Killing as Punishment: A Critique
Few moral issues are as vexing and provocative as capital punishment. It is a topic that demands our careful study and engagement, both for the sheer intellectual challenge it poses, and because the stakes could hardly be higher. In this paper, I will enter into the conversation about the ethics of capital punishment. My exploration will necessarily impinge on broader questions related to the value of human life and the nature of punishment. I will argue that a sound understanding of these matters casts significant doubt on the continued practice of capital punishment in the United States.
I begin my inquiry from the axiom that human life is a good–indeed, arguably, the preeminent good–that should be respected. Consequently, there is a strong moral presumption against killing other persons. This presumption is not absolute–most will agree, for instance, that killing in self-defense or in defense of a third-party is permissible, perhaps even obligatory in some cases. But the moral presumption against killing can be overridden only when the most powerful reasons have been offered. Anyone seriously committed to respecting life will want to ensure that the list of exceptions to the general rule is as short as possible. It follows that the burden of proof lies with death penalty supporters. Are the reasons they put forward strong enough to justify killing as punishment?
To answer that question we must first take up questions related to the rationale and purposes of punishment in general. Though slightly different formulations could be given, I think that punishment can be uncontroversially defined as the deliberate infliction of some deprivation or harm by a legitimate authority on an offender in response to her offense. Some forms of conduct are harmful to innocent persons. This leads us to prohibit and condemn such conduct. When someone knowingly violates these prohibitions she harms others and becomes a candidate for a punitive response.
As Joel Feinberg points out, punishment performs certain expressive functions conducive to social cohesion and the maintenance of clear moral boundaries. As the embodiment of our moral reprobation of the offender and a form of symbolic non-acquiescence in her offense, punishment reinforces our communal commitment to shared moral norms (Feinberg 400). In addition, punishment furthers the important ends of deterring potential offenders, incapacitating offenders who would likely persist in their unlawful conduct if left unrestrained, and ideally rehabilitating offenders. I assume throughout this essay that a system of punishment is both morally legitimate and an effective means of securing the general welfare.
Some approach punishment from a wholly utilitarian perspective. For utilitarians, the consequences of a law or policy are the only factors to be taken into account in deciding whether to pursue it. Hence, the justification of both the punishment system in general, and of any particular instance of punishment, is to be made by reference to its contribution to overall social utility. A punishment should be used only if, in light of all of the facts, its practice would yield the greatest net balance of benefit over harm.
A serious problem with utilitarianism as a moral theory is that, when the end of overall social welfare conflicts with the rights of the individual, the overall social welfare takes precedence. Thus, a utilitarian theory of punishment cannot rule out, at least in principle, the deliberate punishment–even the execution–of the innocent in the name of the greater good. But deliberately punishing the innocent seems to constitute a particularly grave and odious form of injustice. Moreover, utilitarianism would sanction punishments grossly disproportionate to the offenses for which they are imposed if it were conducive to overall social utility. Yet it seems that there is something fundamentally wrong with imposing, say, long prison sentences for overdue library books. The punishment must, in some sense, fit the crime.
The defects of a purely utilitarian account of punishment underscore the importance of retributive considerations to a sound theory of punishment. Because retribution is an equivocal term that can be understood in a number of different and sometimes conflicting ways, it is important to identify what one means when one uses the word. Retribution, as I define it, encompasses two related principles that utilitarianism erroneously passes over: (1) the guilty (and only the guilty) deserve to be punished and (2) the punishment should fit the crime–a maxim I refer to as the proportionality principle.
Retributive considerations are a morally vital constraint on our pursuit of the general welfare by means of a system of punishment. It is wrong to punish the innocent. This is non-negotiable. And clearly the punishments we impose on the guilty should, in some sense, fit the crime. However, the proportionality principle requires further parsing. There can be little doubt that the impulse behind it is a sound and important one, but it provides us with rather less guidance than it might initially seem. The proportionality principle rules out obviously disproportionate punishments like the death penalty for jaywalkers, but it doesn’t seem to specify exactly which punishment a criminal deserves. Might there be some supplementary principle that does?
The lex talionis, or principle of “an eye for an eye,” provides an apparently simple answer: we ought to treat offenders as they have treated others. Whatever the criminal did to the victim is to be done in turn to the criminal. However, on closer inspection lex talionis is untenable. A literal application of lex talionis would require us to blind those who blind others and knock out the teeth of those who in a brawl knock others’ teeth out. More troublingly, it would require us to rape rapists and torture torturers. So, in many cases, lex talionis generates a morally unacceptable answer to the question of what constitutes appropriate punishment.
And that is not its only defect. Lex talionis frequently leaves us without any guidance at all. As Stephen Nathanson points out, it doesn’t seem possible to apply lex talionis to embezzlers, spies, drunk drivers, airline hijackers, drug users, prostitutes, air polluters, or persons who practice medicine without a license (Nathanson 36). Are we to hijack airplanes belonging to airline hijackers and spy on spies? We simply could not design a system of punishment on the basis of a literal application of lex talionis.
One might respond that lex talionis requires only that a punishment produce an amount of suffering in the criminal equal to the amount suffered by the victims. Thus, we don’t have to do to offenders exactly what they did to others. Instead we could impose some form of hard treatment that would bring about the same amount of suffering as the offense. But this reply does not resolve the problems we have identified. It runs up against the same moral objections as the literal version of lex talionis, since even though we would not be recapitulating heinous crimes like rape and torture, it is hard to imagine that any punishment we might devise that inflicted suffering of the same magnitude would not itself be barbaric. And there would be practical problems with any attempt to identify the precise amount of suffering experienced by a victim and the precise amount of suffering that a punishment would cause the offender in order to correlate them. We have rough ideas about how severe various harms or forms of suffering are, but we have no recognized unit of measurement or common currency of pain by which to precisely quantify them. Accordingly, even this revised version of lex talionis would be unworkable.
Criminals undoubtedly deserve punishment. But to be ill deserving and to deserve a specific ill are two different matters. One can accurately judge a person to be negatively deserving without thereby knowing what specific treatment would be the correct one. Given the failure of lex talionis, it seems likely that there are an array of reasonable responses to a particular crime, any of which would be acceptable. As Christopher Kaczor puts it, “retribution is not a matter of geometrical precision” (140). In imposing punishment, we will have to settle for the somewhat vague and open-ended, but not entirely pliable, constraints of the proportionality principle.
To this end, we would draw up a list of crimes, ranking them in order of seriousness. Then we would construct a corresponding list of punishments, ranking them in order of severity. The proportionality principle would dictate that the more serious crimes be correlated with the more severe punishments and the less serious crimes with the more lenient ones. But it is not at all clear that there would be a retributive imperative to include the death penalty on our list of punishments (presumably at the top of it). Since there is no such thing as a uniquely appropriate punishment for any particular crime, there is no reason in principle that the most severe punishment could not be a long prison term. Nothing more definite or specific is required by the proportionality principle. The worst criminals would of course receive the worst punishment, but the worst punishment at the disposal of the criminal justice system needn’t be death.
Retribution may not require capital punishment, but perhaps the aforementioned expressive function of punishment does. In his discussion of this expressive function, Joel Feinberg draws an illuminating distinction between penalties and punishments. Both consist of a deprivation imposed by legitimate authority in response to some objectionable action or omission. But punishment has a symbolic significance that is not present when we levy a penalty. Unlike penalties, punishments are mechanisms for the expression of attitudes of resentment and indignation, and of judgments of disapproval and censure (Feinberg 400). Consequently, they perform such useful social roles as authoritative disavowal of the criminal’s act, vindication of the law, and absolution of other suspects (Feinberg 404-408).
Furthermore, the degree of reprobation instantiated in a particular act of punishment is generally tied to the level of harshness of the “hard treatment” that constitutes the punishment. To be sure, the forms of hard treatment available to us are restrained by the retributive principles of desert and proportionality. But might it be the case that, though retributive considerations by themselves cannot adjudicate between the death penalty and some other severe punishment for murderers, only the death penalty can adequately fulfill the expressive function of punishment? Though some may disagree, I see no reason to think this. On the contrary, the expressive function of punishment is at least as flexible as the proportionality principle. Imprisonment has taken on the symbolism of public reprobation in our society. Therefore, long term imprisonment suffices to express our reprobation of the criminal and thereby sustain the moral fabric of society.
Relatedly, some might argue that the only way to show the proper respect for a victim’s life is to execute her murderer. This view seems misguided for two reasons. First, it would appear to entail a mandatory death penalty for murder. If failing to execute a murderer necessarily shows disrespect for her victim, then our practices of reserving the death penalty for murders involving certain aggravating circumstances and granting juries discretion in sentencing should be rescinded. I think most of us would be unwilling to support such drastic changes to our sentencing practices. Second, the primary ways we show respect for the dead involve our behavior toward them, their memories, and things which meant a great deal to them. Needless to say, we would disrespect the victim if we applauded or congratulated the murderer–our treatment of the murderer should clearly express negative feelings about his act. But this is precisely what a long term prison sentence communicates. We don’t have to kill the murderer to convey our respect for the victim’s life and abhorrence of the act that took it.
In view of the indeterminacy of the retributive and expressive aspects of punishment, a valid case for the death penalty will have to be made on the grounds of social defense, if it is to be made at all. It seems axiomatic that if human lives are to be taken it is morally preferable that they be guilty lives rather than innocent lives. For that reason, if we lived in a world where the execution of a murderer could somehow bring her victims back to life, even the most devout abolitionist would be hard pressed to maintain her opposition (Bedau 36). Similarly, if every execution of a murderer saved 10,000 innocent lives, it would be morally indefensible to continue to stand against executions.
So it should be conceded that the cogency of opposition to the death penalty rests on contingencies. That said, any viable defense of the death penalty does as well. To put it in philosophical parlance, retribution and the defense of society are separately necessary and jointly sufficient conditions for the morally acceptable use of capital punishment. Ergo, the presumption against killing can be overridden only if the proponent of capital punishment can marshal convincing evidence that capital punishment is needed to defend innocent life. Can she meet this challenge?
It is commonly assumed that punishments have a deterrent effect and that more severe punishments, being feared more than lesser ones, will deter more effectively. Since death is customarily feared more than long-term imprisonment, it seems reasonable to infer that the death penalty would be a superior deterrent. However, as Jeffrey H. Reiman points out, “from the fact the one penalty is feared more than another, it does not follow that the more feared penalty will deter more than the less feared, unless we know that the less feared penalty is not fearful enough to deter anyone who can be deterred–and this is just what we can’t know with regard to the death penalty” (144). And, as a matter of fact, the relevant social science does not, at present, seem to show a measurable difference in deterrence between capital punishment and long-term imprisonment (Turow 60). It seems to me that, until an increased deterrent effect of executions has been clearly established, we should err on the side of not taking life.
It might be argued that the deterrent effect of the death penalty has been vitiated by the lengthy appeals process. If the death penalty were inflicted more precipitously and routinely, deterrence would increase. But even if we assume for the sake of argument that deterrence would be magnified under an arrangement of this kind, the greater risk of executing the innocent would have to be taken into account. There is a special moral horror in the execution of the innocent. Certainly imprisoning an innocent person for many years is itself a tragedy, but a mistaken execution is far worse. Thus, if the death penalty is to be justified, we must have good reason to believe that our system is generally reliable and that very few innocent people will ever be executed. We must do our utmost to provide stringent safeguards that will make such executions highly unlikely–even if this means bearing extra legal costs, putting up with long delays, and sometimes seeing death sentences overturned on legal technicalities (Nathanson 64).
Speeding up the appeals process to make it easier and faster to execute murderers would ratchet up the risk of executing innocent persons. It follows that, even if we could somehow be sure that more innocent lives would be saved through deterrence than lost to mistaken executions as a result of a streamlined appeals process, we would not necessarily be justified in instituting such a system. This is because it is arguably worse for us to kill innocent people, even unwittingly, than it is for us to fail to do all we can to prevent the deaths of innocent people. For example, we generally distinguish between failing to save a life (say, by not contributing to famine relief) and actually killing someone (by taking away his food). The deterrent effect would have to be very great indeed to offset the increased risk of executing the innocent in our moral calculations.
Perhaps the incapacitative effects of the death penalty vindicate its use? After all, no executed murderer has gone on to kill again, whether inside or outside of prison. But there is no way to know in advance which incarcerated or released murderers will kill again. As a result, the only way to guarantee that no convicted murderer ever commits another murder is to execute them all. Though some might endorse a mandatory death penalty for murder, I suspect that many nominal death penalty supporters would not be willing to go that far. What’s more, though we should remain open to future statistical insight on the matter, in light of the fact that prison homicides do not occur less frequently in death penalty states and that maximum security prisons provide a generally effective means of restraining even the most dangerous murderers, capital punishment does not seem to be necessary for the incapacitation of criminals (Turow 88).
In closing, my review of the moral principles and empirical data relevant to the capital punishment debate has led me to the tentative view that capital punishment as currently practiced in the United States is not morally acceptable. This does not entail an absolute opposition to capital punishment–I can certainly imagine scenarios in which it would be appropriate and morally upright to have recourse to capital punishment because society could not be protected in any other way. But in stable modern societies such as ours, non-lethal means of punishment appear to be sufficient for social defense. I have written that the institution of punishment performs a crucial expressive function, sending an unmistakable message that we condemn crime and take the side of the victim. Likewise, renouncing capital punishment would send a powerful and essential message of its own. It would demonstrate, in a vivid and unequivocal way, our abiding commitment to the value of all human life and to the restraint of all unnecessary violence. And it would do this without undercutting either our detestation of murder or our efforts to combat it.
Bedau, Hugo Adam. “Death is Different: Studies in the Morality, Law, and Politics of Capital Punishment.” Northeastern University Press, 1987, Print.
Feinberg, Joel. “The Expressive Function of Punishment.” The Monist, vol. 49, no. 3 (July
1965): 397-423. Print.
Kaczor, Christopher. “Capital Punishment and the Catholic Tradition: Contradiction, Circumstantial Application, or Development of Doctrine?” The Edge of Life: Human Dignity and Contemporary Bioethics, Springer, 2005, 133-149, Print.
Nathanson, Stephen. “An Eye for an Eye? The Immorality of Punishing by Death.” Second Edition, Rowman and Littlefield Publishers, 2001, Print.
Reiman, Jeffrey H. “Justice, Civilization, and the Death Penalty: Answering van den Haag.” Philosophy and Public Affairs, vol. 14, no. 2 (Spring 1985): 115-148. Print.
Turow, Scott. “Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty.” Farrar, Straus and Giroux, 2002, Print.