Capital Punishment

Constitutionality

The eighth amendment to the Constitution prohibits cruel and unusual punishment.

In 1972, the supreme court ruled that the death penalty was unconstitutional as then administered because it was being administered in an arbitrary and capricious manner.

Some states responded by making the death penalty mandatory for certain crimes. This was also ruled unconstitutional.

Other states established standards to guide juries and judges concerning the death penalty. This was ruled constitutionally acceptable.

However, the supreme court has also ruled that the death penalty can only be imposed for murder, and not for rape.

Ethical Issues

Retentionists - those in favor of retaining the death penalty.

Abolitionists - those in favor of abolishing the death penalty.

Retentionist Arguments

From Justice

Retribution or retaliation - Justice demands that an offender be punished in a manner proportionate to the crime, and capital punishment is the only punishment suitable for murder. (Primoratz and Nathanson)

Some argue that by seeking retribution instead of rehabilitation we respect the agency, responsibility, and dignity of the criminal

Objections - 1. Retributionism is based on an overly emotional and barbarous desire for vengeance, not on justice. 2. It ignores social conditions which influence criminal behavior.

From Social Utility

1. Incapacitation - The death penalty serves the interests of society because it permanently protects society from convicted murderers who are violence-prone and irreformable.

Objection - Life imprisonment works just as well, with fewer negative consequences.

2. Deterrence - The death penalty serves the interests of society because it deters potential murderers.

Objection - The statistical results of the social sciences on this issue are conflicting and ultimately inconclusive. There is no strong evidence that the death penalty is a more effective deterrent than life imprisonment.

Response - 1. That the death penalty is a more effective deterrent follows from common sense (Glover). 2. Given the uncertainty of the empirical studies, we should err on the side of the innocent and assume that the death penalty is a more effective deterrent. (van den Haag)

Objection - The death penalty has a “counter-deterrent effect”: it has a brutalizing effect on society and weakens the populace’s inhibitions against killing, increasing the likelihood of violence and murder.

Abolitionist Arguments

Pacifism

The sanctity of human life demands absolute nonviolence. Violence only breeds violence.

Objection - Killing is justified in self-defense or in order to protect innocent people.

Less extreme

The sanctity of human life demands that killing be justified by significant reasons, and none are present in the case of the death penalty.

The death penalty is irrevocable, and thus unjust since innocent people have been convicted of murder in the past and we can’t guarantee that this won’t continue to happen in the future.

The death penalty is applied arbitrarily and unfairly, since it is more likely that it will be applied to African Americans, the poor and the uneducated than whites, the affluent, and the educated. (Primoratz).

The practical burdens of administering the death penalty are too great. (Dieter)