Bibliography;
Green, T. H. (1882). Ethics, Metaphysics, and Political Philosophy. Mander, W. J. &
Dimova-Cookson, M. Oxford University Press, (2006).
This a treatise on political philosopher T.H Green arguably one of the creators of the welfare state. I used this work to illustrate the motivations of the state for their use of punishment highlighting the fact that harsh punishment such as the death penalty is a direct threat of violence to the public and this is a negative influence on crime.
Locke, John (1689) Two Treatises of Government
This work is on the functions of government, I picked this out to use the Locke’s theories of social contract to talk about the nature of being in breach of that contract and then considered thusly as an animal, i.e someone outside of the state, legitimizing their executions by the state.
Plato (1509) Phaedo
In this work Socrates is having a conversation with Phaedo while imprisoned awaiting his execution by hemlock for allegedly corrupting the youth of Athens. I used this work to illustrate feelings of gratitude one might have to the state and why this may not be relevant to today’s government in terms of the death penalty.
Rousseau, Jean-Jacques (1762) The Social Contract
This is another work on social contract and I used this to show the weaknesses of punishment in terms of a weakness in contract, sighting such philosophers as Beccaria to illustrate the point that governments should not really have the right to punish and kill people that have agreed to live within it.
Schmalleger, F. (2012). Criminology today: An integrative introduction (6th ed.). Upper
Saddle River, NJ: Prentice Hall.
This text was used to bring to light one of the most important and pervasive arguments in the death penalty debate, that of the utilitarian argument, which in some respects is the most used. I used this to show some of the strengths of punishment used to create the greatest happiness for the greatest number and some of its fatal flaws.
- Deterrence value. Capital punishment is believed to be a strong deterrent, the seriousness of the punishment is believed to stop future crimes in fear that if caught the offender may be killed.
- Equivalent trade/Eye for an Eye. Capital punishment used to punish a someone who has taken a life is seen as an equal trade a life taken a life repayed.
- No risk of recidivism. Once a criminal is dead the is no risk of them commiting the crimes they are guilty of a second time.
No
- Hypocrisy of the Death penalty. We are told that killing is wrong but killing is justified if committed by the state.
- No chance of reform. Once dead a criminal is given no chance to reintegrate into society, the solution is too final, everyone deserves a second chance.
- Non-equivalence. One death does not repay the deaths of multiple people, say if a criminal kills multiple people their one life is not enough to pay for the deaths of many. If someone is dead they are not suffering, long term imprisonment causes more suffering.
I intend to discuss the use of the death penalty as a deterrent and the moral and societal implications that may have. Is the death penalty a deterrent and if so what can be learned from death? More importantly is the death penalty fair? It seems illogical to kill someone for killing, it cannot be fair to take an eye for an eye because it’s a never ending vicious circle of hypocrisy.
Socrates was famously executed by the state for corrupting the youth and although he had the opportunity to escape his fate he chose to stay because he felt that he owed his life to his government. He may have felt that way because in those times the Grecian government basically fed and clothed you, so it stands to reason you might owe a debt of gratitude to you government. The rationale is they gave you your life thus they have the right to take it away.
Socrates believed he owed the state for all that was bestowed upon him by it so the debt of gratitude he owed amounted to an obligation to obey the law. In theory he could have just left and lived somewhere else or decided to change the laws but he didn’t which is why he accepted his execution (by extension ‘we’ can do the same). In utilitarian terms gratitude wouldn’t come into it but you would accept that if disobeying the law would subtract the positive things the states bestows and thus reducing happiness significantly. So unless the happiness of breaking the law greatly increased happiness for yourself and for the greatest number more than the displeasure of losing the beneficial effects of the law and the state.
“Act utilitarian calculations, as Bentham suggests, may lead us to conclude that we ought to obey but they may lead us as well to conclude that we ought to disobey on some other occasions” (Simmons 1979, p48)
Bentham says moral actions are those which produce, the most happiness for the greatest number of people, so it’s not as simple as just killing someone who has killed. You first need to calculate the pleasure over the pain caused. So although the victim’s family might be happy the killer and the killer’s family will not be, so you have to take that into account. First of all utilitarianism simply put is the theory of the greatest happiness to the greatest number, which is a theory that is commonly assimilated today in politics and everyday life, increasing the amount of happiness in the world is a common goal everyone can share.
Now the idea of utility in regard to political obligation only functions as an alternative to the social contract theory, so for utilitarian political obligation to work this farcical idea of ancient people who lived nomadic existences coming together and signing a contract before even having a common language or even writing has to be dropped, which I think is fair. The main criticism of utilitarian political obligation is the fact that the actual theory is so brief, I think that could also be one of its main strengths in some ways. All that is said is that fulfilling you’re political obligation is thought to contribute to the greater good and happiness of the greatest number of people. One of the main counter arguments to this rationale is that of raising questions around quantifying happiness. Calculating happiness is always so vague there is no exact measurement or even a way of measuring happiness so if there is no way of measuring how happy the state makes us then how do we attribute how much gratitude is owed to the state?
Is there enough gratitude in the world to accept death? And to a greater extent should moral reflection be reducible to a calculation? Utilitarianism reduces people to mere pleasure calculators; we become almost like robot pigs, only caring about pleasure but first working out how to get the most. Can conviction which is interpreted as moral identity, be reduced to simple calculations? Utilitarianism claims to uncover the logic of moral beliefs, they also see fit to sacrifice people to the greater good which is against common ideas of morality. This contradiction makes it an insecure foundation for the political obligation to obey the law and thus undermines the ethics of the death penalty.
Although the rationale for sacrifices can be seen in many political decisions, going to war for example accepts the sacrifice of many innocent lives to fuel it but is still seen as an acceptable tactic by the government to protect our country.
“The murder that is depicted as a horrible crime is repeated in cold blood, remorselessly” Beccaria (1764)
The bloody code is seen as barbaric and entirely based on vengeance which today is seen as immoral and today these give way to informed and expert intervention. Foucault uses Beccaria to illustrate the fact that to torture or to punish someone publicly is to take on the role of the criminal but lack the passions of the crime. It stands to reason that it’s impossible to set an example that murder is wrong by committing murder publicly in cold blood. Beccaria (1764) actually critiques the utilitarian point of view on punishment (which is retributivist, you enact an equal amount of suffering on the criminal as he/she caused) in ‘On crimes and punishment’. Beccaria suggests that capital punishment is not necessary as a deterrent. Long-term imprisonment is transient so it is a more powerful deterrent whereas execution is permanent. Basically how can you deter people from crime if they’re dead?
If they’re dead they’re not suffering. It’s a harsh punishment but it can only be carried out once and how can you learn not to commit crime if you’re dead? Nietzsche also believed that punishment is a memory exercise, you do something bad, you’re punishment and you remember not to do the bad thing again but again how can you remember when you’re dead?
Beccaria would certainly agree that the death penalty is not fair because it lets the offender off too easily, death is easy, punishment should be hard and there should be an overarching goal of reform, we should be trying to teach people that what they’ve done is wrong, rather than just erasing them as a threat to others.
“In any case, frequent punishments are a sign of weakness or slackness in the government. There is no man so bad that he cannot be made good for something. No man should be put to death, even as an example, if he can be left to live without danger to society.” ― Jean-Jacques Rousseau, The Social Contract
Hobbes was a believer in the social contract theory. He believed that society was created though a mutual agreement of people coming together to help one another survive. Therefore the state had power over you, because you agreed that it should as a means of governing a people fairly and it goes without saying you would never agree to be executed. In other words you would never enter an agreement allowing another party to forsake your human rights.
When you live in a society you naturally agree to obey by its laws, and you receive rights such as the right to life, so another person does not have the right to end your life and you do not have the right to end theirs and because you agreed to live in that society and have those rights to life why should the government be able to disavow those rights? Put simply if an ordinary person is not allowed to kill surely it’s hypocritical for a government to be allowed to kill its citizens; fairness would dictate that the right to take a human life should belong to no man.
"What says the law? You will not kill. How does it say it? By killing!" -Victor Hugo, author of Les Miserables
In these terms the death penalty is not a deterrent because you’re not setting a moral example, because on one hand you’re saying it’s wrong to kill and on the other you’re saying it’s not wrong to kill if it’s the government that has decided to kill you, thus legitimising murder. Another fault Hobbes points out in terms of the death penalty is that the sovereign is not allowed to be executed by his people. The theory is if the people have come together to elect and decided as a group to give that person power over them, they are then responsible for whatever their sovereign may do. Executing the sovereign would going back on your decision.
“A criminal who, having renounced reason hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or tyger, one of those wild savage beasts with whom men can have no society nor security.” And upon this is grounded the great law of Nature, "Whoso sheddeth man's blood, by man shall his blood be shed."
John Locke
John Locke was also a believer in the social contract theory but he takes the exact opposite approach, it’s his belief that when someone enters into the contract of the society they agree not to commit crimes such as murder. Everything outside of the contract of society is in the state of nature, without law where everyman fends for himself. Therefore if they commit a crime such as murder they are in direct breach of that contract, hence they are now outside that contract in a state of nature at the level of an animal. Since the offender is at the level of an animal they are not above just being put down like an animal, it’s almost a duty to put down someone that is an animal.
Hobbes was quoted as saying that life outside of society in the state of nature was brutish and short, which Locke also as a supporter of the contract theory also held so he preferred banishment in lieu of execution because he naturally assumed life as an animal a kin with death.
“Institutions and practices need to be acknowledged by the individual as deserving his allegiance and consideration as essential to his own self-realisation – provided they continue to act as means to the common good and not as impediments to it”
(Green. 1986, pp 6-7)
T.H Green argued that the death penalty is essentially holding a gun to someone’s head and telling them to be good or die thus defeating the point. If being good has to be reached through coercion rather than choice it is inherently wrong. Green’s deep religious belief leads him to believe that people should be given the choice to be good and then should choose it on their own, although the choice always boils down to heaven or hell which as a choice is a fairly simple one between happiness and suffering (T.H Green 1882).
"Imposition of the death penalty is arbitrary and capricious. Decision of who will live and who will die for his crime turns less on the nature of the offense and the incorrigibility of the offender and more on inappropriate and indefensible considerations: the political and personal inclinations of prosecutors; the defendant's wealth, race and intellect; the race and economic status of the victim; the quality of the defendant's counsel; and the resources allocated to defense lawyers." -Gerald Heaney, former appellate judge
Law professor David Baldus from the University of Iowa discovered during the 1980s Georgia’s prosecutors sought the death penalty for 70 % of black defendants with white victims, but for only 15% of white defendants with black victims. In short the death penalty is too final a solution to guilt which is unclear. The definition of crime is fluid as new laws are created every day; therefore human morality is not objective or accurate enough to properly judge when someone has the right to take another’s life.
The use of the death penalty is also a very cynical deterrent, it completely eliminates the possibility of offender reform and criminal investigation is not an exact science for all the ‘bad’ people you kill, there will inevitably be a handful of ‘good’ people killed by mistake or through negligence/racism/sexism and other personal bias.
In conclusion in light of the imperfections of the legal systems and the permanence of death not to mention ill conceived notions of equivalent trade in punishment, the death penalty can never be interpreted as fair. It is completely illogical to kill and expect to set an example that killing is in fact wrong.
