This is an take-home exam (like an essay, only you get less time to write it) I wrote for a Philosophy subject ('Crime and Punishment: PD285) in Second Year University.

Is a system of capital punishment ever morally justified? Give reasons for your answer and consider objections to it. If your view depends crucially on any empirical assumptions, make sure you make them explicit and show how your view is dependent on them.

The major arguments used for the justifications of punishment are rehabilitation, retribution, social hygiene and deterrence. I do not believe that any of these theories provide adequate justification for the death penalty. For obvious reasons, in the case of capital punishment rehabilitation can be discounted. Retributivism is the theory that offenders should be punished simply because they deserve it. In recent times capital punishment is usually inflicted only for murder, the idea being that murderers have killed and therefore deserve to be killed. However, most Retributivists would agree that there are cases in which a person's desert should be withheld because applying it would contravene other generally excepted moral imperatives. It does not follow that because someone deserves something they must receive it, or that it is just. For example, rape is an abuse of social and physical power. Ordinarily in cases where abuses of power are observed the power is taken away from the abuser. However, not all the power which allows rape to occur is ever removed. Though we can and do apply strong social sanctions we never strip offenders of the physical power which enabled them to offend. The reason we shy away from this is the culturally enshrined notion of the rights of prisoners. Ergo, rape is a case where the full desert of the offender is not applied because doing so would be unjust. We can therefore speak of 'unjust deserts'. Similarly, when a person murders someone, he or she may well deserve to die, but that does not mean that we should kill them. It is not inconsistent with Retributivist theory to be against capital punishment. It is therefore quite likely that Retributivists would not be in favour of capital punishment even though it may be what the offender deserves. Social hygiene is the theory that the object of punishment is to keep dangerous offenders away from society, so that they cannot re-offend. In the case of capital punishment, murderers are killed so that they will not have the chance to kill again. While this makes sense in poorer or less developed societies, in the first world there is another way we can keep convicted criminals from threatening innocents- by keeping them in prison. Advocates of the death penalty argue that we should execute murderers because it is cheaper than keeping them in prison. However, there is some evidence that under the current system, with death row inmates being provided with legal aid by the state, it is actually more expensive to execute criminals than to keep them in prison for life. It is true that the laws could be changed to remove this aid, but once we start removing these checks and balances the risk of executing innocent people will greatly increase. In any case, life or death issues such as this require a moral argument to justify them, rather than an economic one.
Deterrence is the argument most commonly used by advocates of the death penalty. It has been argued that only death can truly deter murderers because it is what human beings fear most. This ignores the many examples throughout history when men and women have freely chosen death rather than lose their freedom, eg. "Give me liberty or give me death!" (Patrick Henry, speech 1775, Concise Dictionary of Quotations p157) People do fear death, but this does not necessarily make it an effective deterrent, let alone the most effective deterrent. Abolitionists contend that Life imprisonment Without Parole (LWOP) provides as great a deterrent as the death penalty. Proponents of the death penalty have failed so far to prove that is more effective than LWOP. Some contend that if it isn't, that is because it isn't being used often enough. This line of argument is impossible to prove wrong, because no matter many criminals are executed, if it doesn't deter then advocates can always say that it isn't being used enough. It is a self- sealing argument and doesn't really prove anything. I believe deterrence theory, with respect to capital punishment, to be fundamentally flawed, because it sends the wrong message to offenders and to the public. If we want people to know that killing is wrong, we cannot demonstrate this by further killing. In fact, it has been alleged by opponents of the death penalty that there are cases where "orgies of homicide have followed a single execution. Actually a killing -legal or otherwise- encourages more killings.'' (Mclellen 19). There is no conclusive evidence that this is the case. However, if the attitude of death penalty supporters who hold 'execution parties' and revel in the condemned peoples' pain, or the raucous crowds at bygone public hangings are anything to go by, it may be true that executions serve to brutalise the public, making them desensitised towards killing. It certainly has an adverse effect on the people who have to look after the inmate in the months leading up to the execution, and often those who carry out the sentence. It also has a devastating effect on morale among prisoners and occasionally leads to riots. Of course, these things do not serve as arguments against the death penalty on their own, but they indicate additional benefits which would result if it were abolished. Abolitionists argue that deterrence is unlikely to work, firstly because many murderers kill in the heat of the moment and give no thought to possible consequences, and, secondly, most murderers do not expect to be caught. Both these types of murderers cannot be deterred. However, to argue against this, advocates of capital punishment would only have to prove that there are at least some potential murderers who will be deterred. There is no conclusive proof that capital punishment does not deter murderers. However, there is also no conclusive proof that it does. It is the advocates who are proposing to kill people, so the burden of proof is on them. I intend to try to prove that capital punishment is morally unacceptable even if it does deter. One of the major objections cited against capital punishment is the possibility of accidentally executing innocents. The finality of the death penalty means that such a mistake is irrevocable. Proponents of the death penalty point out that with the rigorous system of trials and appeals such mistakes are unlikely and rare. But the fact remains that miscarriages of justice do occur and innocents have, and no doubt will be, executed. However, this is really not the main point of the abolitionist argument. I believe that the execution of guilty inmates is also morally unjustifiable. In his article 'The Anti-Dp movement has failed', defence attorney Andrew Hammel argues that

"Death penalty opponents should admit that many death row inmates are flawed, corrupt, brutal individuals because (1) it is true; and (2) it has nothing to do with whether it is just for the state to kill death penalty is wrong because it kills human beings - not because it kills good human beings." (p.6 'Why the Anti-DP Movement has Failed')

Advocates of the death penalty are occasionally heard to argue that murderers are just 'animals' and that we are therefore justified in killing them. This is not the case. Most death row inmates have deliberately chosen to take the life of at least one human being, but they are still people, so taking their lives requires a very strong justification indeed. Whether or not capital punishment actually acts as an effective deterrent, there are several problems with deterrence theory itself. Firstly, if deterrence is really the goal of executions, then we should make them as brutal as possible for a greater deterrent effect. But most people would agree that there should be limits to the cruelty we can inflict even on criminals. If the government set about torturing the torturers and raping the rapists the general public would be appalled. Also, if executions are designed to deter, then we should make sure as many people as possible see them. We should bring back public executions, and put them on national television. The way executions are currently carried out in the dead of night in front of only a few select witnesses suggests that advocates believe that they should not be seen. If executions are really morally justified then they are not something we should have to hide. Secondly, if deterrence theory is used to justify punishment, it doesn't really matter whether the person who is punished is guilty or not. All that matters is whether the public believes her to be guilty. It is the idea that the guilty are punished that deters, not the reality. In the case of capital punishment, this is especially vital. Some advocates of capital punishment contend that it is worth the possible execution of a few innocent inmates to save the lives of potential victims. As Senator David Jaye, of Washington township put it "You always lose a few soldiers in a war". (p.3 Fight the Death Penalty in USA) To begin with, I find the idea that it is worth executing criminals, and possibly even innocents, in order to save the lives of potential victims, very disturbing. Who are we to decide that one person's life is worth more than another's? This notion of treating human beings, even guilty ones, as a means to an end, seems fundamentally wrong. Immanuel Kant said in his third categorical imperative that one should

"Act in such a way as that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end." (pp.56-57 Oxford dictionary of Philosophy)

The very fact that advocates of the death penalty would consider the execution of innocents indicates that they are not really concerned with people as individuals, only with the abstract idea of community. But a community is made up of individuals, so in order to have a system of justice which serves the interests of the community as a whole you need to be concerned with individual cases. Any criminal justices system that uses people just for their value as examples cannot really serve the community. Secondly, the justification for the execution of an innocent is usually that that execution will deter a greater number of murders, (presumably, but not invariably, of innocents) and that this is a just, and therefore desirable, outcome. Obviously, this is a Utilitarian argument, but it is a fatally flawed one. A true Utilitarian would have to consider the broader implications. Obviously, the innocent who is executed will be unable to plead her case post-humously, but she will, in all probability, have a family and friends who will know, or at least believe beyond doubt, that the person was innocent of the crime for which she was executed. These people, unlikely as they are to be swayed by the Utilitarians' reasoned argument, will become disillusioned with a criminal process which is designed to protect the innocent, but which clearly has no objection to sending them to their deaths if the real culprit of a crime cannot be found. These people will likely spread their message, sowing dissent in the broader society. The more innocent people are executed, the faster this process will occur, until the greater part of society no longer has any faith in their government to protect them. When this has happened in history, only one outcome has ever eventuated: widespread social collapse and anarchy. The Utilitarians must ask themselves how many people's lives will be affected by their sending an innocent person, probably themselves a victim of an already polluted justice system, to face their death. And ultimately, the irony is that they can never know, and can therefore never make a truly moral decision, as Utilitarianism has as one of its most basic assumptions that the people making moral decisions are perfectly informed about the nature of the act and the nature of it's effect on every single person who might conceivably be touched by it.
Retributivism is a sound theory of punishment, but does not provide adequate justification for capital punishment by itself. Advocates have yet to prove the deterrence value of the death penalty and the theory is flawed even if they do. The idea of social hygiene can be served without recourse to the capital punishment. If a system of capital punishment is to be justified it will require better arguments than these.

Bibliography

Blackburn, Simon, The Oxford Dictionary of Philosophy, Oxford University Press, Oxford, 1994

McClellan, Grant, S., Capital Punishment, The H. W. Wilson Company, USA, 1961

Hammel, Andrew, 'Why the Anti-Dp Movement has failed', Fight the Death Penalty in USA,

LaFollette, H., Ethics in Practice, Blackwell Publishers Ltd, USA, 1997

Concise Dictionary of Quotations, W.M. Collins Sons & Co Ltd 1985