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The Case for Capital Punishment, Part One

May 29, 2012

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: billmuehlenberg.com/2012/05/29/the-case-for-capital-punishment-part-two/

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18 Responses to The Case for Capital Punishment, Part One

  • Knowing how some hard core emotions can be aroused here, let me be the first to comment. While this is an important issue, it is not the most pressing issue of the day, and I am happy for others to think differently from me. If they think their abolitionist view is the only right one, and all other people are out to lunch, well that is up to them.

    It is not my intention here to spend the rest of my life arguing with those who have this as a particular bee in their bonnet. There are many folks like that who will want to debate this till the cows come home. I am happy to engage in some of this discussion, but if this is your all-consuming passion, and think it is the only thing that has to be discussed, ad infinitum, ad nauseum, then it may well be advised that you go elsewhere to run with your hobby horse. I see this as just one issue, not the be-all and end-all, which I must devote all my time to in answering those who get wound up about this. OK? Hey, after all, it is my website.

    Bill Muehlenberg, CultureWatch

  • I have no theoretical problem with the death penalty, primarily because God gave his Son the death penalty in our place. However, I think there are credible cases of where innocents have been executed though the weakness of men – flaws that will always plague any system that has the death penalty.

    For example, the case of Carlos DeLuna: http://www.guardian.co.uk/world/2012/may/15/carlos-texas-innocent-man-death?fb=native&CMP=FBCNETTXT9038

    He was executed in a case where, had the police and the prosecutors spent even a minimal amount of effort and care, they would have caught the real killer. Instead a man was executed because people are stupid and lazy, government agents or not.

    There is also the example of Cory Maye (http://www.huffingtonpost.com/2011/07/01/cory-maye-to-be-released-_n_888454.html) , who was nearly executed because he didn’t have adequate counsel.

    Although I am immensely sympathetic to capital punishment, I am incredibly sceptical of the state’s capacity to execute people without executing innocents while at it.

    Lee Herridge, WA

  • Thanks Lee

    But I have of course already dealt with this issue in my article, so there may not be much more need for me to say a whole lot more on this. You first example took place 14 years ago, and in your second example the execution did not even take place. So everything I said is still perfectly true: such cases are very rare indeed; we don’t seem to have many recent examples of this; and the safeguards seem to be working. So basically you have made my case for me.

    Bill Muehlenberg, CultureWatch

  • The outstanding Yale economist John Lott

    “Capital punishment clearly increases the risk to criminals of engaging in various crimes, especially murder. But does this increased risk affect criminals’ behavior? Last week the academic debate erupted in the media with an Associated Press article headlined ‘Studies: Death Penalty Discourages Crime,’ but even this recognition downplays the general consensus on the findings. The media is a bit Johnny-come-lately in recognizing all the research that has been done on the death penalty over the last decade, with nine of the 12 refereed academic studies by economists finding that the death penalty saves lives.”
    http://www.foxnews.com/story/0,2933,284336,00.html

    Damien Spillane

  • Some sound arguments in that article Bill, very compelling in regards to repeat offenders murdering again, look forward to reading the next one.
    Dorian Ballard

  • Of course the death penalty would not deter everyone from killing, for sadly, some people are beyond the call of conscience, but it would deter those who still have both a conscience and the capacity to think of consequences.
    I believe the abolitionists make the mistake of seeing issues in isolation where we know that cause and effect applies everywhere. To say that capital punishment undermines justice and the sanctity of life is clearly to deny that law of cause and effect, for the capital punishment is the result of an action taken by that person to be executed, an action he had the freedom to do or not to do. I guess the concept of personal responsibility also goes out the window with these anti-capital punishment arguments, which in my book likewise undermines the dignity of man by condemning him to be a mere product of his environment.
    Many blessings
    Ursula Bennett

  • Dear Bill, Capital punishment is against the teaching of the Catholic church. Why? Pope john Paul II lived about 20 kilometres from Auschwitz concentration camp during the Second World War. He heard what was going on there. Some of his school friends were gassed to death for the crime of being Jewish. He taught that all people are created in the image of God, including people who carry out crimes. Criminals are obviously deceived by Satan. This is for your information.
    Regards, Franklin Wood

  • Thanks Franklin

    Of course I am not a Catholic so that could be the end of the matter. But I do know a bit about Catholic teaching, and respectfully you are incorrect here. The Catholic Church has always supported the morally licit use of killing, including capital punishment. Yes more recently it has become more cautious about the issue of capital punishment, and reserves it for only exceptional cases. But it is still allowable, as even your own Catholic Catechism clearly states. But I quote from it directly here, if you wish to have a look:

    https://billmuehlenberg.com/2011/05/05/killing-and-catholic-social-teaching/

    Bill Muehlenberg, CultureWatch

  • Bill is right. Whilst, I believe, Pope John Paul II opposed it, the DP has always been taught with approval by traditional Catholicism. Cardinal Avery Dulles who himself was opposed to the DP conceded this;

    http://www.firstthings.com/article/2008/08/catholicism-amp-capital-punishment-21

    Damien Spillane

  • The deterrence issue is really a non issue since laws are not there to tell people what they should be doing, but rather what they should not be doing and the consequences of doing wrong. So if we were to follow the example saying that we should get rid of laws because they are not a deterrent, then basically we will be living in a society with no laws at all since nearly every law on the books has been broken by someone at sometime. It is a non issue.

    Ian Nairn

  • During the time when capital punishment was a real criminal penalty, the legal system imperfect though it might be, was at least more balanced than it is now.

    With the severity and finality of the death penalty went the elaborate “checks and balances” of appeals, presumption of innocence, precision of charges, non-disclosure of past record until sentencing, testing of evidence and so on.

    But removal of capital punishment has not been matched by reduction in the scale of the checks and balances, so that smart criminals engage smart lawyers to make use of (abuse?) all avenues of defence to avoid or delay conviction, to engage in vexatious actions to seek advantage and more.

    The most egregious and public example of a miscarriage of justice was probably the Lindy Chamberlain case, where new evidence saw her released and then lengthy proceedings finally achieved a pardon.

    But that couldn’t undo the past – she had lost her husband and her life.

    John Angelico

  • I have always strongly supported capital punishment for murder for the simple reason that executed murderers never murder again: a perfect deterrent. We have had several instances in NZ in recent years of convicted murderers committing further murders after release or on parole. It is surely patently obvious that having overcome conscience in committing the first murder subsequent murders become much easier to do.
    Of course, there are some ironies to be noted on both sides of the debate, such as abolitionists often being strongly in favour of abortion on demand, and proponents often objecting in principle to *any* abortion, whatever the physical and mental health consequences to both mother and child…

    Dominic Baron, NZ

  • Thanks Dominic

    I agree with your first case of ironies, but not you second. Mental health? That now covers about 95 per cent of all abortions. But actual physical health risks amount to well under one per cent of all abortions. And in a case of saving life due to, say, an ectopic pregnancy, we are not really talking about abortion at all. But I speak to this here: https://billmuehlenberg.com/2008/08/19/abortion-and-hard-cases/

    Bill Muehlenberg, CultureWatch

  • I appreciate your taking apart my loose reference to mental health in the abortion matter! I do have slight differences with you on some aspects of the abortion issue, but as the discussion is on capital punishment this is not the place to raise them.
    Dominic Baron, NZ

  • Thanks Dominic

    Hey, we are still as one on the death penalty! Thanks for writing in.

    Bill Muehlenberg, CultureWatch

  • Ariel Castro just got his own death sentence.

    I guess he did not like being held captive….

    Jo Deller

  • Agreed, Jo. I think taking his own life in those circumstances was probably the best thing that Ariel Castro ever did in his own miserable existence.

    Dominic Baron, NZ

  • I’m all for the death penalty, it saves years of appeals and misguided parole efforts only for reoffending to occur.

    Jo Deller

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