooted in vengeance, exactly, but in the idea that each person is valuable and worthy of respect because he or she has the ability to make free choices. We would, thought Kant, show the murderer our respect for his humanity -- for his choices -- by executing him.

Feiser, who reports Kant's idea, has a problem with it. Feiser's problem is that murderers are not always rational. But who is defining rational? It might better be argued that the act of murder is always an irrational act, whether committed by a 'rational' or 'irrational' human being. We might do better to take the entire matter out of the utilitarian/retributive arena. We might do better to just decide that when a murder is committed, the person who committed it shall also be put to death, whether because it is useful to society (utilitarian) to do so, or a means of getting square (retributive), or a way of honoring the equality of each rational being. In fact, our jurisprudence has decided that we will do that, without defining on what basis the decision was made.

At the moment in the U.S., the death penalty is, by and large, the law. But it is used less than it once was -- possibly because its use has a deterrent effect? No matter why, according to the Bureau of Justice Statistics (BJS), "At yearend (sic) 2001, 37 States (sic) and the Federal prison system held 3,851 prisoners under sentence of death, 20 fewer than at yearend 2000. All had committed murder."

Opponents of the death penalty among the general public and politicians argue that its use, declining or not, is wildly skewed with many more minorities than others being executed for crimes.

But that's not the case, also according to statistics released by the BSJ. In 2001, of those executed in the U.S., 53 were white, and 18 were black.

If one accepts that the population of the country is about 10% black, then clearly, a disproportionate number of blacks was executed. And that allows opponents of the death penalty to chime in that the reason more blacks are executed is that they are less wealthy than whites and cannot afford legal advice adequate to the task. But everyone charged with a crime in this country has the right to free legal advice. Many would argue, and probably correctly, that when it comes to capital cases, many lawyers take the cases pro bono. They figure that the fame that results -- especially if they get an acquittal -- will more than make up for the money they lose by taking this one case for free.