Since as far back as society dates, the death penalty has been used as a means to punish severe crimes. Many societies have determined that taking a life unjustly of another should lead to the forfeit of one’s own life. In the 18th century BC, The Code of King Hammurabi of Babylon employed the death penalty for the punishment of twenty-five crimes. The first death sentence recorded was in 16th century BC Egypt. Christian Old Testament law, based of an “eye for an eye” based law required one committing a crime to make amends. Under that, murder could only be made right by the murderer having his life taken. Plenty of modern societies have continued this tradition of executing those who have taken other lives. As will be developed in this paper; capital punishment is a philosophically sanctioned and in the right circumstances morally permissible means of delivering retribution for the crimes of murder and also has been shown to be a deterrence for committing murder.
The question at the heart of the matter is a moral question. Just, modern modern societies attach high value to life and only will sacrifice a human life under the most necessary of circumstances. While philosophers throughout history have not always reached a consensus as to in what circumstances it is morally permissible to take a human life, most make allotments for self-defense and many advocate the death penalty for capital offences.
Legal philosophers in favor of the death penalty have a compelling roster of big names that include Cicero, Plato, John Locke and Thomas Aquinas. John Locke (1690) wrote in favor of the death penalty that:
I take to be a RIGHT of making laws with penalties of DEATH, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defense of the common-wealth from foreign injury; and all this ONLY for the public good.” (Ch. 1. Sec. 3)
Any valid argument in favor of the death penalty should be made from a position of utility keeping in mind the good of society. The central question is, should certain members of society who have demonstrated to be a determent for the good of the whole have their rights to life revoked in order to assure that right for society as a whole. In the case of murder, they have demonstrated an inability to respect the right to life of others.
One of the arguments against the death penalty is that it will inevitably lead to innocent victims being executed for crimes they did not commit. Former Florida Supreme Court Chief Justice Gerald Kogan, in a speech given in Orlando, Florida, made a case speaking from his ethos as someone who had spent his career inside the criminal justice system. His speech questioned the validity of testimonies that can lead to a guilty ruling, which in turn can result in the application of the death penalty. He said, “The uneven application of the death penalty, where, in many instances, those that are the most culpable escape death and those that are the least culpable are victims of the death penalty.” (G. Kogan, 1999)
He brought in one of the most touched upon arguments against the death penalty, that the recent advances in science have allowed DNA evidence to exonerate after the fact of there being executed. This argument is epitomized by a quotation often attributed to Benjamin Franklin, that it would be better for a thousand guilty men to go free than for one innocent to be imprisoned, or in this case executed.
The argument, while it pretends to be one made through ethos, is actually one from pathos, where those it is trying to convince are swayed through the normal feelings towards an innocent person suffering dire consequences for a crime that he/she did not commit. However, the argument is a red herring to the actual issue. Kogan’s argument attacks the system and not the underlying philosophy that governs it. The efficacy and accuracy of any justice system strives towards perfection, but as a human institution is always open for scrutiny and improvement.
The death penalty is an irrevocable sentence. Once it has been carried out, there is no way to reverse it. There have been at least 88 people who have been released from death row since 1973. DNA evidence, a recent development has also led to the exoneration of many death row inmates. Without that technology, it can be said with certainty that a number of innocent inmates would have been executed.
But this argument attacks the fact that life is not filled with ideal circumstances, but does the best it can, given the reality of circumstances. It avoids the fact that with the current technologies employed by the US court system; accurate judgments of the guilty can now be made with beyond reasonable doubt. Any system, be it the US highway system, the social justice system, or the health care system are structured to minimize fatalities. The United States government builds highways while knowing that lives will be lost both in the construction could lead to worker deaths and that the highway system, while necessary for the society, could and will lead to unfortunate accidents that claims life.
The question that needs to be asked is whether or not the death penalty is an overall winner for the society as a whole. The appeal process in the justice system needs to be fair and thorough and should strive to minimize the tragedy of innocent people suffering from the punishment of crimes they did not commit.
In the same vein in Kogan’s argument, one could say that the entire US prison system should be abolished due to the fact that the system could lead to the incarceration of those who did not commit crimes.
In addition, many of the claims of innocence of those who have been released from death row are based on legal technicalities and cannot be counted with full certainty that they were not a guilty person escaping consequence as opposed to an innocent person being exonerated for crimes he/she did not commit.
Another common argument against the death penalty is that is not employed equally for similar crimes and that some states prohibit it while others allow it, and that poor offenders do not have the privilege of hiring an expensive attorney able to exonerate them from crimes that wealthier offenders are able to litigate a lesser sentence for.
In many instances the argument against the death penalty for its arbitrariness comes down to a race issue. Twenty-five years after the reinstatement of the death penalty in 1976, 158 black defendants had been executed for the murder of white victims, while disproportionately 11 white defendants had been executed for the murder of a black victim.
Testifying against the arbitrariness in which the death penalty seems to be applied, The Reverend Jesse Jackson wrote, “Who receives the death penalty has less to do with the violence of the crime than with the color of the criminal's skin, or more often, the color of the victim's skin.” (Jackson, 1996).
One again, this argument is does not get to the philosophical heart of justice and whether or not it is morally permissible to take the life of one who has taken the life of another, but instead attacks the system through which justice is delivered, which by its nature of being a human construction is naturally imperfect.
Any legal or judiciary system should always be open to criticism, but the philosophies that fuel them should not. The United States constitution is argued on the grounds of its interpretation, but is not argued on the merits of the philosophies it engenders.
The justice system relies on discretion of the actors carrying out its mandates. In this case, judges. We cannot expect every crime to be treated in exactly the same way, since circumstances govern them. So the argument of arbitrariness, is in a sense self defeating, since it attacks an aspect of the system that is necessary for it’s just existence.
Aside from reciprocal justice of taking a life of those who take lives, one of the most important arguments supporting the death penalty is the question of whether or not it deters would be criminals from committing capital offences. The New York Times columnist Adam Liptak (2007) summarized the data of a dozen studies and concluded that executions do in fact save lives.
Though disagreeing on the magnitude of lives saved, varying from between 3 and 18, the studies, conducted by economists, all agreed that the death penalty, while forfeiting the life of a murderer, saved innocent lives.
Economist H. Naci Mocan, while personally opposed to the death penalty, concluded in his research that he could not deny the deterrent effect that the death penalty had on crimes. (2003, H. Naci Mocan).
The arguments against the death penalty, as has been shown, rarely attack the institution itself, but instead distract themselves with attacking the application of it. Philosophically, it makes sense to take from someone what they have taken from another. Societally, it is a necessary deterrent from dissuading people from committing murder as recent research has demonstrated. While no system is perfect, all systems must be evaluated not in specific instances but generally as to whether they offer a net gain or loss for the society. Even at conservative estimates, each execution has been estimated to save three lives that might otherwise have been lost were the death penalty not a judicial option. The death penalty is a necessary instrument in punishing drastic crimes such as murder. (2007, A. Liptak)
Jackson, J. (1996). Legal lynching, racism, injustice, and the death penalty. Marlowe & Co.
Kant, I. (1690). Kant — the death penalty. Retrieved from http://www.philosophos.com/philosophy_article_78.html
Kogan, G. (1999, October 23). Speech given by former Florida chief justice Gerald Kogan. Retrieved from http://www.deathpenaltyinfo.org/speech-given-former-florida-chief-justice-gerald-kogan
Liptak, A. (2007, November 18). Does death penalty save lives? a new debate. Retrieved from http://www.nytimes.com/2007/11/18/us/18deter.html?pagewanted=all&_r=0
Locke, J. (1980). Second treatise of government. Indianapolis: Hackett Publishing Company, Inc.
Michigan State University. (2011). deathpenaltycurriculum.org. In Michigan State University and Death Penalty Inform. Retrieved from http://deathpenaltycurriculum.org/student/c/about/arguments/arguments.PDF
Mocan, H. N. (2000). Getting off death row: Commuted sentences and the deterrent effect of capital punishment. Retrieved from http://www.bus.lsu.edu/mocan/Getting off Death Row.pdf