Bringing Capital Punishment Down to Practicalities While Term Paper

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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, 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…

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