Essay on a Critique of the Ethics of Capital Punishment, on the Basis of Justice, Humanity and Effectiveness, With Reference to the Works of Hugo Bedau, Ernest Van Den Haag and Immanuel Kant

Introduction

This essay will address the topic of capital punishment, and will put forth the thesis that the death penalty should be abolished in the United States because it may lead to wrongful deaths, because it is inhumane, and because it is ineffective in stopping murderers and other perpetrators of serious crimes. This essay will draw on existing literature by leading commentators on the ethics and morality of the death penalty, such as Hugo Bedau, Ernest Van den Haag and Immanuel Kant, and evaluate the arguments of both sides.

In terms of the structure of the essay, this essay will first paint a broad picture of the state of the death penalty, and describe the issue in a way that sets the stage for evaluating whether the practice of the death penalty is morally and practically right or wrong. This essay will then put forth a case for why the death penalty is unethical, and why it should be abolished on the grounds of injustice, inhumanity and ineffectiveness. This essay will then progress to evaluating the counter-argument, drawing on the arguments of Van Der Haag and Kant. This essay will then conclude by reviewing the reasons on why the death penalty is unjust, inhumane and ineffective.

Description of the issue

The death penalty continues to be a highly controversial topic, even as it remains in place in several countries around the world. In 2018, Amnesty International noted that there were at least 690 publicly reported executions in 20 countries, a decrease of 31% vis-a-vis 2017, where there were at least 993 executions, which represented the lowest point in executions worldwide for the entire decade. (Amnesty International, 2018) International leaders in the number of executions included China, Saudi Arabia, Iran, Vietnam and Iraq, with China leading the pack. (Amnesty International, 2018). In terms of countries that reinstated the death penalty, Amnesty International reported that Sudan, Botswana, Taiwan and Thailand resumed executions in 2018, while in terms of death penalty abolitions, Burkina Faso, Gambia and Malaysia either abolished the death penalty or announced an official ceasing of executions. (Amnesty International, 2018)

Overall, however, most countries have abolished the death penalty, with 106 countries having capital punishment abolished in legal terms for all criminal acts at the end of 2018, and 142 countries (over 60% of the world’s countries) abolishing the death penalty either in legal form or practical form. (Amnesty International, 2018). Nonetheless, capital punishment remains a grim reality, with almost 20,000 people known to be under the sentence of capital punishment at the end of 2018, while a total of 2,531 death sentences were handed down in 2018, comprising means such as electrocution, beheading, lethal injection and shooting. (Amnesty International, 2018).

Position: argument against the death penalty

This part of the essay will argue that the death penalty is unethical and should be abolished in the United States because it is unjust, inhumane and ineffective.

This part of the essay will draw heavily on the writings of Hugo Bedau, a philosopher who published a widely lauded pamphlet, ‘The Case Against the Death Penalty’, which was distributed for several decades by the American Civil Liberties Union as a classic argument against the immorality, injustice and inefficacy of the death penalty. Bedau contended that the death penalty was foremost unjust, because the death penalty disproportionately affected the marginalized segments of society, such as the uneducated, racial minorities, and isolated asocials. Bedau also put forth empirical evidence that the death penalty was ineffective in deterring crime, and actually led to higher financial costs that alternative forms of punishment, such as life imprisonment, due to the long court procedures and judicial proceedings that accompanied a successful death penalty conviction. Bedau further noted that the death penalty contravened the state’s duty to protect the life, liberty and happiness of its citizens, through the exercise of a right to kill human beings, and advanced the proposition that capital punishment was a violation of American civil liberties, as it embodied a fundamental disrespect for human life. Bedau further emphasized this point by contrasting modern American civil liberties with a more antiquated notion of justice present in the era of slavery, branding and penal colonies, where brutal corporal punishments were the law. By drawing the contrast between penal states and a civilized society, Bedau shows that the unjust and inhumane death penalty has no place in a ‘modern society’.

On the topic of unfairness and injustice, Bedau also discussed the flaws in death penalty laws and the inherently irrevocable nature of the death penalty as proof that the death penalty denied its victims the due process of law, which was unjust and inhumane. (Bedau, 2005) Bedau raised the possibility of laws that may change and recuse those who were earlier sentenced to the death penalty, as a strong case for why the death penalty should not be applied in any instance. In addition, the possibility of mistrials, misjudgements and framed victims within the judicial process are used to show how the death penalty is unfair to those who may have been unfairly treated by the judicial system. (Bedau, 1998)

Finally, on the topic of effectiveness, Bedau heavily criticized the ‘deterrence’ school of thought for the death penalty, which contended that the death penalty was an effective deterrent for criminals. (Bedau, 1973) Bedau cited statistics at the time of writing that showed that merely a tiny segment of first-degree murderers were sentenced to death, with an even smaller proportion actually executed, which demonstrated an inconsistent application of the death penalty. Furthermore, Bedau argued that murderers are typically not deterred by capital punishment and the death penalty, as many of them who premeditate murders typically expect to escape and not be caught, while those who do not premeditate murders typically act in a moment of passion, emotional stress or under the clout of substance abuse. (Bedau, 2005) Other murderers, who murder out of reasons of political ideology or financial return from organized crime, are similarly unlikely to be deterred by capital punishment because their belief in either the ideological or financial returns are too high. Bedau also notes that, counter to prevailing orthodoxy, the application of death penalty may instead raise the rate of homicide. (Bedau, 1998) Conversely, Bedau cites the effectiveness of long-term imprisonment as an effective deterrent. (Bedau, 1973)

Through the above arguments by Bedau, it is clear that the death penalty is unjust, inhumane and ineffective. Foremost, the death penalty is unjust as it does not allow for the emergence of new laws or evidence that may recuse its victims after death. The death penalty, as administered by a state sworn to protect the rights of its citizens, is also an unjust violation of civil liberties and state duties to its citizens. Furthermore, the death penalty is often applied in countries with biased judicial systems, where tainted evidence and a lack of due process contaminates the impartiality of the due process. The death penalty is also unjust as it disproportionately affects marginalized populations and racial minorities.

Secondly, the death penalty is inhumane, whether through the variety of its execution methods (hanging, electric chair, lethal injection, stoning, beheading, shooting, etc.), or through its history as a brutal way to execute and torture criminals in the era of slavery and penal colonies. The death penalty is also inhumane as it allows the state to kill its citizens for pragmatic purposes, under a veneer of legality. The inhumanity of the death penalty is also clearly demonstrated in its potential for executing the innocent, and its violation of an individual’s right to live. In addition, studies have shown that the death penalty may also brutalise society, where citizens become more inhumane and insensitive to the value of human life, and stigmatize criminals who are sentenced to the death penalty, through the use of the law to apply state-sanctioned violence.

Finally, the death penalty is ineffective as it does not effectively prevent serious crimes from being committed, and does not act as an effective deterrent. More importantly, the death penalty is also a highly costly punishment option, and is actually far more costly that the alternative, which is life imprisonment.

Counterargument: case for the death penalty

This portion of the essay will evaluate counterarguments to the above discussed position, namely, that the death penalty is ethical and effective, and should not be abolished. This portion of the essay will draw on arguments by leading pro-death penalty philosophers such as Van Der Haag and Kant, as well as theories such as the retributive theory of justice and the deterrence theory of justice.

Foremost, Kant contended that based on the retributive theory of justice, capital punishment was justified. The retributive theory of justice argues that that death penalty (as well as other punishments) are justified if the individual is found to be deserving of punishment, arguing that ‘if… he has committed a murder, he must die’, and that there can be ‘no substitute that will satisfy the requirements of legal justice’. In simpler terms, if a man is murdered, the only way that retributive justice can be served is to murder his murderer. Kant further noted that life imprisonment was not an equivalent option in terms of justness, as he noted that ‘there is no sameness of kind between death and remaining alive even under the most miserable condition’. Here, Kant draws on more ancient notions of justice, in the form of ‘lex talionis’ and ‘eye for an eye’ principles of justice seen in older legal standards such as the Code of Hammurabi.

On the other hand, Van Der Haag argued that the death penalty is justified on the basis of deterrence. Here, Van Der Haag uses a utilitarian argument to contend that the death penalty is effect in deterring, or encouraging, criminals not to commit the serious crimes for which they will be put to death. (Van Der Haag, 1969) Van Der Haag also draws on Kant’s theory of retribution in his utilitarian argument, noting that ‘the importance of doing justice’ is paramount, even at the cost of ‘miscarriages of justice’. (Van Der Haag, 1975) To Van Der Haag, the guilty must be executed to serve retributive justice and deterrence purposes, no matter the inherent psychological, social and economic costs to society. (Van Der Haag, 1969) Van Der Haag also advanced the notion that the death penalty makes the cost of crimes high enough to make criminals reconsider their actions, and therefore effectively serves as a deterrent by making serious crimes highly disadvantageous to the criminal, should they be caught. (Van Der Haag, 1969) Finally, Van Der Haag also argued that capital punishment is effective in lowering the murder rate, and that rehabilitation was ineffective in serving similar purposes of crime rate reduction. (Van Der Haag, 1975)

One important counter-argument may also come in the form of proportionality, which Kant mentions in his works, in that some individuals commit crimes so heinous that nothing but the death penalty is sufficient as retribution. (Byrd, 1989) For example, some of the chief Nazi war criminals, such as Adolf Eichmann, orchestrated the Holocaust and were executed by hanging. While there is no doubt that these criminals did inhumane acts, however, their right to live and the right to due process ensures that the death penalty is, in itself, an inhumane, unjust and unfair way to punish them.

In evaluating these arguments, it is important to emphasize that Kant and Van Der Haag prioritize retribution, utilitarianism and deterrence over all other social and moral imperatives. In their writings, they admit that the implementation of capital punishment may, at times, lead to the occasional unfairness, injustice and inhumanity. For example, Van Der Haag freely acknowledges that innocent people may be executed in a system with capital punishment at times. However, he counters this problem by suggesting that, in his utilitarian calculation, the benefits of deterrence and retributive justice outweigh the miscarriage of justice for a few individuals. Here, however, the flaws of Van Der Haag’s argument are made apparent: if justice is not served for a few individuals, such as those who are racial minorities or who are social misfits, then justice cannot be served at all. Furthermore, evidence from Bedau’s writings and other studies have also shown mixed evidence on the effectiveness of the death penalty, with some studies even demonstrating that the death penalty is wholly ineffective. (Bedau, 1973) Finally, the notion that retribution can itself be a form of justice is somewhat perverse, as a definition of justice in such a narrow frame of though precludes the existence of other forms of justice, such as restorative justice. (Sarver, 1997) For example, if a murderer kills a mother of two but then uses the rest of his life to make financial restitution to the two children whose mother was murdered, that in itself can be a form of restitutive justice.

Conclusion

The moral, philosophical and legal debates over the grounds for capital punishment and the death penalty are likely to continue, even as the world remains highly divided over this topic. This essay has argued in favor of the abolition of the death penalty and over its unethical nature, citing its unjustness, inhumanity and ineffectiveness as key reasons for its abolition. This essay has also evaluated arguments based on the retributive and deterrence theories of justice, as advocated by philosophers Van Der Haag and Kant, and countered these propositions. The death penalty is clearly an unjust, inhumane and ineffective policy, and should be abolished.

Bibliography (APA Format)

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