Execution of the innocent
The most common and most cogent argument against capital punishment is that sooner or later, innocent people will get killed, because of mistakes or flaws in the justice system.
Witnesses, (where they are part of the process), prosecutors and jurors can all make mistakes. When this is coupled with flaws in the system it is inevitable that innocent people will be convicted of crimes. Where capital punishment is used such mistakes cannot be put right.
There is ample evidence that such mistakes are possible: in the USA, 130 people sentenced to death have been found innocent since 1973 and released from death row. Source: Amnesty
The average time on death row before these exonerations was 11 years. Source: Death Penalty Information Center
Things were made worse in the USA when the Supreme Court refused to hold explicitly that the execution of a defendant in the face of significant evidence of innocence would be unconstitutional [Herrera v. Collins, 560 U.S. 390 (1993)]. However many US lawyers believe that in practice the court would not permit an execution in a case demonstrating persuasive evidence of "actual innocence".
The continuous threat of execution makes the ordeal of those wrongly convicted particularly horrible.
Retribution is wrong
Many people believe that retribution is morally flawed and problematic in concept and practice.
The main argument that retribution is immoral is that it is just a sanitised form of vengeance. Scenes of howling mobs attacking prison vans containing those accused of murder on their way to and from court, or chanting aggressively outside prisons when an offender is being executed, suggest that vengeance remains a major ingredient in the public popularity of capital punishment.
But just retribution, designed to re-establish justice, can easily be distinguished from vengeance and vindictiveness.
In any case, is vengeance necessarily a bad thing?
The Victorian legal philosopher James Fitzjames Stephens thought vengeance was an acceptable justification for punishment. Punishment, he thought, should be inflicted:
Retribution and the innocent
But the issue of the execution of innocent persons is also a problem for the retribution argument - if there is a serious risk of executing the innocent then one of the key principles of retribution - that people should get what they deserve (and therefore only what they deserve) - is violated by the current implementation of capital punishment in the USA, and any other country where errors have taken place.
Uniqueness of the death penalty
It's argued that retribution is used in a unique way in the case of the death penalty. Crimes other than murder do not receive a punishment that mimics the crime - for example rapists are not punished by sexual assault, and people guilty of assault are not ceremonially beaten up.
Camus and Dostoevsky argued that the retribution in the case of the death penalty was not fair, because the anticipatory suffering of the criminal before execution would probably outweigh the anticipatory suffering of the victim of their crime.
Others argue that the retribution argument is flawed because the death penalty delivers a 'double punishment'; that of the execution and the preceding wait, and this is a mismatch to the crime.
Many offenders are kept 'waiting' on death row for a very long time; in the USA the average wait is 10 years. Source: Death Penalty Information Center
In Japan, the accused are only informed of their execution moments before it is scheduled. The result of this is that each day of their life is lived as if it was their last.
Capital punishment is not operated retributively
Some lawyers argue that capital punishment is not really used as retribution for murder, or even consistently for a particular kind of murder.
They argue that, in the USA at least, only a small minority of murderers are actually executed, and that imposition of capital punishment on a "capriciously selected random handful" of offenders does not amount to a consistent programme of retribution.
Since capital punishment is not operated retributively, it is inappropriate to use retribution to justify capital punishment.
This argument would have no value in a society that applied the death penalty consistently for particular types of murder.
Capital punishment is not retribution enough
Some people who believe in the notion of retribution are against capital punishment because they feel the death penalty provides insufficient retribution. They argue that life imprisonment without possibility of parole causes much more suffering to the offender than a painless death after a short period of imprisonment.
Another example is the planner of a suicide bombing - execution might make that person a martyr, and therefore would be a lesser retribution than life imprisonment.
Failure to deter
The death penalty doesn't seem to deter people from committing serious violent crimes. The thing that deters is the likelihood of being caught and punished.
The general consensus among social scientists is that the deterrent effect of the death penalty is at best unproven.
In 1988 a survey was conducted for the UN to determine the relation between the death penalty and homicide rates. This was then updated in 1996. It concluded:
NB: It's actually impossible to test the deterrent effect of a punishment in a rigorous way, as to do so would require knowing how many murders would have been committed in a particular state if the law had been different during the same time period.
Deterrence is a morally flawed concept
Even if capital punishment did act as a deterrent, is it acceptable for someone to pay for the predicted future crimes of others?
Some people argue that one may as well punish innocent people; it will have the same effect.
This isn't true - if people are randomly picked up off the street and punished as scapegoats the only consequence is likely to be that the public will be frightened to go out.
To make a scapegoat scheme effective it would be necessary to go through the appearance of a legitimate legal process and to present evidence which convinced the public that the person being punished deserved their punishment.
While some societies have operated their legal systems on the basis of fictional evidence and confessions extracted by torture, the ethical objections to such a system are sufficient to render the argument in the second paragraph pointless.
Statistics show that the death penalty leads to a brutalisation of society and an increase in murder rate. In the USA, more murders take place in states where capital punishment is allowed. In 2010, the murder rate in states where the death penalty has been abolished was 4.01 per cent per 100,000 people. In states where the death penalty is used, the figure was 5.00 per cent. These calculations are based on figures from the FBI. The gap between death penalty states and non-death penalty states rose considerably from 4 per cent difference in 1990 to 25 per cent in 2010. Source: FBI Uniform Crime Report, from Death Penalty Information Center
Disturbed individuals may be angered and thus more likely to commit murder.
It is also linked to increased number of police officers murdered.
Brutalising the state
Capital punishment may brutalise society in a different and even more fundamental way, one that has implications for the state's relationship with all citizens.
Brutalising the law
Capital punishment is said to produce an unacceptable link between the law and violence.
But in many ways the law is inevitably linked with violence - it punishes violent crimes, and it uses punishments that 'violently' restrict human freedoms. And philosophically the law is always involved with violence in that its function includes preserving an ordered society from violent events.
Nonetheless, a strong case can be made that legal violence is clearly different from criminal violence, and that when it is used, it is used in a way that everyone can see is fair and logical.
Capital punishment 'lowers the tone' of society
Civilised societies do not tolerate torture, even if it can be shown that torture may deter, or produce other good effects.
In the same way many people feel that the death penalty is an inappropriate for a modern civilised society to respond to even the most dreadful crimes.
Because most countries - but not all - do not execute people publicly, capital punishment is not a degrading public spectacle. But it is still a media circus, receiving great publicity, so that the public are well aware of what is being done on their behalf.
However this media circus takes over the spectacle of public execution in teaching the public lessons about justice, retribution, and personal responsibility for one's own actions.
Cruel, inhumane, degrading
Regardless of the moral status of capital punishment, some argue that all ways of executing people cause so much suffering to the condemned person that they amount to torture and are wrong.
Many methods of execution are quite obviously likely to cause enormous suffering, such as execution by lethal gas, electrocution or strangulation.
Other methods have been abandoned because they were thought to be barbaric, or because they forced the executioner to be too 'hands-on'. These include firing squads and beheading.
Many countries that use capital punishment have now adopted lethal injection, because it's thought to be less cruel for the offender and less brutalising for the executioner.
Those against capital punishment believe this method has serious moral flaws and should be abandoned.
The first flaw is that it requires medical personnel being directly involved in killing (rather than just checking that the execution has terminated life). This is a fundamental contravention of medical ethics.
The second flaw is that research in April 2005 showed that lethal injection is not nearly as 'humane' as had been thought. Post mortem findings indicated that levels of anaesthetic found in offenders were consistent with wakefulness and the ability to experience pain.
Still, strange things do happen and he was convicted and was actually in a car on his way to the State Penitentiary when a group of residents raised enough money — some even mortgaging their homes — to lodge an appeal, and he was returned to the local jail. Basically a conservative community, many people there had rather unwillingly come to believe that the confession had somehow been forced out of him by the police.
At the hearing to decide whether to give him a new trial, things did not look good; the second judge seemed a fair and sympathetic listener but the defense, now under a new lawyer, was required to produce new evidence, not easy to get hold of. But several days into the hearing the state’s attorney who had gotten the boy convicted dropped dead on a golf course and a substitute prosecutor immediately took his place and began studying his papers on the case.
In the files the substitute discovered an affidavit from a witness who swore that he and his wife had seen the boy in another part of town at the very moment his mother was being attacked and killed. This affidavit had been withheld from evidence, never introduced into the original trial despite the witness being a policeman who had known the boy and had not the slightest doubt that he had recognized him. Introduced into the hearing the very next morning, the affidavit blew the state’s case out of the water and the boy was freed.
If the state of Connecticut had had a death penalty, the boy may well have been executed. The boy’s mother had been nearly eviscerated, savagely mauled, and feelings of disgust and anger were aroused. Indeed, it was only the adventitious death of the prosecutor that saved the boy from a long sentence in a penitentiary that would probably have destroyed him, gentle and mild as he was. Connecticut is not normally considered a benighted state but one with a very high income level, and a large proportion of educated people. Yet this travesty happened there.
Any honest supporter of the death penalty simply cannot avoid facing the high probability of mistaken verdicts, of which there are indeed many in this country. The nation’s conscience forbids the state to kill innocent people. The death penalty makes the presumption that there are never going to be corrupt, ambitious, cowardly prosecutors and police who, afraid to admit they were wrong in arresting a suspect, go down to the end insisting on his guilt; that there are never honest mistakes in judgment, never any visual misidentifications, but that in each and every prosecution the guilty verdict is invariably deserved.
The boy, Peter Reilly, regained his freedom in Litchfield County because a prosecutor died at the propitious time and because his neighbors believed in him, and outsiders were moved to come to his aid. The life of the innocent cannot be allowed to depend on that much luck nor the states dishonored by pretensions of infallibility in absolutely every capital case that comes before its all but overwhelmed courts.
Copyright © Arthur Miller, used by permission of the Wylie Agency L.L.C.Continue reading the main story