Below is an old article that I am re-publishing on this website:
INTRODUCTION
Historically capital punishment has existed in virtually every part of the world. The current position can be seen HERE. In 2014 the U.N Secretary General Ban Ki Moon stated that the death penalty has no place in the 21st Century; see HERE. The EU and the Council of Europe are implacably opposed to the death penalty, with abolition being a condition of membership; all EU member states have abolished the death penalty as have all members of the Council of Europe, except for Russia which has implemented a moratorium on executions; these organisations have sought to ensure that the death penalty is abolished throughout the world and not merely in Europe.[1]
With the trend being towards abolition, the death penalty is often described as regressive and abolition as progressive. Logically the latter should be viewed as a neutral adjective, but it is frequently used in a self-justifying context. This is perhaps based on a linear view of history whereby all developments are viewed in a positive light. In ‘Decline of the West’[2], Oswald Spengler argues to the contrary; in his view cultures have lifespans whereby they peak and become civilizations before beginning a process of decline, which culminates in their metaphorical death. Perhaps, in the spirit of Spengler’s work, one could question whether the abolition of the death penalty constitutes ‘progress’; i.e. whether it is a good thing.
There are a number of arguments against the death penalty which are so ill conceived. that they appear to be based on emotion, or perhaps they are attempts at obfuscation. In any event these arguments do not warrant serious analysis and can be dismissed out of hand.
For example, some commentators have complained that the death penalty punishes the economically disadvantaged and/or the families of the perpetrator. [3] Others have pointed to the low judicial standards of certain jurisdictions that invoke the death penalty, as if this means ipso facto that capital punishment is never justified irrespective of the judicial standards applied.
My defence of capital punishment will seek to refute the following 4 arguments against the death penalty and then proceed to a conclusion:
(1) The normative argument based on the right to life
(2) The argument against retribution
(3) The argument based on the potential for error
(4) The alleged lack of deterrence
ARGUMENT 1
What is immediately striking about this argument is that it can immediately be established that its proponents, almost without exception, do not really believe in it. The fifth commandment prohibits murder rather than killing - see Exodus 20.13 and CS Lewis 'Mere Christianity' HERE.
Very few individuals will oppose the right to kill in self-defence. Equally very few people will say that a state never has the right to wage war with the knowledge that this will inevitably cause unintended casualties of innocent civilians, or that armed police never have the right to use lethal force.
The subjects of potentially lethal force in the aforementioned scenarios have not been convicted of a criminal offence and there is a considerable possibility of error (see the section below); self defence relates to perceived threats and not actual ones[4] and drone operators, air force pilots and armed police are all fallible.
I accept that there is a conceptual distinction between taking life to save life and taking life in order to punish wrongdoing. Nonetheless it is easy to establish that opponents of the death penalty do not usually view the right to life as absolute or sacrosanct; those who do are self-discrediting, for example by opposing the shooting by police of a rampaging gunman.
What then is the true principled objection to capital punishment? I will attempt to answer this firstly in relation to those who accept the principle of retribution and then in the second section, in relation to those who oppose the principle of retribution.
Those who accept retribution as at least a partial justification for punishment generally and who also accept that the punishment should be commensurate with the crime (I treat the principle of communsurateness as axiomatic, with relevant circumstances and mitigation needing to be taken into account), are required to justify imposing an a priori cap on the punishment imposed; i.e. the severity of punishment will increase according to the wickedness of the crime but irrespective of such wickedness, the punishment can never be more severe than life imprisonment.
We have already seen that the right to life is rarely considered absolute and whilst it may be regarded as the most important of the ‘human rights’, it remains on the ‘human rights’ continuum as opposed to being conceptually distinct from other ‘human rights’.
Proponents of ‘human rights’ who accept retribution as a justification for punishing criminality inevitably accept violation of other ‘human rights’, such as the right to liberty, to give the criminal his just deserts. Thus it is for them to justify the aforementioned a priori cap and I am unaware of any such justification; if one accepts retribution and commensurateness then logic inexorably prevents any opposition to capital punishment.
My opponents may respond to this logic, by pointing out that it could be used to justify judicially imposed torture in addition to the death penalty. I could not refute such response and I am admittedly emotionally uncomfortable with the idea of judicially imposed torture as opposed to capital punishment; nonetheless this is not a logical argument against capital punishment; it is merely an attempt to make one feel emotionally uncomfortable with following a particular logic and in effect, an argument in favour of judicially imposed torture.
My simple response would be to state that jurisprudence is designed for the real world; it is not a science or a pure branch of philosophy. It should be pragmatic but not arbitrary.
ARGUMENT 2
It is important to distinguish retribution from mere revenge. To take revenge is to procure something unpleasant for a person, in retaliation for something they have done or failed to do. Revenge is not necessarily justified, as it is not necessarily carried out in response to a crime or an immoral act. Furthermore, a vengeful act is not necessarily commensurate with the act it is responding to.
By contrast, the concept of retribution refers to justified and commensurate acts, in response to crimes or immoral acts (I am only concerned with the former).
Additionally, retribution does not necessarily involve following Levitcus (‘an eye for any eye’[5]) in ensuring that the punishment matches the crime; merely that it is commensurate when considering the crime and all the circumstances. Deciding on a commensurate punishment can never be a scientific process, but that does not mean that it must be arbitrary or illogical.
In light of the arguments put forward in the previous section, it is submitted that abolition advocates need to refute retribution as a general ground for punishment of criminality.
Utilitarianism opposes retribution as a basis for punishing criminality. The central tenet of Jeremy Bentham’s philosophy of Utilitarianism is the greater happiness principle; justice is defined as that which procures the greatest happiness for the greatest number of people.
Utilitarian jurisprudence is informed by this principle:
“Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. They govern us in all we do, in all we say, in all we think: every effort we can make to throw off our subjection, will serve but to demonstrate and confirm it. In words man may pretend to abjure their empire: but in reality he will remain subject to it all the while. The principle of utility recognises this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and law.”[6]
Consequently, Utilitarians are inexorably driven to reject retribution as a justification for punishing criminal behaviour. Instead, they must rely on the consequential justifications of deterrence and rehabilitation, both of which are concerned with preventing future crimes and not with re-affirming the victims violated right(s), as can be demonstrated by the quote below:
“A punishment as a solitary fact, is an evil: the pain inflicted on the criminal being added to the system of the crime. But, considered as part of a system, a punishment is useful or beneficent. By a dozen or score of punishments, thousands of crimes are prevented.”[7]
Therefore, if Utilitarians eliminated the need for deterrence and rehabilitation, then their philosophy would not allow them to deploy any judicial punishment. This seems more palatable in the abstract then it does when applying it to a concrete, albeit factitious example; namely the last ever murder committed, which for arguments sake was a particularly heinous and sadistic murder. Utilitarians would have to absolve the murderer from punishment; they may protest that in the real world one would never know that the last ever murder had been committed but they must concede that as a matter of principal, their philosophy forbids punishment in this scenario.[8]
The philosophy of Immanuel Kant could be described as the antithesis of utilitarianism. This philosophy is based on the categorical imperative, namely:
“I ought never to act except in such a way that I could also will that my maxim should become a universal law”[9]. Kant provides a similar scenario, to that posited in the previous paragraph, namely where members of a civil society have chosen to disband the same and are about to implement their decision. Kant opines that the execution of the last murder in this scenario, is still required.[10]
The categorical imperative is defined in contra-distinction to and transcends, hypothetical imperatives; i.e. those imperatives which depend on external outcomes, for instance I should not lie in order to maintain my reputation. The categorical imperative allows one to determine how to act, a priori, i.e. without reference to empirical facts. The categorical imperative leads one to accept retribution as an inherent a priori justification for imposing punishment on criminals; i.e. a justification that does not depend on the empirical facts of deterrence or rehabilitation.
John Stuart Mill tries to argue that in expounding the categorical imperative underlying all morality, Kant is in fact affirming the greater happiness principle.[11] He opines that otherwise a rule of utter selfishness could be adopted by all rational beings. This argument misses the point; the aim of selfishness is always some kind of real world benefit and thus just like the greater happiness principle, the realisation or otherwise of any such rule, would be an empirical fact. One can never be truly free when adopting maxims that depend on empirical facts or anything external, because such matters are never entirely within the individual’s control. With the example on lying given in the last paragraph, one’s reputation could always be unfairly tarnished, and one does not have complete control over this.
On the other hand, an individual has complete control over their will when adopting an a priori decision making process, governed by the categorical imperative;[12] by definition they can always choose to adhere to the categorical imperative no matter what circumstances they are faced with. Whilst the categorical imperative grants absolute freedom to its adherents, it also grants greater freedom to its detractors then Utilitarianism; it allows them to be punished based on retribution, commensurately for crimes they have committed, no more no less.
By contrast, in modern society Utilitarianism is used to justify tyrannical punishments, such as indeterminate life sentences, whereby a criminal is punished not according to what they have done but because of what they might do. Whilst the Utilitarian John Stuart Mill formulated the liberty principle[13], when one applies pure Utilitarianism, it seems difficult to justify limiting state interference with civil liberty to situations of criminal wrongdoing, where such interferences could be said to further the greater happiness principal by preventing further criminal behaviour. The only arguments against such encroachment, however powerful, would have to be empirical.
This possibility was recognised by CS Lewis who provides a compelling challenge to the utilitarian view of punishment, i.e. that only rehabilitation or deterrence can provide a justification for punishing criminals.[14]
The crux of his argument is probably the following:
“My contention is that this doctrine, merciful though it appears, really means that each one of us, from the moment he breaks the law, is deprived of the rights of a human being. The reason is this. The Humanitarian theory removes from Punishment the concept of Desert. But the concept of Desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust. I do not here contend that the question “Is it deserved?” is the only one we can reasonably ask about a punishment. We may very properly ask whether it is likely to deter others and to reform the criminal. But neither of these two last questions is a question about justice. There is no sense in talking about a “just deterrent” or a “just cure”. We demand of a deterrent not whether it is just but whether it will deter. We demand of a cure not whether it is just but whether it succeeds.”
In Lewis’ view, the logic behind rehabilitation and deterrence, would inexorably lead to the punishment of the innocent. The idea that an innocent man should not be punished is based on the maxim of ‘just desert’; if man has done wrong, he should be punished, whereas if he has done no wrong, it would be unjust to punish him. The two are inextricably linked and if the former is repudiated, any aversion to the latter is illogical; it would be in Lewis’s words, ‘a hang-over from the Retributive theory’.
Even if rehabilitation and deterrence do not justify punishing the innocent, they certainly permit punishments that exceed what would be just, based on retribution. A criminal may be subject to compulsory rehabilitation until he is rehabilitated, however long that may take; consider for instance, the use of indeterminate sentences in England & Wales. Additionally, a crime that is becoming particularly prevalent may be subject to extremely harsh punishments, in order to deter potential criminals and bring down the crime rate to an acceptable level.
Lewis views rehabilitation and deterrence as not being part of the concept of justice; the only ‘just’ basis for punishing a criminal in his view, is retribution (I concur; this does not mean that rehabilitation and deterrence should be ignored entirely but the justification for them is pragmatic).
It is accurate and not emotive or hyperbolic, to describe Utilitarianism as nihilistic. The reason being that it contains no inherent or meta-physical justification for morality or jurisprudence. The realisation of the greater happiness principle is merely an empirical fact. With respect to criminal punishment, utilatarians treat the victim as irrelevant (save in so far as their plight highlights the need for the state to intervene with respect to the criminal to prevent future criminality) and the criminal as merely a means to an end.
Punishment based on retribution and communserateness, can be justified via the categorical imperative. This approach is immune from empirical arguments and guards against state tyranny; it is grounded in a pure morality that recognises individual autonomy and agency.
ARGUMENT 3
What is the concept behind this argument? It can only be that the state has no right to impose an irreversible punishment because of the possibility of error. Yet long prison sentences are irreversible in the sense that no amount of compensation will be adequate for say an 18 year old who is wrongly imprisoned and then exonerated at age 65. If the state adopts the principle that it cannot impose an irreversible punishment, then it will be impotent in combating crime. It is debatable whether or not being wrongly executed is worse than being wrongly imprisoned for say 50 years (this would depend on the individual and the circumstances), but even if it is, the aforementioned principle still applies.
If one cannot maintain in principal the argument against imposing an irreversible punishment, then the argument against the death penalty based on the possibility of error falls away. It is also worth noting as set out above, how the modern state is prepared to deploy armed police and wage war with full knowledge that innocent people will be killed by these measures; these scenarios involve no due process let alone a conviction by a jury after a properly conducted trial.
ARGUMENT 4
Abolitionists frequently cite international comparisons in order to show that capital punishment does not lower the murder rate, i.e. they will compare countries that invoke capital punishment with those that do not. This approach suffers from the problem of confounding variables.
A more valid approach would be to consider the same country pre and post death penalty. One can see from the graph at page 5 of this HOME OFFICE PAPER that the UK murder rate increased significantly after the abolition of the death penalty in 1965.
However, I accept that there may be arguments relating to whether cause and effect can be established and arguments over statistical analysis. Some abolitionists have sought to argue that the murder rate has subsequently increased since abolition, but this is disingenuous as since 1972 the Home Office has only kept statistics on homicide rates and not murder rates.
This argument is not a positive argument against the death penalty, it merely attempts to negate one potential justification for it. Proponents of this argument do not deal with the issue of whether any doubt over the deterrent effect should be resolved in favour of deploying or abolishing the death penalty; they merely make their empirical assertions with complete confidence.
Yet all empirical assertions are vulnerable to newly emerging data, i.e. if one’s position is determined by particular data then one may have to change position upon the emergence of new data. Indeed, it would be logical to implement the death penalty for a trial period to test its deterrent effect.
My own position is not determined by this empirical question and therefore I spend little time examining the data. As an anti-Utilitarian, I would oppose the death penalty if I thought it was wrong in principle, even if it did serve as a deterrent. In my view, deterrence should be of limited importance in deciding punishment; there are many crimes, such as crimes of passion that will not be subject to deterrence. Additionally, one could impose extremely harsh punishments for minor crimes based on deterrence, but this would be unjust.
CONCLUSION
The arguments against the death penalty based on error and the absolute sanctity of human life are based on inconsistencies and do not stand up to scrutiny. The argument based on alleged lack of deterrence is a purely empirical question which is insufficient by itself as an argument for prohibiting capital punishment.
As for the more general jurisprudential argument against retribution, whilst I cannot claim to have found an objectively verifiable meta-ethical justification for retribution, Kant’s categorical imperative provides a logical justification for retribution which is preferable to the nihilistic and pernicious philosophy of Utilitarianism.
[1] Belarus is currently the only country in Europe that is carrying out capital punishment. The ECHR as originally drafted allowed for the death penalty, but by 2002 Protocol 13 to the ECHR had been drafted, which prohibits the death penalty in all circumstances. See HERE for a recent briefing paper from the EU Parliament
[2]Vol I – 1918; Vol II - 1923
[3]The former axiomatically fails to get to the philosophical heart of the matter and the latter fails to distinguish between punishment and detriment.
[4]For the law in England & Wales see R v Owino 1996 CrApp R 128
[5] Leviticus 24:17-24:20
[6]‘An Introduction to the Principals of Morals & Legislation’ Jeremy Bentham 1882 C1 P1.
[7]“The Province of Jurisprudence Determined’ By John Austin, Lecture II 1832
[8] I am aware that I could be accused of hypocrisy in light of the pen ultimate paragraph of the last section. However, I accept the right of a detractor to draw my attention to the implications of following my logic. Equally I am entitled to draw an opponent’s attention to a purely hypothetical scenario; my primary aim is to extrapolate the principles behind their arguments, but I accept that there may be some emotional influence caused by drawing their attention to this hypothetical scenario.
[9]I Kant ‘Groundwork to the Metaphysics of Morals’ (1785), trans M GregorCUP 1997 at 4.403
[10]I. Kant’ Metaphyiscs of Morals’ 1797, trans M Gregor, CUP, 1996 Vol 6 p333
[11]Mill on Utilitarianism Chapter V p308 of Utilitarianism edited by M Warnock 2nd Impression 1964
[12]See also I Kant ‘Groundwork to the Metaphysics of Morals’ op cite at 4.448, 4.452 and 4.453, The fable of the Ring of Gyges in Plato’s Republic, CI 8-I2, which asks whether or not a person who could act completely selfishly with impunity is happier then a just man who is physically punished for his just conduct and answers this question in the negative; and see general the philosophy of Stoicism
[13]That is the notion that the individual should be permitted the maximum level of liberty that will not affect the integrity of society