Capital Punishment: Can It Ever Be Justified?

As Stuart Hazell is jailed for life, calls for a return of the death penalty are multiplying again. But is it justice?

There are some crimes which are so vile, and so evil, that many think they warrant the punishment of death. In the cases of serial rapists, serial murderers, and serial child abusers, these are people who have destroyed the lives of many, and who seem to be immune to rehabilitation. Many argue that these types of individuals should be completely removed from society. This argument for capital punishment is based on protection. Those who support capital punishment will claim that crimes such as murder warrant the death penalty because if the criminal is dead, then they cannot murder again.

Of course, other arguments can be made in favour of the death penalty. A popular one comes from the author and Mail On Sunday journalist, Peter Hitchens. On several occasions Hitchens has argued that by reintroducing the death penalty in Britain, rates of crime would dramatically drop; especially the worst crime: such as murder. Crime rates would substantially drop because the death penalty would act as an effective deterrent; that is, it would serve to put people off from committing the worst crimes. It would not be so much the case that the death penalty would erase the worst criminals from society; rather, the risk of receiving the death penalty would ensure that there would be a small number of such criminals.

The Mail On Sunday journalist, Peter Hitchens, is in favour of reintroducing the death penalty in the UK.
The Mail On Sunday journalist, Peter Hitchens, is in favour of reintroducing the death penalty in the UK.

Singapore uses the death penalty for several offences, and it has the second highest rate of executions in the world, according to the United Nations. Murder guarantees this punishment. However, so does drug trafficking, with 70% of all hangings (yes, the antiquated method of hanging is used, instead of the electric chair or lethal injection) attributable to this offence. Regardless of whether you think drug trafficking is as harmful as murder (it certainly is not as directly harmful) Singapore has much less drug trafficking than countries which do not punish this offence with death. Therefore, many proponents of capital punishment could argue that the death penalty does have an obvious deterrent effect in society.

In addition, one of the heroes of liberalism, John Stuart Mill, also laid out his support for capital punishment in his Speech in Favour of Capital Punishment (1868) which was delivered to the House of Commons. Mill bases his argument on utilitarianism, an ethical system which aims to maximize happiness and minimize suffering. As he puts it, “…to deter by suffering from inflicting suffering is not only possible, but the very purpose of penal justice”. By this he means that the essence of justice involves punishing criminals with suffering in order to avoid an even greater amount of suffering.

With regards to capital punishment Mill goes on to say that it is “the least cruel mode in which it is possible adequately to deter from crime”. This point seems like common sense. Death is the worst thing that can happen to someone. Admittedly, being tortured and then killed would be far worse in terms of physical pain, but since Mill was a utilitarian he would not have supported this unusually cruel form of punishment.

The liberal philosopher, John Stuart Mill, presented his argument in support of the death penalty in the House of Commons.
The liberal philosopher, John Stuart Mill, presented his argument for the death penalty in the House of Commons in 1868.

During Mill’s time, the abolitionists were arguing that capital punishment can lead to innocent people being mistakenly convicted of murder, and sentenced to death before the truth gets out. To allow the state to kill the innocent would be one of the greatest forms of injustice. However, in response to this argument, Mill stressed that because the death penalty is such a serious punishment, the courts will become “…more scrupulous in requiring the fullest evidence of guilt”.

Despite Mill’s position, I think that the arguments against the reintroduction of capital punishment in the UK are much stronger and persuasive than the arguments in support of its reintroduction. The first argument against it is simply based on consistency. For example, Mill supported the death penalty as a suitable punishment for murderers. However, if murder is an act which justifies the murderer’s death, then why is the state not guilty of murder when it kills the murderer? Is the executioner not involved in the calculated death of another human?

It seems to be palpably hypocritical to demonise and punish an act by carrying out the same act. The Old Testament teaching of retribution (an “eye of an eye”) is not just contradictory, it is petty as well. It is an attitude of vengeance which reflects our most base and primitive instincts – it is not something on which to base a moral criminal justice system. State-sanctioned murder is still murder.

Capital punishment was abolished for murder in 1965 (with the last hanging being carried out in 1964) and was then abolished for all circumstances in 1998. In 2004, the 13th Protocol to the European Convention on Human Rights became binding to the UK, meaning that the death penalty could never be restored so long as we are a part of the Convention. Some vital arguments can be used to justify these abolitionist decisions. From a libertarian perspective, the right to live can be seen as fundamental – it is our right which allows for the existence of every other right. There can, in some circumstances, be exceptions to preserving this right; such as for self-protection.

One major argument against capital punishment is protecting the innocent. Although thinkers such as Mill believe that the criminal justice system can somehow become flawless and always distinguish the guilty from the innocent, this simply cannot be true. Witnesses, prosecutors and judges are fallible, they make mistakes, and the evidence they are assessing is never complete. Where capital punishment is used, such mistakes can never be corrected.

A statement from Amnesty International puts it like this: “The death penalty legitimizes an irreversible act of violence by the state and will inevitably claim innocent victims. As long as human justice remains fallible, the risk of executing the innocent can never be eliminated”. There is ample evidence of these mistakes being made. In the US, 130 people sentenced to death have been found innocent since 1973. Luckily, these people on death row were found innocent before their execution.

Green mile

Despite these lucky 130, some people have been executed in the US who later turned out to be insane. Reintroducing the death penalty in the UK could therefore put the insane at risk, a group of people who – while they should be confined – should not be executed. Their confinement is for the safety of the public. On the other hand, to punish them by killing them would be unjust – you can only be guilty of a crime if you have a guilty mind (knowing what you’re doing and knowing that it is wrong).

The existentialists Albert Camus and Fyodor Dostoevsky said that even if vengeance is an acceptable form of punishment, the death penalty is still not fair. Someone convicted of murder, for example, could suffer much more than the person they killed. They would have to suffer the anticipation of being killed as well – the average wait on death row is for 10 years!

Finally, it is also questionable whether the death penalty does have a deterrent effect. In 1996, a survey conducted by the UN evaluated the relationship between the death penalty and homicide rates. It found that: “…research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole still gives no positive support to the deterrent hypothesis. The key to real and true deterrence is to increase the likelihood of detection, arrest and conviction. The death penalty is a harsh punishment, but it is not harsh on crime”.

4 COMMENTS

  1. “There are some crimes which are so vile, and so evil, that many think they warrant the punishment of death.”

    You disagree, so what do such crimes warrant? There’s little indication in the article of what you think the perpetrators of vile crimes do deserve, if not the rope. You mention issues such as deterrence and protecting the public, but what about punishment? Don’t you believe in punishment?

    “the antiquated method of hanging is used, instead of the electric chair or lethal injection”

    in what way is it antiquated? It works as well now as ever, and is, if performed correctly, very swift. Why would the other two methods be preferable?

    “The Old Testament teaching of retribution (an “eye of an eye”) is not just contradictory, it is petty as well.”

    It is not in any way contradictory, nor is it petty. It limits retribution to a proportional response. Making the punishment fit the crime is the essence of justice, but perhaps as noted above you don’t believe in punishment (or justice).

    “From a libertarian perspective, the right to live can be seen as fundamental”

    The other day you were arguing for euthanasia and assisted suicide, so presumably you would allow the death penalty, but only if the criminal agrees. Also in that article you claimed that the majority of the public were in favour of such a policy, and the government was denying democracy by not implementing it. So, if the majority supports the return of the death penalty in certain cases, as it no doubt does, you will be contradicting yourself if you ignore this.

    “Someone convicted of murder, for example, could suffer much more than the person they killed.”

    An absurd objection IMO, and it ignores that the murdered victim is not the only one who suffers. The family and friends of the victim also suffer, as may other people who have to deal with the crime. Maybe you should save your sympathy for those who deserve it more.

    • Hi Richard, thanks for bringing up those points, I’ll try and tackle them individually.

      1. I don’t think that there is any crime which warrants the death penalty. The worst crimes deserve long-term imprisonment and rehabilitation. How long this imprisonment or rehabilitation lasts depends on the individual case and the judgements of those working in the criminal justice system.

      2. I should say that lethal injection is preferable to both hanging and the electric chair. There is a reason why animals are put down using a lethal injection, and not through hanging or electrocution. Everyone agrees that it is less cruel and more humane.

      3. The Old Testament teaching is contradictory in that it tries to punish an immoral act with the same act. If you sincerely believe that the punishment should fit the crime, then do you think that rapists should be raped? Or that a murderer who kills a family should have his family killed as well? I believe in justice, but do not believe that retribution is the essence of justice. Punishment is necessary (as a deterrent), but rehabilitation is far more effective I think in creating a safer and less violent society.

      4. I don’t think you understood my point in the euthanasia article. My argument was not that consent alone can justify euthanasia, it was that if someone was suffering from a terminal illness, and they could consent, then euthanasia could be justified. The criminal’s consent, by itself, does not mean that they should be killed. You will also find that the majority of the public do not support the death penalty (although unfortunately a large proportion of us do – 40% of us). Also, my argument in the euthanasia article wasn’t that public opinion alone can justify a policy, since there can be a tyranny of the majority, which is dangerous. My point was that the majority of the public agree on a policy which would be beneficial (in terms of reducing suffering). I don’t think the reintroduction of the death penalty would be beneficial.

      5. It’s not really an absurd objection. Keep in mind that the friends and family of the person who is executed would also suffer. I wasn’t even necessarily saying that I agree with this point, but explaining what two philosophers had to say about the issue.

      • Thanks for your reply.

        “Everyone agrees that it is less cruel and more humane.”

        Everyone does not agree this. The authorities in Singapore do not agree. In Utah some prisoners choose to die by firing squad, so presumably they don’t agree. The fact that a dog gets put down with a lethal injection does not automatically mean it should be applied to murderers.

        ” The Old Testament teaching is contradictory in that it tries to punish an immoral act with the same act.”

        It is not the same act. The crime is inflicted upon an innocent victim. The punishment is inflicted on the perpetrator. This is not the same. If you do not distinguish between the crime and the punishment, then surely locking people in jail is the same as what that guy in Cleveland Ohio has been caught doing.

        ” If you sincerely believe that the punishment should fit the crime…”

        Yes I sincerely do. Lesser crimes should receive lesser punishment. Greater crimes should receive greater punishment and criminals should be forced to make reparations to the victim, which doesn’t happen now.

        “then do you think that rapists should be raped?”

        No, but it is what they deserve. There is a difference between what a criminal deserves, and what should be done with them in a civilised country. Nevertheless punishment should be proportional. It should reflect the severity of the crime.

        “I believe in justice, but do not believe that retribution is the
        essence of justice. ”

        What is the essence then? You don’t believe in retribution, you believe in punishment, but stress that this is for the purpose of deterrence, rather than because they deserve it, and you favour rehabilitation for the benefit of society. I don’t see any principle of justice which relates to the individual, at any rate, more a kind of collectivist utilitarianism.

        “You will also find that the majority of the public do not support the
        death penalty (although unfortunately a large proportion of us do – 40% of us)”

        It’s a matter for the pollsters, and no doubt subject to change. I would say that in particular notorious cases the majority would support it, but less would support it generally. It depends on how you ask the question. It certainly wasn’t in response to public opinion that it was abolished in England, quite the opposite.

        ” It’s not really an absurd objection. Keep in mind that the friends and family of the person who is executed would also suffer.”

        IMO it’s not a consideration of any value, for one reason because there is no way of quantifying such suffering. Besides, the murderer deserves to suffer, the victim doesn’t, so the murderer (and his family) is in no position to complain.

  2. The death penalty is based on the assumption that only the guilty will suffer. No criminal justice system in the world claims to be fool-proof, so why have a punishment from which there is no redress?

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