University of Transnational Business Law

Capital Punishment

by Burton Leiser


Capital punishment, the infliction of death upon one who has committed a crime serious enough in the eyes of the legal authority to warrant such a grave penalty, has been employed among human societies from the most ancient times. It is included in the Code of Hammurabi (approximately 4000 years ago) and in other legal texts that have been discovered in ancient Mesopotamia. In later legal codes, such as the Hebrew Bible, the death penalty is prescribed for a number of crimes, including premeditated murder, adultery, sodomy, idolatry, attempted murder through false testimony, and others. It is worth noting that rabbinic literature moderates the harshness of purely Biblical law to a very large degree. Indeed, one of the earliest rabbinical disputes recorded in the Talmud concerns capital punishment. Some authorities argued that if a court sentenced even one person to death over seventy years, it should be considered an exceedingly harsh tribunal; others went further, suggesting that a court should always seek some technicality to avoid imposing the death penalty; and still others contended that if the death penalty were never applied, innocent blood of the victims of murderers would be shed—i.e., the deterrent power of the death penalty would be lifted, and innocent lives would be lost.
Historically, various societies have employed the death penalty for an enormous range of offenses. Where capital punishment has been accepted, it has most often been invoked as a penalty for murder. But in various times and places, it has not been unknown for such crimes as treason, rape, sodomy, kidnapping, blasphemy, and even petty theft to be punishable by death.
In some legal systems, the death penalty has been prescribed for animals other than humans—e.g., such domestic animals as bulls that have gored people, dogs that have attacked people, and wild animals that have been adjudged to be a threat to human life. In most societies today, the extermination of such animals is deemed to be a prophylactic measure rather than a penalty.
In many parts of the world, states have ceased to employ the death penalty. Indeed, the European Union has made the abandonment of capital punishment a prerequisite to a state’s membership in the Union. Many other states that adhere to European values have either abandoned the death penalty altogether, or employ it extremely rarely. Israel, for example, permits the use of the death penalty for one crime only: active participation in the genocide of the Jews during the Nazi period — and has imposed it only once, in the case of Adolf Eichmann. On the other hand, many states in Africa and Asia continue to adhere to the use of capital punishment for a number of crimes.
The United States of America has a rather ambivalent attitude toward the death penalty. For a few years during the 1970s, the United States Supreme Court suspended all death sentences throughout the nation on the ground that they violated the Constitution’s ban on “cruel and unusual punishment” in that they were imposed in an arbitrary and capricious manner — most particularly in view of the high percentage of death sentences imposed on members of racial minorities. The Court then reversed itself, holding that if certain procedural rules were adhered to, the death penalty could be invoked without violating the Constitution. Some states have chosen not to incorporate capital punishment into their criminal codes, while others have provided for the death penalty, incorporating appropriate safeguards into their trial and appellate procedural rules. Nevertheless, even in those states that provide for capital punishment in their criminal codes, it is rarely carried out in practice. There are so many opportunities for appeal that relatively few defendants, even among those accused of the most horrific crimes, are executed.
I. Possible Justifications for Capital Punishment

In general, philosophers have offered four principal justifications for criminal punishment: Reform, deterrence, incapacitation, and retribution.
Reform. One of the principal purposes of criminal punishment is thought to be reform — the rehabilitation of the convicted person in such a way that he or she will be less inclined to commit similar offenses in the future. The pain and deprivation that are imposed upon the convicted person are designed to condition him or her to adhere to the law. Obviously, this cannot possibly be a justification for the death penalty, since once the penalty is carried out, the offender will be dead rather than reformed.
Deterrence. In the theory of criminal punishment, deterrence is thought to be one of the most significant justifications for it: By punishing the offender, we anticipate that others, seeing the consequences of committing such crimes, will be deterred from committing similar crimes themselves. It is reasonable to believe that some people will indeed be deterred by hearing about the penalties imposed on others. If capital punishment does deter future potential offenders from committing crimes that they might otherwise be disposed to do, deterrence might be a reasonable justification for employing the death penalty. However, there is considerable dispute as to whether it does in fact have such a deterrent effect.
Incapacitation. One justification for punishment is the incapacitation of the offender. Imprisonment, for example, will keep him from committing similar crimes. The practice in some Islamic countries of amputating the hands of thieves is probably intended, at least in part, to render it more difficult for them to ply their trade. Capital punishment is the ultimate form of incapacitation. Indeed, it is so complete and certain to achieve its goal that if this were the only justification needed for the death penalty, there would be no need to discuss the matter further.
Retribution. One of the most important theories on justifications of punishment is retribution, or, as it is sometimes called, doing justice. The concept invoked in retributive theories is that one who violates the law by committing a forbidden act, or by failing to do a mandatory one, and in so doing either harms another person or causes some damage to the state deserves to have some harm inflicted upon himself in return. (See desert.) In this respect, punishment is parallel to reward: One who performs an act of outstanding service is usually commended for doing so, and may be thought to deserve to have some special benefit or award bestowed upon him.

The notion of desert is a complex one. But even small children understand that when they have been naughty, they deserve to be punished (e.g., by being deprived of something they desire); and that when they have been especially good, they might be entitled to some extra thing that they would like to have. Indeed, it is not uncommon even for convicted criminals to concede that they deserve to be punished, though they would of course prefer to escape the consequences of their acts and despite their frequent complaints that the punishment inflicted upon them is excessive. This too illustrates an essential component of the concept of desert: proportionality.
Both in law and in morals, it is generally agreed that there is a kind of equation between the harm done by the offender and the severity of the penalty to which he ought to be subject. If the penalty is excessive, as compared to the offense for which it is imposed, the state or its agent is thought to be unjustly cruel and brutal. On the other hand, if the penalty is too light, it may be perceived to be inadequate, or no punishment at all. For example, if the penalty for parking in a crosswalk were five years’ imprisonment, everyone would agree that it was excessive. On the other hand, if the penalty for rape were no more than five dollars, it would be felt — especially by rape victims, but also by any objective observer — to be grossly inadequate. Such a “penalty” would amount to no more than a fee or license to commit the crime. Where capital punishment is concerned, the retributivists’ argument is that some crimes are so grave that their perpetrators deserve nothing less than the death penalty, that only the death penalty can “right the scales of justice,” as they put it. We will discuss this further below.
Some people argue that the desire for retribution is deeply ingrained within us, and that it is perfectly healthy and natural both to have such a desire and to act upon it. They conclude that the death penalty is simply society’s way of recognizing that instinct and regularizing it by embodying it into the criminal law.
To sum up: Of the four justifications for punishment, there is no need to discuss reform or incapacitation, since reform becomes irrelevant once the penalty for the crime is death; and since one who has been put to death is so certainly and completely unable to commit further crimes that if incapacitation is the purpose of the penalty, there is nothing further to talk about.
The controversial issues inherent in the theory of punishment, therefore, are deterrence and retribution, to which we now turn. We will take up certain other ancillary issues later.
A. Deterrence and the death penalty

Opponents of the death penalty generally argue that despite the contention of its supporters that it has a deterrent effect and thus saves innocent lives, in fact it has no deterrent effect at all. They contend that statistics prove that the death penalty is not a deterrent, citing homicide rates in adjacent states. They show that states with the death penalty tend to have higher homicide rates than those without — precisely the opposite of what one would expect if there were a meaningful deterrent effect. Similarly, nations that have abolished the death penalty have not experienced a statistically significant rise in homicide rates, while those that have reinstated it after a hiatus (as the United States has done) have not experienced a drop in rates of homicide or crime in general after resumption of capital punishment. Opponents of the death penalty also point to those who sit on death row after having been convicted of the most monstrous crimes in states whose laws provide for capital punishment, and note, correctly, that those convicts were not deterred by the threat of death. In response, supporters of capital punishment emphasize the unreliability of statistical information generally, but most especially where so many variables (e.g., educational, economic, ethnic, and racial differences among various populations) can skew the results. They note also that the causal relationship may run in precisely the opposite direction: that is, one state may invoke the death penalty because it has such a high homicide rate, while another may not because its homicide rate is so low. Similarly, rates of the commission of serious crimes may vary from time to time in a given area because of a number of factors, including (for example) changes in economic conditions, as well as changes in the law and because the death penalty is so rarely carried out as to lose its credibility.
The most interesting argument employed by supporters of the death penalty is their response to the fact that so many people are on death row, undeterred from committing major crimes by the threat of death. They contend that death row is the wrong place to look for evidence. Of course those who have committed such terrible crimes were not deterred by the death penalty. But no one has ever contended that any penalty would deter every potential offender. In order to determine whether the threat of death deters, one would have to survey the people who are not on death row and find out whether they have ever contemplated committing serious crimes, and if so, why they refrained from doing so. Everyone (they say) has experienced some punishment or other, and we all know that the threat of punishment deters us from committing even minor offenses. Most people who have been caught speeding on the highway or parked illegally and paid steep fines have become more law-abiding, at least for a time, out of fear of having to pay further financial penalties. As penalties become steeper, compliance becomes more certain. It is reasonable to conclude, therefore, that the ultimate penalty, which goes far beyond mere financial losses or deprivations of liberty, would exert a deterrent effect on most people. And most people who ask themselves honestly whether they would be deterred from engaging in an activity that was reasonably certain to result in death would very likely have to answer that they probably would be. (Note,  however, that there are some important exceptions to this generalization: For some people, the risk of death or serious injury is part of the thrill that they experience in mountain climbing, scuba diving, parachute or bungee jumping, and the like. It is quite possible that some persons who pursue lives of crime do so for similar reasons, and are thus not likely to be deterred by the threat of death.)
If the logic by which it is concluded that the death penalty should be abolished were employed rigorously and consistently, one would have to conclude that all penalties — imprisonment, fines, and the suspension of drivers’ licenses, for example — should be abolished as well. For it is not at all difficult to find recidivists who have been caught and punished for committing a vast array of offenses, and nevertheless were not deterred but went on to commit other similar or identical crimes. In fact, however, no one seriously pursues this line of reasoning, since it is so obviously unsound. We inflict various punishments because from childhood on, we see that they do deter potential offenders, even though it is obvious that some incorrigibles, like drug, alcohol, and gambling addicts, suffer the consequences of their foolish behavior and blithely continue to indulge their bad habits. In short, the argument that since some people have not been deterred by fear of capital punishment and therefore sit on death row, it follows that capital punishment does not deter, is unsound. If it were valid, it would be necessary to conclude that no penalty deters and that all penalties should be abolished, since no penalty deters every potential offender. The sensible response is, of course, that no rational person thinks that any penalty is universally effective as a deterrent. It is sufficient if some potential offenders are deterred.
An argument on behalf of the death penalty that is rarely encountered deserves to be mentioned. If capital punishment does work as a deterrent, then the benefits flow to far more than the immediate victims and their families. Beyond saving the lives (say) of potential murder victims who are not murdered because potential murderers are deterred by their fear of the death penalty, those very people — i.e., the potential murderers — are saved from committing those crimes, with all the terrible consequences that follow from them. So the benefit, if the theory of deterrence is correct, extends much further than one might have anticipated — to the potential perpetrators and to their victims who are spared because of the deterrent power of the death penalty.
It is sometimes suggested that life imprisonment should have as much deterrent power as the death penalty, if not more; for anticipation of spending the remainder of one’s life behind bars, deprived of normal society, may be even more dreadful than facing the executioner. But there are some problems with this argument that are rather unique, for it is obvious that some crimes cannot possibly be deterred by any penalty but the death penalty, if they can be deterred at all. Among them are terrorism; treason and related crimes, especially in time of war; and murder committed by prisoners serving life sentences.
Consider a prisoner (we shall assume that he is a rational person) serving a life sentence who contemplates murdering a guard or a fellow inmate whom he finds to be particularly annoying. He considers the possible consequences of doing so. If he is incarcerated in a state that has no death penalty, he calculates that the worst that can happen to him is the imposition of yet another life sentence, with the possibility of some additional unpleasantness such as a period of time in solitary confinement or the loss of of some privileges. Weighing those privileges against the benefits he expects to enjoy as a result of ridding himself of the unpleasant guard or fellow prisoner, it would be reasonable for him to conclude that he has much to gain and little to lose by committing murder.
Similarly, an airline hijacker weighing the potential consequences of his actions might reason as follows: I have much to gain if I succeed in dispatching hundreds or thousands of infidels and extracting vast sums of money from the individuals and governments I am victimizing. If I am fully successful, I will earn the adulation of both men and women in my community, not to mention the material rewards that I expect to receive from my victims. (He may also expect some great rewards in Paradise if he perishes during the operation.) But if I am captured in the course of the hijacking, what is the worst that can happen to me? The enemy will incarcerate me and impose a life sentence on me, but I can count on my brothers to hijack yet another airliner, take hostages, and demand that I be released in exchange for them. Upon my release, I will be welcomed home as a hero. (Note that precisely such events have taken place. After the massacre of Israeli athletes at the Munich Olympics, the slaughter of passengers at the Athens airport, and the murder of innocent persons at the Rome airport, officials gave in to the demands of other hijackers and released the terrorists, who then flew to Libya, Syria, and Iraq and were greeted by cheering crowds.)
The same kind of reasoning would persuade a traitor or spy that he had little to fear if the worst penalty his enemy could impose would be life imprisonment. He expects that ultimately, his side will win and he will be released from his prison cell, whereupon he will return home as a hero.
In all of these cases, it might be argued that the threat of death would be no deterrent. The point is, however, that in such cases, the threat of life imprisonment has very little weight from the point of view of the potential criminal, since he would reasonably see it as relatively unrealistic to believe that it would ever be fully carried out, or — in the case of the convict who is already serving a life sentence — of no consequence at all. Thus, where life prisoners, traitors, or hijackers are concerned, if any reasonably possible penalty might serve as a deterrent, it would seem that the only one with any likelihood of success would be the death penalty.
B. Retribution and the Death Penalty

In his opinion for the majority of the United States Supreme Court in Gregg v. Georgia, upholding the constitutionality of the death penalty, Justice Potter Stewart observed that capital punishment “is an expression of society’s moral outrage at particularly offensive conduct.” He went on to argue that even though many people might object to the death penalty, “it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.” Capital punishment, he said, “may be the appropriate sanction in extreme cases [as] an expression of the community’s belief that certain crimes are themselves so grievous that the only adequate response may be the penalty of death.” Similarly, Lord Justice Denning told the British Royal Commission on Capital Punishment, “Some crimes are so outrageous that society insists on capital punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.”
These statements by eminent jurists sum up very neatly the theory of retribution as applied to the death penalty: Some crimes are so grievous, so offensive to society’s sense of decency and justice, that the perpetrators deserve nothing less than the penalty of death. There is also a hint of the possible consequences of failure to adequately punish those who commit such crimes: the danger of outraged citizens resorting to self-help. When the authorities in a small town in the American heartland failed to apprehend and punish the town bully, who had essentially run roughshod over the rights of his fellow citizens and brutalized them with seeming impunity, a group of outraged citizens banded together and shot him to death. Even though the event took place in the center of town in broad daylight, no one in the town admitted to knowing anything about it and the perpetrators were never brought to justice. The citizens of that town acted upon a fundamental principle recognized by more than one political philosopher: that it is the duty of the state to do justice and to punish those who violate the rights of the innocent; and that the people retain the ultimate right to demand that justice be done in their name, or to take the law into their own hands if necessary to their self-preservation.
Leaving aside the question of self-help, the ultimate question with regard to retribution is whether it ever makes moral sense to execute human beings, however inhuman their crimes. Some argue that it makes no sense to maintain prisoners who have committed such monstrous crimes as genocide, mass murder, the torture and maiming of innocent women and children, and the betrayal of decent and democratic states. Others insist that however awful such crimes may be, they do not justify the deliberate extinction of any human life. As Justice Brennan of the United States Supreme Court put it in his dissents, the death penalty is inconsistent with the “basic concept of human dignity.” It is never permissible, he said, to treat human beings as nonhumans, for “even the vilest criminal remains a human being possessed of common human dignity,” whereas capital punishment is “uniquely degrading to human dignity.”
Supporters of capital punishment respond that precisely the contrary is true: the ultimate degradation of human beings is their wanton and cruel murder. The execution of murderers is not only a repudiation of the degradation suffered by their victims, but also a recognition of the killer’s own humanity through its recognition of his responsibility for his behavior.
II. Other Problems Associated with the Death Penalty
A. Allegedly Unfair Criminal Procedures

Opponents of the death penalty often argue that trial and appellate procedures employed in capital cases are inherently unfair, and that as a result, many defendants who either should not be convicted at all, or should be convicted of lesser crimes, are convicted of serious crimes and sentenced to maximum penalties. It is alleged too that this problem is particularly acute in cases involving people from impoverished backgrounds or racial or ethnic minorities.
This was one of the principal reasons for the United States Supreme Court’s suspension of capital punishment during the 1970s. The Court’s majority accepted the argument that the death penalty was administered in an “arbitrary and capricious” manner and that members of racial minorities were unfairly singled out for it.
Poor and minority defendants in capital cases did indeed fare poorly. Conviction rates were significantly greater than they were for the general population. Proponents of the death penalty point out, however, that the same is true for the same population with regard to conviction rates for lesser crimes. If the logic is sound, similar conclusions should follow for criminal penalties in general. That is, if the fact that higher proportions of criminal convictions of minorities and poor persons in death cases justify the conclusion that the death penalty should be abolished, then ceteris paribus all other penalties (fines, imprisonment, and so on) should be abolished as well. But no one seriously entertains the proposition that the entire criminal corrections system should be abolished because of some alleged discrimination against some minorities. Indeed, many members of those minority groups are the most vocal in demanding strict adherence to the penal law, because their communities are disproportionately subjected to the depredations of violent criminal gangs and individuals. Their explanation for the disproportionate conviction and sentencing rates is quite simple: a disproportionate number of persons committing violent crimes comes from their communities. Their solution to the problem, at least in part, is the enhancement of other means of reducing crime in their communities (e.g., education, jobs, social services) and careful adherence to proper criminal procedures in the courts. Many of them are not eager to see more lenient enforcement of criminal penalties for members of their communities, for they are concerned that such a move would be tantamount to declaring open season on them.
B. The Inhumanity of the Death Penalty

Opponents of capital punishment argue that it is an exceptionally cruel and inhuman way to treat people, however evil their own behavior may have been. However “humane” the particular method of execution may be, the wait, the anticipation of the final moment, must be excruciatingly painful. Opponents of the death penalty contend that it is immoral to put any human being through such an ordeal.
C. The Possibility of Mistake

In human affairs, absolute certainty is not to be expected. In many cases, it has been shown that the wrong person was convicted of a capital crime. In many of those cases, the mistake was discovered only after the individual in question had been executed. It has often been said that the deliberate killing of even a single innocent person is more than can be morally justified, even if it is the result of mistake. Consequently, the argument concludes, capital punishment should be abolished.
In response, proponents of the death penalty point out that life is full of risks, including risks to life and limb. Modern societies expose us to such risks at virtually every moment. One cannot cross the street, drive down the road, or even drink a glass of water or breathe the air without running some risks. Although every civilized society does its best to minimize such risks, it is impossible to eliminate them entirely. Although the justice system is so designed as to prevent wrongful convictions, especially in capital cases, it is impossible to deny that such convictions have occurred or that they might occur in the future. But the benefits to be gained (so it is argued) in terms of increased security for the state and its people far outweigh the potential loss of innocent life because of mistaken convictions and executions.
In addition, some abolitionists argue that every human life is precious and sacred, and that no one ever has a right to take a life on any ground whatever, but most especially since one can never be absolutely certain that the person being executed is guilty of the crime of which he has been convicted.
D. The Irrevocability of the Death Penalty

One who has been imprisoned for a crime he did not commit can have his freedom restored. Though he can never recover the time lost during his wrongful incarceration, he can be compensated for the losses he has suffered during that time and resume some semblance of normal life. But a person who has been executed cannot be brought back to life if it is later discovered that he was innocent, and there is no way to compensate him for the loss of his life.
Proponents of the death penalty respond as above. People in modern societies are prepared to bear some risks for the sake of the conveniences they enjoy. Despite the fact that reliable scientific studies have conclusively demonstrated that communities and whole nations would experience far fewer fatalities if they relied on mass transit rather than private automobiles, people opt for private automobiles over public transport because of their greater convenience and flexibility, despite the high incidence of fatalities. It is not unreasonable, then, for societies to risk the remote possibility that some innocent persons might be executed for the greater good—deterrence of serious crimes against innocent persons, and satisfaction of the desire for retribution and doing justice to those who have committed major wrongs against society.
III. A Final Note

Very few modern societies that continue to sanction the use of the death penalty invoke it for relatively trivial crimes, such as petty theft, as earlier societies did. Moreover, in many places where capital punishment is still employed, it has become so hedged about with legal and judicial restrictions that it has become a rarity, even when the crimes committed are exceptionally vile, cruel, and malicious. The trend is clearly toward the abolition of the death penalty. However, as long as mass murder, genocide, and war crimes are perpetrated, the demand for retribution in kind is likely to persist.
Proponents of the death penalty contend that there are no irrevocable rights. However sacred life may be, or perhaps just because it is sacred, they say, the right to one’s life, like the right to property or to liberty, may be forfeited by behavior that puts one outside the bounds of civilized society. As Thomas Hobbes might have said, one who acts in such a way as to place himself outside the social contract cannot expect to enjoy the rights and protections that that contract imposes on the rest of the civilized world.
Bibliography

There is a vast literature on this subject. The following titles are some of the more recent books that deal with it in a scholarly way.

Bedau, Hugo A., ed., The Death Penalty in America: Current Controversies, Oxford University Press, 1997.

Brugger, E. Christian, Capital Punishment and Roman Catholic Moral Tradition, University of Notre Dame Press, 2003.

Carrington, Frank, Neither Cruel Nor Unusual: The Case for Capital Punishment, Crown Publishers, 1978.

Carter, Linda E., Understanding Capital Punishment Law, Lexis/Nexis, 2004.

Hodgkinson, Peter, et al. Capital Punishment: Global Issues and Prospects, Waterside Press, 1996.

Rooney, Anne. Capital Punishment, Heinemann Library, 2005.

Sorge, V. Wayne, Watching Death: Capital Punishment in America, PublishAmerica, 2005.

Zimring, Franklin E., The Contradiction of American Capital Punishment, Oxford University Press, 2003.