Term Paper on "Capital Punishment the Pros and Cons"

Term Paper 6 pages (2096 words) Sources: 1+

[EXCERPT] . . . .

Capital Punishment

The Pros and Cons of Capital Punishment: Can the Practice be Justified?

One of the more startling ironies of living in the Land of the Free is the fact that the United States incarcerates far more of its citizens that most other countries in the world, and it remains one of the very few to execute criminals for capital offenses. Indeed, many observers are questioning the moral justifiability of a practice that many consider to be unconstitutional based on cruel and unusual punishment considerations, while others point to the alarming number of death row inmates who have been exonerated through innovations in forensic technologies, particularly DNA evidence. Nevertheless, a clear majority of the several states continue to have capital punishment laws on their books, and some use the practice on a regular basis. The finality of capital punishment suggests that it is vitally important for any nation that continues to use the death penalty as a punishment for capital crimes to have a firm basis in fact as to its utility before using this ultimate penalty as a matter of law. To this end, this paper provides a review of the relevant literature to determine the best reason in favor of capital punishment and whether this reason is sufficient to justify this practice.

Review and Discussion

Capital crimes, or those that allow the use of the death penalty as a punishment alternative, are generally so offense to the public and state that a measured response is required. According to the ambivalent analysis presented by Reiman (2000), the practice of capital punishment can be at least superficially justified from a retributive perspective because like few other punishments, the death penalty does in fact match the crime but there are a number of considerations that must be taken into account before this ultimate punishment can be used. As this author emphasizes, "In my view, the death penalty is a just punishment for murder because the lex talionis, an eye for an eye, and so on, is just, although it can only be rightly applied when its implied preconditions are satisfied" (Reiman, pp. 273-274). In this regard, Black's Law Dictionary (1991) advises that the term "lex talionis" refers to "the law of retaliation, which requires the infliction upon a wrongdoer of the same injury which he has caused to another" (p. 913). The important distinction in the case of this legal framework is the emphasis on the death penalty being required rather than simply being allowed.

From Reiman's perspective, although there are compelling arguments on both sides, the death penalty serves a useful social function in at least one way by balancing the scales of suffering and satisfying the "retaliation" aspects of the legal concept of lex talionis. This view is qualified, somewhat, though, by Kantian views as well because Reiman does go on to admit to that circumstances might exist where a victim (or the victim representative in the form of the state) may have the moral capacity to forgive a crime, but insists that the moral capacity to forgive does not necessarily equate to the moral responsibility to do so: "It might be thought that this is a duty, not just a right" Reiman advises, "but this is surely too much. The victim has the right to forgive the violator without punishment, which suggests that it is by virtue of having the right to punish the violator (rather than the duty) that the victim's quality with the violator is restored" (p. 275).

This second perspective relates to Kant's views that any acts that are committed by rational beings implicitly authorize comparable actions by an individual's peers in an eye-for-an-eye model. The Kantian view, then, does not assign an obligation to exact the death penalty even though it is suggest a fundamental right to do so (Reiman). The overriding issue that emerges from Reiman's analysis of the pros and cons of the death penalty is the enormous moral complexity involved in determining whether the preconditions for applying capital punishment in murder cases outweigh the potential for error and the spurious benefits that have been cited as being positive outcomes of having the death penalty on the books. These arguments ultimately lead Reiman to conclude that "though it is a just punishment for murder, I believe that, taken together, these arguments prove that we should abolish the death penalty" (p. 283).

In his essay, "In Defense of the Death Penalty," van den Haag (1978) posits three fundamental questions: "Is the death penalty constitutional? Is it useful? Is the death penalty morally justifiable?" (p. 51), and proceeds to address each of these questions in turn. While the constitutionality and moral justifiability of the death penalty are important in the general discussion concerning capital punishment, it is the utility of practice that is the focus of this study and therefore the analysis of van den Haag's rationale will be limited to his discussion concerning the usefulness of the death penalty as a possible deterrent to future capital crimes. In this regard, van den Haag reports that while the growing body of research concerning the effectiveness of capital punishment as a deterrent has shown some mixed results both in favor and against capital punishment, the findings to date have helped to identify some fundamental flaws in these studies and to formulate more effective ways to measure the death penalty's impact on violent crime, although he also emphasizes that the statistically demonstrable data indicates "marginal deterrent effects" (p. 52).

From van den Haag's perspective, deterrence operates in the real world "by the lesson about the wrongfulness of murder that is slowly learned in a society that subjects murderers to the ultimate punishment" (quoted in Reiman at p. 282). In this regard, van den Haag emphasizes that the learning involved is intuitive in nature: "Our penal system rests on the proposition that more severe penalties are more deterrent than less severe penalties This assumption of the penal system rests on the common experience that, once aware of them, people learn to avoid natural dangers the more likely these are to be injurious and the more severe the likely injuries" (p. 53). By tailoring the punishment to fit the crime specifically, the death penalty serves a retributive function for society as well as providing a deterrent effect, even though it is "slowly learned." As van den Haag emphasizes, "People endowed with ordinary common sense have found no reason why behavior with respect to legal dangers should differ from behavior with respect to natural dangers. Indeed, it does not. Hence, the legal system proportions threatened penalties to the gravity of crimes, both to do justice and to achieve deterrence in proportion to that gravity" (p. 53). The gravity of capital crimes, then, requires a measured response from society, with that measured response by the death penalty because it is the only appropriate punishment - and deterrent -- for such crimes: "Thus, if it is true that the more severe the penalty the greater the deterrent effect, then the most severe penalty -- the death penalty -- would have the greatest deterrent effect" (p. 53).

The use of deterrence as a justification for the death penalty is on the pragmatic impact of capital punishment on violent crime rates rather than on the rationality of the argument that reasoning people will be deterred from violent act because of the potential of the death penalty. For example, in his chapter, "On Deterrence and the Death Penalty," van den Haag notes that, "Deterrence depends on the likelihood that on the regularity - not on the rationality - of human responses to danger; and further on the possibility of reinforcing internal controls by vicarious external experiences" (p. 266). These responses to perceived danger operate in both ways, by serving as a potential deterrent to criminal offenders who would kill others and by providing society with a weapon (capital punishment) that can be used in its defense against those that would threaten its sovereignty. It is this marginal deterrence effect that van den Haag maintains is the best argument in defense of keeping the death penalty. While van den Haag also admits to the complexity of the analysis and the wide range of factors that could also account for increases - or decreases - in the violent crime rate in response to the implementation - or abolition - of the death penalty, he also emphasizes that despite the crap shoot nature of the enterprise, the death penalty comes out on top of the analytical heap at this point in time because it is the best available remedy for this social ill: "To be sure," van den Haag writes, "we must risk something certain - the death (or life) of the convicted man, for something uncertain - the death (or life) of the victims of murderers who may be deterred. This is in the nature of uncertainty - when we invest, or gamble, we risk the money we have for an uncertain gain" (p. 271).… READ MORE

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