Death Penalty as a Deterrent for Murder

This paper examines the death penalty as a deterrent and argues that states have not only the right but the duty to apply the death penalty to criminal cases because it is incumbent upon states to back the law with force. The death penalty acts as a forceful and compelling consequence for those who should choose to violate the law and commit murder. For that reason it can be said to be a deterrent. This paper also examines the opposing arguments and shows that those would say it is not an effective deterrent cannot offer any quantitative proof for this argument because no measurements exist that could possibly render such a claim factual or provable. The paper concludes by showing that the death penalty should only be administered in states where there is harmony between social justice and criminal justice.

While it may seem ironic that the death penalty should be considered as a deterrent for murder, the underlying premise that supports the proposition is simply this: laws must be backed by force in order to be compelling, and if the force is insufficient to carry the weight needed to compel order and respect for the law in society, both law and order will be unenforceable and therefore unsupportive of the natural aims of society. From this perspective, therefore, it may be seen that the death penalty carries no actual ironic tone in terms of acting as a deterrent for murder but rather that it acts as the necessary force of repercussion or consequence that a murderer can expect to experience should he violate the law which forbids the taking of life. In order to protect life, liberty and the pursuit of justice, the force of justice itself must be clear, palpable and discernible by those in society. If it is not, the moral compulsion to respect laws and follow them, including the law forbidding the killing of another person, will not be effective enough to deter persons from behaving badly. The moral order must be supported by the social order or else the social order itself will be undermined by its own lack of respect for moral law. Hammurabi in ancient times promoted this concept in his “eye for an eye” approach to law. The Old Testament mirrored this sentiment: “But if there is any further injury, then you shall appoint as a penalty life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise” (Ex 21:23-25). Though the teachings of the New Testament have suggested to some that such a concept was abolished by the law of Christ—“You have heard that it was said, ‘Eye for eye and tooth for tooth.’ But I tell you not to resist an evil person. If someone slaps you on your right cheek, turn to him the other also” (Mat 5:38-39)—the reality is that this was not the only pronouncement that Christ made upon the subject of killing. Indeed, He also stated that “those who live by the sword will die by the sword” (Mat 26:52). One can see in this important reminder from the most central figure in the history of the world that actions must have consequences, and it is up to those who would uphold the law that this concept not be lost on the public. For that reason, this paper will show that the death penalty must act and does act as a deterrent for murder when it is effectively applied in a system of justice that is fairly and equitably distributed.

In a society where the system of justice is unequally distributed by the upholders of the law, the application of the death penalty as a deterrent for murder cannot be said to be effectively applied. This is why it is imperative that the system of justice and the rule of law itself be implicitly and explicitly respected and enforced fairly and equitably for the death penalty to serve as a deterrent for murder. Consequences for actions must be established clearly and consistently in order for them to carry weight, to be seen as meaningful, and to be expected as the social and personal outcome of individual decisions (Weaver, 1984). If legislation is passed that prohibits certain acts but the prohibition of these acts is only executed sloppily or at best inconsistently, whatever deterrents might be utilized as consequences for breaking the law will be scorned by the general public. Indeed, history offers a perfect example of this principle with the Era of Prohibition in the U.S. during the 1920s when alcohol was outlawed and scofflaws (so-named because they scoffed at a law that was both despised by the public and ineffectively enforced by law enforcement officers). Individuals violated the laws of prohibition routinely by way of speakeasies, subversion of the legalistic parameters of the law (which allowed one to imbibe alcohol with a doctor’s note—similar to the way in which medicinal marijuana laws today allow one to legally escape prosecution under federal law for imbibing a schedule one narcotic), and other criminal activity. The end result of the lack of a true deterrent being able to be applied (mainly because of the lack of moral justification for the law in the first place) was that the social order became worse after than it was before: the rise of organized crime was ushered into existence thanks to the Era of Prohibition, and it has not gone away to this day (Bursik, 1988). In order for the death penalty to serve as a deterrent for murder, it must therefore be applied in a system of law that is moral, consistent, equitable and fair. If that system is pervaded by other unjust laws, is inconsistently applied with regard to fairness and equitability, or is riddled with corruption (“the law’s delay” and the “insolence of office” as Shakespeare put it in Hamlet), the application of the death penalty as a deterrent cannot be justified simply because the law itself is ineptly executed and justice is unfairly served. In order for capital punishment to deter, law and order must already exist. In a society where neither can be said to exist, capital punishment serves no purpose other than to excuse a system of tyranny in a social system that has abandoned the need for moral justifications.

The law itself must be in accordance with morality or moral law. If it is judged to be opposed to the moral order that is innate in mankind, the social law will be rejected and spurned and the consequences of breaking it will also be despised (Bazelon, 1975). In other words, if the law is immoral, no so-called deterrent will effectively act as such because the law itself will not support a moral justification for such repercussions. Pretending as though they do is the perfect way to introduce the concept of martyrdom into the public arena once more. For instance, a martyr is one who is unjustly made to suffer (usually by way of execution) for violating a law (the consequence of which is death) that is unjustifiable in a moral society. Criminal justice and social justice must be in accordance, as Bazelon (1975) asserts, in order for a system of law to work, to be fair, to be equitable, and to be effective. In a society where social justice is at odds with criminal justice, the death penalty may not be prescribed as a deterrent to murder because the two systems—social justice and criminal justice—are out of alignment. To propose a negative solution to a minor problem without actually addressing the real major problem would be like attempting to fix an engine whose rod bearing is disintegrating by changing the oil. The effect will be innocuous at best, dangerous at worst (especially if it is assumed that the deterrent will satisfactorily address the problem of murder). In such an environment where social justice and criminal justice are out of alignment, where the moral order is not supported by the legal order or framework, deterrents are more tyrannical than they are morally enforceable. This is why it is imperative that criminal justice and social justice be united within a system of law and order. Failure to unite makes the practice of justice impracticable.

In the American system of justice, there is a clear controversy as to the extent to which social justice and criminal justice are in harmony. In the speeches of Angela Y. Davis (2012), it can be seen that the African American community is deeply distrustful of the criminal justice system specifically and precisely because it has such a long history in the U.S. of being at odds with social justice where fairness and equitability are practiced without respect for race, creed or ethnicity. Unnever and Cullen (2007) support this perspective, noting that there are clear racial disparities in terms of the distribution of capital punishment. National statistics on the race of defendants executed in the U.S. since 1976 show that 34.5% of those executed were black (“National Statistics on the Death Penalty and Race,” 2018). Yet according to the 2010 Census, blacks only make up 12.6% of the U.S. population. This is nearly a 300% increase in representation—a shocking figure when one considers that whites make up 72.4% of the population according to the same Census, yet only account for 55.6% of all persons executed in the U.S. since 1976 under the death penalty—nearly a 20% decrease. If the ratio of whites executed under the death penalty to whites in the U.S. population is lower, why is exponentially higher for blacks? The answer is supplied by social justice activists like Davis (2012) who says that the criminal justice system in America represents the US Organization—a violently racist system of oppression designed to marginalize blacks and install them in a new system of slavery manifested in the rise of the prison-industrial complex. From her position, the criminal justice system is an “ideological campaign to persuade us once again…that race is a marker of criminality” (Davis, 2012, p. 38). So if criminal justice in America is blocked by racist ideology implementing a system of law and order that is in harmony with actual social justice, when is it appropriate to use the death penalty as a deterrent for murder?

The answer to that question is simple: when social justice and criminal justice are in harmony, the death penalty may be appropriately administered as a deterrent for murder. In this harmony, it is acknowledged by society that the criminal justice system, that the framework of law and order in the community, is moral and justifiable and can and should, therefore, be respected. Out of this respect comes the acknowledgement that the justice system has the capacity and obligation to exercise force in order to support its laws. A system of rule that does not possess the force of its own convictions is a rule that will not last long.

Are criminal justice and social justice ever truly in alignment? This question is far less easily answered. Over the course of human history, societies, cultures, communities and nations have evolved, as new ideas, new people, and new technology produce changes in the way people live, think and act. These changes are not always in harmony with the social or legal systems and frameworks in place from generations earlier, and thus it is difficult to assert that a true harmony ever really exists between society and the law, no matter the time or place. In some eras and in some regions of the world the harmony has been more pronounced than in others. However, it is undoubtedly the case that throughout time, many societies have been in some degree of opposition to the system of rules and laws institutionalized and practiced. This is especially true in the modern era, wherein revolution has played such an intricate role in the evolution of society. From the Protestant Reformation to the Scientific Revolution (out of which came the Enlightenment) to the American Revolution to the French Revolution to the Industrial Revolution to the Russian Revolution to the Cultural Revolution to our own Digital Revolution, nations have warred within themselves, indicating that peace between society and the institutions set up to govern society has been more ephemeral than concrete and harmonious.

In the medieval world, tensions also existed but these were far more localized with the power structure being monarchical and hierarchical rather than democratic as it is in many nations today. In the hierarchical settings, the death penalty was used, too—even in the Church of the Old World where confirmed heretics were condemned to death in cases where they refused to retract their views and insisted on spreading beliefs and ideas that the Church found to be mortally dangerous to the souls of the faithful. In the case of Joan of Arc, churchmen in the Church’s hierarchy in Rouen, France, even went so far as to burn at the stake a woman whom many of the faithful of the Church believed at the time (and whom the Church Herself would go on to believe) was a saint, viewing her death as a politically motivated by the English who resented her claims of divine assistance to the French during the Hundred Years’ War. In her case, one sees again the abuses that can take place in the justice system—no matter the place or time or era. Nonetheless, the case of Joan of Arc is an instance in which an abuse of a system of law and order by and large in harmony with the community’s culture and with the community’s sense of social justice. It is an example of the fact that abuses can occur—but not an example of an argument that the death penalty may not serve as a deterrent.

In societies where the sense of social justice is in accordance with the society’s system of rule and law, it is natural and effective that capital punishment should serve as a deterrent, as this penalty produces a forceful reminder to the community that actions do have consequences. It can be especially necessary in societies and communities where the rule of law needs to be firmly applied in order to quell the rebellious natures of persons within the community who are not in conformity with the values, beliefs and aims of that community. For instance, in the New World, public hangings have their own history as a form of death penalty used to punish capital offenders. Throughout American history, one can see how states have used hanging to emphasize the fact that murder was a crime that would not be tolerated. The Great Emancipator himself, Abraham Lincoln, allowed the execution by hanging of 39 Sioux who were convicted of murdering a group of settlers in Minnesota (Randa, 1997). The public execution was both shocking (purposefully so) and necessary from the standpoint of law and order—especially with an eye towards taming the Frontier and establishing justice in the “Wild West.” As a deterrent, the death penalty’s power, qualitatively speaking, is undeniable—though still argued by those who oppose its usage on moral, ethical or even pragmatic and utilitarian grounds: and these objectors are not a few.

Richard Wright famously opposed it in the 20th century with his novel Native Son, in which a young black man named Bigger Thomas irrationally murders a young white woman in her bedroom. He is arrested, tried, convicted and sentenced to death. He expresses no remorse for his actions but exhibits a kind of pathetic innocence in the sense that he is portrayed almost as a victim of the kind of racial oppression described by Davis in her speeches. He rejects the overtures of a priest. His lawyer attempts to persuade the jury that capital punishment is a perpetuation of the kind of crime that Thomas himself committed, a perpetuation of irrational inhumanity—when what is needed in the world is compassion, empathy, and mercy. The jury does not buy the argument and Thomas is executed. The argument of his lawyer, though, is Wright’s argument—and essentially the argument of every objector to the death penalty as a natural deterrent. The problem with it, though it is compelling in its own right, is that from a logical perspective, the death penalty is not a perpetuation of irrational inhumanity but a reinforcement of exactly the opposite: the sense that human beings should be guided by reason rather than emotion and impulse. This is not to suggest that Wright or Bigger Thomas’s lawyer is incorrect in arguing that what the world needs more of is compassion, empathy and mercy. But for the sake of justice and the rule of law, society also needs a show of force, and that show of force is exhibited in the death penalty. The only question that arises following the consent of this fact is whether or not the death penalty actually works as a deterrent.

Does the death penalty “work” as a deterrent? Does it actually deter would-be murderers? This question is somewhat impossible to answer because no quantitative study can be performed to measure statistically whether a would-be murderer was prevented from murdering based on his or her awareness of the fact that there is a mortal consequence established by the state for committing the crime. Qualitatively speaking, the penalty’s deterrence factor can be felt. But feelings aside, one must examine the arguments of those who oppose it. Those who oppose it today—such as Michael Moore in his documentary on Norway’s prison system—point to other nations and modern cultures that have managed to address issues of crime without espousing a legal system in which capital punishment plays a part. And while these arguments may be effective in highlighting alternative views of justice, they in no way can or do invalidate the claim that the death penalty is a deterrent. Deterrence cannot be measured by any earthly means. It can only be asserted as a prerogative.

Even Rose (2011) writing for the National Defense University Joint Forces Staff College acknowledges that deterrence is impossible to measure while asserting that measures may be implemented to help gauge to a limited degree the effectiveness that a deterrent may be having. Rose (2011) writes:

The concept of deterrence is as old as war, but determining if deterrence activities and messages are having the desired effect on the adversary decision maker is challenging since the adversary will not readily admit to being deterred. Developing deterrence measures of effectiveness is imperative to determine if deterrence activities and messages are meeting the deterrence strategy objectives and achieving the desired end states. However, determining why something did not occur is difficult to assess (p. 1).

Those who argue, therefore, that the death penalty does not act as a deterrent or that it is an ineffective deterrent have no factual ground to stand on—only a flimsy moral claim whose premised is based on their personal dislike of killing; that—or, as has been stated earlier in this paper, their objection is based on the fact that there is no harmony between social justice and criminal justice; in which case their objection then has substantial merit for the fact that justice must be fair and equitable in order for it to be moral and morally supportable.

Assuming that there is harmony between a community’s sense of social justice and its system of criminal justice, governors have the prerogative to use the death penalty as a deterrent as befits their role as governors and guardians of the state. A parent who offers his children no discipline undermines his own authority. A state that provides its citizens with no disciplinary actions or repercussions for criminal behavior is a state that undermines its own authority. Deterrence is a prerogative that may be exercised by virtue of the fact that the law must be enforced or else it has no meaning. The death penalty may be viewed as a harsh example or demonstration of that force, but its moral justification is situated in the very concept of the rule of law. Without the force of demonstration, the law has no voice and no power to convict. Without the power to convict, the law is limp and useless.

That said, the West has been greatly influenced by the concept of the “rights of man,” notably propagated by Thomas Paine is his work of the same title. Essentially, this concept boils down to the idea that every man has rights that are his by nature and not by any human authority or hierarchy. This concept supported the vision of the Framers of the Constitution as they developed the Bill of Rights and the early Amendments, which focused in particularly on protecting the rights of the new citizens of the American Republic from tyrannical abuses committed by the State. In this sense, the Framers of the Constitution were attempting to devise a safeguard should social justice and criminal justice ever become disharmonious in the U.S. These rights designed, in other words, to prevent unfairness and inequitableness from creeping into the system of law and order. Over time, these rights have been interpreted and amended as well, and Supreme Court decisions have clarified their meaning, whether for better or for worse. The point is that none of this was done because of a dislike or antipathy towards the death penalty as a deterrent but rather as a way to ensure that justice was united to the moral framework of the nation’s forefathers.

With this in mind, and though one may be tempted to embrace the arguments of the social activists like Angela Davis, who condemn the criminal justice system as corrupted by racist and elitist doctrines, the reality is difficult to discern—as difficult to discern as is the measure of the effectiveness of deterrence in quantitative terms. Is America, for instance, capable of producing harmony between communities’ sense of social justice and communities’ criminal justice system? Is this harmony even capable of being measured? In a perfect world, perhaps so—but this world is far from being perfect, which is why the death penalty is needed as a deterrent in the first place.