2.4: An Argument Against Capital Punishment (Noah Levin)

10 An Argument Against Capital Punishment
Noah Levin²⁵

Horrendous crimes are committed and will continue to be committed. Even before clear legal systems existed, people wanted to see perpetrators properly punished for the crimes they committed, and the more heinous the crime, the worse the punishment. Rape, murder, torture, and molestation will always be at the top of the list of crimes that are intolerable, as they are all gross violation of another’s autonomy. I could describe a crime that would make anyone’s blood boil and ignite a rage for vengeance on the criminal that had the coldness to carry out such a depraved act. I will spare the reader such a story, but you can imagine the types of crimes I am referring to. Once we catch a person that would do such a thing, the next issue we are faced with is clear: What do we do with this person? How do we punish them? Historically, execution, also known as capital punishment, has been used widely for many crimes. Today, it is reserved for the worst of the worst crimes and criminals in countries where it is used. However, many countries (notably, all of Europe except for Belarus) have either outlawed the punishment or chosen not to implement it. We thus ought to consider whether, in today’s world, we should ever execute criminals.

While some crimes and criminals might deserve to be executed for their crimes, it is not a penalty that we should continue to implement, especially in the United States of America. There are four reasons for this: 1) the justice system is flawed, and with the finality of death, we should avoid punishments that cannot be properly compensated for; 2) on top of variations in prosecutors in seeking the death penalty, there are worrisome geographic and racial variations in the implementation of capital punishment that mean it is not applied fairly; 3) it is sought and carried out infrequently; and, 4) the United States is one of the few “Western” countries to still have it, and abolishing it would put the USA in-step with its closest allies and provide an important expression of moral fortitude.

My arguments will hinge on one major claim: a life behind bars would appear to be an equally just punishment when compared to the death penalty. While one has actual life, there is no freedom to go with it. The value of living might be completely removed if one is behind bars forever, making this punishment on equal footing to death. The Spanish phrase for life imprisonment is the poetic cadena perpetua, which literally translates to “perpetual chain,” a reminder that the focus of such punishment isn’t on living, but being imprisoned. In both prison and death freedom is removed, and never living free again is a fate that is akin to death, as any semblance of a quality life can only be a farce. On top of this, should there be good reason to do so, we can always lessen the term of the punishment and release the prisoner. Additionally, as the Dread Pirate Roberts told Westley in The Princess Bride, “Good night, Westley. Good work. Sleep well. I'll most likely kill you in the morning,” there would remain the possibility of execution in the future if justice demands it (notwithstanding potential legal problems with altering a punishment); but we can’t bring someone back to life (yet) if we execute them and regret it. This doesn’t illustrate that execution is wrong, but shows a technical way that life imprisonment can be advantageous. In any event, it is unclear to me that execution is the only appropriate punishment for the crimes that it is a potential punishment for.

I have not mentioned anything about costs. My reasoning is simple: it is unclear whether life in prison or the death penalty is more costly overall, as the likelihood of a shorter time spent in prison is offset by the increased costs of housing the prisoner and the longer court processes (such as multiple appeals) required for capital punishment. Of the many studies that have occurred and the analyses of the studies, there is no clear answer to the question of which one costs more, as costs per trial vary greatly based upon the details of the trial, and where it is carried out, as well as the overall costs of housing or executing an individual prisoner in a specific prison. Even if there were an answer, it is beside the point: if the death penalty is the only just punishment, then we ought to implement it since it would be appropriate to do so. It is very costly to put a car thief into prison, and a lot cheaper to implement the religious punishment of removing a hand. But it is often deemed inappropriate to do the latter, as mutilation is a permanent disfigurement that is particularly cruel. A few years of lost freedom (and maybe a monetary fine) are now deemed to be much more just.

Why should we execute people and for what crimes? There are three main reasons that hold philosophical value: justice, deterrence, and the impossibility of rehabilitation. The first, and most important, reason is that the criminal deserves to die. The act they have committed is so depraved and caused such harm, execution is the only way we can fairly punish the offender. If we kill people for awful crimes, then the threat of punishment also can function as a deterrent. If you might be killed for doing something awful, perhaps you’ll refrain from doing it. Lastly, what should we do with those people that are so depraved they are beyond rehabilitation? Some people will just continue to do bad things, and will not, by their own admission, stop. Experts can interview them and concur. They are lost, there is no hope, and they may even see death as just and preferable. Certainly these people should be executed. On top of all of this, it gives the families of victims justice and satisfies our primal hunger for revenge.

To turn back to my primary reasons for advocating for the abolition of the death penalty in the United States, my first claim is that given the finality of the punishment and the potential of executing innocent individuals, we ought to avoid it. Let’s assume this occurs, and an innocent person was executed. Let’s also assume that execution is appropriate for certain crimes. Would executing one innocent person be worth executing all of the actually guilty individuals that would come to have the punishment of execution? After all, we allow emergency vehicles to violate all sorts of traffic laws, resulting in the occasionally fatal, and likely avoidable, accident. We believe this cost is worth it because it means that more people, on the whole, are saved. Is execution so appropriate and so important that there are no suitable alternatives or that the only alternatives are actually, all-things-considered, significantly less just?

To alleviate this concern, someone might be quick to point out that no person has been executed and later been found to be innocent since the United States restarted capital punishment in 1977. As of this writing, 161 people have been exonerated before execution (out of approximately 7,800) making the wrongful sentencing rate at least 2% (for updated information on this and all of the statistics mentioned in this work, visit http://deathpenaltyinfo.org). Of course, there is little reason to find out if someone was actually innocent after they have died, so those sentenced to death that die before, or as a result of, execution are unlikely to be exonerated, should they actually be innocent. All crimes carry the chance of wrongful convictions, but most of the punishments can, at least in theory, be compensated for, assuming that the value of money can be comparable to the value of time. There is no compensation for a dead person that the person will directly benefit from. As such, the risk of executing an innocent person is too great, especially when life in prison would appear to be a fitting alternative.

There is extreme variation on the implementation of the death penalty across racial and geographic lines and its application is very dependent on the prosecutor. Where the death penalty is allowed, if you are a black male that killed a white female during a robbery, the odds of receiving the death penalty over a white male that tortured a black female before death are significant, and both are much greater than a white woman that tortured then killed a black man (I don’t know the exact number since no one has crunched the numbers on all of these, but consider that less than 2% of all death row inmates are women despite committing roughly 10% of eligible homicides and that black males are 97% more likely to get the death penalty when they kill a white person over a black person). The race of the perpetrator and the victim both influence whether the death penalty is sought and applied. Justice is supposed to be blind, and even if everyone who got the death penalty deserved it, the application of it is unfair. This should be concerning.

The death penalty is sought in less than 1% of eligible cases. This statistic speaks for itself: capital punishment is rarely sought as a punishment even in cases where it can be used. Capital punishment will work as a deterrent if it actually deters, but since it is rarely used, it would be reasonable for criminals to believe they would not be executed if they commit capital crimes, and thus unlikely to work as a deterrent. For the threat of capital punishment to clearly work as a deterrent, it should be implemented a lot more frequently than it is. As there is no consensus in the research on whether it is effective as a deterrent, relying upon this reason to support maintaining the death penalty is problematic.

Finally, abolishing the death penalty in the United States would send a very important symbolic and humanitarian message: we stand with the rest of the NATO countries and majority of the world (and move away from being the country with the third most executions behind China and Saudi Arabia) in deciding not to systematically execute people in the name of justice. European countries did not disavow the death penalty because it was inappropriate, but rather many did so because of all the practical concerns I have laid out. If it is unfair in how it is used, then it shows the legal system disrespects its own desire for impartiality. It undermines the integrity of the legal and justice system itself.

Yet, there is still something to be said for keeping the death penalty in light of all of my reasons for abolishing it.²⁶ Despite my claims that life in prison is just as bad as execution, many people disagree with this. Importantly, many criminals that face these punishments might disagree with it. The threat of execution could motivate criminals to cooperate and accept guilt more frequently, sparing us both the costs of seeking conviction and avoiding the possibility that they are found innocent (this is assuming that they really are guilty). Beyond this, people spending life in prison might not have anything other than their lives to lose, so keeping capital punishment gives them one final thing to fear and thereby prevent them from continuing to do awful things behind bars. Lastly, there might not be any value to the positive expression of our moral fortitude that abolishing the death penalty might bring with it. In fact, keeping it might be more expressive by saying that we will never tolerate extremely depraved acts.

I concede that each of these arguments provides a good reason to keep the death penalty on the table. Indeed, the fact it is rarely used is irrelevant for each of these arguments: it’s on the table as a possible punishment, and that’s what matters. However, the finality of the death penalty doesn’t necessarily have to be the goalpost. We do not chain people to walls until they die in prison: inmates in prison for life are afforded some amount of pleasure and freedom behind walls, at the very least, in hopes of reform and an existence that contributes positively to society. We are also not heartless and can recognize the humanity in even the most hardened criminals. Thus, there can be (and are) varying degrees of freedom one may be privileged to while imprisoned, and the threat of continued loss of freedoms could be used as motivating factors in lieu of execution. To the last objection, that we do not need to show anything to our Western allies or make any statements on punishment (and that having the death penalty might even be the statement we should be making), I’d like to point out that execution is the only punishment we have that intentionally inflicts direct physical harm on a criminal. We no longer lash people, use medieval torture devices, or otherwise use methods with the intention of inflicting physical harm. While we restrain and restrict, the purpose of all other types of punishments and incarcerations are not to physically harm. If physical harm comes, it is an unintended consequence. Abolishing the death penalty, the last bastion of physical violence as a punishment, illustrates that we have moved beyond intentionally inflicting physical harm as a form of punishment.

On March 12, 2019, the governor of California, Gavin Newsom, issued a moratorium on executions during his governorship. This means that while he is governor, no one will be executed and everyone on death row will be treated as if they are in prison for life. Future governors can restart executions, however. This move was met some anger, with the loudest shouting two things: (1) voters have constantly reiterated the desire for the death penalty and the governor disregarding this is overreaching on his part, and (2) that certain people deserve to die as a result of their crimes, and the justice system has confirmed this. The former argument is one about the political structure of the state and where powers lie, and while I can be sympathetic to this viewpoint, the facts are that the governor has the power to take the actions he did, an ability he has in order to maintain a proper system of checks and balances. Whether the system is actually balanced is a separate issue and not one I need to tackle right now. The second reason had people advocating for the killing of other human beings. It struck me as odd that the cause they are getting riled up about is one that involves such an act of violence. It feels as if we have lost our humanity if we scream and fight so that we may kill another person in the name of the law, because there is no other action that could possibly bring justice. It might be the only way to get revenge, but the law should not be used for revenge. I do believe that some crimes are worthy of such a sentence, but it is not something worth fighting for, especially when the alternative of life in prison is a sufficient proxy. I fully sympathize with the families of victims and in no way want to ignore the awfulness of the crimes these people committed, but fighting for someone else to die in the name of justice does not promote the values we ought to promote as a modern society.

To summarize, while some crimes are heinous enough that the offender can be deserving of capital punishment, implementing execution is riddled with too many problems and complications to be morally appropriate in today’s world. It should thus be abolished because the alternative of life in prison is an acceptable replacement.

For Review and Discussion

1. Do you think there are certain crimes where execution is appropriate? If so, which ones and why? If not, why not?

2. Assume that execution is the appropriate punishment for some crimes. Should it be used? Why or why not?

3. Is execution a “cruel” or “unusual” punishment? Why or why not?