Posted by Keith Tidman
In 1957, Albert Camus wrote an essay called Reflections on the Guillotine. As well as arguing against it on grounds of principle, he also speaks of the ineffectiveness of the punishment:
‘According to one magistrate, the overwhelming majority of the murderers he had tried did not know, when they shaved themselves that morning, that they were going to kill someone that night. In short, capital punishment cannot intimidate the man who throws himself upon crime as one throws oneself into misery.’For myself, too, the death penalty is an archaic practice, a vestige with no place in a 21st-century world. In the arena of constitutional law, the death penalty amounts to ‘cruel and unusual’ (inhumane) punishment. In the arena of ethics, the death penalty is an immoral assault on human rights, dignity, and life’s preeminence.
Through the millennia, social norms habitually tethered criminal punishment to ‘retribution’ — which minus the rhetorical dressing distils to ‘revenge’. ‘Due process of law’ and ‘equal protection under the law’ were random, rare, and capricious. In exercising retribution, societies shunted aside the rule of authentic proportionality, with execution the go-to punishment for a far-ranging set of offenses, both big and small — murder only one among them. In some societies, matters like corruption, treason, terrorism, antigovernment agitation, and even select ‘antisocial’ behaviours likewise qualified for execution — and other extreme recourses — shades of which linger today.
Resort through the ages to state-sanctioned, ceremonial killing (and other severe corporal punishment) reflected the prevailing norms of societies, with little stock placed on the deep-rooted, inviolable value of human life. The aim was variously to control, coerce, impose suffering, and ultimately dehumanise — very much as enemies in war find it easier to kill if they create ‘subhuman’ caricatures of the enemy. Despite the death penalty’s barbarity, some present-day societies retain this remnant from humanity’s darker past: According to Amnesty International, twenty-three countries — scattered among the Asia-Pacific, Africa, the United States in the Americas, and Belarus in Europe — carried out executions in 2016; while fifty-five countries sentenced people to death that year.
But condemnation of the death penalty does not, of course, preclude imposing harsh punishment for criminal activity. Even the most progressive, liberally democratic countries, abiding by enlightened notions of justice, appropriately accommodate strict punishment — though well short of society’s premeditatedly killing its citizens through application of the death penalty. The aims of severe punishment may be several and, for sure, reasonable: to preserve social orderliness, disincentivise criminal behaviour, mollify victims, reinforce legal canon, express moral indignation, cement a vision of fairness, and reprimand those found culpable. Largely fair objectives, if exercised dispassionately through due process of law. These principles are fundamental and immutable to civil, working — and rules-based — societies. Nowhere, however, does the death penalty fit in there; and nowhere is it obvious that death is a proportionate (and just) response to murder.
________________________________________
‘One ought not return injustice
for injustice’ — Socrates
________________________________________
Let’s take a moment, then, to look at punishment. Sentencing may be couched as ‘consequentialist’, in which case punishment’s purpose is utilitarian and forward looking. That is, punishment for wrongdoing anticipates future outcomes for society, such as eliminating (or more realistically, curtailing) criminal behaviour. The general interest and welfare of society — decidedly abstract notions, subject to various definitions — serve as the desired and sufficient end state.
Alternatively, punishment may be couched as ‘deontological’. In that event, the deed of punishment is itself considered a moral good, apart from consequences. Deontology entails rules-based ethics — living under the rule of law, as a norm within either liberal or conservative societies and systems of governance — while still attaining retributive objectives. Or, commonly, punishment may be understood as an alliance of both consequentialism and deontology. Regardless of choice — whether emphasis is on consequentialism or deontology or a hybrid of the two — the risk of punishing the innocent, especially given the irreversibility of the death penalty in the case of discovered mistakes, looms large. As such, the choice among consequentialism, deontology, or a hybrid matters little to any attempt to support a case for capital punishment.
Furthermore, the meting out of justice works only if knowledge is reliable and certain. That is, knowledge of individuals’ culpability, the competence of defense and prosecutorial lawyers, unbiased evidence (both exculpatory and inculpatory), the randomness of convictions across demographics, the sense of just desserts, the fairness of particular punishments (proportionality), and the prospective benefits to society of specific punitive measures. Broadly speaking, what do we know, how do we know it, and the weight of what counts — epistemological issues that are bound by the ethical issues. In many instances, racial, ethnic, gender, educational, or socioeconomic prejudices (toward defendants and victims alike) skew considerations of guilt and, in particular, the discretionary imposition of the death penalty. In some countries, politics and ideology — even what’s perceived to threaten a regime’s legitimacy — may damn the accused. To those sociological extents, ‘equal protection of the law’ becomes largely moot.
Yet at the core, neither consequentialism — purported gains to society from punishment’s outcomes — nor deontology — purported intrinsic, self-evident morality of particular sentences — rises to the level of sufficiently undergirding the ethical case for resorting to the death penalty. Nor does retribution (revenge) or proportionality (‘eye for an eye, tooth for a tooth’). After all, whether death is the proportionate response to murder remains highly suspect. Indeed, no qualitative or quantitative logic, no matter how elegantly crafted, successfully supports society’s recourse to premeditatedly and ceremoniously executing citizens as part of its penal code.
_____________________________________________
‘Capital punishment is the most
premeditated of murders’ — Albert Camus
_____________________________________________
There is no public-safety angle, furthermore, that could not be served equally well by lifetime incarceration — without, if so adjudged, consideration of rehabilitation and redemption, and thus without the possibility of parole. Indeed, evidence does not point to the death penalty improving public safety. For example, the death penalty has no deterrent value — that is, perpetrators don’t first contemplate the possibility of execution in calculating whether or not to commit murder or other violent crime. The starting position therefore ought to be that human life is sacrosanct — life’s natural origins, its natural course, and its natural end. Society ought not deviate from that principle in normalising particular punishments for criminal — even heinously criminal — behaviour. The guiding moral principle is singular: that it’s ethically unprincipled for a government to premeditatedly take its citizenries’ lives in order to punish, a measure that morally sullies the society condoning it.
Society’s applying the death penalty as an institutional sentence for a crime is a cruel vestige of a time when life was less sacred and society (the elite, that is) was less inclined to censor its own behavior: intentionally executing in order, with glaring irony, to model how killing is wrong. Society cannot compartmentalise this lethal deed, purporting that sanctioned death penalty is the exception to the ethical rule not to kill premeditatedly. Indeed, as Salil Shetty, secretary-general of Amnesty International, laconically observed, ‘the death penalty is a symptom of a culture of violence, not a solution to it’.
Although individuals, like victim family members, may instinctively and viscerally want society to thrash out in revenge on their behalf — with which many people may equally instinctively and understandably sympathise — it’s incumbent upon society to administer justice rationally, impartially, and, yes, even dispassionately. With no carveout for excepted crimes, no matter how odious, the death penalty is a corrosive practice that flagrantly mocks the basis of humanity and civilisation — that is, it scorns the very notion of a ‘civil’ society.
The death penalty is a historical legacy that should thus be consigned to the dustbin. States, across the globe, have no higher, sober moral stake than to strike the death penalty from their legal code and practices. With enough time, it will happen; the future augurs a world absent state-sanctioned execution as a misdirected exercise in the absolute power of government.
