Criticism. Essay. Fiction. Science. Weather.
When Saddam Hussein was executed late last year witnesses used cell phones to record the moments leading up to and including his execution. The mixed reaction
to these images reveals we human beings are not unanimous in our moral appraisal of the death penalty. Why?
There are at least two inherent confusions that lead to opposing positions on the moral permissibility of capital punishment: (1) We do not agree on the meaning and purpose of punishment
; (2) We do not agree on the origin of morality.
From the different interpretations of these two basic ideas come several justifications for and against capital punishment. These are worth exploring from the bottom up. Hopefully a reasoned examination will encourage people deeply engaged with discussing the death penalty to be more reflective and cautious in their claims, and so less volatile in their judgments and actions.
The Concept of Punishment and The Origin of Morality
The purpose of punishment ranges from education to rehabilitation to retribution to social benefit. In each instance, punishment is uncomfortable for the one experiencing it. This discomfort is important, because we assume the person being punished will understand that the discomfort is to be connected with the mistake or crime committed. The perpetrator will realize the mistake or crime is not a good thing and will avoid it in the future; or the perpetrator will simply feel pain proportionate to the pain he or she inflicted.
Punishment as Education
Punishment as education involves developing associations between ideas about right and wrong and the discomfort of pain. Pain results from doing wrong. Since no one wants pain, one will learn not to commit the wrong.
An example: A child grabs a toy from another child's hand. An adult may take the toy away from the offender, admonish the child that taking toys away from others who had them first is "not nice," or some such, and then send the child to a "time out
" area. The time out is meant to show the child that the behavior in question is inappropriate; the child equates the discomfort of the time out with the inappropriateness of the action.
Some might find this approach peculiar, if not entirely incorrect. After all, isn't the one punished supposed to know already that they've done wrong? Isn't the punishment a response to acting against this knowledge? ("You knew better, but you did it anyway.") Perhaps, but punishment is often used as a means of educating. Psychologists call it 'negative reinforcement.'
Punishment as Rehabilitation
An analogous notion to punishment as rehabilitation can be found in physical therapy. People recovering from an accident or surgery go to a rehab center to recover physical strength, stamina, or range of motion. Similarly, people enter drug rehab centers to free themselves from substance addiction. The point of rehabilitation is to remove a problem and then strengthen the weakened area. Implicit in this notion of rehabilitation is that the individual has become functionally defective. An example of punishment as rehabilitation, then, would involve the idea that the perpetrator needs bad or criminal habits broken, and new habits cultivated.
There are medical methods of administering rehabilitation, such as drug therapy; and behavioral methods, including vocational training and therapy. Each is not without its problems. For example, drug therapy conjures images of A Clockwork Orange
scenario, which effectively undermines the individual's freedom to choose not to commit crimes. Moreover, it essentially presupposes that at least some human beings' actions are determined by factors outside their control, which calls into question the perpetrator's moral culpability, which is at the heart of certain laws enacted to reflect moral norms (e.g., laws against child molestation; murder).
Punishment as Retribution
The prevailing understanding of the purpose of punishment is retribution. Understood as proportionate justice, the purpose of punishment is to exact a pain proportionate to (though not necessarily identical with) the crime committed. In this way, punishment is intended to be fair, not only to the perpetrator, but also to the victim and society at large. The main feature of retributive punishment is that punishment does not achieve a goal beyond proportionate response.
Punishment as Social Benefit
Punishment's most basic purpose is to protect society. Those who transgress family, cultural, or societal norms and laws are seen as violating a compact between members of the group. For society to survive, people must conform and work together to support certain codes of conduct. When these codes are broken, so also is the "fabric" that holds society together.
An Introduction to the Moral Foundation
Typically, moral philosophers investigate the meaning of moral concepts. For example, they are not interested in telling us to do good, so much as they want to understand what "good" means, or want to know why a certain action is "inappropriate." So, what is the moral meaning of punishment?
Punishment is a discomfort to the perpetrator and is implemented as a result of a crime committed against an innocent individual. Death penalty expert Hugo Adam Bedau
defines punishment as depriving the perpetrator of something (e.g., freedom) to which he or she otherwise has a right, or is the imposition of some "special burdens." Punishment is a purposefully unpleasant experience.
Is morality, in the case of punishment, rooted in the empirical? Is punishment rooted in the natural order? A cornered dog who is beaten will lash out to protect itself. Are there inherent similarities when the state reaches out on behalf of victims of crime and retaliates through society's system of laws?
At the same time, however, punishment is a peculiarly human activity. Insofar as it is rule-based, it is meant to be the consistently applied method of educating or correcting bad behavior. Non-human, socially organized animals do correct members in ways that could be interpreted as punishment, but we have no way of knowing whether or not these behaviors reflect meaningful similarities to our own formal institutions and informal cultural practices.
The moral status of punishment can also be viewed in terms of rational principles. These principles are not derived from experience but from reason. Reason yields principles that apply to
experience as mathematical formulas do to particular problems. If punishment is understood as a rational activity, then when determining what types of punishment are appropriate we can appeal to reason.
Of course, looking for moral foundations may be misguided. Nietzsche
argued that the purpose of punishment always rests on a rationalization of the desire simply to punish. Twentieth century French thinker Michel Foucault
claimed that punishment is ultimately a method of subordinating, coercing, and transforming individuals into obedient followers of the prevailing social order.
Two Prominent Arguments for Executing Criminals
Advocates of deterrence look to the consequences of punishment as justification for the practice. If the prospect of a prison sentence is not sufficient to dissuade people from committing crimes, the prospect of being killed as a consequence may be.
This thinking aims punishment not at the perpetrator of the crime, but rather at society; the perpetrator, and the punishment, become a means to an end. To the extent that a dead criminal is absolutely deterred from committing further crimes, he or she is deterred, but in the main, the point of deterrence goes beyond the one punished.
The necessary and sufficient justification for punishment, in the retributionist's view, is the crime committed. This idea is commonly associated with the "eye for an eye
" view of punishment, or punishment in kind. In the United States, execution is, I believe, the only form of purely retributive punishment. There is no eye toward reformation or social benefit, only the view that in the face of the worst crimes moral balance needs to be restored.
Four Objections to Executing Criminals
A Public Ritual Made Private Reveals Inherent Flaws
That capital punishment is carried out behind closed doors reveals its barbaric nature. If deterrence is the goal of the death penalty, then it makes more sense for the activity to be publicized in some fashion.
Deterrence is a Fiction
Opponents of the death penalty cite statistics said to show there is no causal relation between the death penalty and deterrence (e.g., Sorenson and Wrinkle, 1999; William Bailey, 1998
). Of course, it would be difficult to show such a relation, since the data would purport to prove a negative. Nevertheless, there is no established correlation between executions and subsequent tapering of violent crime. Moreover, there is no higher crime rate in those states that do not execute criminals as punishment for a particular crime than there is in states that do enlist capital punishment.
Retribution is Rationalized Revenge
Typically, revenge is viewed as an act of passion, and as such cannot be the basis for justice. Yet justice is the basis of retribution. Since retribution is rationalized revenge, and revenge is not a good reason to kill criminals, retribution is not a good reason to kill criminals.
Inequities in the System
The objection that the death penalty is unfairly applied, and this makes it wrong, skirts the issue of whether or not the penalty itself is morally impermissible. If it's permissible, but poorly implemented, then the debate is over reform, not abolition.
Still, there are errors in the justice system. Death row inmates have been exonerated of crimes based on DNA or other evidence, while the death sentences of others have been reversed. Moreover, discrimination in the justice system favors certain socio-economic, racial, or geographical groups. Quality defense attorneys alone can save from the death penalty those fortunate enough to hire them. Thus not everyone who may deserve the death penalty is rightly punished, while many who do not deserve the death penalty are punished anyway.
Cruel and Unusual Punishment
The 8th Amendment to the United States Constitution forbids "cruel and unusual punishments." Among those entirely forbidden are drawing and quartering, burning alive, public dissection, disembowelment, and torture.
Until the late 19th century, the most common method of execution in the U.S. was hanging. Thereafter, death by electrocution or cyanide gas were the norms through the early 1990s, when they were largely replaced by lethal injection (though some states began the latter practice as early as the late 1970s). However, this method of execution, as with the others before it, has been criticized.
Part of the notion of "cruel and unusual punishment" involves proportionality. Certain methods of killing are considered disproportionately savage, or to cause disproportionate pain in the process of dying. Lethal injection
-- especially when botched and, for example, the anesthetic is injected into muscles and not veins -- is a cruel and unusual punishment. Such cruelty is the reason the death penalty has been deemed excessive punishment for certain crimes such as rape.
Human beings believe that when wrongs are committed those wrongs should not go unaddressed. Not everyone agrees on the list of wrongs, and not everyone agrees on how the wrongs are to be addressed. If there were unanimity in thinking about morality, specifically unanimity in thinking about the origin and meaning of morality, it might be easier to resolve the death penalty controversy. At present, the desire for unanimity is wishful and generally unproductive thinking.
Moreover, the current debate reflects confusion about the nature of morality. Ultimately, the policy of killing a human being as punishment for a crime is an essentially pessimistic one, devoid of any hope that people can change and lead "good" lives, but also full of the belief that only certain lives are worth preserving. Who decides what that worth is? Is a person's worth relative?
It may simply be that, collectively, we do not yet have sufficient moral knowledge on this subject -- hence my claim about our confusions regarding the source and nature of morality. After all, just because we don't know now, does not mean there isn't something to be known.
It is peculiar to do something to someone that we loathe them doing to us. The death penalty, carried out in solemn ritual, does not seem to teach anyone anything about the inherent dignity of human life, nor does it seem to correct a moral transgression. At best, it is a socially organized way to finally and absolutely exile a member of the community. It is a way for a group of people to turn its collective back on another human being and say, "Not only do you not exist to me, but I will make you really nonexistent." It is a way to express the belief that nothing should be done for the perpetrator, or maybe more correctly, it is a way to express the frustration that we can do nothing
; we are helpless to come up with another, successful way of engaging a person who has annihilated another.
Refraining from the "ultimate punishment" may be the clearest moral stance against reprehensible crimes. Inasmuch as it directly confronts the offender and states, "You cannot escape the reality of your failure," the criminal is continually thrown back upon himself or herself to contemplate, grapple with, and deeply regret the motivation and action that brought them to this point. Most of all, over time, the criminal can become the ground of whatever goodness can, in the future, be cultivated.