On the Death Penalty

32 of the 50 states in the US still accept the death penalty as legal sentence for certain criminal offenses. Despite overwhelming evidence that the death penalty is an ineffective deterrent to crime and that it is grossly tainted with racism and other types of prejudice, the US has failed to abolish this medieval form of punishment nationwide. Globally, this puts the United States in strange company – most nations of the world have abolished the death penalty entirely, with a few notable exceptions: China, Iran, Iraq, and Saudi Arabia all maintain it, and lead the world (in that order) in the number of executions they carry out per year (the US comes in at 5th place, followed by Yemen and the Sudan, two other great beacons of freedom and social justice). These are all nations we in the West like to describe invariably as oppressive, ruthless states, and in at least two of them we have threatened or carried out forceful regime change in order to rid the world of their brutality. Yet when it comes to the most violent act a state can take against its own citizens – legalized murder – we stand shoulder to shoulder with them.

Attempts have been made to abolish the death penalty at the ballot in the US. In 2012, proposition 34 was put on the ballot for California voters, which would have abolished the death penalty in their state. At the time I was a student at Stanford University and I would occasionally drop in on public lectures and discussions, often led by Professor Lawrence Marshall (a lifelong opponent of the death penalty), regarding the Prop 34 campaign. Professor Marshall argued that although, in his mind, the chief reason to oppose the death penalty was that it was wrong in itself, it would be more effective when trying to convince the general public to make pragmatic arguments. It would be more prudent, for example, to point out that the death penalty cost California taxpayers a $184 million per year, or $308 million per prisoner executed, than to wax poetic about some sacrosanct, inviolable right to life. If the degenerates on death row don’t deserve life (so the argument would presumably go) then surely they don’t deserve all this money spent on them; much better to simply keep them locked away for life and we will all be richer for it. It was reckoned that this type of reasoning would especially appeal to the state’s conservative base, who would otherwise be most likely to back the death penalty. In order to win them over, Professor Marshall argued, we can just paint this policy – namely, capital punishment – as yet another failed big government program – ineffective, costly, and ripe for removal. I found this strategy to be quite perplexing for the following basic reason: if the roles were reversed; if it were the case that the death penalty were a much cheaper alternative to other forms of punishment, and death penalty advocates were trying to convince me to uphold capital punishment based on the fact that it would save the government hundreds of millions of dollars, I would not be swayed one jot from my position. And, moreover, I would be dismayed at anyone who was. How could you change your mind, on a question about the basic right to life of human beings, on the basis of fiscal responsibility? And I have no reason to believe that advocates of the death penalty are any less committed to their moral position than I am, so why would I expect them to be persuaded by the kind of pragmatic arguments at which I would scoff?

Proposition 34 was ultimately defeated in the November election, keeping the death penalty legal in California. However, in July 2014, Judge Cormac J. Carney of the United States District Court ruled that California’s death penalty was unconstitutional. In his decision, Judge Carney argued that the application of the death penalty violated the 8th Amendment prohibiting ‘cruel and unusual punishment’ since the legal process surrounding the death penalty was so “arbitrary and plagued with delay”. It’s a rather curious justification, since, like the arguments the Professor Marshall was advocating, it nullifies the death penalty based on what is essentially a minor incidental feature of it, rather than what is fundamental or necessary to it. What could have been said about the death penalty in America regarding its implementation, but what was conspicuously absent from Judge Carney’s decision, was its racist component. When most people hear about “racism in the criminal justice system”, they think that what must be being referred to is the fact that minorities are charged with and dealt out harsher sentences for the same crimes as whites. That’s certainly true, but, in a way, it’s perhaps not as disturbing as a less cited, but equally obvious fact: crimes in which the victim is black are punished less severely than crimes in which the victim is white, regardless of the race of the perpetrator of that crime. In fact, when it comes to the use of the death penalty, Amnesty International have concluded that “the single most reliable predictor of whether someone will be sentenced to death is the race of the victim.”

The message this sends is as clear as if it were emblazoned on the front of every courthouse in America: black lives are worth less than those of whites.

This point has been brought before the Supreme Court. In 1987, the Court heard the case of McCleskey v. Kemp, in which the petitioners presented statistical evidence from a scientific study, demonstrating the inherent racist slant of the death penalty’s application: “even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks”. The Supreme Court, however, upheld the death penalty, on the grounds that demonstrating a “racially disproportionate impact” was not enough to nullify the law without also demonstrating a “racially discriminate purpose”. The distinction here between a purpose and an impact is absurd: short of some district attorney coming out as openly racist, how on earth are you supposed to divine the ‘intent’ or ‘purpose’ of those administering a discriminatory policy? And why, moreover, is that relevant? There are many laws whose purpose might be benign, but whose application, because of the social environment in which they are administered, is monstrously unjust. That’s true of virtually every voting law enacted in the Jim Crow South, which kept blacks disenfranchised, all while hiding behind a veil of race-neutrality.

In any case, commendable as these efforts are to argue for the death penalty’s abolition based on its specific implementation as a practice in the U.S., they leave unsaid what ought to be regarded as the more important discussion – namely why the death penalty is intrinsically wrong – regardless of the way it is administered – as matter of principle. It is this subject I turn to next.

On Why the Death Penalty is Wrong as a Matter of Principle

It is a general rule, when deciding what rights to grant the state, or for that matter, any institution of concentrated power, to remember that the burden of proof is always on those wanting more power to justify why such power is necessary. It is not enough to simply point out some good that will be gained or some evil avoided by the appropriation of some power to the state – it must be shown that no alternative way of achieving that good or avoiding that evil might be found.

Legal theorists and philosophers generally provide four broad categories of justification for punishment of a wrongdoer. They are: deterrence, prevention, rehabilitation and retribution. I happen to take the position that only the last of these, namely retribution, provides a morally consistent justification for punishment (more on that later). But let us consider all the possible justifications in turn, and see if, under any of them, there is any merit to the claim that the death penalty is a necessary tool of criminal justice.

Consider first deterrence. It is a general consensus now among all but the most delusional advocates of capital punishment that the death penalty fails to deter crime any more than lifelong prison sentences. In fact, in America, states which enforce the death penalty tend to have much higher rates of violent crime than those which proscribe it. There’s a quite obvious explanation for this: the kind of person who is willing and able to commit the kinds of crimes for which the death penalty would be given (e.g. murder, violent rape etc) are probably not going to be the ones thinking carefully about what their eventual punishment will be (if they even believe they will be punished at all). Take, for example, the case of Michael Taylor , a Missouri inmate executed in February 2014. He was convicted of raping and murdering a 15 year old girl while high on crack cocaine. Do we really believe it ever crossed Mr. Taylor’s deranged, sadistic, drug-induced state of mind that perhaps he shouldn’t commit that crime because he would be eligible for the death penalty if he did so? Almost by definition, the death penalty applies to crimes so shocking that the perpetrator could not be thinking rationally about the consequences of his/her action. That’s why we see the death penalty being such a poor deterrent to violent crime.

Prevention is the idea that inflicting a punishment on someone will prevent that same person from committing the same (or a different) crime again. This is different from deterrence which focuses on preventing others from committing crimes in the first place. There’s no doubt the death penalty is an effective tool of prevention – dead people can’t commit more crimes. But it is no more effective than life imprisonment, which also prevents the wrong-doer from committing more crimes, but without granting to the state the right to kill.

Rehabilitation, though usually not a high priority for those who claim to be ‘tough on crime’, really ought to be. It is the idea that punishment can serve as a way to make someone a better person: educate them, give them a more uplifting moral character, perhaps cure or at least treat their possible drug addictions, all in the hopes that this will make them a better human being, less likely to commit crimes in the future. People killed by the state of course have no opportunity for rehabilitation, so it could never be provided as a justification for the punishment itself. As it happens, rehabilitation for the benefit of the inmate rarely receives even token acknowledgement in the US. But even if you don’t care about the inmate and are concerned only with ‘reducing crime’, you ought to care about rehabilitation: in the United States, almost half of the inmates who are released from jail go back to committing crime. If people were serious about wanting to reduce crime in society, then rehabilitation would be the primary focus, and resources would be directed towards that end.

Retribution: the idea that the criminal deserves, as a matter of intrinsic justice, to be punished in a manner proportional to his crime. It is not particularly relevant, retributivists might say, what contingent benefits or harms might come from the punishment – what justifies it is that it is a counteraction to the wrong deed itself. Incidentally, I consider myself a retributivist: that is, I believe that the sole justification for punishment must be to correct the wrong itself. Any other justification, which focuses on other desirable ends, treats the criminal as a means to those ends. It treats him not as a rational being, afforded basic moral rights, but as a thing – a thing to be used to further some other chosen end (in this case, a supposedly better society). But according people proper human dignity means treating them as ends in themselves. Furthermore, non-retributive justice provides no coherent limitations to how harsh our sentencing ought to be. Suppose, for example, that the only way to prevent jaywalking was to punish it with death. Well, if your justification for punishment is deterrence, then you would have to concede in that situation that the death penalty is an appropriate punishment for jaywalking, which is plainly absurd. Only by grounding your justification for punishment on retribution can you argue that a punishment must be proportional to the crime itself.

It is important to recognize, however, that while retributive justice provides a much needed consistent theory for the justification of punishment, it does not afford (nor even imply) a right for any one particular person or entity to carry out that punishment. In particular, it does not grant the state the power to do so. This is an important distinction. The state ought not be an enforcer of ethics, and although a moral wrong may deserve some kind of punishment, the state (or any person in it) does not have the right to inflict that punishment merely because it is a moral wrong, or merely because the punishment would be morally right. The state ought only use its power to further what Hegel called the ‘coercive protection of right’ – that is, to protect the civil rights of its citizens; hence the state ought only punish crimes where there is a compelling public interest to do so (this is where we can start entertaining ideas about deterrence and crime prevention, though, as we established above, none of those ideas provide a justification for choosing the death penalty over life imprisonment).What does this mean for the death penalty? Well, there are perhaps some people currently on death row who deserve to die – you can think here of serial killers, child rapists, what have you. Perhaps, as a matter of intrinsic justice, they have forfeited their right to life. That is not the question that is before us with regards to the death penalty. The question before us is whether the state has the right to be the supreme arbiter and executioner of that punishment. The answer there is an emphatic no. Executing one of its own citizens does nothing to further the ‘coercive protection of right’ for society – in fact, as Winston Churchill (allegedly) put it “if you kill the murderer the quantity of murders will not change”. Society becomes more, not less, barbaric when the state has a hand in the killing of its citizens.

One may of course be left troubled that this leaves us in a world where wrongs are not justly righted, and where criminals don’t receive their full comeuppance. Well, theists among us can of course rest assured that, unlike the state, God can and should enforce moral law and hence all wrongs will be appropriately punished through His divine judgement. For the unbelievers, well, accepting that not all wrongs can be punished is just one more agony to tack on to the anguish of enduring the human condition in a godless world. Besides, there are much worse things in the world to face than unpunished wrongs, and that would include living in a state which had the power to punish them.

Punishment must be grounded in retributive justice because only then can we have punishments that are morally proportionate to the crime. It does not follow, however, that because a punishment would be proportionate, and thus morally right, that the state has the power to inflict it. The state ought concern itself only with the specific protection of civil rights, and, within that framework, can only carry out a certain punishment if all other punishments emanating from a lesser degree of state power would be inoperable. Under this theory, the death penalty is never justified, and is therefore wholly wrong as a matter of principle.

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