Introduction

As I began to work on this essay, a story appeared in the New York Times about prison reform.  Shortly after that, Saddam Hussein was executed.  Cell phones taped the moments leading up to his execution, including him falling to his death.  The mixed reactions to all of these images reveals we human beings are not unanimous in our moral appraisal of the death penalty.  Why?

There are at least two confusions leading to opposing positions on the moral permissibility of capital punishment: (1) We do not understand the meaning and purpose of punishment; (2a) We do not understand (or more precisely, do not agree upon) the origin of morality, and (2b) as a result, we do not agree upon what morality is (and some claim there is no such thing as morality).

My approach is to lay out in summary fashion an overview of positions on the death penalty, and some of the problems that arise from them.  As such, the overview is intended to be an accessible introduction to the topic.  I do not presume to offer a view on the moral status of the death penalty, or solution to the theoretical and practical problems we currently face.

The Concept of Punishment and The Origin of Morality
The purpose of punishment ranges from education or rehabilitation to retribution or social benefit.  In each, punishment is uncomfortable for the one experiencing it.  This discomfort is important, because it reveals that we assume one will understand that the discomfort is to be connected with the mistake or crime committed.  The result will be that the perpetrator realizes the mistake or crime is not a good thing, and will avoid it in the future; or the perpetrator will simply feel pain proportionate to the pain he or she inflicted.

    Punishment as Education
Punishment as education involves developing associations between ideas about right and wrong and the discomfort of pain.  Pain results from doing wrong.  Since no one wants pain, one will learn not to commit the wrong.

For example, suppose a child grabs a toy from another child’s hand.  An adult may take the toy away from the ‘offender,’ admonish the child that taking toys away from others who had them first is ‘not nice,’ or some such, and then send the child to a ‘time out’ area.  The time out is meant to show the child that the behavior in question is inappropriate; the child equates the discomfort of the time out with the inappropriateness of the action.

Some might find this approach peculiar, if not entirely incorrect.  After all, isn’t the one punished supposed to know already that they’ve done wrong?  Isn’t the punishment a response to acting against this knowledge? (‘You knew better, but you did it anyway.’)  Perhaps, but the fact is that punishment is often used as a means of educating.  Psychologists call it ‘negative reinforcement.’

    Punishment as Rehabilitation
An analogy to this idea can be found in physical therapy.  People who have had surgery, are recovering from an accident, etc., often go to a rehab center for professional help to recover physical strength, stamina, or range of motion.  Similarly, people enter drug rehab centers to free themselves from substance addiction.  Addiction is typically understood as physiological, and the psychological component of addiction is treated either as a form of physical addiction or something immaterial (e.g., ‘spiritual’).  The point of rehabilitation is to remove a problem and then strengthen the weakened area.

Implicit in this notion of rehabilitation is that the individual has become functionally defective.  An example of punishment as rehabilitation, then, would involve the idea that the perpetrator needs the habit in question broken, and new habits cultivated.

Here, a major question arises: how is rehabilitation to be administered?  There are medical methods, such as drug therapy; and behavioral methods, including vocational training and therapy.  Each is not without its problems.  For example, drug therapy conjures images of “A Clockwork Orange” scenario, which effectively undermines the individual’s freedom to choose not to commit crimes.  Moreover, it essentially presupposes that at least some human beings’ actions are determined by factors outside their control, which calls into question the perpetrator’s moral culpability, which is at the heart of certain laws enacted to reflect moral norms (e.g., laws against child molestation; murder).

    Punishment as Retribution
The prevalent understanding of the purpose of punishment is retribution.  Understood as proportionate justice, the purpose of punishment is to exact a pain in balance with (though not necessarily identical with) the crime committed.  In this way, punishment is intended to be fair, not only to the perpetrator, but also to the victim and society at large.  The main feature of retributive punishment is that punishment does not achieve a goal beyond proportionate response. 

     Punishment as Social Benefit

Though increasingly out of fashion as a justification for punishment, it is nevertheless true that punishment’s purpose is to protect society.  Those who transgress familial, cultural, or societal norms and laws are seen as violating a compact between members of the group.  For society to survive, people must conform and work together to support certain codes of conduct.  When these codes are broken, so also is the ‘fabric’ that holds society together.

An interesting question is whether or not the behaviors described are inappropriate because they cause pain, or for some other reason.  If this is so, however, we’re quickly confronted with a problem: we don’t always think that pain is bad.  If we did, we’d never go to the dentist, exercise, or otherwise engage in painful activities.

    An Introduction to the Moral Foundation of Punishment
Typically, moral philosophers investigate the meaning of moral concepts.  For example, they are not interested in telling us to do good so much as they want to understand what “good” means, or want to know why a certain action is considered inappropriate.  So, what is the moral meaning of punishment?

In general, punishment is a discomfort to the perpetrator, and is implemented as a result of a crime committed against an innocent individual.  If, as death penalty expert Hugo Adam Bedau defines it, punishment involves depriving the perpetrator of something (e.g., freedom) to which he or she otherwise has a right, or is the imposition of some “special burdens,” punishment is a purposefully unpleasant experience.

Is morality then, in the case of punishment, rooted in the empirical?  In other words, is it that punishment is rooted in the natural (physical) way of things?  Specifically, is it rooted in animals’ natural tendency to avoid pain, and human beings’ associations of pain with evil (or at least something negative)?  Just as the cornered dog will lash out, so also the individual who is the victim of an attack (or the state, on behalf of one who was murdered) retaliates through society’s system of laws (or attempts to ‘take the law into his own hands).

At the same time, however, punishment is arguably a peculiarly human activity.  Insofar as it is rule-based, it is meant to be the consistently applied method of educating or correcting bad behavior.  We do see non-human, socially organized animals correcting members in ways that could be interpreted as punishment, but we have no way of knowing whether or not the behaviors we see reflect enough similarities to our own formal institutions and informal cultural practices.

Another approach to the moral status of punishment (albeit not the only one) is to view morality in terms of rational principles.  These principles are not derived from experience (e.g., generalizing from particular pain experiences to the belief that pain is bad), but from reason.  Reason yields principles that apply to experience in a way analogous to the application of mathematical formulas to particular problems.  If we suppose that a human being’s essential feature is rationality, we can look to reason to guide behavior.  Thus, punishment is understood as a rational activity, and when determining what types of punishment are appropriate (e.g., the death penalty), we appeal to reason.

Of course, looking for moral foundations independent of feeling or social order may be misguided.  Following Nietzsche, who argued that the purpose of punishment always rests on a rationalization of the desire simply to punish, 20th century French thinker Michel Foucault claimed that punishment is ultimately a method of subordinating, coercing, and transforming individuals into obedient followers of the prevailing social order.

Two Prominent Arguments for Executing Criminals
      Deterrence
Deterrence advocates look to the consequences of punishment as justification for the practice.  If the prospect of a prison sentence is not sufficient to dissuade people from committing crimes, the prospect of being killed as a consequence is one.

The thinking does not focus punishment on the perpetrator of the crime, but rather on society; the perpetrator, and the punishment, becomes a means to an end.  To the extent that a dead criminal is absolutely deterred from committing further crimes, he or she is deterred, but in the main, the point of deterrence goes beyond the one punished.

Jeremy Bentham advanced the deterrence theory as the “chief end of punishment”.  Provided the punishment is implemented severely, but also swiftly, it can overcome its status as an “evil.”  Because Bentham believed that pain is an evil, and punishment is the inflicting of a pain, it follows that punishment is evil.  Thus, punishment is not to exceed the offense committed.

      Retribution
Immanuel Kant argued that the death penalty is the morally correct punishment for murder.  He thought the purpose of punishment is to bring about some good for society.  However, since human beings have intrinsic worth, they ought never to be used as mere means (i.e., as a means to bring about some good for society).  Instead, punishment depends exclusively on the crime committed.

Thus the necessary and sufficient justification for punishment, on the retributivist view, is the crime committed.  It is commonly associated with the ‘eye for an eye’ view of punishment, or punishment in kind.  In the United States, execution is, I believe, the only form of purely retributive punishment.  There is no eye toward reformation or social benefit, only the view that moral balance has been restored.

Four Objections to Executing Criminals
A Public Ritual Made Private Reveals the Flaws of Capital Punishment
The fact executions are carried out behind closed doors reveals its barbaric nature.  If deterrence is the goal of the death penalty, then it makes more sense for the activity to be publicized in some fashion.

A related objection is that, insofar as public execution may inspire blood lust in the witnesses, the practice itself undermines civilized societies.  The fact that a large number of countries ban capital punishment altogether may lend support for this view.

      Retribution is Rationalized Revenge
Typically, revenge is viewed as an act of passion, and as such cannot be the basis for justice.  Yet justice is the basis of retribution.  Since retribution is rationalized revenge, and revenge is not a good reason to kill criminals, retribution is not a good reason to kill criminals.

      Deterrence is a Fiction
Opponents of the death penalty often cite statistics that are said to show there is no causal relation between the death penalty and deterrence (e.g., Sorenson and Wrinkle, 1999; William Bailey, 1998).  Of course, it would be difficult to show such a relation, since the data would purport to prove a negative.  Nevertheless, there is no established correlation between executions and subsequent tapering of violent crime.  Moreover, there is no higher crime rate in those states that do not execute criminals as punishment for particular crime than there is in states that do enlist capital punishment.  Thus, deterrence is not a good justification for the death penalty.

      Inequity in the System that Employs the Death Penalty
The death penalty is unfairly applied, and this is what makes it wrong.  But this objection simply skirts the issue of whether or not the penalty itself is morally impermissible.  If it’s permissible, but poorly implemented, then the debate is over reform, not abolition.

Still, there are errors in the justice system leading to execution.  For example, some death row inmates have been exonerated of crimes based on DNA or other evidence, while the death sentences of others have been reversed.  Moreover, discrimination in the justice system leads to a disparity between those whose socio-economic, race, geographical location, and quality of defense attorney seem to save them from the death penalty, and those whose socio-economic, race, geographical situation, and quality of defense attorney do not save them.  Thus not everyone who may deserve the death penalty is rightly punished, while many who not deserve the death penalty are punished by it, anyway.

    Cruel and Unusual Punishment
The 8th Amendment to the United States Constitution forbids “cruel and unusual punishments.”  Among those entirely forbidden are drawing and quartering, burning alive, public dissection, disembowelment, and torture.

Until the late 19th century, the most common method of execution in the U.S. was hanging.  Thereafter, death by electrocution or cyanide gas were the norms through the early 1990s, when they were largely replaced by lethal injection (though some states began the latter practice as early as the late 1970s).  However, this method of execution, as the others before it, has been criticized.

 Part of the notion of “cruel and unusual punishment” involves proportionality.  Thus, certain methods of killing are considered disproportionately savage, or to cause disproportionate pain in the process of dying.  So, lethal injection — especially botched ones in which, for example, the anesthetic is injected into muscles and not veins — is a cruel and unusual punishment.  Such cruelty is the reason the death penalty has been deemed excessive punishment for certain crimes such as rape.  Moreover, the possibility that innocent people have been executed should give us pause.

Concluding Thoughts
If nothing else, it’s clear human beings continue to believe that there are wrongs committed, and that these wrongs should not go unaddressed.  Not everyone agrees on the list of wrongs, and not everyone agrees on how the wrongs are to be addressed.  If there were unanimity in thinking about morality, specifically unanimity in thinking about the origin and meaning of morality, it might be easier to resolve the death penalty controversy.  At present, the desire for unanimity is wishful and generally unproductive thinking.

Moreover, the current debate reflects confusion about the nature of morality.  Ultimately, the policy of killing a human being as punishment for a crime is an essentially pessimistic one, devoid of any hope that people can change and lead ‘good’ lives, but also full of the belief that only certain lives are worth preserving.  Who decides what that worth is?  Is a person’s worth relative, since different states have different views about what crimes are worthy of capital punishment, while other states don’t have the punishment at all?  The descriptions do not establish moral relativity on this or any other matter.  It may simply be that, collectively, we do not yet have sufficient moral knowledge on this subject — hence my claim about our confusions regarding the source and nature of morality.  After all, just because we don’t know does not mean there isn’t something to be known.

It is peculiar to do something to someone that we loathe them doing to us.  The death penalty, carried out in solemn ritual, does not seem to teach anyone anything about the inherent dignity of human life, nor does it seem to correct a terrible moral transgression.  At best, it is a socially organized way to finally and absolutely exile a member of the community.  It is a way for a group of people to turn its collective back on another human being and say, ‘Not only do you not exist to me, but I will make you actually nonexistent.’  It is a way to express the belief that nothing should be done for the perpetrator, or maybe more correctly, it is a way to express the frustration that we can do nothing; we are helpless to come up with another, successful way of engaging a person who has annihilated another.

Refraining from the “ultimate punishment” may be the clearest moral stance against reprehensible crimes.  Inasmuch as it directly confronts the offender and states, ‘You cannot escape the reality of your failure,’ the agent is continually thrown back upon himself or herself to contemplate, grapple with, and deeply regret the motivation and action that brought them to this point.  Most of all, over time, the agent can become the ground of whatever goodness can, in the future, be cultivated.