Capital Punishment: Moral, Legal, and Social Arguments

Introduction: Capital Punishment in Historical Context

Concepts of crime and punishment are universal in human societies, as are moral rules and principles. In Western society, the imposition of death as punishment for certain crimes is traceable all the way back to biblical times. In many respects, death is hardly the worst of all conceivable punishments, and the records of the Middle Ages in particular demonstrate how many types of punishment are infinitely more cruel than the mere termination of life. Throughout the Spanish Inquisition, ghoulish torture devices inflicted unimaginably horrible suffering, and even much more recent history evidences capital forms of punishment purposely intended to inflict pain in the process of ending the life of the accused.

At the same approximate time that imagined "witches" were immolated alive in the American Colonies, France had begun implementing another form of capital punishment, using a guillotine to kill as quickly as possible. Death by slow strangulation was the most common authorized form of death penalty in the United States until well into the 20th century (Friedman 2005).

Contemporary American constitutional law has upheld the constitutional permissibility of capital punishment in conjunction with specific conceptual safeguards corresponding to the types of crimes for which it is eligible (Schmalleger 1997). Likewise, the U.S. Supreme Court has articulated standards regarding the manner in which death penalty cases are adjudicated procedurally, as well as the specific mechanisms authorized to carry out death sentences. Nevertheless, capital punishment remains a controversial topic for which numerous alternate moral justifications have been suggested on both sides of the issue.

The Moral Argument Against Killing as Punishment

According to some, capital punishment is completely antithetical to the concept of justice in civilized society because it represents the ultimate hypocrisy. If murder is the ultimate form of immoral criminal conduct, then imposing death as punishment for crime is, in this view, no better than the crime for which it is supposedly a justified punishment.

Many who espouse this position derive it from religious concepts, such as the belief that only God creates life and, therefore, only God is justified in terminating life (Dershowitz 2002).

However, even those who derive their moral beliefs from religious teachings sometimes disagree sharply on the appropriateness of capital punishment. Some consider the fundamental distinction between malicious, criminal, or otherwise unjustified murder and the act of justified or necessary killing — such as killing in war, in self-defense, or in the defense of others. They point out that the Bible itself relates commandments to kill in sacrifice and that, by God's own example, death is the appropriate punishment for certain moral transgressions.

On the other hand, the Constitution of the United States guarantees, in principle, the separation of Church and State. The U.S. Supreme Court has determined that the First Amendment specifically prohibits religious beliefs, definitions, examples, and criteria from being expressed in secular U.S. law, as such expression would violate the constitutional rights establishing freedom of religious determination (Dershowitz 2002). Nevertheless, diametrically opposite secular moral beliefs define capital punishment, with one position equating it with murder and the other distinguishing morally justified killing — almost exactly mirroring the divisions found in religious argument on the same topic.

Defining 'Cruel and Unusual' Punishment

According to the Eighth Amendment to the United States Constitution, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" (Nowak et al. 2004). Capital punishment generated significant constitutional controversy well into the modern era of the Supreme Court. In Gregg v. Georgia (1976), the Court established that the death penalty is not inherently unconstitutional in principle (Dershowitz 2002), but that in order to satisfy the Eighth Amendment's prohibition against cruel and unusual punishment, it required various safeguards against misapplication.

Specifically, Gregg emphasized the importance of the appropriateness of capital sentences in relation to the heinousness of the corresponding crime (Hall 1992), as well as the need for procedural safeguards such as the right of appeal. According to the Court, provided the crime is of a sufficiently heinous nature and provided that safeguards ensure against the imposition of capital punishment in an arbitrary, capricious, or prejudicial manner, the death penalty is not, in and of itself, violative of the Eighth Amendment or any other constitutional provision.

The most recent constitutional issue related to cruel and unusual punishment arises in connection with death by lethal injection (Friedman 2005), in light of credible medical testimony suggesting that the combination of powerful drugs used to carry out the sentence may cause excruciating suffering in the form of asphyxia through breathing paralysis long before death occurs from the cardiac-arresting components of the drug protocol. This too is more a matter of procedural and operational concern (Zalman 2008) than an effective moral argument against the appropriateness of capital punishment in principle.

Conclusion

In many ways, it is easy to sympathize with many positions with respect to the moral appropriateness of capital punishment. Even wholly apart from the position ultimately supporting or opposing capital punishment, there are numerous specific arguments and justifications that lead to each conclusion from different directions.

Religious morality may dictate either conclusion depending on the criteria derived from religious beliefs and from different interpretations of biblical scripture or doctrine. However, since the U.S. Supreme Court has determined that secular law must remain free of religious influence, it would seem inappropriate to apply religious principles to matters governed by the U.S. Constitution.

The Constitution also prohibits punishment that is "cruel and unusual," but apart from any legal definitions or constitutional principles, it is clear that purely secular moral concepts should reach the same position regarding the purposeful — or indifferent — infliction of pain in retribution for crimes. Therefore, even staunch proponents of capital punishment share the concern that it be (1) imposed only where extreme punishment is appropriate to the nature of the crime, and (2) applied in a manner that does not cause unnecessary pain or prolonged suffering. Assuming those elements are satisfied, capital punishment is warranted in certain situations.

The prospect of conviction in error is one of the strongest arguments against capital punishment, precisely because the principle of protecting the innocent from wrongful conviction is fundamental to American justice. By extension, one could argue convincingly that protection against wrongful execution is even more important than protection against wrongful criminal conviction in general. However, it is possible to establish more stringent standards of proof, judicial review, and other conceivable procedural safeguards short of abolishing capital punishment altogether. Therefore, that approach would seem logically preferable.

Capital punishment is the only practical alternative to conviction for crimes so heinous that they require lifetime incarceration — as much to protect innocent members of society as to provide a means of punishment or retribution. In that sense, it is difficult to understand the suggestion that individuals too dangerous to live among the rest of civilized society hold any moral right to lifetime sustenance at the expense of the very members of society who must be protected from their voluntary conduct.

Ultimately, society retains the moral right to protect its innocent members from purposeful atrocities perpetrated maliciously or for selfish personal gain. Capital punishment is morally justified in certain circumstances, and in such cases the remaining moral obligation of a civilized society is simply to ensure that the sentence is carried out quickly, efficiently, and without unnecessary suffering.

References

Dershowitz, Alan M. (2002). Shouting Fire: Civil Liberties in a Turbulent Age. New York: Little Brown & Co.

Friedman, Laurence M. (2005). A History of American Law. New York: Simon & Schuster.

Hall, Kermit L. (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press.

Nowak, John E., and Ronald D. Rotunda. (2004). Nowak and Rotunda Hornbook on Constitutional Law, 7th ed. St. Paul, MN: West.

Schmalleger, Frank. (1997). Criminal Justice Today: An Introductory Text for the 21st Century. New Jersey: Prentice Hall.

Zalman, Marvin. (2008). Criminal Procedure: Constitution and Society, 5th ed. Princeton: Pearson.