The Death Penalty and Retributive Punishment - Research Paper Example

The Death Penalty and Retributive Punishment The main aim of this paper is to argue in favour of the death penalty, by reference to the use of a retributive theory of punishment. It can be shown with a high degree of certainty that retribution as a punishment rationale can show the effectiveness and justifiability of the use of the death penalty. By assessing the bases of the rationale, and by comparing it to other punishment rationales, it will indeed be shown that retribution does a great degree of justice to the possibility that the death penalty be employed in a justifiable punishment system without sacrificing it legitimacy. It is important to state at this point that the paper argues for the death penalty for completed crimes, which have been successful. Attempted murder is not an area of debate of relevancy here, for it unavoidably brings the issue of intention and culpability into play. The focus is on successful crimes, with the intended result completed. It also focuses on the crime of murder in administering the death penalty, as will be shown to be consistent with the retributive system of punishment. ‘Justice is getting what one deserves, what could be simpler?’ (Hospers 1961, p.433), is a perfect statement of what retributive punishment stands for and aims to achieve through its rationale. In recent years, desert based punishment has become the main focus of punishment – at least in the UK desert is the most popular theory today (Fletcher 1978). Desert looks to the past criminal offence; it possesses an ‘inherently retrospective logic….[an]…automatic reference back to some past event or state of affairs’ (Cottingham 1992, p. 662). Retributive punishment fundamentally notices a link between justice and desert; both are inherently important to punishment in this respect (Sher 1987). Feinburg explains the severity of punishment as according to a ‘desert base’ (1963), an aspect we appeal to in order to explain D’s level of desert – or repercussion – for his act. This concept of ‘desert base’ is grounded in culpability and wrongdoing (Von Hirsch 1976). Punishment severity is proportionate to the seriousness of the crime, which is an assessment of both culpability and of wrongdoing. It follows that the more serious the crime, the bigger the violation of social interests and therefore the higher the punishment. Desert punishment is limited by the seriousness of a crime; it expresses blame and keeps this within both moral and legal boundaries. It is a puzzle to some as to why legal systems which adopt the retributive system of punishment rarely administer the appropriate punishment for murder. If followed specifically in the ‘eye for an eye’ sense, the retributive system of punishment would employ the death penalty for murder. The culpability and blameworthiness for murder under the retributive system requires that the offender be subject to execution; he took a life, and so his just deserts would be to have his own life taken. This contention is not without its critics; Brennan calls the death penalty ‘uncivilised’ and inconsistent with ‘human dignity’ (Furman v Georgia). Such ‘sensitive’ criticisms do not hold much ground against the death penalty for the following reasons. Firstly, it would be ironic, if not insulting to a murdered victim to preserve the life of his killer on grounds that the death penalty is considered ‘uncivilised’. Further, and more importantly, the very humanity of the death penalty is in upholding the convict’s responsibility for his actions. Contrary to Brennan’s statement, it would be inconsistent with human dignity to allow such persons to live, for the roots of human dignity are deeply placed in one recognising one’s responsibility for the actions he undertakes. To allow him to take a life and then to grant him the retention of his own life would not cause him – and indeed society – to respect that actions must bear responsibility and thus, repercussions. The alternative would be to imprison the murderer for life – which Barzum would call even more inconsistent with human dignity, in that he is retained until death, deprived of all autonomy (Barzum 1964). It is not considered a relevant line of argument here to acknowledge any further criticisms based on humanity or dignity against the death penalty. Many argue along such lines based on the notion that the state is often placed on the same level as the convict, for it actively kills the convict. However, it is not to be forgotten that the defendant brought this reaction about himself – countries which employ the death penalty do not hide this fact. If one is to take chances with his own life in the interests of killing another, then it cannot be said that the state is murdering him in retaliation; rather the defendant is choosing to kill himself. Retributive theory’s stronger critics base their arguments on theoretical and practical issues – these are an important aspect in maintaining the strength of the contention that the death penalty, despite these criticisms, is a proper punishment under the retributive system. Some confusion does arise in relation to exactly just how severe the retaliation should be in relation to criminal acts. Although the retributive system of punishment primarily requires that the severity of punishment be proportionate to the harm caused by the act, this is not the only line of thought which can be followed under this theory. Those who apply the retributive system of punishment often claim that the punishment need not be exactly proportionate in degree to the harm caused by the crime committed. Such critics would say that the retributive system need only go so far as to require that harsher crimes be punished more seriously than less serious ones; this does not necessarily mean that the punishment should equate to the crime committed. Often retributivists disagree as to exactly how harsh such a system should be administered, and on what the proportionate punishment should be based exactly. There thus appears to be an inherent conflict between basing the punishment on the harm caused (the blameworthiness of the act), and the culpability of the act (the intention of the defendant). Is it not contradictory to assess both together, for the one discounts the other? Thus, in response to the argument that the degree of punishment need not match the harm done by the crime, the concept of justice and blameworthiness is the reply. If the system of retribution is based on the requirement that justice be maintained in society – which it arguably is – then should it not be so that the punishment fit the crime? If we are to adopt a system in which retribution punishes according to the gravity of the crime, but in which the severity of the punishment does not exactly fit its blameworthiness, then its whole basis and rationale is undermined. Is not the gravity of the crime equated with the blameworthiness of the act – the harm caused? If we are to ignore this concept and delve into issues of culpability and intention, then it is arguable that the system of punishment is not retributive at all in the first place. It is difficult to see why such a seemingly simple system of punishment should become lumbered with such theoretical problems: if the punishment is to fit the harm caused – the blameworthiness of the act – then there should be no further ground for speculation as to exactly what punishment severity should be based on. To state that harsher crimes should be punished more than less harsh crimes is of not much help at all, for where would the anchor be placed in deciding the difference in punishments if they are not to respond to the harm caused? It is difficult to see what else such retributive punishment could be based on, if not on the blameworthiness of the crime. Indeed it is widely considered to be the case that a truly just sentence can only take as its character the harm caused (Card 1973, Nozick 1981). Thus the main question begs to be asked: is it justifiable to subject criminals to the death penalty? A reason why this may be the main question surrounding this issue is because if we can find a way to justify the practice of the death penalty, it can be given a basis upon which to stand. Firstly, it is important to state that the death penalty as a punishment is spoken of here as only being utilised when the crime involves the death of another. If the whole basis of retributive punishment is to make the punishment proportionate to the crime, then to execute those who have not caused the death of another completely undermines the whole basis of the retributive theory of punishment. But what of those criminals who killed unintentionally? Would it be fair to execute a defendant who intended to merely wound his victim, but who ended up dying nonetheless? Here we become involved in issues of intention and culpability, and reluctantly so. There are two main stances that could be taken here; if the punishment is based solely on the harm caused, then even those who did not intend to kill but did nonetheless would be sentenced to death. The alternative would be to make the punishment proportionate to the culpability of the act, or the intention of the offender. This would cause those who show intent to kill but do not succeed to be nonetheless sentenced to death. It appears that a middle ground is required to make the argument that the death penalty is a suitable means of punishment. This will in turn allow a justification to be made stronger on the basis of the punishment rationale. It appears that there is some confusion surrounding the actual proportionate variable under the retributive system of punishment. What is then the correct method by which retributive theorists proportion the punishment to the act? It is claimed that there is a reasonable certainty by which we can decide what punishment to administer to an individual (Primoratz 1989). But how can we determine what a defendant deserves in terms of his punishment under the retributive rationale, whilst also avoiding the problems surrounding blameworthiness and culpability? Indeed, it could simply be suggested that a person who murders intentionally will be punished by execution – this is the simple situation. He took a life and he must thus give his own in return. But what of the difficult circumstances? As has already been suggested, the defendant who intended to kill but failed poses some problems for the retributive system. This also applies for the defendant who did not intend to kill but nonetheless did. Does, or can the retributive theory account for such occurrences? It is simple to apply the death penalty to cases in which murder was intended and carried out, and indeed the retributive system justifies such punishment accordingly, both for the blameworthiness and culpability branches of assessment. The problem lies in the other previously stated situations. There is at least one element of retribution we can state with relative certainty; that it goes beyond mere retaliation or revenge (Henberg 1990). It has become quite clear now that despite its problems, it has enough theoretical basis to be a legitimate form of punishment, and almost all legal systems around the world employ a form of punishment which is proportionate to the gravity of the crime committed. This goes a long way in suggesting more strongly the suitability of the use of retribution as a punishment theory. It seems that the issue of whether the punishment will be proportionate to the actual harm caused or the culpability of the defendant or a mixture of both will depend on several factors. Firstly, the type of crime committed will go a long way in determining which levels of the above factors will be weighed when determining the gravity of punishment to be administered. It is also important to remember that punishment systems rarely purport or attempt to satisfy the victim as an individual (Ashworth 1993, p.117; Bentham 1843). Punishment, no matter how severe, can rarely remove the scars – physical or psychological – of a victim; thus we need to move beyond this element as a basis for proportionality. It is society’s response to certain criminal behaviours that is the main issue here. The more intense the response of society to a criminal act, the more it should be punished; it should not be taken for granted that the retributive system of punishment is limited solely to the victim’s response. Such a claim presupposes recognition that the law is based on public regard as a whole, which in turn looks to the individual also, as a member of society. Once we establish this element, the retributive system of punishment appears to flourish, as does the argument that it is a justifiable basis for the death penalty. We can thus move on to create a scale of seriousness, which requires that different criminal acts be placed on a scale of seriousness, to which punishment can correspond accordingly in terms of gravity. Within this scale specific crimes will be placed so that no crime is less serious than the one below it or more serious than the one above it (Von Hirsch 1981, pp.99-134). In accordance with the retributive system, the seriousness of punishment will correspond to the seriousness of the crime on the scale. A common sense analysis would require that the death penalty be employed for murder. This is because murder is one of the most serious crimes and has the most serious harm not only to the victim, but also to society as a whole. Thus, it must correspond that the ‘punishment fit the crime’ and that the death penalty be used in such situations. If justice is to be taken seriously in any society, it must follow that the crime be fitted with the correct punishment. In order to make the less serious crimes correspond to the punishment administered, then the limit has to be set for the most serious, so that we may work our way down from that point. That point is, or at least should be, the death penalty. To punish grievous bodily harm the same as murder - which is sometimes the case – undermines the massive harm caused by murder in comparison to the grievous bodily harm, no matter how serious it may be. To introduce the death penalty is to cause the defendant to accept the responsibility required for his actions – it is questionable whether a lesser punishment does any justice to this requirement. On the other hand, it would be of the utmost importance to ensure that the employment of the death penalty is done so with tight limits and controls. Just as such punishment should gain its credibility by the principles it seeks to maintain and uphold, it should also not seek to perversely abuse these principles and undermine the whole system of retributive punishment in the first place. This requires that the death penalty should only be used when murder has been intentionally and successfully carried out. It also requires that there be no doubt whatsoever as to the defendant’s guilt – any hint of innocence should require that a lesser punishment be applied in respect of the possibility that the defendant be innocent. It is important to state that the death penalty can indeed fulfil its purpose, and appropriately so according to its theoretical bases, only if it is applied correctly. Whether it should be used for defendants who caused the death of another without such an intention is another area for speculation. It is doubtful whether such punishment should be employed for such situations – the use of the death penalty should correspond to both the intense culpability and blameworthiness of the defendant; if there is no, or a lesser degree of culpability, then it is likely that the death penalty will be seen as an excessive and disproportionate response. It is important that punishment under the retributive system be seen as deserved – this is a fundamental basis of its functioning (Rawls 1971). In comparison to other punishment bases, it is important to state that there are many benefits of the retributive system. Indeed, many appear to praise the function of deterrence as though it is an aim within itself; as though the future effect of punishment can be predicted. But exactly how far punishment can proceed in showing an example to others is highly doubtable. A punishment primarily based on its future effects risks not being able to live up to its promises, and caution is recommended. The biggest problem faced with deterrence is that it allows the judiciary to administer any severity of punishment if it can be shown that it will deter in the future. Whether such an element can be shown is very difficult to prove, and we are thus presented with a theory based on promises or predictions. The prospect of deterrence is too vague and with such a lack of empirical evidence, is shrouded in a blanket of uncertainty. It also tends to ignore the individual offender, and punishment is at risk of becoming ‘little more than an excuse for punishing’ (Barnett 2003, p.47). Fundamentally, a punishment rationale which is not based on the actual crime committed, past its exemplary element leaves too much power in the hands of the judge – this from the outset causes it to fail as having the potential to be massively abused. We simply cannot be sure enough about the future effects of punishment on levels of crime. The same gravity of criticism can be said about rehabilitative rationales of punishment; a purely treatment – rather than punitive – based form of punishment will also face the same control problems at the judicial level as deterrent theories. There is also the possibility of highly disproportionate and inconsistent sentencing; the basis of punishment is far too concerned with the individual to be a suitable method of punishing in its own right. Treatment for rehabilitative purposes is not actual punishment; it does not aim to place blame on the offender. But there is an inherent paradox here where the offender is incarcerated in a manner that conveys blame. Are we to punish or treat? The reconciliation of the two is questionable. It is thus highly suggestible that rehabilitative punishment be used in collaboration with, but not instead of retributive bases of punishment (Von Hirsch & Maher 2004). Thus far, it has been suggested with strong arguments that other sentencing rationales are much less suitable than the retributive system of punishment. But how do they rate in terms of introducing the death penalty? It is clear from the outset, and for obvious reasons that rehabilitative punishment methods will do no justice to, or even support the use of the death penalty. A system which justifies the execution of defendants is entirely inconsistent with the rehabilitative system which sees criminal tendencies as a disease to be cured. In terms of deterrence, it could be argued that the death penalty would serve to deter others in future if they see the possibility of execution as a repercussion of their criminal activities. However, the reality of the situation appears to show different results. Countries which employ the death penalty show that murder rates are not necessarily less than rates in countries which do not employ the death penalty, and even the opposite occurs (Death Penalty Information Centre). Therefore, it can be said that the only sufficient and appropriate rationale for the death penalty is that of the retributive. This paper has argued for the death penalty, by means of applying the retributive rationale of punishment in order to back its justifiability. Indeed, such a contention requires stout persuasive arguments, and indeed it is plausible that the retributive system of punishment gathers much ground in justifying the death penalty, but for intended murders only. In the face of the above arguments, and in light of supporting research, it is somewhat surprising that the death penalty is not used, and has even been abolished in many countries. Bibliography Ashworth, Andrew. 1993. Taking The Consequences. In Shute, Stephen, Gardner, John & Horder, Jeremy. Action and Value in Criminal Law. Oxford: Clarendon Press. Barnett, Randy E. 2003. Restitution: A New paradigm of Criminal Justice. In Johnstone, Gerry. A Restorative Justice Reader. Cullompton: Willan Publishing. Barzum, Jacques. 1964. In favour of Capital Punishment. The Death Penalty in America. 154 H. Bedau ed. Bentham, Jeremy. 1843. Introduction to The Morals and Principles of Legislation in the Works of Jeremy Bentham. 1.Ch.xv. s.1, 83. John Bauring Ed. Card, Claudia. 1973. “Retributive Penal Liability” American Philosophical Quarterly Monographs, 7: 17–35; Cottingham, John. 1992. Justice: Rectificatory. In Becker, Lawrence C. ed. Encyclopaedia of Ethics. London: Garland Publishing Co. Death Penalty Information Centre: http://www.deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates Feinberg, Joel. 1963. Justice and Personal Desert. In Friedrich, Carl J. & Chapman, Jonathan W. eds. Nomos VI: Justice. New York: Atherton Press. Fletcher, George. 1978. Rethinking Criminal Law. Boston: Little, Brown. Furman v Georgia [1972] 408 US 238, 291 per Brennan J. Henberg, Marvin, 1990, Retribution: Evil for Evil in Ethics, Law, and Literature, Philadelphia: Temple University Press. Hospers, John. 1961. Human Conduct. New York: Harcourt, Brace & World. Nozick, Robert, 1981, Philosophical Explanations, Cambridge, MA: Harvard University Press, pp. 366–74. Primoratz, Igor. 1989. Justifying Legal Punishment. Atlantic Highlands, NJ: Humanities Press. Rawls, John, 1955, “Two Concepts of Rules,” Philosophical Review, 64: 3–32. Sher, George. 1987. Desert. Princeton: Princeton University Press. Von Hirsch, Andrew. 1976. Doing Justice: The Choice of Punishments. New York: Hill & Wang. Von Hirsch, Andrew & Maher, Lisa. 2004. Should Penal Rehabilitationalism Be Revived? In Von Hirsch, Andrew & Ashworth, Andrew. Principled Sentencing. 2nd ed. Oxford: Hart Publishing. Read More