To suggest that we should abolish the death penalty is not to imply that these crimes were not serious, nor is it to deny the great loss and grief of the survivors. Rather, it is to suggest that our response to crime as a nation, as a community of people who value life and the rule of law, must be consistent with morality, common sense, and pragmatic considerations (i.e. what works).
This is an essay on the Death Penalty which I wrote April 10, 1995, before the bombing of the Federal Building in Oklahoma, and long before the recent murders in Massachusetts:
We kill people who kill people to show that killing people is wrong. Is this the best we can do as a society? Capital punishment is intrinsically immoral, and it should be abolished. We cannot disguise the devaluation of life inherent in the death penalty as the legitimate exercise of a moral and Constitutional prerogative. We should not rid ourselves of criminals guilty of murder or other heinous crimes by killing them.
The death penalty is morally disordered for three major reasons. First, the death penalty devalues, rather than affirms life. It is the declaration that someone should no longer be allowed to live, that whether a person lives or dies falls under the jurisdiction of the state, rather than the forces of nature or the will of God. Second, in the context in which the death penalty is always exercised, it is the unnecessary taking of a human life. Remember that people brought up for execution are already in custody, and are therefore under the control of the authorities. The objectives of punishing these people and protecting society can be accomplished without resorting to lethal means, such as life imprisonment. Third, it makes the state into an instrument of revenge for the family and friends of the victim of a crime, and also for a public frustrated by increasing crime rates. Although we should have compassion for the family and friends of murder victims or victims of other serious crimes, and do whatever we can to help them cope with their loss and get on with their lives, we must not allow revenge, whether carried out by individuals, bands of vigilantes, or the institutions of the state.
In addition to the immorality of capital punishment, there are problems in its administration that render its use unjust. These are the issues of the race of the accused or the victim, the cost of carrying out an execution consistent with constitutionally mandated safeguards, and the danger of executing an innocent person. Still, even if these problems could be overcome, so that it was carried out in flawless adherence to constitutional principles, without prejudice or error, the death penalty would still be immoral.
Former New York Mayor Ed Koch, a proponent of capital punishment, argues that "the death penalty strengthens the value of human life" because "it is by exacting the highest penalty for the taking of human life that we affirm the highest value of human life" (Koch 317). The inconsistency in Mayor Koch's argument is that if our society does indeed hold human life in such high regard, then we should structure our institutions and laws in such a way that they themselves do not devalue human life. Anthony D Amsterdam points out that:
Indeed, the death penalty sends a strong message that some lives can be disposed of. Philosopher Stephen Nathanson points out a positive aspect of restraint by telling us that "when we restrain ourselves and do not take the lives of those who kill, we communicate the importance of minimizing killing and other acts of violence" (145).
The death penalty is a judgment that someone's life deserves termination because of what he has done. This is a difficult judgment to make. The question of whether someone deserves death as a punishment for killing is not easy to answer. Columbia University Law Professor Vivian Berger, who has represented defendants in capital cases, points out that "no matter how appalling the crime, twelve not unduly sentimental jurors may well decide to spare a defendant when shown that he is a human being with some explanation if not excuse for his horrible acts" (342) Similarly, Stephen Nathanson focuses on "the central point... that a person's degree of moral desert is determined primarily by considerations of what could be reasonably expected of him" (89). He argues that there are often mitigating circumstances, such as psychological impairment brought on by childhood trauma or abuse, drug addiction, or living in a condition of oppression and poverty, which can seriously affect a person's judgment and behavior, and reduce his moral responsibility (88). This is not to say that such a person does not deserve punishment, but that it is difficult for us to determine with sufficient moral certainty that such a person deserves death.
It is the difficulty of weighing such mitigating circumstances in capital cases which compelled Supreme Court Justice Harold Blackmun to renounce his support for capital punishment in February of 1994. He wrote in his dissenting opinion in Callins vs. Collins:
He goes on to say that loosening the laws and procedures to allow discretion invites the problem of sentencing being "arbitrary and irrational" (75). The grounds on which we conclude that we may or may not take a human life are not always clear.
To authorize the taking of someone's life in the face of this uncertainty is to hold human life in low regard. Such a severe and irrevocable penalty should not be administered under these conditions. The punishment for capital crimes should be the most severe possible without being barbaric, and should not be death. Our justice system should demonstrate that society values life, and does not pretend to know at which point the right to life is forfeit.
One of the most compelling arguments usually raised against the use of the death penalty is that there is a danger of executing the wrong person. It is possible that some innocent people have been executed. David Bruck points out that "while we sometimes note that someone is vindicated prior to his execution, it is rare to discover that someone was wrongfully accused after his execution, for after a person is dead there is no more reason to attempt to gather additional evidence or clear his name (321)." We can't give back to a man the years he lost behind bars after having been erroneously imprisoned, but at least we can set him free. If we execute someone in error, we can never correct that mistake.
This is another example of how capital punishment devalues life. We demonstrate that we do not value the life of the prisoner when we take the irrevocable step of exterminating that life, fully aware that we will never be able to reverse this action of it were later found to be in error. Even the IRS returns to taxpayers money which it has determined was erroneously collected. Mayor Koch dismisses this argument, asserting that "If government functioned only when the possibility of error didn't exist, government wouldn't function at all" (316). But abolition of the death penalty is not the same thing as shutting down the government. The government will function just as well if murderers were imprisoned for life in lieu of execution, or perhaps even better, since it would no longer encounter the additional constitutional complications and expense of prosecuting crimes when the sentence sought is death (Ross 7).
The incapacitation of violent criminals, and the deterrence of violent crime are necessary for the safety of the public. The death penalty definitely accomplishes the former, though it is debatable whether it accomplishes the latter. Both the need to incapacitate and deter can be met without resorting to execution. Pope John Paul II, in his encyclical letter "Evangelium Vitae" writes that through just punishment the government "fulfills the purpose of defending public order and ensuring people's safety" (John Paul II A12). He comments that cases in which execution is necessary to accomplish this are "very rare, if not practically nonexistent" (A12) This is precisely where the argument of the supporters of capital punishment falls through. If the offender is already in custody, then what further incapacitation is needed?
It is debatable whether the death penalty actually deters potential murderers. Ernest van den Haag, a prominent supporter of capital punishment, concedes that "one cannot claim... that it has been proved statistically that the death penalty does deter more than alternative penalties" (329). Again, Anthony G. Amsterdam points out the flawed logic of the supporters of capital punishment "the real mainstay of the deterrence thesis, however, is not evidence but intuition" (357) While one can gather statistics from the police blotter to determine how many crimes actually were committed, how does one go about determining how many crimes might have been committed but weren't? Stephen Nathanson concludes that "it is highly unlikely that the death penalty will ever operate so effectively as to save many more lives than other, less severe punishments" (129). With the ability to incapacitate criminals with incarceration, and without evidence that capital punishment deters violent crime, there is no pragmatic reason to impose it on anyone.
Even faced with the uncertanty of the deterrence factor, and the ability of the state to protect society through alternate, non-violent means, the need for vengeance often compels people to support capital punishment. In the past few years there has been increasing pressure for recognition of victims rights. Victims of crime or their survivors are now routinely allowed to make statements to the court prior to the sentencing of the offender. There is the recognition that a criminal has taken something irreplaceable from his victims, be it property, the feeling of security, or the companionship and economic support of a loved one or family member. Shouldn't the response of our judicial and penal systems be sensitive to the feelings of the family and friends of the victim? To the extent that a murderer or other criminal is apprehended, duly convicted and incarcerated, yes. But the state should be about the business of protecting its citizens, not acting as an instrument for revenge on behalf of the survivors of a victim. The death penalty is state sanctioned revenge, and we should be more civilized than to allow it. Henry Schwartzchild testified before a House of Representatives subcommittee about the element of revenge in capital punishment:
It is frustration which drives public support for the death penalty according to David Bruck (Bruck 322). Faced with a rising crime rate, and the stories seen every day on television and in the newspapers, people may see no alternative to exterminating those who are the most violent among us. Bruck notes the danger in this attitude:
We stand in danger of losing our moral bearings when we act out of frustration. Our response to crime should be well thought out and consistent.
Supporters of the death penalty often fall back on the "eye for an eye" argument. Someone who kills deserves to be killed. Nathanson argues that "applied strictly, it would require that we rape rapists, torture torturers, and burn arsonists whose acts have led to deaths" (74). We take this position to be absurd. There are other ways to punish offenders than to do exactly to them what they did to others. Nathanson states that "'an eye for an eye' once was a genuine principle, but now it is merely a slogan" (74). Making life or death decisions on the basis of a slogan is foolish. Unfortunately, bumper sticker philosophy often shapes public opinion.
In light of the immorality inherent in the death penalty, it is not surprising that there are many problems in its administration. Opponents of the death penalty often argue that the race of the victim or of the defendant is a determining factor in whether the death penalty is sought. (Berger 343, 346). If this is true it would not be an argument for the abolition of the death penalty, but rather an argument for increased sensitivity and care in handling racially sensitive cases. Nevertheless, the allegation is important because it is an indication that the injustice of racism may still infect our judicial processes. If the death penalty were abolished, the shadow of racism would still fall across our institutions.
Another argument for the abolition of the death penalty is an economic one. It is more expensive to execute an offender than to incarcerate him for life (Ross 6). This is because of the additional expense of handling capital cases in a careful manner, consistent with the defendant's constitutionally guaranteed rights. This is also not a strong argument for the abolition of the death penalty because it reduces reason for the preservation of the life of the defendant to a simple economic equation. The courts must deliberate carefully in capital cases. They should consider all the facts available, and mitigating circumstances in the context of applicable law. If that costs money, so be it. Our nation should not put the consideration of economics over those of law, decency, and respect for life.
Nevertheless, these arguments have some merit, because they point out the problems with the death penalty as it is currently practiced in this country. They show us that it is difficult to administer the death penalty impartially, and that its prosecution diverts resources from other areas of need.
In a climate of increasing crime, the clamor for recognition of victims' rights or the difficulties in administering capital punishment we should not allow ourselves to be distracted from tne central question: is the death penalty moral? I say it is not, and America, as a society which purports to be a moral nation, a nation "under God," should be a nation which affirms life. We should abandon capital punishment as unbefitting a moral and decent people.
Amsterdam, Anthony G. "Capital Punishment." Stanford Magazine Fall/Winter 1977: 42-47. Rpt. in The Death Penalty in America. 3rd ed. Ed. Hugo Adam Bedau. New York: Oxford University Press, 1982
Blackman, Harold, A. "I Dissent" Boston Globe February 1995: 75
Berger, Vivian. "Rolling the Dice to Decide Who Dies." Current Issues and Enduring Questions. Ed. Sylvian Barnet, and Hugo Bedau. Boston: Bedford Books of St. Martin's Press, 1993. 340-346
Bruck, David. "The Death Penalty." in Barnet. 319-323
John Paul II. "Evangelium Vitae." Rpt. in New York Times 31 March 1995: A12
Koch, Edward J. "Death and Justice: How Capital Punishment Affirms Life." in Barnet. 314-318
Nathanson, Stephen. An Eye for an Eye? Totowa, NJ: Rowman & Littlefield, 1987
Ross, Michael. "A Voice From Death Row." America 11 February 1993: 6-7
Schwartzchild, Henry. "In Opposition to Death Penalty Legislation." The Death Penalty in America. 3rd ed. Ed. Hugo Adam Bedau. New York: Oxford University Press, 1982. 364-370
van den Haag, "The Deterrent Effect of the Death Penalty." in Barnet. 327-331
van den Haag, Ernest, and John P. Conrad. The Death Penalty: A Debate. New York: Plenum Press, 1983