Capital punishment in ancient and modern justice systems: ethical and utilitarian analysis

Capital Punishment

Death penalty is an ultimate and irreversible form of punishment and hence requires judicious scrutiny. It is ridden with complexities and in the absence of consistent and conclusive evidence supporting its deterrent effect it cannot be unequivocally endorsed. However, capital punishment is acceptable under critical circumstances where the offender poses a serious threat to undermine the safety of the society.

Ever since the birth of civilization human society has been continuously striving to maintain justice, peace and harmonious order. But crimes and injustice have been an inevitable part of the social fabric. Consequently, every society in the world formulated their own codes to regulate human behavior and to contain crimes by including punishments. Judicial systems evolved in different parts of the world defining rules of conduct and agreeable social behavior. Capital punishment, which involves taking away the right to live, has been practiced from ancient periods to modern times. Every civilization from the Babylonians, the ancient Egyptians, the Greeks, the Romans and even the present day democratic and developed nations have included death penalty as part of their justice system. Let us have a brief overview of the history of the death penalty and then assess it in context of the ethical, utilitarian and deontological considerations.

Capital Punishment: A brief history

Capital punishment was a part of human society and dates back to very ancient times. In the olden days retributive measures were severe even for trivial crimes. The foremost account that we have of death penalty is that of the 'Code of King Hammaurabi' which was written during eighteenth century (1792-1750) BC. Under his laws death penalty was ordered for different crimes (around 25) and the most common form of execution was to tie up the convicted and throw them into water and drowning them to death. [Washington State University] the Roman 'law of twelve tablets' written during fifth century B.C is another example of an established legal coding of death penalty during that time. Then in the seventh century we have the Athenian draconian laws (written by Dracon in 621 BC), which included horrific forms of death penalty for all crimes.[DPIC] Under the Draconian code all the crimes irrespective of their severity were awarded with the ultimate punishment of death. So even minor offenses like theft received the same treatment as serious and barbarous crimes like murder. The most glaring example of capital punishments being executed was the crucification of more than 6000 war prisoners by Crassus (a Roman politician, 1st century BC) after the roman victory over the Spartacus rebellion. Death penalty by crucification continued in Roman Empire until 3rd century ADE when emperor Constantine finally abolished it 325 AD.

There has been a continuous political debate about capital punishment and this is evident when we look at history. There were periods of time when death penalty was abolished completely or restricted to a very minimum. Execution by hanging was common in Britain until the 11th century AD when 'William the conqueror' abolished it completely except under wartime situations. But the system was reinstated during the 16th century under the rule of emperor Henry VIII who executed more than 72,000 people. Death penalty was again revoked between 1823 and 1837. [DPIC] in the United States also capital punishment was very much a part of the judicial setup from the early days of its formation. The first officially recorded case of death penalty in the United States goes back to 1608 when Captain George Kendall of Virginia was executed for his alleged involvement in espionage services for Spain. Then the 1612 enactment of the Divine, Moral and Martial laws by the then governor of Virginia officially endorsed capital punishment for even trivial crimes. [DPIC]

Abolitionary movement slowly gained strength and the introduction of the 'discretionary death penalty statutes' by the states of Tennessee (1838) and Alabama was a significant development. Then in 1846 Michigan became the first American state to have abolished capital punishment and was soon joined by Rhode Island, Wisconsin and many other states. However the necessities of the civil war changed the position and many states reinstated death penalty. Executions peaked in the early half of the twentieth century and came to a standstill in 1967 because of the pending Furman vs. Georgia case. In the 1972 verdict the Supreme Court deemed death penalty unconstitutional (in majority of the cases) and a breach of the eighth amendment of the U.S. constitution. More than 600 prisoners who were faced with death sentence between 1967 and 1972 got their sentences lifted. Death penalty was resumed again in 1977 under modified laws after a gap of 10 years. [University of Alaska] in all, there were a total of 948 executions throughout the country between 1997 and 2005 and in 2004 alone 59 inmates were executed. [DPIC] Let us now analyze capital punishment from different perspectives.

Capital Punishment: The Debate

The issue of capital punishment has been subject to great deliberation and countries worldwide are weighing the effectiveness and the need for such an ultimate measure as part of the judicial system. In fact more than half of the worlds nations have abolished this practice. Currently more than 118 nations have eliminated capital punishment from their judicial code. [Amnesty International] to get a better picture of the issue it would be forthright to analyze the ultimate purpose of any judicial system. The demand for justice and the restoration of peace, order and stability constitute the basis of all judicial endeavors. While everyone agrees that by all means the culprit must be bought to law, the acceptability of using the death sentence as a means of delivering justice remains a complicated issue. The purpose of awarding punishments is to deter people from indulging in antisocial activities by instilling in them the fear of retribution. That is, the deterrence effect of capital punishment is the chief factor, which has convinced governments throughout the world to retain this ultimate form of punishment.

Risk of error

Recent studies are revealing glaring mistakes in the justice process. The fact that more than a 115 persons who were on a death row were exonerated since 1973 indicates the margin of error. [DPIC] Professor James Liebman of the Columbian university conducted a comprehensive study of death penalty in the United States between 1973 and 1995. His study revealed that 82% of the cases received punishments less than death and 7% of the death row inmates were exonerated from their crimes. One of the closest ever cases is that of Anthony Porter. With only 2 days for his execution his case was stayed and was pursued by students of the Northwestern University. Fortunately for him the investigations revealed a flawed witness and subsequent action led to some other person admitting to the murder. Porter was freed after serving almost 16 years inside the prison with a death row.[DPIC] Voicing his concerns about the death penalty system in the Unties States, Judge Rakoff, who was in charge of the U.S. v. Quinones case wrote, "In brief, the Court found that the best available evidence indicates that, on the one hand, innocent people are sentenced to death with materially greater frequency than was previously supposed and that, on the other hand, convincing proof of their innocence often does not emerge until long after their convictions." [Jerry Gray] These facts present a clear picture of the risk factor and the complexity involved in capital punishment. However it is hoped that advancements in forensic science and in particular the DNA testing (before a trial), would drastically minimize errors in tracing down the actual culprit.

Deontological Perspective (retributive Justice)

Deontological theory is based on the concept of the rightfulness of an act in itself as opposed to the utilitarian thought of judging the act on its results. Emanuel Kant, the great philosopher favored the deontological viewpoint and viewed punishment as a "categorical imperative" and the "principle of equality." [Allen Stairs]. Accordingly, any act that is found to be morally deplorable is justified to be dealt with severely. Hence for the sake of upholding the moral status quo the deontological theory makes it imperative for the society to punish the offender. The underlying principle is that the offender by means of his antisocial action has morally deserved the punishment. Hence, whether or not the execution of a convicted criminal would lessen the possibility of crime in the society, it stands vindicated as a self-deserved punishment, and also as a rightful obligation of the society. This sense of retributive justice is at the heart of the deontological argument.

The problem with such an approach is that it assumes that human beings operate under total degree of freedom in all situations and hence hold the sole responsibility for the acts that they commit. This viewpoint, however, is far from the truth of the situation. Though there can be no real justification for commission of a murder (except under self-defense) the deontologist fails to appreciate the role played by the circumstances under which the act was committed. Invariably a murderer is overpowered by the circumstances when he commits the act. Further, the theory, by considering only the sense of free will under which a person operates, fails to perceive the influence of external factors like social inequality. The disproportionate ratio of the crimes committed by African-Americans who hail from a poor social background in comparison with the white population confirms this point. As philosopher Thomas. a. Mappes states, "Pure retributive thinking seems to presuppose a radical sense of human freedom and its correlate, a radical sense of personal responsibility and accountability for one's actions." [Laurence]

Moral Evaluation

Moral justice principle views society as a cohesive unit operating under certain rules and regulations. Any member who violates the codes and harms the society will be considered to have affected the moral structure and hence suitable retribution awarded.

However, going by a purely spiritual viewpoint capital punishment cannot be approved. The essence of spirituality is to shower unconditional love to fellow human beings irrespective of their actions. The retaliatory principle of 'an eye for an eye" has no place in a spiritual society. Under such considerations there would be no place for capital punishment even if the criminal is in blatant violation of social norms. The spiritual community is based on redemption rather than retribution. However, from societies perspective such pure unconditional love is impractical if not impossible. Hence there can be no real justification for capital punishment viewed from a spiritual bent of mind. [Kenneth Cauthen]

Conclusion

In evaluating capital punishment we are faced with varied perspectives. Of all the different reasons for which capital punishment may be carried out the utilitarian aspect assumes more significance. Moral considerations set aside it would be permissible to have capital punishments if they result in a safer and much happier society. All other arguments that are used to justify death penalty (retributive justice) are unacceptable. However, as we have seen, there is little consistent proof and even contradictory evidence pertaining to the effectiveness of such a punishment in crime control. Further, thought must also be given to the fact that in the majority of the cases crimes are committed under mitigating circumstances. Given these pretexts, it might be forthright to assess alternative forms of punishment. Countries which have abolished death penalty in favor of alternative punishments have fared well not only in controlling crime rates but also in reducing recidivist crimes. Canada's example offers ample proof as to the effectiveness of a non-lenient judicial system and usefulness of long-term imprisonment in reducing crime rates. The falling recidivist ratio in that nation once again vindicates the success of their approach.

This does not mean that capital punishment should be abolished in its entirety especially under the prevailing tense situation of terror and violence where the perpetrator is in blatant violation of all ethical principles. We can justify capital punishment only from the utilitarian thought and that too under critical situations where the offender poses a serious threat to the safety of the society. (terrorists and serial killers). Such barbaric criminals who threaten to undermine the basis of our social stability cannot be permitted any leniency. Hence under these special and wartime circumstances it is preferable to award capital punishment. When the safety of the society would be in jeopardy if the offender is left alive, it would be justified to execute the criminal. The moral predicament under these situations is only superficial and we have strong utilitarian grounds to endorse death penalty under these situations.