Discuss the idea that capital punishment is only justified because criminals are permanently disabled of causing harm
Advocates of the idea that punishment is ultimately justified by the fact that it is deserved and proportionate are primarily motivated by a hatred of criminals and wish to see them get what they deserve, as a result one may not be able to deviate from the view that a defence of capital punishment derives strongly on irrational arguments.
The justice model is often linked to retributive theories. Sentencing should be fair and not aim to achieve anything other than punishing offenders in proportion to the harm that hey have done. It emphasises fairness while retribution is often popularly distorted to support demands for vengeance or harsher sentences. Von Hirsch (1976) described it as “vengeance with fairness”.
Defenders of capital punishment often take the line of ‘just-deserts’ when legitimizing its usage. It is of the opinion that offenders have made a free choice to commit crime and should be punished. Critics of this view often suggest that in unequal or unjust societies, ‘just-deserts’ may be determined by those in power and may be far from ‘just’ to those at the receiving end. Also in pluralist societies, cultural differentiation makes shared agreement as to what is right and wrong difficult to assess.
When discussing the twin objectives of deterrence and just-deserts, Von Hirsch makes it clear that the deserts principle is more important for decisions about the distribution of punishment. “…We think that the commensurate desert principle should have priority over other objectives, in decisions about how to punish. The disposition of convicted offenders should be commensurate with the seriousness of their offences, even if greater or less severity would promote other goals”( quoted by Von Hirsch,1976 in Davis, Croall and Tyrer, 1998:292)
Opponents of capital punishment argue that the true basis of retributive justifications is not at all foundational, but instead rooted in psychological feelings of vengeance. Even if we grant that vengeance is a natural feeling like; lust, fear and greed, laws about punishment then should not be grounded in our extreme feelings, but should instead be based on our more tempered ones. This leads to the view that once society has moderated its feelings of vengeance, there should be little inclination to execute criminals. Immanuel Kant (1781) offered an alternative retributive justification of capital punishment which is not rooted in vengeance. Instead for Kant it is bases on the idea that every person is valuable and worthy of respect; we thus, show him respect by treating him the same way he declared that people are to be treated. Accordingly we execute the murderer.
One theory, supported in particularly by utilitarianists is that of Reductivism. In some ways this is the anti-thesis of Retributivism, in that it seeks to justify punishment by its alleged future consequences and is therefore forward-looking. Utilitarianism firstly expounded by Jeremy Bentham, says moral actions are those which produce, the greatest happiness of the greatest number of people. As a result if punishment does indeed reduce future incidents of crime, then the pain and suffering caused to the offender may be outweighed by the unpleasantness to other people in the future, thus making punishment morally right from a utilitarian point of view. Hence, capital punishment is to some degree tolerated if it prevents the criminal from repeating his crime or by deterring would-be offenders, for both of these would constitute to a greater balance of happiness in society. There are several problems with this line of reasoning. Firstly, the burden of proof is on the defender of capital punishment to show that the same effects could not be accomplished with less severe retribution such as life imprisonment. This is especially pertinent since the goal of utilitarianism is to reduce as much unhappiness as possible and this entails imposing the less strict of the two possible punishments when everything else is equal. Cesare Beccaria (1764) argues this point in ‘On crimes and punishment’ one of the first systematic critiques of capital punishment from a utilitarian point of view. According to Beccaria capital punishment is not necessary to deter and long-term imprisonment is a more powerful deterrent since execution is transient.
John Locke’s famous defence of capital punishment does not fall into either retributive or utilitarian categories but contains components of each. Locke argued that a person forfeits his rights when he commits a crime. (Cranston, 1985) From a retributive side, criminals deserve punishment and from a utilitarian one, punishment is needed to protect our society by deterring crime through any way which it deems necessary, including taking away his life. Critics of Locke’s argue that there are alternatives to his assumption that criminals forfeit their right to life because ‘life’ simple is not forfeitable. Beccaria for example argued people did not sacrifice their rights to life when entering such a social contract.
Capital punishment is the ultimate form of deterrence and suggests that executing murderers will decrease the homicide rate by causing others not to commit murder for fear of being executed. But there is no real evidence to support this due to the fact that deterrence depends on the certainty of punishment and the chances of being executed are very small.
It is indisputable that executing a murderer renders him or her unable to kill again, what is questionable is how far incapacitation can serve to justify capital punishment. There is not much proof that the above is any more effective than life imprisonment is in preventing murderers killing again. After all murderers have the lowest recidivism rates of all offenders. (Bedau, 1988) The brutalisation hypothesis even suggests that modelling or legitimizing killing merely creates more criminality due to the fact there is a general stimulation to violence and criminals are given a certain form of celebrity status which does everything but deter criminality
Punishment does and should demonstrate society’s abhorrence of the offence. So therefore it must be understood within a societal context of that particular time and of people’s reactions towards criminality on the whole or to a exacting sort of crime. Therefore denunciation may not on its own provide a general justification for having a penal system but may help us with one acceptable principle with the distribution of certain forms of punishment. The use of capital punishment was reformed and then stopped in the twentieth century. The Murder Act 1965 abolished it. Many argue that this was due to society moving towards an era of rehabilitation. This moved away from earlier emphasis on retribution and deterrence but more on scientific and professional approaches to penal policies.
After analysis one can conclude that perhaps the only legitimate justification of capital punishment, is that it renders the criminal unable to commit a crime again. But if one subscribes to the beliefs of retributivists or reductionists then changes within public opinion, even those of human rights and examples of miscarriages of justice may fail to convince one otherwise.
• Bedau, H. (1998) ‘the dealth penalty in America’ New York. Oxford University Press
• Hood, R. (1996) ‘The dealth penalty’ Oxford. Oxford University Press
• Cavadino, M & Dignan, J (2003) ‘The penal system; an introduction’ London.Sage
• Davis, Croall &Tyrer (1998) ‘criminal justice’ London. Pearson
• Cranston, M (1985) ‘John Locke, a biography’ London. Oxford University Press