The Case for Capital Punishment, Part One

Capital punishment is certainly one hotly contested ethical issue. It draws passionate responses from all sides. Indeed, often there can be far more heat than light generated in this debate. Trying to calmly and rationally debate this topic is not always easy to do. But it must nonetheless be attempted.

Let me preface all this by saying that I am here mainly arguing for the death penalty for murder. One could make the case that it is warranted for other serious crimes, such as treason, terrorism, or vicious rape. But here I am happy to confine this discussion to the crime of murder.

There are many objections raised against capital punishment or the death penalty. Those favouring abolition raise these objections in the hopes of having capital punishment fully and finally done away with. But in dealing with these objections it seems to me that one can in fact make the case for capital punishment.

That I shall attempt to do here. I will examine the major criticisms offered, and seek to show the rationality and morality of capital punishment. A number of topics arise here, so let me deal with six major issues that frequently get raised concerning the morality of the death penalty.

Justice and the sanctity of life

A common complaint made about capital punishment is that it is unjust, and that it undermines the sanctity of human life. But what exactly is justice? How are we to understand it? And how are we to think about the sanctity of life? These are some very important questions indeed, and a few introductory remarks can be made at this point.

The fundamental principle of all human justice is to give to each person his or her due. Such conceptions of justice go back as far as Aristotle, and further. Retributive justice means rendering to each person what they deserve. This is a basic principle of social life, and without it we would descend into anarchy.

In a fallen world where crime and evil exists, all societies have rules, laws, courts, and police to enforce justice and to punish wrongdoers. All civilised societies expect that the wicked will be punished, and that crimes will be dealt with. This is simply justice, and to allow crime to go unpunished is to allow justice to be denied.

As William Baker puts it, “Justice has been defined as a just rendering to every man his due. Similar to this idea of justice is the concept of retribution, which means the dispensing of reward or punishment according to the deserts of the individual.” Retributive justice is simply about punishment fitting the crime. Punishment should match the severity and weight of a crime – no more and no less.

Not all killing is murder, and some killing is justified. The state is justified in killing murderers. Some pro-lifers are against both abortion and capital punishment. But they are mistaken here. As Douglas Wilson explains: “I support the death penalty for convicted murderers, and I oppose the death penalty for unborn children. ‘Ha! Caught you! Wiggle out of that one!’ If someone has forfeited their right to life through an outrageous crime on another, and that person is given a fair and complete trial, then executing them is an act of justice. If someone has not done such an act, and they are given no trial or hearing whatever, then executing them is an act of injustice.”

Abolitionists seek to argue that the death penalty is in fact unjust, immoral, and should not be used in any progressive society. But the exact opposite is the case it seems to me. Capital punishment is fully just, and without it, we lose a great deal of justice.

And we lose a great deal of life as well. When innocent lives are taken, then society has an obligation to punish that criminal behaviour proportionality. And obviously the life taken in capital punishment is not an innocent life, but a guilty life, if the person is properly convicted of the murder. The sanctity of life is thus upheld.

As Ernest van den Haag wrote: “No matter what can be said for abolition of the death penalty, it will be perceived symbolically as a loss of nerve: social authority no longer is willing to pass an irrevocable judgment on anyone. Murder is no longer thought grave enough to take the murderer’s life, no longer horrendous enough to deserve so fearfully irrevocable a punishment. When murder no longer forfeits the murderer’s life (though it will interfere with his freedom), respect for life itself is diminished, as the price for taking it is. Life becomes cheaper as we become kinder to those who wantonly take it.”

Or as John Feinberg and Paul Feinberg put it, “Requiring the death penalty for murder upholds rather than denigrates the importance of life. If life is so unimportant that one can snuff it out with only minimal punishment, life is trivialized. However, if the criminal’s life is taken when he kills someone, the seriousness of the crime and the importance of the life are underscored.”

It is the dignity of man which is actually elevated with the death penalty. It takes seriously both the dignity of man  and those who would seek to deprive an innocent person of his life. As Walter Berns put it, capital punishment “serves to remind us of the majesty of the moral order that is embodied in our law and of the terrible consequences of its breach.”

Deterrence

Does capital punishment deter capital crimes? This is a big debate, with both sides weighing in heavily. Both camps are at times convinced they have the numbers on their side, and both are at times convinced they can make their case with these statistics. So how do we proceed here?

The very short answer is that yes it is true: both sides can offer heaps of statistics, so for argument’s sake, we could simply say the evidence on each side cancels out the evidence of the other, so best to leave this issue out altogether. Those who are being fair to the evidence can at best say the jury is still out, and the evidence is inconclusive.

However, the abolitionists rarely are happy to leave things there, and will keep pointing out their figures. So in the interests of getting the pro-death penalty evidence heard, I will spend a few more minutes on this issue. At the very least we know that the death penalty applied deters the murderer from carrying out any more murders.

But statistics seem to show a relationship between capital punishment and a lowering of the amount of murders taking place. For example, Professor Isaac Ehrlich did a very careful statistical study of the period between 1933 and 1969 in the US. He concluded by saying that just one additional execution per year may have resulted in seven or eight fewer murders on average.

But the truth is, with the death penalty carried out so very rarely, even in places like the US, it is misleading to see the somewhat ambiguous deterrent effect for capital punishment. For example, in 1933 when the US had the most executions (199), there were nearly 12,000 death penalty punishable homicides that year.

As Robert Paul Martin rightly argues, “It is begging the question to argue that the death penalty doesn’t deter murderers, when the data being used to form this conclusion is the number of murders committed in a period when the existing death penalty laws were not enforced. It should be evident that a law without teeth is not a deterrent.”

And even many of the anti-death penalty folks know this. Alan Dershowitz for example has admitted as much: “Of course the death penalty deters some crimes. That’s why you have to pay more for a hitman in a death penalty state, than a non-death penalty state.”

Still, the critic will argue that deterrence does not stop all murders. But as Ernest van den Haag wrote, “Threats of punishment cannot and are not meant to deter everybody all of the time. They are meant to deter most people most of the time. If sizable and credible, they do. . . . Thus in considering a legal threat, the basic question is not ‘Will it deter everybody?’ but rather ‘Will it deter enough additional crimes, compared to a milder threat, to warrant the additional severity?’”

Or as Frank Carrington states, “Capital punishment cannot and never will be able to deter all murderers. But this does not mean for a moment that it won’t deter any murderers. When the criminal, particularly the murderer who premeditates his crime (the same murderer against whom most of the state capital murder statutes have been drawn) has an opportunity to weigh cost versus gain, cause and effect, he may well think twice if he knows that he will, in all likelihood, be put to death for his actions.”

I am happy to conclude this section with a quote from the Feinbergs: “If the evidence is ultimately inconclusive, one cannot expect to prove the rightness or wrongness of capital punishment based on the deterrence issue. We do not think this matters, because we believe capital punishment can be justified on other grounds.”

Innocents

One of the most common objections to the death penalty is it is possible for an innocent person to be wrongly convicted and executed. That is a fair concern, but various things can be said here. First, we have no credible cases in recent years of an innocent person being executed in most Western nations where capital punishment is still allowed.

We do however have many hundreds of cases of innocent persons being killed by murderers who are repeat offenders. So if we are concerned about protecting innocent lives, we should favour capital punishment. There will be less innocent people killed if we do.

Of course there is no perfect justice in a fallen world. To throw out the death penalty because it is not perfect is as helpful as saying we should throw out all laws, courts, judges, jails and police, because we do not find perfection there either.

But let me look at this objection more closely, and with figures. One of the most influential abolitionists living today, Hugo Bedau, has admitted that innocent people being killed today is just not happening. In 1962 he looked at a long list of cases, and found only a handful of wrongful convictions leading to the death sentence being carried out.

But writing in 1971 he had to admit he could not find one more case of this happening. Indeed, he had to say as a result that it is “false sentimentality to argue that the death penalty should be abolished because of the abstract possibility that an innocent person might be executed, when the record fails to disclose that such cases occur.”

And for those worried about the loss of innocent life, they need to in fact defend the death penalty. The simple truth is, capital punishment saves innocent lives by preventing convicted murderers from killing again. Consider these figures: Of the 52,000 state prison inmates serving time for murder, over a hundred of them had previously been convicted of murder. And these repeat offenders went on to kill over 820 innocent people.

Had they been executed after their first round of killings, over 800 innocent men, women and children would still be alive. It seems to be a strange sort of morality that is worried about hypothetical innocents being wrongly executed but does not care about hundreds of innocents killed because of the anti-death penalty stance. Their selective moral outrage here just does not sit well with me, nor should it with anyone concerned about justice and fairness.

Still, we might grant the very slight possibility of someone in a country like America being wrongfully executed today, but as Martin states, “given the careful judicial process in capital cases, including an elaborate appeals system (in the US averaging eight years in length), such cases are extremely rare.”

There are three more common objections heard however in this debate, but they will have to be covered in Part Two of this article: https://billmuehlenberg.com/2012/05/29/the-case-for-capital-punishment-part-two/

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