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On Capital Punishment


The most intriguing aspect of punishment theory – both because of its philosophical complexity and its practical implications – is the discussion about the death penalty.  For many years it has been a turbulent issue, dividing opinions among theorists and policymakers. The main arguments for and against the death penalty, then, will be presented from the retributivist and utilitarian perspectives and, after considering the different perspectives, I argue the abolition of such a penalty.


The retributivist thinkers advocate that punishment’s ultimate goal is the suffering of the criminal. A wrongdoer needs to be punished, then, solely because he committed a crime – retributivism focuses in the past actions of the criminal. Utilitarians, on the contrary, argue that the objective of punishing is actually promoting greater good, whether it is by deterring, rehabilitating or even incapacitating criminals. Those two schools of thought are intrinsically opposite. Each one of them, however, presents abolitionist and retentionist arguments for the death penalty.


The simplest argument that a retributivist might have for abolishing the death penalty is that no one who doesn’t pose an immediate threat deserves to die. A retributive retentionist, on the other hand, could say that the only punishment equivalent to a capital crime is to inflict the death penalty – thereby promoting suffering for the sake of suffering. The utilitarian basic abolitionist claim is that capital punishments don’t actually lessen crime, and may have consequences that don’t lead to a social benefit. Lastly, the retentionist utilitarian argument is that the benefits of the death penalty actually outweigh its costs. This superficial analysis of arguments, though, doesn’t lead to any conclusion; more detailed aspects will be canvassed in order to reach a better understanding on the matter.


One popular argument for abolishing the death penalty is that the American judiciary system rarely inflicts capital punishments, which would characterize the infliction as “freakish” and arbitrary; that stochasticity is called “caprice”. This is the only argument that has ever been ruled in favor of by the Supreme Court (in Furman v. Georgia, 1972), although it faces strong opposition and is, in my opinion, one of the weakest ways to advocate the abolition of capital penalties. Ernest Van den Haag, for instance, counters this argument by explaining that “equal justice for all” means extending the concept of justice, not replacing it with equality. His idea that justice “requires punishing the guilty . . . and sparing the innocent,”[1] is a little too simple, though it is a good background assumption to argue that equality can never be a priority over justice: an unequal just system is still just, whereas an equal unjust system will always remain unjust. The capriciousness and the maldistribution of the punishment, then, don’t justify not punishing at all. In an interesting approach, Van den Haag explains that the abolitionists don’t really believe that the maldistribution among the guilty and among guilty and innocent people is the cause for not inflicting the death penalty – it is what he calls a “sham” argument: it might strengthen the will to put an end to the death penalty, but it is not the key factor for it. He interestingly – and correctly, I think – assumes that abolitionists “would oppose the death penalty if it could be meted out without any discretion whatsoever”[2].


The mentioned case, Furman v. Georgia, excluded the death penalty because it was considered to be “wantonly and freakishly imposed”. The state legislatures, then, instead of not inflicting the death penalty after the case, enacted several statutes to diminish the randomness that impeded the penalty being lawfully imposed. In the words of Justice Stewart in Gregg v. Georgia (1976), “[l]eft unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury’s attention on the particularized nature of the crime and the particularized characteristics of the individual defendant . . . In this way the jury’s decision is channeled.”[3] This reflects, in Justice Stewart’s opinion, the general assumption that capital punishment is not unconstitutional, nor should it have been abolished in the first place. This decision assured that the execution procedure fit the requirements of the previous ruling, and the death penalty was established again.


A major argument supporting the death penalty, maybe the most efficient in doing so, is that the infliction of such a penalty deters and diminishes crime rates. There is no concrete evidence, however, to prove that. Van den Haag says that, just as there is no proof that the death penalty deters, it has not been concluded that it has a zero marginal effect. We then have the choice between shortening the life of convicted murderers and assuming the risk of shortening the life of innocent victims. Moreover, he also thinks the deterrence argument is a “sham” one, for the abolitionists are against the infliction of the penalty per se, and would favor abolition even if the death penalty was proven to deter more than life imprisonment. He then assumes that the more severe the penalty is, the more deterrent it will be, and some crimes wouldn’t be deterred enough if the death penalty wasn’t inflicted. I, for a variety of reasons, have to take an issue with that assumption.


French social scholar Loïc Wacquant, in an interesting essay about law enforcement called Les Prisons de la Misère (Prisons of misery),[4] elucidates the actions of the Manhattan Institute during the 1990’s that led to the “Zero Tolerance” theory under Rudolph Giuliani. With the support of George L. Kelling’s “Fixing Broken Windows”, a detailed rationale was formulated to support maximum action by the New York Police Department. As it became famous, the theorists behind Zero Tolerance thought that “one who steals an egg will steal an ox,” so it would be by fighting against the little quotidian misdemeanors that police could diminish the great criminal pathologies of society. These ideas ultimately led to a stricter infliction of penalties and a harsher criminal justice system; the population became frightened of the police, even if one hadn’t committed any crime; the culture and stigmatization of the state imposing fear upon the lower classes was concretized.


Wacquant goes on to the practical results of New York City’s effort to control crime and explains how, instead of reducing crime rates, the Zero Tolerance actions actually soared them, and a particularly bigger increase was noted among the crimes involving violence. Aggression generates aggression, according to the French author, and I share the same view. It is not true, then, that more severe penalties are more deterrent than less severe penalties, unless there is an unreasonable discrepancy between two penalties – so that one doesn’t deter at all and the other frightens the population beyond usual (and such are the examples used by Van den Haag). Eugenio Raúl Zaffaroni, an Argentinean Supreme Court Justice, extends Wacquant’s theory to capital punishment as well, stating that the irrational exercising of the punishing power by the punitive agencies doesn’t produce the expected results, and rather engenders a violent, archaic criminal justice system.[5] I agree that an aggressive approach to criminology, treating criminals simply as wrongdoers and stigmatizing them, does not have a positive effect in making a society more peaceful.


Still on the deterring effect of the death penalty, it is necessary to mention Jeffrey Reiman’s distinction between fear and deterrence: “Though I fear the death penalty more than life in prison, I can’t think of any act that the death penalty would deter me from that an equal likelihood of spending my life in prison wouldn’t deter me from as well.”[6]


One other strong argument for abolition of the death penalty is that it is an example of barbarism. Van den Haag quickly rejects this idea by arguing that the difference between crimes and lawful acts is not physical, but legal; some acts may look alike even though one of them is lawful. So the “legalized murder” may not be different from an unlawful murder, but the “example of barbarity depends on how the moral difference between crime and punishment is perceived.”[7] This is a legitimate positivist argument, though I think it does not morally justify the death penalty. The social context in which the death penalty may or may not be imposed requires analyzing not only the physical act of the punishment, but the legitimacy given to public officials to decide suitable penalties, and to impose them. The example set by Van den Haag – driving a stolen car might not be physically different from lawfully driven a car, in my opinion, doesn’t prove his point; every criminal punishment has its moral significance and even some symbolism attached to it, making it difficult to canvass the infliction of such a substantial punishment as the death penalty only taking into account its physical characteristics.


Jeffrey Reiman diverges from Van den Haag a great deal in his theory, claiming that although “the death penalty is a just punishment for murder, abolition of the death penalty is part of the civilizing mission of modern states.”[8] He discourses about how we should place the death penalty in the same category as we place torturing and raping, broadcasting a message that, even though sometimes it is deserved, society judges torturing and the death penalty as horrible things and refuses to do them. The placing of the death penalty in this category, then, shows how civilized and civilizing a society is; the more things a society is able to include in this category, the more civilized it is. His arguments are well-thought when he draws a comparison between torturing and capital punishment, in order to justify his ideas of putting them together in the above-mentioned category. Reiman’s theory leads to abolition, with which I fully agree, though I am not yet certain about the reliability of an abolition theory based solely on civilization.


It makes sense that it is a part of modern civilization process to extinguish penalties such as the capital one, and one day we may confront life imprisonment as well – I will address this matter further on, but I think it is not very plausible for society not to punish an individual in a certain way, even though a great part of it still thinks this individual deserves to be punished. It would be more plausible to advocate this civilizing aspect in a society that doesn’t have the need to express disapproval by knowing that the criminal has suffered. A social culture needs to be solidified in the sense that, besides not inflicting the death penalty for civilization reasons, a great part of the population doesn’t anymore believe that it is necessary to so harshly punish the criminals; this is not the case of the United States, and I believe this argument would not work as expected.


Some other popular arguments against the death penalty concern its irrevocability. Although nothing can give back a decade in prison, releasing an innocent convict will grant him some more years of freedom – the compensation given to the innocently convicted people will not be discussed here, for its insignificant value. Executions, however, are terminal; if a mistake has been made and an innocent life was lost, there is no turning back. Utilitarians, I believe, would be split analyzing this argument. If it was proven that the eventual killing of innocent people, by mistake, could deter and spare even more lives, it would be arguable that it is worth it. On the other hand, if there was evidence that errors committed by the criminal justice system resulting in the death of innocents didn’t make a difference to the total crime rate, I would assume they would prefer if those lives were not taken. As there is no undisputable conclusion concerning this matter, there is no clear way we can use this argument as to retain or abolish the death penalty using the utilitarian perspective. A minimal retributivist, on the other hand, may argue that just one mistaken execution is enough for the death penalty to be abolished; if there is a chance that innocent people will be executed, it wouldn’t be acceptable for the state to inflict such a punishment.


My own view on this matter is neither utilitarian nor retributivist, though it is clearly abolitionist. The focus of every penalty, I think, must be to re-socialize and rehabilitate the criminals, not just keep them away from society or use them as an instrument to teach a moral lesson to outsiders. The “greater good” claimed by utilitarianism should be focused on each individual, making him a better person by inflicting any kind of reparatory punishment. The death penalty – and, likewise, life imprisonment – doesn’t give the criminal any chance of rehabilitation, nor is it intended to do so. The whole criminological perspective is lost by throwing an individual in a prison cell for “one thousand to three thousand years”, as in the case of Henry Brisbon Jr.,[9] or by making him wait for years in a death corridor and taking his life. It is not easy to conceive that some vile murderers or rapists deserve a chance to rehabilitate, though I believe that is the purpose of the idea of having a state-ruled crime controlling system.


Moreover, the death penalty is administered in a more dramatic way than it should be. The several years of waiting, first of all, may be seen as psychological torture. If an individual assumes his mistakes and tries to take his own life, the state will intervene and prevent him from doing so; the penalty must be inflicted by state agents. This contributes to engendering an “institutionalized vendetta” culture, a culture that can foster a public opinion that death is a good counter-measure for killing. These ideas lead back to the “Prisons of Misery” and the way it was argued that violence only generates more violence. For all those reasons, and for some mentioned before (including Reiman’s civilizing argument), I argue that it is not criminological, nor it is morally right, to inflict capital punishment.


Some objections to my criminological approach to this subject may arise, especially concerning the so-called “pathological criminals”, to whom re-socializing restraints might not work. It is not my intent, however, to say that the theory I propose is to be a fixed standard of dealing with convicts. The criminology associated with punishment requires individual analysis of the criminals, and the state needs to shoulder the burden of, to some extent, adapting the punishment measures to each case. Rehabilitation can seem impossible in some cases, and I have to agree that re-socializing is not a simple matter of imposing therapy.


I believe the whole “law and order” approach is not effective as it has been currently applied. Relying once again in Wacquant’s overview of the Zero Tolerance movement, I argue that setting police and criminals as “enemies” only strengthens the concepts of good and evil; law enforcement agents are even sometimes portrayed as the “evil side”, while wrongdoers’ actions are ennobled. Thus, I argue that this criminological approach will not entirely work if it is not enforced by a vigorous change in the way the public sees law enforcement. Moreover, I rely on Reiman’s theory of civilization: In many countries there is no need for society to express disapproval by sentencing a criminal to death. Those countries have, in my opinion, evolved from the concept of personal vendetta against criminals. They have reached a more civilized position then the United States in this matter, for I believe the American society is not quite prepared to deal with serial killers not being executed. However, it is my conclusion that legislators and Justices have the duty to bring forward this process of civilizing, thus fostering community sentiment concerning the matter of the death penalty. Only when these social standards are reached I believe there will be full rehabilitating capacity of criminals. Nonetheless, the criminological approach proposed here is, I assess, the best way to start this long-term process.

[1] Frederick Schauer and Walter Sinnott-Armstrong, The Philosophy of Law (Oxford University Press, 2002), p. 733.

[2] Schauer and Sinnot-Armstrong, p. 734.

[3] Schauer and Sinnot-Armstrong, p. 768.

[4] Loïc Wacquant, Les prisons de la misère. Raisons d'agir, 1999.

[5] ZAFFARONI, Eugenio Raúl, En torno de la cuestión penal, Montevideo : 2005.

[6] Schauer and Sinnot-Armstrong, p. 747.

[7] IBID, p. 738

[8] IBID, p. 744.

[9] IBID, p. 725.

Como referenciar este conteúdo

SCHMITZ, Leonard. On Capital Punishment. Portal Jurídico Investidura, Florianópolis/SC, 31 Ago. 2010. Disponível em: www.investidura.com.br/biblioteca-juridica/internacionalinternational/inglesenglish/168471-on-capital-punishment. Acesso em: 30 Out. 2020


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