Elliot Colburn gives his case against the Death Penalty, which has recently come back into the public spotlight.
I am totally against the death penalty. It is one of the issues that I will argue to the teeth against. What surprises me, is that people are calling this “an important issue that needs to be debated,” however I do not see this as the case, and I do not see why this issue had to resurface. Nevertheless, now that it has, I am going to thoroughly discuss why I am against it. I am going to explain; why it does not work as a deterrent, how the possibility of mistakes makes it intolerable, how it will not help with issues such as prison space and economising the justice system, why the argument of morality can support both sides of this debate, why all of the arguments for the death penalty can be counterbalanced, and the alternatives to the death penalty.
If I have learned one thing by studying Law, it is that to deter crime is a very difficult practice. The fact lies that if someone really wants to commit a crime, they are not going to think of the consequences. Criminals do not believe they are going to get caught; it is one of the most fundamental doctrines of why people commit crimes. Each individual case of someone committing or attempting to commit a crime is different, for each person has been spurred on by a different cause. It may be something obvious like mental illnesses, an unusually low level of anger control, or provocation. However, the causes of crime are not always clear, and can in fact be linked to a person’s circumstances. For example, someone from a poor background is much more likely to commit theft then someone from a rich or middle background, because they have less to lose and more to gain. However, the real crimes that should be focused on in regards to the death penalty are of course the most serious crimes, such as murder and rape.
These crimes are, and many people will of course deny this but this is the fact approved by many scientists, experts and politicians, committed by people who was either driven to it in the spur of the moment or by a perversion of the mind. Murder is a perfect example of this. Most murders are committed by people who knew the person they killed, and most of them are committed in a spur of the moment, most commonly during a heated argument which got out of hand, or in a moment of panic when one fears for their safety. In these cases the offender is almost certainly never going to reoffend, even if they weren’t caught. Most of the other cases of murder involve someone who has a perversion of the mind, for example, he or she kills because they do not understand the nature of their acts, or having an honest belief that killing that particular person or persons was right. It is very rare indeed to find a murderer who has killed someone randomly and in sound mind, and even more uncommon to find serial killers of this description.
Rape on the other hand, is a very misunderstood crime. Face the truth, whoever we are, most of us have sexual urges, whether they are frequent or not, and yet rape is another very rare crime. It is not driven by sexual desire; it is driven by the desire for power and the need to dominate. The person committing it may be in sound mind, but have an unhealthy longing for being in control, often driven by insecurities, normally brought about by bad childhood experiences. The victim can be selected randomly, and the rapist revels in his or her struggling and displeasure. If the victim were enjoying it, then the rapist would no longer have the control he (and yes only men can commit rape, Sexual Offences Act 2003, rape is defined by penetration with the penis, women can commit sexual assault) was looking for and would probably be driven to kill his intended victim to satisfy his desire for power. If it were a sexually driven impulse, it would be much less hassle (and criminal for that matter) to go to a club to try and pick up someone or even hire a prostitute.
Of course these do not make the crimes any less tolerable, they are still horrible acts, which deserve punishment, however killing the offender would not deter others from doing it. What deters crime is the likelihood of being caught or being punished, it doesn’t matter what the punishment is. Social scientists in overwhelming numbers believe the death penalty is at best unproven to deter, at worst a complete failure of a punishment. 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, “…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” (Amnesty International). What is more, it is near enough 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.
The United States of America is a perfect example of this hypothesis. Whilst they have the death penalty, they have one of the highest crime rates in the world, and always have done. Social scientists agree that there is no arguing with the fact that the death penalty has, to be blunt, failed in the US. What the US hasn’t got, is a strong social system, nor has any attempt been made to address the causes of crime, the focus being primarily on punishment. I consider myself to be a Conservative, which to most people means tough on crime and in favour of punishment over rehabilitation. This is in essence true of me, however, to truly cut down on crime hard, one must address why people commit them in the first place and tackle the problem wherever possible. Punish offenders harshly to set an example, and tackle the causes of crime to reduce the likelihood of it being committed in the first place. To conclude my first point, it is more of a fact than an opinion that the death penalty does not work as a deterrent.
I now want to address the issue of mistake in dealing with the death penalty. To me, even if just one person is mistakenly killed by the state for a crime he did not commit over however many years of operating the death penalty; that is intolerable and reason enough in itself to abolish or disregard any thought of re-introducing the death penalty. You can release a person falsely charged, you can return a fine falsely issues, you can compensate a person in so many ways when he or she is alive, but there is nothing that can be done to fully mend the damage of taking an innocent person’s life. You could resign your post as Prime Minister and/or Justice Secretary, you could abolish the penalty, say sorry a million times, give the family all the money in the world, but at the end of the day, they’ve still lost someone dear to them, wrongly killed by people they elected to protect them, their family and their friends. There is nothing that can be done to fully mend that damage, and that is horrible to even think about.
This was one of the main arguments for abolishing the death penalty in this country in the first place, and despite advances in technology, DNA, crime solving, etc, the possibility of wrongly convicting and possible killing someone is still high. 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. As Amnesty International said in their report on the death penalty, “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 that such mistakes are possible – in the USA, 116 people sentenced to death have been found innocent since 1973 and released from death row. The average time on death row before these exonerations was 9 years. 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)].
This is not an argument against capital punishment itself, but against applying it wrongly. Some countries, including the USA, have executed people proven to be insane. It’s generally accepted that people should not be punished for their actions unless they have a guilty mind – which requires them to know what they are doing and that it’s wrong. Therefore people who are insane should not be convicted, let alone executed. This doesn’t prevent insane people who have done terrible things being confined in secure mental institutions, but this is done for public safety, not to punish the insane person. To put it more formally: it is wrong to impose capital punishment on those who have at best a marginal capacity for deliberation and for moral agency. To conclude my second point, the justice system is not perfect, humans are not perfect, and with no red button to push to make them so, the possibility of mistake remains at a high-risk level. Thus, the death penalty should not and must not be re-introduced. Laws are designed to protect the public, not potentially put them in danger.
An issue that many are scratching their heads over is what to do about prison spaces. It is a well-known fact that we have more criminals than we can accommodate, so what to do? Here’s an idea, let’s kill the more serious offenders, and then we’ll have plenty of room, perhaps save a few quid as well – right? Wrong! The most serious category of offences, which includes murder, rape and treason, make up only about 0.1% of Britain’s criminals according to the Law Commission and the Department for Justice. Killing these criminals will not create a solution to the overcrowding in prisons that we need. Killing offenders of common assault, petty theft, etc, will create tons of room, however, I hope that most people will agree that this is not viable! What is more, if we take example of our friends over the pond again, not every of these serious category offender are killed. 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. Contrary to popular belief, the death penalty is actually extremely costly to operate, more so than even life imprisonment! In the USA capital punishment costs a great deal.
For example, the cost of convicting and executing Timothy McVeigh for the Oklahoma City Bombing was over $13 million. In New York, since the death penalty was reinstated in 1995, costs for each person condemned to death were approximately $23 million! To conclude my third point, the death penalty is not this miracle answer to the overcrowding problem that many seem to think it is, and will certainly not do the State any favour if it is looking to lower its Justice budget.
Perhaps the most contentious issue about the death penalty is the issue of morality. Before I go to deeply into this issue, I might just say that whilst we have not heard from God or any higher or greater being about what is morally right; killing someone in the name of justice or keeping them alive because humans cannot play with death; thus having no answer to this moral question, the safest thing, it seems to me at least, is not to have the death penalty. The best place to start with my argument that the death penalty is morally wrong; would be the European Convention of Human Rights. The first and perhaps the most important term of this convention is the right to life. Having the death penalty basically violates this term. There is nothing in the convention that says the death penalty is an exception from this right to life article. The convention also talks about the responsibility of the State to protect not harm, the rights to fair trials and appropriate punishment. Re-instating the death penalty is potentially going against the convention and could require the UK withdrawing from the EU in order to bring it back, creating a lot of hassle for one piece of legislation. This may be an exaggerated scenario, and some may see withdrawing from the EU to be a good thing, but surely not for these reasons!
The death penalty is also a massive hypocrisy. What the State is essentially saying to its citizens is “we don’t like you killing, so if you kill, we’ll kill you.” The law is supposed to be superior to the criminal not equal to it! The State brings itself down to the level of the criminal. Isn’t one of the most important moral lessons we learn as we grow up is yes to stick up for yourself, but an eye for an eye does not go so far as to kill someone who has done a wrong against you, for we are not supposed to descend to the level of those who harm us, but be the bigger person. This can be amplified on a State level; killing someone who commits a serious category offence does not coincide with most people’s definition of justice. Is this not the lesson we are trying to send out to the undemocratic nations of this world? That brutality is wrong? Killing people for serious category offences, does not make us all that better than countries who kill people for being Gay, or cut off people’s hands for theft.
In addition, killing, or perhaps I should say murdering; a serious category offender only matches the crime of murder. What about rapists? They haven’t killed anyone, yet no one suggests an eye for an eye in this case by raping them as punishment, it goes straight to murder. What about less serious crimes? No one seems to mind being the bigger person in sending a thief or common brute to jail, not many of us think that the State should steal from thieves or beat up someone who committed assault. 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 USA the average wait is 10 years. In Japan, the accused is not told when their execution is to take place. Executions only happen on Fridays, so if an offender is still in his cell by 9am on Friday morning, he knows he has at least another week to live. The result of this is that each week of their life is lived as if it was their last.
Many people also believe that retribution is morally flawed. Whilst perhaps not the best or most unbiased sources to reference, the US Catholic Conference states that, “We cannot teach that killing is wrong by killing” and Archbishop Desmond Tutu once said that, “To take a life when a life has been lost is revenge, it is not justice.” 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 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.
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. To me, the idea of spending the rest of my life, in a cell with only the basics in life, with no possibility of ever being freed, basically making the criminal feel like there is no point to life, is a lot worse than death. Death is being kind to the criminal I feel. Even if you make the execution painful, they will escape the pain in the end, and be away from the judgement of other human beings. Some may say that the real suffering comes after the criminal dies as he burns for eternity in hell, but as we cannot be sure that’s what will happen, the worst punishment thinkable seems a life 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. For example, the killing of Saddam Hussein, whilst not a suicide bomber, proved what the extremists wanted to show the world, that the Western World, especially the USA, can be just as brutal and merciless as the extremists they fight.
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 of punishing innocent people pointless.
Indeed the death penalty could be responsible for brutalising society, i.e. it’s people, the State and the Law. 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 death penalty is allowed. In 2003, the murder rate in states where the death penalty has been abolished was 4.10 per cent per 100,000 people. In states where the death penalty is used, the figure was 5.91%. These calculations are based on figures from the FBI. The gap between death penalty states and non-death penalty states rose considerably from 4% difference in 1990 to 44% in 2003. Disturbed individuals may be angered and thus more likely to commit murder. It is also linked to increased number of police officers murdered. The death penalty may brutalise society in a different and even more fundamental way, one that has implications for the state’s relationship with all citizens. As George Kateb wrote, “…the state’s power deliberately to destroy innocuous (though guilty) life is a manifestation of the hidden wish that the state be allowed to do anything it pleases with life” (The Inner Ocean 1992). The death penalty 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. Philosophically the law is always involved with violence in that its function includes preserving an ordered society from violent events. 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. The philosopher Beccaria, C. de described the death penalty as, “The murder that is depicted as a horrible crime is repeated in cold blood, remorselessly” (Traité des Délits et des Peines, 1764). 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.
As with anything, the issue of discrimination comes into dealing with the death penalty. There has been much concern in the USA that flaws in the judicial system make the death penalty unfair. One US Supreme Court Justice (who had originally supported the death penalty) eventually came to the conclusion that the death penalty was bound to damage the cause of justice: “The death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake … Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death … can never be achieved without compromising an equally essential component of fundamental fairness – individualized sentencing” (Justice Harry Blackmun, United States Supreme Court, 1994). Jurors in many US death penalty cases must be ‘death eligible’. This means the prospective juror must be willing to convict the accused knowing that a sentence of death is a possibility. This results in a jury biased in favour of the death penalty, since no one who opposes the death penalty is likely to be accepted as a juror. There’s much concern in the USA that the legal system doesn’t always provide poor accused people with good lawyers. Out of all offenders who are sentenced to death, three quarters of those who are allocated a legal aid lawyer can expect execution, a figure that drops to a quarter if the defendant could afford to pay for a lawyer.
Regardless of the moral status of the death penalty, 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 the death penalty 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.
The final point about morality is that the death penalty maybe unnecessary. This is really more of a political argument than an ethical one. It’s based on the political principle that a state should fulfil its obligations in the least invasive, harmful and restrictive way possible.
- The state does have an obligation to punish crime, as a means to preserve an orderly and contented society, but it should do so in the least harmful way possible,
- Capital punishment is the most harmful punishment available, so the state should only use it if no less harmful punishment is suitable,
- Other punishments will always enable the state to fulfil its objective of punishing crime appropriately,
- Therefore the state should not use the death penalty.
Most people will not want to argue with clauses 1 and 2, so this structure does have the benefit of focussing attention on the real point of contention – the usefulness of non-capital punishments in the case of murder. One way of settling the issue is to see whether states that don’t use capital punishment have been able to find other punishments that enable the state to punish murderers in such a ways as to preserve an orderly and contented society. If such states exist then death penalty is unnecessary and should be abolished, as it is overly harmful. In conclusion to my argument about morality, whilst there is no way of finding an answer to a moral question, I believe, by using the evidence I have provided above, that it is morally wrong to execute someone, even for the most horrific offences.
There are alternatives to the death penalty that could be considered. As already mentioned, making life mean life, as in, imprisonment with no possibility of freedom is a popular choice amongst many people. A life of solitary confinement has also been considered, leaving a person trapped with only their own minds for the rest of their lives. Or perhaps a life of work, many prisons around the world, especially in the US, make their prisoners work whilst inside. Getting not just serious criminals but all criminals to do something useful whilst in jail is again, popular amongst the public.
I will now run just a few arguments used by those who support the death penalty, and try to counter argue them as best as I can. The most popular argument is that if you take someone else’s life, why should you be allowed to keep yours. As I have already said, taking the life of a murderer only makes you the same as him, it is revenge, not punishment, and the law clearly states that revenge killings are wrong. The State could potentially become criminally liable. Other argue that legal violence is different to criminal violence, but this is not so, as all you need for a crime is two components, the actus reus (the act of killing) and the mens rea (the mental desire to kill), and the State qualifies both these actions by introducing the death penalty, therefore making them guilty of a crime. Some say that lots of people on the street would argue that they would be deterred by the death penalty, but the average person is not likely to commit a crime, and as I’ve said, murder especially often happens at the spur of the moment, most people would never even considered committing murder, these are not the people you need to be asking. Some say the death of innocent people is nothing less than collateral damage; apologise to the family, give them some money and send them on their way. This, to me, is disgusting, and all I have to say to that is, what if it was you? You may be all high and mighty now and say you would sacrifice yourself for the benefit of justice, but no one can possibly imagine how it feels to be waiting to die when they are innocent, I imagine most if not all, would be singing a different tune if it was them. Some say that with an average of 9-10 years on death row, by the time it comes to be executed, if you’re innocent this will become clear. But this is only average, not everyone has that long to be proven innocent, and sometimes even 9-10 years isn’t enough. Some say that justice should not be considered on financial terms, that justice should be done at all costs. This is true in part, but by looking at public opinion, it becomes obvious that people are interested in the cheapest option of punishment, which would be life imprisonment in this case. To conclude on this point, it appears to me that most, if not all of the argument for the death penalty are flawed and even if there are some that aren’t, even if there are counter arguments to some things I’ve said; what I’ve gathered from my research is that there is a lot more to be said for not having the death penalty than there is for bringing it back.
In conclusion, one of the fundamental aspects of law is the desire for punishment. Britons are especially keen to see justice done, crime is a massive vote winner, however this seems to be a case of a desire for justice gone too far. Arguments like this only tend to arise in times of high levels of crime, or a perceived bad justice system. This is again strange, as at the moment, crime is at an all time low, so I am bewildered to why it has been brought up, as I do not recall it being a big issue in the election run, or in any of the major party’s manifestos. People view the death penalty as an easy answer to a problem that actually goes much deeper. Reviewing the way the courts operate, reviewing punishments for serious crimes, review the prisons system, tackling the causes of crime, addressing social issues so petty crime is not committed as often by people who have nothing, etc; all these things can help bring down levels of crime, it will never disappear entirely, but the death penalty is not the answer. It does not work as a deterrent, the average person might be deterred from crime, but criminals tend not to be average. The risk of mistake makes the punishment intolerable. It will not help with the flaws in our justice system and, I believe, it is morally wrong. Unhelpful because it will not solve our problems. Immoral because we cannot take death into our own hands. Dangerous because it has the potential to harm rather than protect us.