The death penalty is absolutely one of the most hotly debated issues in criminal law, and in national politics. The issue becomes one of whether or not the death penalty is successful as a deterrent, or if it merely kills inmates, some of whom may be innocent. There are those who believe that the death penalty, being the ultimate punishment for an offender, is a threat that can successfully discourage people from performing wrong doing (and therefore foregoing that fate). Philosopher Immanuel Kant is one of the loudest philosophical voices to advocate for the death penalty; his notions of Ethics involve the concept of a universal morality that would make it necessary to punish offenders harshly and severely in order to deter further wrongdoing. Kant believes that the punishment of a crime should be equal to the crime itself; therefore, people who murder should also be put to death. However, according to Beccaria's theories of punishment, as well as research and the opinions of others, the death penalty is not, in fact, a fair example of a deterrent. Not only is the death penalty a punishment that the state does not have the ethical right to perform, it is ineffective and beyond the call of necessity. In the following essay, Kant’s notions regarding the death penalty will be weighed by the possible negatives, including the theories of punishment advocated by Beccaria and the Deterrent Theory.
Philosopher Immanuel Kant, in his Metaphysics of Morals, explained his perspective on punishment, particularly the death penalty. First, he believes that the government (or the ‘supreme power’ in a nation state) has the capacity to “inflict pain upon a subject on account of a crime committed by him” (E.I.1). Public crimes are divided into indolis abjectae, which are basic crimes, and violent crimes, which are called indolis violentiae. Kant believes that “The penal law is a categorical imperative; and woe to him who creeps through the serpent-windings of utilitarianism to discover some advantage that may discharge him from the justice of punishment, or even from the due measure of it” (E.I.2). The Categorical Imperative is Kant’s notion that there is a universal, objective morality that is applicable to all people in all society; to that end, the need to administer justice through a penal system is one of them. In that case, he believes people who are to be put to death should follow through with it, instead of being given reprieve through any other means. If that were to happen, then “justice would cease to be justice” as it would be “bartered away for any consideration whatsoever” (E.I.2).
On the case of the death penalty, Kant does not apply it lightly or frivolously; in order for someone to be killed, it must have to be incredibly necessary. Kant believes it is absolutely essential in the case of murder: “whoever has committed murder, must die. There is, in this case, no juridical substitute or surrogate, that can be given or taken for the satisfaction of justice” (Kant, E.I. 6). Because the person has killed someone, and death is the worst thing that can happen to a person, there is no equivalent punishment short of death that provides the kind of retaliation that a wrongdoer deserves. Justice must be served at all costs; even if a government were to dissolve, Kant believes all the murderers must be put to death before that happens: “This ought to be done in order that every one may realize the desert of his deeds, and that blood-guiltiness may not remain upon the people” (E.I.6).
Kant’s Moral Law has a dutiful and restrictive view on ethical behavior, which is the basis for his philosophy and thoughts on the death penalty. He dictates that people must base their decisions on moral demands – these are not based on self-interest or happiness, but what is right. In the case of the death penalty, it does not fall in with anything that can be construed as moral (a person commits a crime, therefore he must be punished). At the same time, he acknowledges that no one would actually take a completely moral high ground, and things like this are bound to happen; “Only a cold-blooded observer who does not at once take the liveliest wish for the good as its actuality, to become doubtful at certain moments whether any true virtue is actually to be found in the world at all” (Kant, p. 43).
Naturally, there are many arguments against Kant’s assertions that the death penalty is right and just; a contemporary example is Beccaria. Cesare Beccaria, in his 1764 treatise On Crimes and Punishments, applies several principles to punishment of criminal offenders. First, Beccaria appealed to the principle of Reason - this posits that the state as a contract with which the public must interact in order to enjoy its benefits, and provide happiness for as many people as possible. Jeremy Bentham further expanded this principle to form the philosophy of Utilitarianism. Beccaria's book was one of the first organized arguments against the death penalty, which he opposed for two main reasons. First, the state does not have the right to take away that which is more precious than anything to a human being: his life. No matter what crime that person has committed, the person still gets to hold on to their continued existence, as saying otherwise commits the state to a substantial power over the people. In essence, Beccaria believes that there is no way to impose the threat of death on people in the civil contract, because all citizens would have to consent “to lose his life if he murdered any of his fellow citizens” (Kant, E.I.9).
Kant vehemently opposes this principle espoused by Beccaria, writing it off as “mere sophistry and perversion of right” (E.I.9). Whereas Beccaria frames this decision as tantamount to saying you would effectively will yourself to be killed if you violated the social contract, Kant believes a more accurate reframing of punishment to be one that by definition cannot be willed: “it is in fact no punishment when any one experiences what he wills, and it is impossible for any one will to be punished” (E.I.9). Capital punishment is not ascribed by the people, but the supreme power they place the responsibility on does it; to that end, it is not as though citizens are killing themselves by putting another to death. To believe otherwise would be to place the criminal in charge of his own judgment, which would be in error as he has a natural bias to not be killed.
Secondly, capital punishment simply does not work, as it is not necessary to deter, nor is it effective as a deterrent itself. There are many other alternatives to punishment that achieve a greater effect that do not involve the extinguishing of the offender's life, including incarceration and monetary restitution. Instead of having such a bizarrely harsh punishment, Baccaria posits that punishment is meant to be preventive and not retributive; murdering someone in exchange for a murder they committed is not helpful or humane at all. Furthermore, the preventive effect of a punishment is merely due to its certainty - you will definitely be punished for your wrongdoing - rather than how harsh the punishment is. The promptness and the proportion of the punishment should also be appropriately fast and fitting, respectively, in order for the punishment to act as a deterrent.
Kant disagrees with this assessment; in order to properly punish, one has to have the punishment be directly proportionate to the crime. If the punishment is unevenly administered, the justice system itself is rendered faulty, and therefore the whole of society can come crashing down due to the law’s inability to administer justice. While there are natural punishments, wherein the guilty person punishes himself – “ Judicial or juridical punishment (poena forensis) is to be distinguished from natural punishment (poena naturalis), in which crime as vice punishes itself” – the court cannot possibly anticipate that level of punishment, so it must ignore than when establishing its equal punishment (Kant, E.I.2).
One of the biggest points of contention lies in Beccaria’s Utilitarian philosophy, which Kant vehemently discounts. According to Beccaria and her deterrent theory, a punishment must serve the greater good of a society; therefore, even in the case of a death penalty, the goal would then be to deter others from doing the same by promising them death if they perform an appropriately terrible crime. However, Kant believes this thinking is faulty; first, he believes it devalues the crime and the person, as the criminal is merely a means to an end for the sake of a societal good. This way, you are not punishing a man for his unethical decisions, but merely enacting a societal good. Secondly, he believes that, if one were to take the Utilitarian theory to its logical conclusion, according to Kant, any series of crimes could lead to death if the society believes punishing in that way leads to a societal good. Though Kant believes in harsher punishments, he is honest about the reason they are punished – as a personal violation of will toward the person who committed the crime.
Despite Kant’s assertiveness on the philosophical necessity of the death penalty, the more compassionate argument for Becarria seems to hold more water. Kant believes in an ‘eye for an eye,’ and the chief goal of punishment for him is retribution (as opposed to Becarria’s more optimistic, Utilitarian position). Kant believed that a criminal’s harm to one person is a harm to the rest of society; killing someone is tantamount to killing everyone, as they are violating the social contract. Granted, Kant’s only reason for capital punishment is if someone has killed or done other sufficient harm to a society; however, given the potential inaccuracy of a judgment, it is possible that an innocent person would be put to death if there is a problem with the trial. Kant also bases his approach on the idea that it would be better for a man to die nobly than accept a life in prison, which he sees as shameful: "I say that the man of honor would choose death, and the knave would choose servitude" (Kant, E.I.7). However, it is not up to the goal of a state to legislate on vague notions of honor, and so the more practical concerns of life and its preservation should be adhered to; if, as Kant says, punishment should not be used as a deterrent, it is only being used as retribution, which is not a sufficient reason to kill. Furthermore, Kant’s morality is unevenly applied – first, death is worse than anything else that can be inflicted on a person, so it should be used to punish the worst crimes, but later he claims that life in prison is a punishment worse than death (and fit for a knave). This leaves an inconsistency with Kant that is not fully resolved.
Becarria's perspective on the death penalty applies more ardently today than Kant’s, in light of the inefficiency of the justice system. More than anything, it provides philosophical support to statistical data that suggests the death penalty is an ineffective deterrent. On a practical level, it is inadvisable to pursue the death penalty anyway: in Texas, death penalty cases costs three times as much as sentences of life in prison for 40 years (DPIC, 2012). 61% of voters have been found to support alternatives to the death penalty for murder cases as well, showing a decided lack of public support for the measure. Law enforcement officials believe that the death penalty is last among the various methods of reducing violent crime, and that it is inefficient in its allocation of state-controlled resources (taxes). The disproportionate sentencing of black-on-white crime for death row demonstrates a decided racial inequality in the justice system that cannot be maintained in an ethical manner, particularly in cases with such a severe punishment (DPIC, 2012). To that end, the facts and research support Becarria's assertion that the death penalty is not an effective deterrent; in fact, it wastes taxpayers money and lends lasting consequences to substantial racial inequalities and issues that currently take place in the justice system.
In conclusion, the death penalty is absolutely not an effective or just punishment for crimes, despite Kant’s assertions against Beccaria’s. Kant’s stance on the death penalty is that it should be administered not as a deterrent, but as retribution for an equivalent crime that a person has committed. They are entitled to undergo that punishment, because a society must hold together under the consistent and equal application of justice compared to what someone has done. This includes death, especially in cases of murder or equivalently damaging crimes to the whole of society. According to Beccaria, however, the death penalty is unnecessary, inefficient, and far out of the reach and scope of the powers of the state over a human being. Kant argues that Beccaria’s arguments are insufficient, as it is not as if someone can legislate themselves into willing death upon themselves for their actions, but this is not a sufficient rebuttal to Beccaria’s claim. Kant’s perspective leans heavily on the death penalty for penalty’s sake, with no greater societal end of itself – with the goal of preserving life, all capital punishment does is destroy a life. For these reasons alone, the death penalty should not be considered viable. When considering the applications of the death penalty today, as well as the research that insists on numerous mistakes errors and inefficiencies regarding that measure, it is clear that it is not effective as a deterrent, and should be stopped.
Works Cited
Beccaria, C. On Crimes and Punishments. 1764.
Bentham, J. JSTOR: The Journal of Criminal Law and Criminology (1973-) 74(3): 1033- 1065.
Northwestern University School of Law, 1983.
Death Penalty Information Center. “Facts about the death penalty.” Death Penalty Information Center. 2012. <http://www.deathpenaltyinfo.org/documents/FactSheet.pdf.>
Kant, Immanuel, The Metaphysics of Morals. Trans. W. Hastie. 1790.
Kant, Immanuel, and H. J. Paton. The moral law: Kant's Groundwork of the metaphysic of
morals. 3d ed. London: Hutchinson's University Library, 1961.
