The Morality, or Lack Thereof, of the Death Penalty
Justification of the death penalty and justification against it has been a long, ongoing, and sometimes heated debate. Both its supporters, such as Immanuel Kant and Ernest van den Haag, and its opponents, such as Stephen Nathanson and Jeffrey Reiman, claim that their views are morally right. I will attempt to show that despite the arguments to the contrary, the death penalty is unmoral.
According to the Retributive Theory of punishment, the grounds that wrongdoing deserves punishment is the only justification for punishment. "Criminals must pay for their crimes; otherwise an injustice has occurred," (Kant, 239). Punishment is not justified by good results, nor is it denied because of bad results. Punishment is justified by the guilt of the offender.
The severity of the punishment is determined by the crime in the Retributive Theory. "It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing," (Feinberg, 613). This is the same as the "an eye for an eye" method of determining punishment. Therefore the Retributive Theory calls for the death penalty for murderers because "there is no likeness or proportion between life, however painful, and death; and therefore there is no equality between the crime of murder and the retaliation of it but what is judicially accomplished by the execution of the criminal," (Kant, 241).
Ernest van den Haag agrees with the Retributive Theory that punishment must be of the same gravity as the crime, but he has a different justification for the punishment of the death penalty. He says that the death penalty is justified if it achieves its purpose of "doing justice and deterring crime," (van den Haag, 746). Also, a society can not claim that the lives of its citizens are safe if those who did not allow for innocents to continue living are allowed to live, especially at the society's expense (van den Haag, 746). Therefore, it is morally wrong to allow a murderer to live. Doing so says that the negative weight of a crime never exceeds the positive value of the life of the person who committed it, and that the murderer has as much right to live as the victim who is dead (van den Haag, 746 & 747).
Stephen Nathanson and Jeffrey Reiman are among those who argue against the death penalty, and against van den Haag. Reiman says that refusing to execute murderers, even though they deserve it, is part of the civilizing of the human species, and teaches a lesson about the wrongfulness of murder just as well as the death penalty (Reiman, 532 & 533). He does admit that just because the death penalty is too horrible a practice to do, this does not mean that it could not be justified if necessary to avoid worse consequences. In this manner, though, the only way for the death penalty to be justified is if it were a better deterrent than life in prison, which he claims it is not (Reiman, 532). Also, if the death penalty is a better deterrent than life in prison, then death-by-torture would be a better deterrent than the death penalty. According to van den Haag's argument of deterrence being justification for the death penalty, deterrence would also be justification for death-by-torture and therefore should replace the death penalty as the punishment for murderers. So, anyone who accepts van den Haag's argument would have to accept death-by-torture for murderers, and Reiman says this is absurd (Reiman, 533).
Nathanson uses a different argument against the death penalty. He says that even if it is universally accepted that murderers deserve to die, the arbitrariness which exists in the legal system allows for prejudices which exist in society to enter into decisions about the death penalty. The death penalty is unjust and unmoral if its actual imposition depends on factors other than the guilt of the person (such as race, religion, hair color, etc.), and if the judgement on whether a person is even deserving of the death penalty also depends on arbitrary factors and not simply the crime (Nathanson, 752 & 753).
Another argument against the death penalty relating to the arbitrariness in whether a person deserves the death penalty or not is the case where an innocent is executed. The death penalty is the one punishment which can not be undone. If someone is determined guilty, put to death, and later found to actually be innocent, that person can not be given life back. It is wrong to punish someone for a crime that person did not commit, even more so if the wrongful punishment can not be rectified. Therefore it is wrong to impose the death penalty on anyone since it could possibly be determined later that the person did not deserve it.
Van den Haag disagrees with this. "Unless the moral drawbacks of an activity or practice, which include the possible death of innocent bystanders, outweigh the moral advantages, which include the innocent lives that might be saved by it, the activity is warranted," (van den Haag, 743). He accepts that some innocents may be executed and says that this is not sufficient grounds for not using the death penalty as a punishment.
On the contrary, van den Haag's argument gives grounds for not using the death penalty as a punishment. The moral drawback of the death penalty in dispute here is the execution of an innocent. The moral advantage is the innocent lives that might be saved. The problem is that the innocent lives which "might" be saved also may not be, or may not even be in need of saving. There is no way to know. While it is known that the person to be put to death is a life which is not saved. When this person is an innocent, this is advocating that it is more advantageous to definitely execute an innocent every once in a while in order to possibly save other innocents from being put to death without knowing if these others will be saved or are in need of being saved. With the advantages being uncertain, they can not be taken to outweigh the drawbacks, therefore the activity of the death penalty is not warranted.
This same argument also refutes Kant's Retributive Theory of punishment, in which "punishment is not justified by any good results," (Kant, 239). Therefore the possibility of saving innocents lives as a result of executing murderers is not a viable justification for the death penalty. Also, since punishment is justified simply by the person's guilt, (Kant 239), it is also not justifiable to execute an innocent in the Retributive Theory. Therefore the possibility of imposing the death penalty on someone who is innocent does not allow for the death penalty to be imposed on anyone.
Following from the argument that in allowing the death penalty innocents are occasionally wrongly executed, is the argument of whether anyone is competent to decide questions of life and death. How can it be that people are competent to determine if someone deserves to live or die if innocents are being put to death under the death penalty? It would seem that they are not competent, and so the death penalty should not be a possible punishment for people to consider.
Van den Haag also addresses this issue. He believes that those who do not think themselves, and therefore anyone else, competent to decide questions of life and death hold this view because of a lack of nerve. These people "shudder at the gravity of the decision" to put someone to death, and so refuse to make it (van den Haag, 746-7). But courts can not have this view. They can only escape answering questions of life and death if they give up their chief duties, which are "to do justice, to secure the lives of the citizens, and to vindicate the norms society holds inviolable," and all of which van den Hagg says the death penalty supports (van den Haag, 747).
Yet, these arguments do not refute the claim that people are not competent to determine if someone deserves to live or die. All van den Hagg has argued is that courts must make these decisions on life or death, despite that people, and therefore courts, are not competent to do so. But it would seem that since people are not competent, that whether or not courts must make these decisions, it is wrong for them to do so because they are not competent to make the decisions. Therefore the death penalty is wrong also.
One other argument against the death penalty is logically built from the moral which is consistently found in moral codes, and which people for the death penalty agree to, that being that murder is wrong and unmoral. This is not disputed. Murder is the killing of someone, but to be specific because accidents can also kill a person, murder is the intentional killing of someone. What is the death penalty? It is the intentional killing of a person. This too can not be disputed. When the death penalty is imposed on someone it is done so with the intent that the person will be killed. So, the death penalty is the intentional killing of a person, the intentional killing of a person is murder, and murder is unmoral. Therefore by the transitive property, the death penalty is unmoral.
The only problem in this argument arises when one argues that while murder is the intentional killing of someone, the opposite is not necessarily true. Just because murder implies intentional killing, does intentional killing necessarily imply murder? This depends on what else is intentional killing by another name.
Assisted suicide is intentionally killing, as well as the death penalty. Assisted suicide is when help is intentionally given to someone who wishes to die in order that the person may die. So an intentional killing as occurred. When the case is a person who is terminally ill and suffering, and permission is given to a doctor to end this person's life, which happens, it is called assisted suicide. When the case is a person who is terminally ill and suffering, and permission is given to a family member to shoot this person to end this person's life, which happens, it is called murder. These two cases are not fundamentally different, so one can not be considered murder and the other not. They are either both murder or both not. In both cases the death of a person is directly caused by the actions of another who willfully acted to achieve this end, which is murder.
Similarly, the death penalty is also murder even though it is a legal punishment. This can also be shown using the beliefs of Kant and van den Haag, who support the death penalty. Kant's Retributive Theory is based on Kantian philosophy, which includes the Formula of Humanity as a rule. So for something to be morally right it can not use a person as a means to something else, only as an end itself. The end achieved by the death penalty is the intentional killing of the criminal. The end can not be seen to be justice or deterrence because then the killing of the person is a means to either of those ends. Therefore, with the end being the death of the person which is caused by those who willfully acted to achieve this end, the death penalty is murder.
Van den Haag says that the death penalty must be justified by its purpose, not by whatever the motive is for it. "An action, or rule, or penalty, is neither justified nor discredited by the motive for it. No rule should be discarded or regarded as morally wrong because of the motive," (van den Haag, 746). The purpose of the death penalty is to intentionally kill the criminal. Whether or not the motive is justice or punishment is irrelevant, according to van den Hagg. Therefore, with the purpose being the death of a person which is caused by those who willfully acted to achieve this end, the death penalty is murder.
With assisted suicide and the death penalty both being intentional killings and by this both being the same as the action of a murderer, and murder being morally wrong, the death penalty is morally wrong, even by the standards of its supporters.
Feinberg, Joel. "What, If Anything, Justifies Legal Punishment?" reprinted in The Philosophy of Law, 5th ed., Joel Feinberg and Hyman Gross eds. (NY: Wadsworth Publishing Co., 1995), pp. 613-617.
Kant, Immanuel. "The Retributive Theory of Punishment," reprinted in Contemporary Moral Problems, James E. White (ed.), (Minneapolis: West Publishing Co., 1996), pp. 239-240.
Nathanson, Stephen. "Should We Execute Those Who Deserve to Die?" reprinted in The Philosophy of Law, 5th ed., Joel Feinberg and Hyman Gross eds. (NY: Wadsworth Publishing Co., 1995), pp. 748-756.
Reiman, Jeffrey. "Civilization, Safety, and Deterrence," reprinted in Morality in Practice, James P. Sterba (ed.) (NY: Wadsworth Publishing Co., 1997), pp. 531-533.
van den Haag, Ernest. "In Defense of the Death Penalty," reprinted in The Philosophy of Law, 5th ed., Joel Feinberg and Hyman Gross eds. (NY: Wadsworth Publishing Co., 1995), pp. 742-747.