That men kill one another is an inevitable consequence of their living together in society. They do so mostly by accident, sometimes out of momentary madness, and occasionally with premeditation and malice. When accident or passion is the cause, the killer experiences intense guilt and regret; when his action is willful, deliberate, and premeditated, those around him are horrified and outraged. Indeed, suicide, euthanasia, and abortion are outlawed in many nations.
Notably, self-defense or the protection of another’s life are about the only justifications in modern society for taking a life. And to claim the legal protection it affords, the killer must demonstrate that he, or someone else he was acting to protect, faced an immediate life-threat, that he had no realistic alternative to violence, and that he acted not as a provocateur but in response to the threat, without premeditation or malice. At some times and places, an insult to honor has served as a legally acceptable justification for killing, if the homicide is performed according to strict conventions established for dueling. There may also have been times when killing was justified in the name of sport or as a demonstration of one’s skill or bravery in combat, as in the Roman Colosseum. Yet, there are limits to this apparent abhorrence of willful human killing. Warfare transforms some human beings into “the enemy”-an immediate threat to the security of the nation and to the lives of its citizens. To kill the enemy becomes a corporate act of self-defense: the killer becomes a patriot.
Even so, he may be ambivalent or reluctant unless the enemy has been “dehumanized” with propaganda about his demonic qualities, and the act of killing “impersonalized” with weapons that make it possible without actually seeing it take place. And once the enemy is no longer a threat-as a prisoner of war-the conventions of warfare forbid killing him. Crimes like murder and treason are also a justification for killing in many nations of the world. They transform the perpetrator into “a public enemy”-perceived as dangerous to society and its citizens. Yet, unlike the enemy soldier who is an agent of evil, the public enemy actually embodies the evil. The murderer is killed not so much for what he might do as for what he has done. His life is the debt he owes society for his crime, his death is intended to inhibit others from emulating his behavior. Thus, his execution is conceived as a corporate act of justice whose purpose is to reaffirm commitment to the laws that protect the lives and rights of citizens.
But, ironically, the punishment has much in common with the crime. It takes a form that would qualify it as a murder if it were perpetrated by one citizen against another. Unlike all other legally justifiable killings, the execution is a purposeful and prearranged homicide. The victim, the executioner, the state officials, and the spectators-all know ahead of time that they will be involved in killing. Moreover, at the time of the execution, the victim is a helpless captive. Were he a prisoner of war, his execution would be a crime. Capital punishment is said to be a double-edged sword-providing deterrence against future offenses and satisfying the demand for retribution in society. The protection it affords is not so much against the condemned offender, who could be incarcerated for life with the same effect, as against those who would otherwise follow in his footsteps.
His execution is a warning to would-be offenders that the price they will have to pay is greater than the value such crimes can possibly have for them. And it is a notice to upright citizens that the criminal has paid for his crime in full measure, that the wrong has been avenged, that justice has been done. The critics of capital punishment do not deny that punishment will have an impact on society at large, but they dispute the nature of this impact when punishment is death. They argue that the fundamental impact of the death penalty is to reduce respect for human life in society, rather than to increase abhorrence for murder and like offenses.
The lesson that capital punishment teaches, according to its critics, is not restraint in the use of violence, but rather an acceptance of violence as an inevitable aspect of relations among men. The execution is a calculated use of death as an instrument of public policy, not a renunciation of killing. Instead of rejecting the method of the criminal, the state simply turns it against him. The consequence is, at least in the minds of some opponents, that this use of death as punishment actually breeds more violence and killing than it deters. Abolitionists add that the execution is not an act of justice, but a grave injustice. In practice, they say, it is imposed in response to momentary passions and enduring prejudices of the community, not as a consistent or equitable instrument of the law. And, inevitably, it denies the guilty victim the right of rehabilitation, and the innocent one the right of restitution. Those in favor of the death penalty will, of course, argue that the risk of executing an innocent person is overestimated, and that such risk must be accepted if society is to have the fullest protection of the criminal law.
Abolitionists will reply that unless some deterrent benefit from capital punishment can be clearly shown, there is no justification for risking an irreversible mistake. But by far the greatest objection to the death penalty in terms of its inequities is simply this: given the fact that each year roughly 10,000 murders are committed, is there any reason to believe that the 100 or so sentenced to death and the handful finally executed were those who committed the most vicious crimes, were the most depraved and beyond rehabilitation, and had the benefit of counsel as skillful as the great majority who are never sentenced to death at all? Abolitionists question such comforting assumptions. Yet one of the major obstacles to abolition of the death penalty has been the question whether murderers can be safely imprisoned and eventually released without again preying upon the public. Actually, murderers probably have less tendency to repeat their crime (either inside prison or outside, after release) than any other class of offender.Retentionists, if they are to be consistent, must argue that it is better for a thousand murderers to be executed (even though they can be safely released) than for the lives of half a dozen innocent persons to be sacrificed.
Abolitionists find this unacceptable. The argument against capital punishment and in favor of abolition is by no means conclusively established. Not only capital punishment but all criminal justice is liable to the complaint that it is riddled with inequities. It seems a moral certainty, furthermore, that sometimes at least the death penalty must have served to deter crime where life imprisonment would have failed. Nor can anyone claim, finally, that life imprisonment (which, of course, does not mean “life” at all) offers complete protection to society.
Among the arguments of the latter sort are these: the death penalty is the only punishment proportionate to the gravity of the offense; the death penalty is the only punishment whereby the murderer can expiate his crime; the death penalty is more humane than life imprisonment; in capital punishment the state indulges the very lust for vengeance it denies to its citizens; capital punishment violates the sanctity of human life; life imprisonment is more humane than capital punishment; and so on. Clearly, neither abolitionist nor retentionist has any monopoly on these nonempirical arguments.But the questions that have drawn the most controversy are whether capital punishment can be equitably administered, whether it is an effective deterrent, and whether there is any viable alternative are still open.
ReferencesThomas F. Geraghty (2003). Trying to Understand America’s Death Penalty System and Why We Still Have It. Journal of Criminal Law and Criminology, 94.Michael L. Radelet, Marian J.
Borg; (2000). The Changing Nature of Death Penalty Debates. Annual Review of Sociology.;