Death Penalty as a Deterrent for Murder: A Justice Analysis

Introduction

While it may seem ironic that the death penalty should be considered a deterrent for murder, the underlying premise that supports this proposition is simply this: laws must be backed by force in order to be compelling. 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, the death penalty carries no actual irony in terms of acting as a deterrent for murder; rather, it acts as the necessary force of repercussion — the consequence 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 — 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 Christ's only pronouncement on the subject. He also stated that "those who live by the sword will die by the sword" (Mat 26:52). One can see in this reminder that actions must have consequences, and it is up to those who uphold the law to ensure that this concept is not lost on the public. For that reason, this paper will show that the death penalty acts as a deterrent for murder when it is effectively applied in a system of justice that is fairly and equitably distributed.

When Capital Punishment May Not Act as a Deterrent

In a society where the system of justice is unequally distributed, the application of the death penalty as a deterrent for murder cannot be said to be effectively applied. It is therefore imperative that the system of justice and the rule of law itself be both implicitly and explicitly respected and enforced fairly and equitably for the death penalty to serve as a deterrent. 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 prohibits certain acts but that prohibition is only executed sloppily or inconsistently, whatever deterrents might be utilized as consequences for breaking the law will be scorned by the general public. History offers a perfect example of this principle in the Era of Prohibition in the United States during the 1920s, when alcohol was outlawed and so-called "scofflaws" routinely violated the law by way of speakeasies and other workarounds. These individuals subverted the legalistic parameters of the law — such as the provision allowing one to consume 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 — and engaged in widespread criminal activity. The end result of the lack of a true deterrent was that the social order became worse than it had been before: the rise of organized crime was ushered into existence by Prohibition, and it has not disappeared 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 unjust laws, is inconsistently applied, 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. 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 that has abandoned the need for moral justification.

The law itself must also be in accordance with morality. If it is judged to be opposed to the moral order innate in mankind, the social law will be rejected, and the consequences of breaking it will be despised (Bazelon, 1975). If the law is immoral, no so-called deterrent will effectively act as such because the law will not support a moral justification for such repercussions. Pretending otherwise introduces the concept of martyrdom into the public arena: a martyr is one who is unjustly made to suffer — usually by execution — for violating a law 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, equitable, and 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 are out of alignment. To propose a negative solution to a minor problem without addressing the real underlying problem would be like attempting to fix an engine whose rod bearing is disintegrating by simply changing the oil. In such an environment, deterrents are more tyrannical than morally enforceable.

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 becomes evident that the African American community is deeply distrustful of the criminal justice system, specifically because it has such a long history in the United States of being at odds with social justice. Unnever and Cullen (2007) support this perspective, noting clear racial disparities in the distribution of capital punishment. National statistics on the race of defendants executed in the United States 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, Black Americans make up only 12.6% of the U.S. population. This represents nearly a 300% overrepresentation — a striking figure when one considers that white Americans constitute 72.4% of the population yet account for only 55.6% of all persons executed since 1976, a near 20% underrepresentation.

The answer to this disparity is supplied by social justice activists like Davis (2012), who argues that the criminal justice system in America represents a violently racist system of oppression designed to marginalize Black Americans 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 functions as "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, when is it appropriate to use the death penalty as a deterrent for murder?

When Social Justice and Criminal Justice Are in Alignment

The answer to that question is straightforward: when social justice and criminal justice are in harmony, the death penalty may be appropriately administered as a deterrent for murder. In this harmony, society acknowledges that its criminal justice system and the framework of law and order within the community are moral and justifiable and can and should therefore be respected. Out of this respect comes the acknowledgment that the justice system has both the capacity and the obligation to exercise force in support of 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 in place from earlier generations, and thus it is difficult to assert that true harmony ever really exists between society and the law. In some eras and in some regions of the world the harmony has been more pronounced than in others. Nonetheless, it is undoubtedly the case that many societies throughout time have been in some degree of opposition to their institutionalized systems of rules and laws — a reality especially pronounced in the modern era, where revolution has played such an intricate role in social evolution. From the Protestant Reformation to the Scientific Revolution to the American Revolution to the French Revolution to the Industrial Revolution to the Russian Revolution to our own Digital Revolution, nations have warred within themselves, indicating that peace between society and the institutions set up to govern it has been more ephemeral than concrete.

In the medieval world, tensions also existed, though they were far more localized within a monarchical and hierarchical power structure rather than a democratic one. The death penalty was used even within the Church of the Old World, where confirmed heretics who refused to retract their views were condemned to death. In the case of Joan of Arc, churchmen in Rouen, France, went so far as to burn at the stake a woman whom many of the faithful believed to be a saint — a politically motivated execution driven by the English, who resented her claims of divine assistance to the French during the Hundred Years' War. Her case illustrates the abuses that can take place in the justice system at any time or place, but it is an example of an abuse within a system that was, by and large, in harmony with the surrounding community's culture and sense of social justice — not an argument that the death penalty may never 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 both natural and effective for capital punishment to serve as a deterrent, producing a forceful reminder to the community that actions have consequences. It can be especially necessary in societies where the rule of law needs to be firmly applied to quell those not in conformity with the values and aims of the community. Throughout American history, for instance, public hangings served as a form of capital punishment used to emphasize that murder would not be tolerated. Abraham Lincoln himself allowed the execution by hanging of 39 Sioux convicted of murdering a group of settlers in Minnesota (Randa, 1997). The public execution was both purposefully shocking and considered necessary from the standpoint of law and order — particularly with an eye toward establishing justice in the frontier West.

As a deterrent, the death penalty's qualitative power is undeniable — though still argued by those who oppose its usage on moral, ethical, pragmatic, or utilitarian grounds. Richard Wright famously opposed it in the twentieth century with his novel Native Son, in which a young Black man named Bigger Thomas irrationally murders a young white woman. He is arrested, tried, convicted, and sentenced to death. His lawyer attempts to persuade the jury that capital punishment is a perpetuation of the very irrational inhumanity that Thomas himself committed — that what is needed instead is compassion, empathy, and mercy. The jury rejects the argument and Thomas is executed. The lawyer's argument is essentially Wright's own argument, and the argument of every objector to the death penalty as a natural deterrent. The problem, however compelling it may be on its own terms, 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 say that Wright is wrong to argue that the world needs more compassion, empathy, and mercy. But for the sake of justice and the rule of law, society also needs a demonstration of force, and that demonstration is exhibited in the death penalty.

Conclusion

Even though it may appear ironic to those who oppose the death penalty, capital punishment as a deterrent for murder is a prerogative of the state to enforce its law. It is important, however, that the law is aligned with the values of society and that the moral order is represented in the state's rule of law. If the state does not forcefully compel its citizens to take seriously its laws, it undermines its own position as a representative of authority. Actions must have consequences, and it is the state's duty to its citizens to ensure that they do. The consequences of murder have been, since the most ancient of times, death for the murderer. Hammurabi said "an eye for an eye," and this sentiment is echoed in the Old Testament in the Book of Exodus. Christ offered a new focus for mankind, one rooted in mercy and forgiveness — but He also iterated the fact that those who kill will indeed be killed.

In the modern era, it may be helpful for societies and states to temper the law with mercy and to reflect in their judgments the needs expressed by activists like Davis and authors like Wright — needs that emphasize the importance of empathy and compassion. At the same time, the state must ensure that security and the force of the law remain compelling. For that reason, the death penalty may serve as an appropriate deterrent for murder, provided that it is administered within a system of justice that is fair, equitable, and in genuine harmony with the moral values of the society it governs.

References

Bazelon, D. L. (1975). The morality of the criminal law. Southern California Law Review, 49, 385–405.

Bursik, R. (1988). Social disorganization and theories of crime and delinquency: Problems and prospects. Criminology, 26(4), 519–552.

Davis, A. Y. (2012). The meaning of freedom. San Francisco, CA: City Light Books.

National Statistics on the Death Penalty and Race. (2018). Retrieved from https://deathpenaltyinfo.org/race-death-row-inmates-executed-1976

Randa, L. (1997). Society's final solution: A history and discussion of the death penalty. Lanham, MD: University Press of America.

Rose, D. (2011). Only in the mind of the enemy: Can deterrence effectiveness be measured? National Defense University Joint Forces Staff College.

Unnever, J., & Cullen, F. (2007). Reassessing the racial divide in support for capital punishment. Journal of Research in Crime and Delinquency, 44(1), 124–158.

Weaver, R. (1984). Ideas have consequences. Chicago, IL: University of Chicago Press.