Arguments for legalizing capital punishment

¶ … Capital Punishment

Capital crimes are those considered so heinous that they justify imposition of the death penalty instead of penal incarceration, even for a life term. Certainly, ethical issues may arise in connection with what specific crimes are involved, what procedural safeguards protect the rights of the accused, precisely what mechanisms are implemented in executing capital sentences, and prejudicial application to racial (and other) minorities and underprivileged classes (Dershowitz, 2002, Schmalleger, 2008). However, in principle, capital punishment is the most reasonable, beneficial, and appropriate solution to sufficiently depraved criminal conduct.

In the case of the worst class of crimes such as premeditated serial murder or multiple murder for financial gain, perpetrators convicted of such crimes must be removed from society permanently, if for no other reason, than to ensure the safety and security of the general public. It is unclear what the suggested basis is for imposing the burden on society of financing the lifetime housing, feeding, and medical care of perpetrators of such heinous crimes. The circumstances necessitating the individual's removal from society are largely under the control of the perpetrator, and deterrence theory notwithstanding, the evidence strongly suggests that most of those who choose to commit capital crimes do so with awareness of the consequences of conviction for those crimes (Schmalleger, 2008; Zalman, 2008).

The principal arguments against the death penalty in principle are that it is: (1) excessively harsh; (2) subject to mistaken prosecution and the conviction of innocent defendants; (3) unnecessarily cruel in its application; and (4) susceptible to prejudicial application to minority defendants (Dershowitz, 2002; Schmalleger, 2008). Specifically, opposition based on excessive harshness is predicated on the belief that killing is inherently immoral irrespective of even the most equitable objective rationale. Opposition based on the possibility of error in adjudication is based on the principle that criminal justice administration must always err on the side of caution and the forego punishing the guilty for the sake of protecting the innocent to wrongful prosecution.

Opposition based on the cruelty-in-application issue relates mainly to the risk of improper implementation, typically in the form of the lethal injection procedure. That objection is also based on the Eighth Constitutional Amendment that forbids penal sentences that are "cruel and unusual" (Dershowitz, 2002; Schmalleger, 2008; Zalman, 2008). Finally, opposition based on the prejudicial and unfairness application to minorities and the underprivileged is a result of statistical information said to substantiate that concern (Dershowitz, 2002; Schmalleger, 2008; Zalman, 2008).

With respect to the harshness issue, capital punishment by humane means is substantially less harsh than the vast majority of the victims of premeditated murder and other capital murders. Not that the ethical justification for or purpose of capital punishment is to exact revenge, but the greater comparative cruelty of the crime cannot be said to be entirely irrelevant in considering the ethical standards and presumed moral duty toward the criminal on the part of society.

Moreover, it is not necessarily even clear that capital punishment through humane means is worse than life imprisonment without the possibility of parole. The many prisoners who choose not to appeal their capital sentences and (especially) those who purposely commit capital offences while incarcerated for the express purpose of qualifying for capital punishment provide evidence that life imprisonment may be comparable in "harshness" to the death penalty.

With respect to the issue of mistaken prosecution, that represents a completely valid concern; to the extent capital punishment is justified in principle, it must be applied through procedures that preclude erroneous sentences. However, that is not a valid objection where evidence of guilt in uncontroverted. Likewise, both the general moral obligation and the U.S. Constitution require that execution of capital sentences not involve unnecessary or prolonged physical suffering. At law, that issue has long-been decided by the U.S. Supreme Court, which specifically determined that the imposition of death where that punishment is warranted by the nature of the crime is not inherently "cruel" or "unusual" (Dershowitz, 2002; Friedman, 2005).

However, the prospect of errors in implementation such as the incorrect administration of the three drugs used in the so-called "lethal cocktail" is also a legitimate concern. As in the case of preventing wrongful conviction, the appropriate mechanism of ensuring against unnecessary cruelty lies within the realm of procedure, not the character of the sentence itself. Finally, the concern over prejudicial application based on minority status, poverty, or social class also raises legitimate issues, but their solution lies in sociological and procedural areas as well, and not in opposing capital punishment in fundamental principle.