Capital punishment and the tension between utilitarian and retributive justice

¶ … Death Penalty

There are many situations and concerns in the world that require using ethical thought. There are many issues we read about an learn about when we have to ask ourselves what we believe in. Which side do we take on euthanasia or abortion or sexual morays? It is the responsibility of all people to explore these issues so that their opinions are education and well-informed. It is the lazy individual who formulates their opinions on innuendo and rumor. What is ethical? What is moral? What is right? What is good? It is everyone's responsibility to ask themselves these questions and formulate their own answers to these extremely important issues. Perhaps one of the most controversial topics for debate is over the ethical right of the death penalty. Some feel the penalty to too severe and inhumane. Others feel the penalty is just and not used often enough. How does each individual feel about this most severe of punishments? Is it right for the government to execute criminals or is it wrong? Presently, 34 of the United States of American have death penalty statutes (Facts 2011). I propose that the death penalty is a necessary tool but should only be utilized for criminals that are beyond reform and have committed crimes of such an obscene and grotesque nature that the criminal has subsequently become less human for committing the crime.

First, an explanation of terms: simply stated, the death penalty is the legal execution of a criminal as a punishment for committing either one or a series of very serious or particularly heinous crimes. Many countries in the world have some form of the death penalty for criminals. This form of legal punishment can be documented going as far back as written history, when the criminals of the state were dispatched with permanently in some form or another. In the culture of the United States of America, you have to commit an egregious crime to even be considered for this form of punishment. The crime committed has to end in the death or some other state where the victim is so affected that normal function will be many, many years away, provided this victim is indeed alive. Kent Scheidegger (2009) defines what components carry into a debate over seeking the death penalty based on the crime that is committed. He states:

Murder is the most serious and most severely punished of all commonly committed crimes. The exact definition of this crime can be complex and varies from state to state, but by far the most common type is simply the intentional killing of another person. Also, in nearly all states, a killing committed in the course of a major felony, such as robbery or rape, is murder without a showing of intent. In some circumstances, an intentional killing can be mitigated to the lesser crime of manslaughter (5).

The quandary here is whether or not the death penalty is an acceptable or ethical form of punishment for criminals. Does the United States government have the ethical or moral right to execute its citizens, no matter how horrible the choices that the citizen has made? If the United States does indeed have this right, what is the basis of seeking and monitoring the death penalty? If careful consideration is not given to each potential death penalty case, then it is an abuse of power and unsuitable as punishment. However, the American judicial system is not arbitrary and the decisions made by prosecutors in various counties are designed to protect the citizenry. Since this is not the case, the death penalty is valid as well as an important and ethical form of legal punishment for criminality.

Different states will enact the death penalty punishment for different crimes, depending upon legislation. In most states that have the death penalty, it can be applied to any 1st-degree murder case, but is usually not sough without additional mitigating factors, such as death while during the committing of another crime, like robbery. In the states of Arkansas, Colorado, California, Georgia, and Louisians the punishment can also be sought for the crime of treason. However, treason is usually mandated to federal court where the death penalty is also applicable. Kidnapping charges can get you the death penalty in several states, but only if the kidnapping results in a death. Drug trafficking, perjury resulting in someone's death, rape of a victim under the age of twelve, or train wrecking can also get you the death penalty in various states across the nation depending on the circumstances of the crime (Facts 2011). Just because a death penalty applicable crime has been committed does not mean that the death penalty will be sought in all cases. Given the right lawyer, the right judge, the right evidence, or the right circumstances, a crime that would potentially result in death at any other time could result in the defendant receiving a far lesser punishment. If the penalty it be considered at all fair, it is important for the requirements of the punishment to be standardized. Although death penalty determination falls under the category of states' rights rather than federal, there should be some more consistency throughout the nation. If rape of a minor is a capital punishment applicable crime in one state, then it should be the same in all other states. At the very least, it should be that within a singular state, the potential for seeking the death penalty should be on a semi-consistent basis from case to case.

Quite often, it is only murder cases where the prosecution seeks the death penalty, no matter what state the particular crime was committed in. Currently there is only one convicted criminal on death row who is responsible for perpetration of an offense other than murder. Patrick O. Kennedy of Louisiana was sentenced to death for the aggravated rape of his 8-year-old stepdaughter (Axtman 2003). In nearly every case, states that have the option of seeking the death penalty for crimes other than murder will invariably seek lesser sentences, the popular belief being that the death penalty is only warranted in cases of murder, if even then. No one in the United States has been executed for rape since Missouri in 1964 (Axtman 2003). Many legal strategists have argued that the verdict in Kennedy's case will be overturned and his sentence reduced.

"Any man's death diminishes me, because I am involved in all of mankind" ~ John Donne

There are several common methods of execution in the United States. In olden times, people were burned, pressed, broken on wheels, and bludgeoned to death. Nowadays, things have become far more humane. The perpetrators being executed receive far more peaceful ends than their victims. Common forms of execution have included electrocution, the gas chamber, death by hanging, and the facing of a firing squad. These forms have at one point or another gone out of favor because of their purported cruelty. Lethal injection is the most used form of execution in the present historical movement. First a sedative is injected so the criminal feels no pain, then a liquid is injected through the same IV which stops the breathing, then a third injections which causes cardiac arrest and the criminal dies without pain or any undue suffering of any kind.

I only support the death penalty in specific cases, not for every murderer or rapist currently in prison. We should employ the death penalty in the case of mass murderers, murderers who used extreme means and inflicted extreme suffering and torture before the victim died, and in cases involving the harming of children such as child rape or murder. Any case where a child is harmed and forced to undergo medical treatment, whether that be for a physical wound or a mental one, should be applicable for a death penalty punishment. When a child is harmed, not only is a crime committed but the innocence of childhood is robbed them, forcing them into an adulthood that will forever be marked by the crime no matter how many years have passed.

"For centuries the death penalty, often accompanied by barbarous refinements, has been trying to hold crime in check; yet crime persists." ~ Albert Camus

The United States has had some form of the death penalty since the time of the Jamestown settlers in the 1500s. When we first became a nation, one of the first laws to go on the books was about which crimes should be applicable for the death penalty. There are certain factors that form the basis for the current ethical existence of the death penalty. There is both the deterrence factor and the retribution factor to consider.

First there is the deterrence factor. According to this theory, if someone is executed for committing crimes, then other people will think twice before they commit a similar crime. "Legal punishment, according to this reasoning, is for the purpose of preventing people from breaking the law, deterring them from doing so, or both" (MacKinnon 303). This is similar to the old age dunce cap in the classroom. If a child acts up in class, you sit him in the corner with a white cone on his head. Seeing the boy or girl thus humiliated, the other kids will think twice before they follow suit. Instead of sticking the criminal in the corner, he or she is executed. Fearing for their own lives and their sense of self-preservation, the criminals will not commit heinous acts. According to statistics that have been gathered, there is no validity to the deterrence theory at all (Facts 2011). States that have the death penalty reportedly have twice as many murders than states that do not possess the death penalty. Pro-death penalty advocates say that this is because these states generally have larger populations anyway and that is why there are more murders. Anti-death penalty advocates say that there is no research that clearly demonstrates a connection between the death penalty and a deterrence of further criminal activity.

The other basis for the present existence of the death penalty is the retribution factor. This is the idea that the victims of crime and the families of the crime victims have the right to seek vengeance. The retributive argument gives two explanations for the pertinence of the death penalty. "Only those who are responsible for a crime should be punished, and only to the degree that they are responsible" (MacKinnon 305). Also, "it is essential in the retributivist view that the punishment fit the crime" (305). This theory states that only a life is acceptable payment for the taking of another life. Supposedly this allows the family to get over their grief better, or at least have the relief of feeling that the perpetrator of the crime has received his just desserts. Some people absolutely agree with this theory. However, one of the problems with this stance is the simple fact that punishment of any kind to the perpetrator will never concretely undo the wrong done to the victim. You can get revenge but you can't undo the action or return to the world before the crime.

"As one whose husband and mother-in-law have died the victims of murder assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by a legalized murder." ~ Corretta Scott King

There are individuals who do not agree with this argument. In several instances, the families of victims in death penalty cases have not wanted prosecutors to seek the ultimate punishment. These people feel that an eye for eye will metaphorically make everyone blind. Michael Jordon, after his father was murdered was quoted as saying, "You believe and eye for an eye until you're put in that situation. If they kill those guys, it really doesn't mean much to me. My father is gone." There is no getting back the loved one or returning to an unpained time. Causing more death will not make anyone feel justified and will not fill the void that has been left by the perpetration. Anti-death penalty and pro-death penalty advocates are constantly at odds over this issue. Who is right and who is wrong? Who deserves to die and who deserves to live?

"When a juvenile commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a more mature understanding of his own humanity." ~ Anthony Kennedy

Another note of contention is over the rights of juvenile criminals. In the controversial case of Roper v. Simmons in 2005, the U.S. Supreme Court ruled that imposing the death penalty on anyone for committing a crime when they were younger than 18 was unconstitutional, violating the 8th Amendment against cruel and unusual punishment (Roper 2005). There is a current bill being reviewed which declares that any criminal convicted when they were younger than 18 would be up for parole after 25 years in prison rather than spend life in prison without the possibility of parole (Yee 2007). The argument is that a life sentence without the chance for parole is akin to the death penalty, only slower and in some ways more torturous. Minors, no matter how diabolical their actions, should be considered differently than those who commit crimes as adults.