The Death Penalty: Is it Just?

Many would argue that the death penalty is an unjust punishment. These ideas may be supported by both utilitarian and retributive standards of justice, neither of which can justify a death penalty. According to both these principles of justice, any implementation of capital punishment results in an unjust society.

Utilitarianism states that, “…the aim of [an] action should be the largest possible balance of pleasure over pain or the greatest happiness of the greatest number”. (Merriam-Webster) Thus, utilitarianism is marked by a larger value being placed on the whole, rather than the individual parts, of a society. Anything that benefits a society on a holistic level more than it damages it is considered right and just. However, by these standards, capital punishment is unjust.

There is no empirical evidence suggesting, much less proving, that putting criminals to death provides any overall benefit to society over imprisonment. Utilitarianism justifies capital punishment by its alleged deterrence: By making an example out of a convicted criminal, potential offenders will be scared off. Upon cursory examination this inference appears reasonable. However, a more thorough analysis of the facts contradicts this view.

Worldwide, the US is one of the only Western industrialized countries to carry out criminal executions during peacetime, with 5.0 murders per 100,000 people. France, England, Ireland and Germany have a far lower 1.4, 1.1, 1.2 and .8 murders per 100,000, respectively. (Civitas) What’s the significance of these figures? Of these countries, only the US executes its criminal offenders (Ford). It would seem that capital punishment is, in fact, a poor deterrent.

Indeed, the more data is examined, the more the utilitarian argument for capital punishment crumbles. UC Berkley’s Justin Wolfers concludes in his Law and Economics study entitled Uses and Abuses of Empirical Evidence in the Death Penalty Debate, “Our analysis of the effects of judicial and legislative experiments yielded quite inconclusive results. Neither adoption nor abolition of the death penalty could reliably be causally linked to homicide rates.” (Wolfers). Furthermore, conservative estimates have put the rate of innocent death row inmates at an alarming 4.1% (Gross).

Clearly, it is impossible to justify capital punishment by utilitarian standards, as the utilitarian standard for justice can not be met: It can not be shown that capital punishment benefits a society by deterrence any more than it could potentially harm it by executing innocents.

As utilitarian thought fails to justify the death penalty, so too does retributivism. Justice, according to retributive beliefs, is reparative in nature: A crime must be ‘made right’ by the offender, like a balancing of scales. “Retributive justice…aims to restore both victim and offender to their appropriate positions relative to each other”. (Maiese) The rule of law provides protection for law-abiding citizens (Maiese) and its punishments are proportional to the crime. Furthermore, punishing the innocent is morally reprehensible. (Walen)

An astute reader can immediately spot the difficulty in rationalizing a death sentence through retributive justice. If justice is the rebalancing of scales, how does killing the wrongdoer achieve that end? An additional death doesn’t restore life to the victim any more than angrily throwing a controller helps when one is losing a video game. One may even argue that the state-sponsored killing of a murderer is an act of revenge, not justice in a civil society.

Some may contend that the sentence is proportional to the crime (a life for a life). While this is true, these individuals would be hard pressed to explain how death will satisfy the core tenant of retributive justice: Restoring to the victim what he/she has lost.

Moreover, retributivism places a high value on protecting the innocent; only the guilty can be punished. The previously cited 4.1% erroneous conviction rate among death row inmates is of grave concern. The same study, published in the Proceedings of the National Academy of Sciences, states:

“Our research adds the disturbing news that most innocent defendants who have been sentenced to death have not been exonerated, and many—including the great majority of those who have been resentenced to life in prison—probably never will be…Fewer than half of all defendants who are convicted of capital murder are ever sentenced to death in the first place…[i]t follows that the rate of innocence must be higher for convicted capital defendants who are not sentenced to death than for those who are. The net result is that the great majority of innocent defendants who are convicted of capital murder in the United States are neither executed nor exonerated. They are sentenced, or resentenced to prison for life, and then forgotten.” (Gross)

Clearly, the judicial system isn’t free from error. If innocent citizens must be treated as people, not statistics on a spreadsheet, how can the murder of innocent human beings be chalked up to collateral damage or human error?

While some may counter that mistakes are also made in the imprisonment of criminals and that this is an unfortunate by-product of an imperfect world, they would be overlooking the permanence of capital punishment. An acquitted man previously sentenced to jail can be released; a guiltless man sentenced to death can only be remembered as an innocent life needlessly lost. Interestingly, by retributive reasoning, (and supposing a death penalty were establish in this context) if an innocent man were executed the executioner would then deserve death as well.

Like utilitarianism, retributive standards of justice cannot support capital punishment: Not only does another’s death fail to give back a life, but innocent lives are inevitably lost through juror and system error.

Thus, both utilitarian and retributive theories of principles of justice demonstrate that capital punishment is unjust. As it cannot be shown that a death penalty aids a society any more than it harms it, capital punishment cannot be justified by the utilitarian standards of justice. Likewise, it also fails the litmus test of retributive justice: An additional death does not restore life to the victim, nor can it escape the inevitable collateral damage of innocent lives being mistakenly taken.

Wolfers, Justin J. (2006). Uses and Abuses of Empirical Evidence in the Death Penalty Debate. Law and Economics Workshop. UC Berkeley: Berkeley Program in Law and Economics. Retrieved from: http://escholarship.org/uc/item/0f13k805

"Comparisons of Crime in OECD Countries." Civitas.org. Civitas: The Institute For The Study Of Civil Society. Web. 17 Nov. 2014. <http://www.civitas.org.uk/crime/crime_stats_oecdjan2012.pdf>.

Ford, Matt. "Can Europe End the Death Penalty in America?" The Atlantic. Atlantic Media Company, 18 Feb. 2014. Web. 17 Nov. 2014. <http://www.theatlantic.com/international/archive/2014/02/can-europe-end-the-death-penalty-in-america/283790/>.

Gross, Samuel, Barbara O'Brien, Chen Hu, and Edward Kennedy. "Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death." Pnas.org. Proceedings of the National Academy of Sciences, 28 Apr. 2014. Web. 28 Nov. 2014. <http://www.pnas.org/content/111/20/7230.full>.

Walen, Alec. "Retributive Justice." Stanford University. Stanford University, 18 June 2014. Web. 2 Dec. 2014. <http://plato.stanford.edu/entries/justice-retributive/>.

Maiese, Michelle. "Retributive Justice ." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess.

Conflict Information Consortium, University of Colorado, Boulder. Posted: May 2004

<http://www.beyondintractability.org/essay/retributive-justice>.

"Utilitarianism." Merriam-Webster. Merriam-Webster. Web. 2 Dec. 2014.

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