In Defense of the Death Penalty


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Let’s start with two road blocks to an intellectually honest discussion on this topic.

Pro Life vs. Capital Punishment
Often in an abortion debate, someone will bring up the supposed dichotomy between maintaining a pro life stance when it comes to abortion, and a pro-death stance when it comes to the death penalty. The issue here really revolves around the concept of justice, or desert. To hold both beliefs in the affirmative requires the baby to not have committed a crime worthy of death, while the inmate on death row has. Or in other words, Capital Punishment requires a standard for the State to use in order to justify the exercise of that power – innocence or guilt above all.

Personal Revenge vs. Capital Punishment
Just as frequently, the adage “an eye for an eye leaves the whole world blind” will be used to combat a pro death penalty stance. As with most topics that delve into politics, the role of the government comes into question. The majority of political stances across all cultures agree on at least one principle, viz. the government exists to uphold the law. That is the primary reason a police officer bears a firearm, and a Centurion once wielded a spear. This is in contrast to the average citizen. We do not allow citizens to be judge, jury, and executioner primarily because the citizen is not impartial. In the case of self-defense, a citizen may, in a hot moment, defend him/herself against assault – resulting in the death of the perpetrator. But the citizen is forbidden from doing this after the crime has been committed.

In contrast, the government is then charged with exacting justice on behalf of the offended party. Yet, the government also bears the responsibility of being unbiased and respecting the rights of the accused. So the conflict between personal revenge and Capital Punishment really comes down to what role one believes the government plays vs. the private citizen. If the government is not the offended party, but is seeking justice on behalf of an offended party while also making concession to defend the accused, then it can not be labeled as vengeful – but merely doing its job as mediator.

The Pacifist’s Problem
Aside from the prior two arguments, the only other emotional appeal one runs into frequently is that of the pacifist. But the pacifist’s worldview is inherently immoral to begin with. The pacifist does not seek justice or goodness, and does not see a difference between the offender and the offended. For the pacifist, the existence of police in society is immoral. The pacifist, by his own virtue would refuse to be a police officer precisely because it would cause him to engage combatively. Whether he would be engaging combatively to defend the vulnerable and innocent, it does not matter to him.

One can take the case of Junko Furuta, a 17 year old Japanese girl who was abducted, raped over 500 times by over 100 different men, had a bottle, scissors, skewers, a crushed lightbulb, a metal rod, and many other instruments of torture inserted into her vagina and anus, her nipple ripped off by pliers, hanged from the ceiling and used as a punching bag, barbells dropped on her stomach causing her to lose her bowels, lighter fluid poured on her feet and lit on fire, her clitoris burned with a lighter, fireworks lit in her anus, and much more torture over the course of 44 days before she finally died of shock after being lit on fire and beaten. Take that case, and the pacifist in all his twisted logic, would still not intervene to save this girl if he were present and armed – but would sit idly by.

The Pacifist’s problem when it comes to Capital Punishment is an irrationality – a disconnect in understanding the nature of justice and mercy – of desert and forgiveness. He has not come to terms with the reality of the world he lives in and fails to employ both compassion and bravery to try to make it better.

The Practical Problem of Capital Punishment
For all intents and purposes, one might find the death penalty to be perfectly moral, but practically disastrous. What happens if, despite all effort, an innocent person is put on death row? Well, this has happened before – roughly 1.6% of death row inmates have been exonerated due to new evidence (usually thanks to technological advances) coming to light. It is a tiny fraction, but never-the-less even one life is one-too-many. This is a real practical problem with the death penalty. I would combat this argument from two sides.

1. Total Number of Lost Innocent Lives

I typically will not argue from a utilitarian point of view. I will make an exception, in this case, in order to appeal to the utilitarian in others though. We have no way to prove how many innocent people have been executed, but we can use the exoneration statistic of 117 (the number exonerated between 1973 and 2004) out of, roughly, 7500 death row inmates to get an idea. The point of this exercise is to minimize the total number of innocents killed. To get a balanced view, we have to take into account the recidivism rate of murderers in the US prison system. These are murderers who were not executed, who in turn were able to get out of prison and decided to murder again.

“One of the major studies done on recidivism by the Bureau of Justice Statistics, that tracked 272,111 prisoners for three years after their release from prisons in 15 States in 1994, found that the rate of recidivism among homicide offenders was about 40.7%. Out of 19,268 homicide offenders released, 3051 committed homicides again within three years.” (source)

So for every three years, roughly 3000 more people are murdered through recidivism out of only roughly 19,000 total murderers released. That means around 15% of murderers released murdered again in the study. To give you a little insight into what types of murderers get out of prison, here are two inmates who were let out in 2013 to continue living alongside your friends and family:

Paul Kennedy, 52
Murder, 1981, 25 to life
Strangled 16 year old Rita Heilweil with his bare hands in Green-Wood Cemetery in Brooklyn in 1981 after she rejected his sexual advances, and he raped her corpse. He was released on Aug. 1, 2013

Christopher “Crazy Chris” Aniades, 54
Murder and rape, 1981, 25 to life
Abducted, raped and strangled 19 year old Doreen Vitale as she waited for a bus in Ozone Park. Cops suspected him of several other brutal attacks on women, including one in which the victim’s throat was slashed and her eyes cut. He was released on Aug. 20, 2013.

So from a utilitarian stance, it is more moral to utilize the death penalty, and take the chance of executing roughly 120 innocent people every 30 years, than to not employ it and take the chance of murdering roughly 30,000 people in the same timespan (and remember, that second number isn’t adjusting for the fact the study only followed 19,000 released murderers that year).

2. The Exception, Not the Rule

The moral obligation on the part of the State to employ the death penalty outweighs the exception to the rule here. More often than not, there is enough physical and testimonial evidence to convict a person for a crime, if they actually committed it. The justice system in the US goes to great lengths, with multiple checks and balances (such as appeals, and burden of proof resting on the prosecutor), to make sure they have the right person in custody. There is something to be said about the fact no one is knowingly innocent when we place them on death row – but rather the jury, the judge, the officers involved, etc. will have clean consciences about the matter by the time it gets to sentencing.

This is a lot like the theory of collateral damage in war. No one wants it to happen, but it does happen. Does that mean we should never go to war? If dropping a bomb on a terrorist hideout results in the death of an innocent, too, without anyone’s knowledge (perhaps an undercover operative had embedded himself in the terrorist organization and everyone thought he was miles away at this point), does that mean we should never drop bombs? Put another way, if a murderer loses his gun to someone wrestling with him, and the police show up and shoot the wrong man but had no way of knowing it, should the police never try to stop murderers in any scenario on the off chance he could actually be mistakenly innocent? I’ve used ad absurdum both here and in the pacifist paragraphs because I believe it’s the best type of argument to widen our eyes to the ramifications of our world views. The fact there could be an exception to the rule doesn’t mean we should stop using all our faculties to try our best in executing a moral duty.

How Capital Punishment is a Moral Duty
Circling back to my previous comments on the role of government, the majority of political ideologies can agree that one of the government’s roles is to enforce justice. Since humans have moral agency, and the government has restricted the common citizen’s ability to take justice into his/her own hands (with good reason), then that moral agency is transferred to the government itself. In other words, the government has taken justice into its hands, and a failure to enforce justice is a moral failure on its part.

Justice, when dealing with a moral infraction, has two parts. The first is retribution – or punishment because a wrong has been committed. The second is reparation if something has been taken. For example, the thief, once caught, must not only be punished for his infraction, but also must return what has been stolen; often this evolves into civil litigation. A company may do work for another, and is refused payment. The other company has now stolen the payment, and must repay it. The first company has no right to force the second to pay, but it can appeal to a higher authority (the government) who does retain that right.

The same is true of murder charges. A citizen has no right to procure justice for her murdered son via her own hands, but can appeal to the government to do so. In this case, the government now has the burden and duty to prosecute and prove murder (while simultaneously allowing a hearty defense for the accused). If it can prove murder, it then must morally take the life of the murderer to fulfill retributive justice. It is what the murderer has earned, or deserves. He has abdicated the right to his life by taking the life of an innocent.

Justice does not care about empirical justifications such as deterrence of future crime, the heinousness of the crime, whether the person is sorry or not, etc. Those are all practicalities, but they do not lend themselves to the topic of justice- which is left untouched.

Further Thinking

Capital Punishment Negates Revenge
As previously mentioned, when the State seeks justice as a third party, it precludes revenge. In fact, by doing so, it quells vigilantism. Without just satisfaction, the offended party may take the issue into his/her own hands and commit murder. In return, a family member of the murdered may then retaliate. A family member or friend of that one will then retaliate once more. This cycle goes on, unbroken, for as long as a third party refuses to implicate itself. Gang disputes and blood feuds are prime examples of this.

Justice means Justice and Nothing More
When a person murders someone else they have abdicated their right to life, but that is it. Some have argued that we should use death row inmates to further society by experimenting on them with new drugs. Some have argued we should torture them before killing them, or the family of the victim should be allowed to get in a few blows. These thoughts are outside the realm of justice – they exact more payment that owed. They treat the criminal as an object to be used to gain from, rather than as a human with dignity who must now face the consequences of their actions.

What about rehabilitation?
Aside from the recidivism statistics I cited before, there is a philosophical issue with treating criminality as a disease instead of a choice. I can not do a better job summing up this issue than C.S. Lewis did in his essay, The Humanitarian Theory of Punishment. You can watch a brief explainer video of his essay here.

He contrasts this concept of punishment with the Retributive Theory of punishment and concludes that the later is in the best interest of the criminal.

Where does Mercy come into Play?
Where as the government has monopolized the role of justice in society, mercy is still left to the average citizen. Mercy is defined as withholding justice for the sake of the guilty party – it is quintessentially unjust. It first requires the offending party to admit guilt, to be aware of what they deserve, and finally to have a reduced sentence, or no sentence at all. If a person steals money from you, you may not want to turn them over to the government if you want to have mercy on them (perhaps they were stealing to feed their family of 6?). The moment they fall into the hands of the State, though, justice takes precedence. If the State decides to offer mercy to the criminal, at the expense of the afflicted, then it is abdicating its duty to uphold justice.

Photo Credit: Elijah O’Donell on Unsplash

Written by James Thayer