On the Morality of Capital Punishment Essay


What kind and what degree of punishment does public justice take as its principle and norm? - On the Morality of Capital Punishment Essay introduction?? None other than the principle of equality in the movement of the pointer of the scale of justice, the principle of not inclining to one side more than to the other. Thus any undeserved evil which you do to someone else among the people is an evil done to yourself. If you rob him, you rob yourself; if you slander him, you slander yourself; if you strike him, you strike yourself; and if you kill him, you kill yourself.[1]

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The debate on capital punishment regarding its moral permissibility and moral justification takes two opposing side, one is those of pro-life advocacy, and the other is those who held pro-deterrence stance. Stephen Nathanson is a pro-life proponents who firmly asserts that just deserts or capital punishment is morally impermissible. As Nathanson puts it, determination of which just deserts should be cast upon a criminal is a Herculean task because no one can know exactly what is rightly due to the crime committed by the criminal. Even if a society established an institution for determining just deserts it is still futile because just deserts is too arbitrary in relation to the individual’s case outcome. Using his analogy of giving a grade of B- or A+ is an essay will be too arbitrary since the decision will be based on the bias of the teacher. On legal system, the judges are picked randomly, which is not a problem at all, but the point here is the arbitrariness on how they will evaluate a certain case, especially on the case of death penalty. Nathanson concludes that “we ought not feel confident that we can judge the precise degree of punishment that people morally deserve, and even if we could do this, we ought not feel confident that our criminal justice system actually does so”.

Conversely, Jeffrey Reiman sees the validity of espousing death penalty but on a certain degree only. First, the arbitrariness of death penalty’s harshness is a problem because some criminals may get what they deserve but others may be penalized less or more harshly than what they should be getting. Second, death penalty is a good means of deterring criminals but it does not ensure our society on the deterrence future criminals. Third, prohibition of death penalty may increase crime rate but it can reduce cruelty percentage and may either result to chaos due to tolerance or human civilization. And lastly, death penalty is definitely a just punishment to specific forms of crime, but its arbitrary nature endangers every individual because of its discriminatory execution. Hence, death penalty will be effectively just if such arbitrariness is defined.

In order to elucidate concisely the mechanism of capital punishment, it is of necessity to define the term punishment to outline clearly what is the property of such word and how it applies to capital punishment. Punishment is an evil inflicted by a person in a position of authority upon another person who is judged to have violated a rule.[2] Thus, such working definition explicates five fundaments in considering how an act should be punishable or not. First, when evil is being done to injure and jeopardize others then punishment must be executed to curtail its presents and its future possibilities. Second, if someone violates someone either on legal or moral grounds then punishment is admissible. Third, the violator must be proven guilty before punishment can be done. Fourth, the punishment should be given to an offender if his/her act is done according to his own volition or willingness. And fifth, punishment is admissible if it is enforced by higher authority. It must be noted that all illegal or criminal acts are punishable but not all immoral acts are likely to be punishable.

In the presence of evil, the question of what qualifies an act as evil or not is a significant question because the failure of qualifying it brings much arbitrariness in the espousal of capital punishment. As H.L.A. Hart puts it, evil is a “mysterious piece of moral alchemy in which the combination of two evils of moral wickedness and suffering are transmuted into good”.[3] Hence we can say that capital punishment is also a form of evil, but it is qualified as necessary evil. The legality or morality of an evil act should also be defined clearly because there are legal statutes that are considered immoral like capital punishment but since it is a law, capital punishment becomes legally valid. The legal context has been bombarded by moralists specifically the pro-life advocators because they deem that laws must have moral basis.

The debate between the morality and legality of capital punishment has been the most effervescent intellectual battle between anti and pro death penalty, wherein the former held the belief of carrying out capital punishment because it is legally sound and it is the only panacea in deterring heinous crimes, and contrariwise, the latter held a cliché axiom that evil cannot be corrected by another evil, or that killing is not the answer for killing because it violates the moral fiber of the society and most significantly it degrades the moral agents. Below are the most prominent discussion within the mechanism of capital punishment.

The Issue of Deterrence

A fundamental assumption of the criminal law is that punishing criminals discourages other potential offenders from committing crime. This is known as general deterrence. A key question is whether the death penalty is more effective as a crime preventative than less harsh punishments (such as life in prison)—what may be called the marginal deterrence benefit.

Proponents of capital punishment contend that deterrence is based on fear and that, since death is feared the most (among constitutionally permissible punishments—torture unto death being prohibited), it will deter the best. Opponents counter that murder is often an impulsive act and that killers do not think about punishment before committing their crimes. Consequently, they argue, those who engage in murder are singularly unlikely to be deterred by the threat of execution. Proponents respond that perhaps some killers cannot be deterred but other would-be murderers can be, and that justifies the most effective deterrence. Abolitionists question the assumption that death sentences are better deterrents than, say, life without parole. Their adversaries point out that although there is scant proof that longer prison sentences deter more than shorter ones, a fundamental premise of the criminal justice system is that harsher sentences deter more, and this same assumption supports the ultimate penalty (van den Haag and Conrad 1983). Last, those opposed to the death penalty doubt that much deterrence is possible when so few executions actually take place. Death penalty advocates do not necessarily disagree, but of course their solution is to increase the numbers.

The major social science studies of deterrence were done by Isaac Ehrlich (1975a, 1975b) and Thorsten Sellin (1980). Sellin, who compared murder rates in states with and without a death penalty, concluded that there was no deterrent effect, but Ehrlich, using econometrics, found that each execution in the United States, from 1933 to 1967, deterred eight murders. Ehrlich’s complex statistical methods have been sharply criticized. (Sellin’s and Ehrlich’s, see Klein, Forst, and Filatov 1978.)

At least two social scientists have claimed that the death penalty has a reverse deterrent, or brutalization, effect; that is, that the number of murders actually increases after each execution (Bowers and Pierce 1980). Critics respond that only the long-term (e.g., annual) effect on murder rates is significant. Moreover, conceding that some people are stimulated to violence by seeing it, they doubt that contemporary executions serve as that kind of stimulus. Executions no longer are public spectacles. They are held behind closed doors before a small number of selected observers and, so far, have not been televised.

Closely related to deterrence is the question of whether the death penalty provides marginal (i.e., greater than imprisonment) reinforcement of moral inhibitions against murder. That is, do executions prevent murder—not by engendering fear (deterrence), but by strengthening the norms that restrain law-abiding citizens? Proponents are fond of quoting the 19th-century English jurist Sir James Fitzjames Stephen: “Some men, probably, abstain from murder because they fear that if they committed murder they would be hanged. Hundreds of thousands abstain from it because they regard it with horror. One great reason why they regard it with horror is that murderers are hanged” (Stephen 1863, vol. 2, p. 99). That is, deterrence holds some in check, internal moral constraints (conscience) restrain most of us, and punishment fortifies or reinforces these moral constraints. But would our strong revulsion against murder diminish if there were no death penalty? Opponents doubt it, whereas proponents believe that it could happen over time and that the size of the morally inhibited population could be reduced. In other words, the question is whether, in the absence of the death penalty, there would be an increase in the number of people who would not regard murder “with horror” and therefore would engage in it.

On Retribution

Retribution, or “just deserts,” is a normative (nonempirical) justification of punishment and therefore is impervious to social science findings. In essence, the retributivist argument for the death penalty states that some crimes are so heinous, so revolting, so profoundly reprehensible, that only the severest constitutionally acceptable penalty is appropriate for the perpetrator. Such an assertion can be neither proven nor disproven, but for death penalty opponents, life without parole is more than sufficient to the task. Justice, abolitionists argue, is amply served by condemning such criminals to a life of confinement, with its accompanied regimentation, degradation, boredom, abuse, assault, and fear.

All of us have, at one time or other been horrified by newspaper or television accounts of especially revolting murders—the blowing up of buildings or airplanes with scores of occupants, savage rape-murders or torture-killings of young children, the assassination of a beloved national figure, and the like. Death penalty advocates believe that only the harshest penalty can provide justice for such horrific crimes. Opponents contend that most capital murderers (i.e., murderers eligible for the death penalty), while properly condemned, are not nearly as blameworthy as those who commit the kinds of bestial acts just described; they are more likely to be jittery armed robbers who shoot on impulse. Even if they concede (and they usually do not) that some criminals deserve to die, abolitionists doubt that the death penalty can be limited to the most reprehensible crimes. They would rather lock up the most contemptible offenders for life than risk executing the less blameworthy.

A related—but strictly speaking, not a retributivist—argument is that the public’s sense of justice demands a death penalty for the vilest crimes. This is not a retributivist contention because retribution theory asks only whether the punishment fits the crime and not whether it satisfies public sentiment or, for that matter, has any other instrumental effect. Nonetheless, perhaps because of the impossibility of proving that a punishment is “just,” the public demand may serve as the measure of justice.

To the abolitionists, any argument that the criminal law should gratify the public clamor for death is barbaric; it is vengeance in disguise—a catering to the darkest of human instincts. But retentionists are apt to share the view that “it is morally right to hate criminals” and that satisfying the public’s “healthy natural sentiment” is ”advantageous to the community” (Stephen 1883, vol. 2, pp. 81–82). As Émile Durkheim put it, punishing criminals “maintain[s] social cohesion intact” and conserves the “moral conscience” (Durkheim 1964, pp. 108–109). This is similar to the argument, considered earlier, that the death penalty provides reinforcement of moral inhibitions against murder. A related advantage to the community of assuaging the public demand for justice is said to be the prevention of vigilantism, for if people come to feel that the authorities are incapable of providing justice, they may decide to provide it themselves. Death penalty opponents consider these arguments greatly overdrawn. They think that the realities of life in prison are harsh enough to satisfy the public, maintain community norms against murder, and prevent any widespread resort to “street justice.”

The Incapacity of Capital Punishment

Whereas retributivism looks to punish people for their completed misdeeds, incapacitation justifies punishment on the grounds of public protection from future crimes. Incapacitation, in other words, looks ahead to the likelihood of recidivism by the offender. Clearly, death is the ultimate incapacitation, but is execution necessary if the offender is locked up for life, especially life without parole? Retentionists point out that even lifers pose a threat to fellow inmates, and there is always the possibility, however remote, of the commutation of a sentence by a governor or an escape from confinement. The opposition considers these events too unlikely to warrant executions and adds two other arguments.

First, they contend, murderers do not recidivate as often as most other offenders. Hugo A. Bedau (1982, p. 176) reports that of a sample of 2,646 released murderers (released from 12 states from 1900 to 1976), 16 were subsequently convicted of another homicide. Bedau considers this number very small, but at the standardized rate it comes to 605 per 100,000, a rate roughly 23 times higher than the recidivism rate for 18- to 24-year-olds, the most homicidal age group.

Second, abolitionists reason that, since the death penalty applies to only a small percentage of murderers, the incapacitation benefit will likewise be small.

Capital Punishment’s Loophole

For many, the possibility that an innocent person could be executed is sufficient in itself to warrant an end to capital punishment. Retentionists make two responses. First, they point out that contemporary capital case proceedings have so many safeguards—bifurcated trials, vigilant and numerous appeals—that the chances of a wrongful execution are extremely remote. Second, they say, even if there is a risk that some innocents will be executed, one must weigh this risk against the many advantages of maintaining capital punishment (van den Haag and Conrad 1983). Is the remote risk of wrongful execution worth the advantages gained in innocent lives saved through deterrence and in justice for the truly blameworthy?

The anti-death penalty camp points to death penalty cases overturned on appeal or habeas corpus as proof that capital juries err, but the strength of this line of reasoning depends on the basis for reversal. A procedural error at trial or during the sentencing phase does not necessarily mean that the defendant was innocent. The stronger abolitionist argument comes from the rare but disturbing case in which, after trial and appeals favorable to the prosecution, new evidence is uncovered suggesting innocence, and this evidence becomes the basis for a reversal of conviction. Retentionists sometimes counter that such a reversal shows that “the system worked,” but these same advocates would truncate the appellate process to speed up executions, thereby increasing the danger of an erroneous execution.

A study by Bedau and Radelet (1987) concluded that 350 persons were wrongly convicted of capital or “potentially capital” crimes in the United States from 1900 to 1985 and that 23 of these cases resulted in the execution of an innocent person. But their method of determining “innocence” was vigorously challenged in a rebuttal by Markman and Cassell (1988). These critics also observe that over 7,000 executions occurred during the time period studied, and even accepting that 23 persons were wrongfully executed, the rate of error is only .33 percent. Markman and Cassell consider this rate quite low, especially when balanced against the benefits of the death penalty. (Recall here Isaac Ehrlich’s claim that each execution saved roughly eight innocent lives through deterrence; 1975a, 1975b.) Moreover, they note, virtually all of the alleged errors occurred before the modern protective procedures were put in place in capital cases.

Capital punishment is a legally and morally valid act because as the most basic responsibility of every rational and moral agent, one must protect, prolong and preserved his/her own life and the lives of other, in which the presence of threat validates the annihilation of the violator in order to ensure that his/her possible realization of chaos must be curbed out completely. Pro-life advocators will argue that this line of reasoning is not acceptable because they fail to see the reality of any heinous crime. For example, let say that someone embodies or relives the life of Dr. Josef Mengele, then this person kills approximately 40,000 individuals, would penalizing him of his annihilation be wrong? Absolutely not. The point here is that as rational and moral agents we must guarantee that any atrocious act will not exist at all, for the present generation and the future generation. Now, if this is still deemed as immoral then at least we became rational because sometimes morality limits as of what necessary things that should be done. Sometimes morality blinds reality and deprives us of our sound human reasoning.

As far as I espouse capital punishment, I also have some reservations especially on the criterion of what act should be considered as punishable of death penalty. This specific issue is a big concern for me because this is loosely defined and extremely arbitrary, in which judges or evaluator of a given act may misconstrue the precepts of capital punishment. The problem is the evaluation of which act can be judged to be admissible of death penalty is too subjective, and this needs to be quantified objectively.


Bedau, Hugo Adam, and Paul G. Cassell. Debating the Death Penalty: Should America Have Capital Punishment? The Experts on Both Sides Make Their Case. Oxford University Press, USA, 2005.

Kant, Immanuel. Grounding for the Metaphysics of Morals: With on a Supposed Right to Lie Because of Philanthropic Concerns. Trans. James W. Ellington. 3rd ed: Hackett Publishing Company, 1993.

Olen, Jeffrey, Julie C. Van Camp, and Vincent Barry. Applying Ethics: A Text with Readings (with Infotrac®). 8th ed: Wadsworth Publishing, 2004.

Rachels, James, and Stuart Rachels. The Elements of Moral Philosophy. 5fth ed: McGraw-Hill Humanities/Social Sciences/Languages, 2006.



[1] Immanuel Kant, The Metaphysics of Morals, trans. E. Hastie (Edinburgh, 1887; originally published 1779), 155.
[2] Anthony Flew, “Justification of Punishment,” Philosophy (1954)
[3] Rachels, James, and Stuart Rachels. The Elements of Moral Philosophy. 5fth ed: McGraw-Hill Humanities/Social Sciences/Languages, 2006, pp. 135-138.


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