What arguments have modern societies used to support the introduction, re-introduction or maintenance of the Death Penalty?

Question

Context

As the world moves further into consolidating and enshrining International Human Rights it has been argued that the Death Penalty is a violation of those rights and wider statutes and treaties.

Question

For those countries still possessing the death penalty, or have re-introduced it, what arguments have been made to support the death penalty in a civilized, modern society?

Additional Question

I am also interested in any aspect of the argument which can be applied to the Philippines or South East Asian culture in particular but this is not a mandatory aspect of the answer.

Answer 1

Goals of punishment

First, understand that a punishment can have four effects:

1. Incapacitation. The person being punished can be prevented from committing additional crimes by having their freedom curtailed.

2. Retribution. Because society punishes the criminal, the victims don't have to try for revenge.

3. Deterrence. Knowing that punishment exists can prevent people from committing crimes in the first place.

4. Rehabilitation. The punishment can include provisions that encourage the criminal towards law abiding pursuits in the future.

Various punishments can be better at various aspects. For example, drug programs may focus on rehabilitation, where they try to get addicts to stop using drugs. Incarceration addresses all four effects and is effective in about the same order as listed.

Capital punishment only addresses the first three effects, again in the listed order. But it is the most effective at incapacitation. Once executed, people do not commit more crimes. Even someone incarcerated for life can still commit crimes against other prisoners and against guards.

Capital punishment is effective as retribution. Victims are generally satisfied with it as a punishment. Incarceration is again slightly less effective, as victims either want the period to be longer or for it to be upgraded to capital punishment.

Deterrence is controversial. There have been studies showing that capital punishment has a mild deterrent effect, particularly in terms of escalation. Other studies have claimed to show no effect. Pretty much the same thing is true of incarceration. The basic problem is that most criminals do not expect to get caught. Even very mild punishments, like speeding tickets, can be effective if the chance of getting caught is high. Even very significant punishments are not effective if most people expect to get away with it.

Capital punishment is useless for rehabilitation, but incarceration isn't much better. Yes, it's possible to take classes and learn skills while incarcerated, but felons have a much harder time finding law abiding jobs. Some jobs aren't open at all, and other jobs can be hard to find.

Escalation

There was a period of time in California when kidnapping was a capital crime. What they found was that this increased the number of victims killed, since kidnapping and murder had the same punishment and live victims could potentially help catch their kidnapper. But while this was an argument against kidnapping being a capital crime, it was an argument for murder being a capital crime. Because if the worse possible punishment was the same for both crimes, kidnappers were murdering. So in that situation, the claim was that capital punishment was seen as a greater deterrent than incarceration.

The counter argument of course is that you can change things such that neither is a capital crime but there are different periods. E.g. life for murder and twenty-years for kidnapping. The problem comes when getting caught for one crime will inevitably lead to detection of other crimes. Five twenty-year sentences may as well be a life sentence. We're back to the original problem of the sentences being the same, at least in effect.

This can be generalized to any situation where the criminal can kill a victim. We want the punishment for murder to be higher than whatever punishment would be given without it.

Law enforcement

Killing a law enforcement officer is often a capital crime. One reason for this is that it is easier to get people to surrender if they know that the punishment will be better that way than if they shoot and kill an officer. And criminals resisting is dangerous. Not only might they injure or kill an officer, they might kill someone totally unrelated while trying to shoot the officer. For example, a stray shot might go into a house and kill a toddler.

A similar situation exists with corrections officers. Because the criminal is already incarcerated, threatening with incarceration is distant. They may even already be jailed for life, in which case we're back to the escalation problem. In practice, they have some options in terms of making incarceration worse, but most aren't intended as punishments.

Cost

In the United States, it is more expensive to execute someone than to incarcerate for life. This is because the cost of prosecution goes up. It is much easier to appeal death row sentences. The increased court costs outweigh the cost savings of execution over incarceration. That does not have to be true though.

If the court costs are the same for both, then capital punishment is going to be cheaper. This may well be less fair, as presumably the longer appeal process removes more innocent accused people.

In general, one of the main criticisms of capital punishment is that it is not cancelable. While this is true, note that incarceration is only partially cancelable. Yes, the inmate can be released before the end of the sentence, but the inmate can't get back the already incarcerated term. Until the moment of execution, the capital punishment is just as cancelable as the incarceration.

Answer 2

Sources

The following sources discuss the death penalty in detail

Pojman, Louis P. "Why the Death Penalty Is Morally Permissible." Debating the Death Penalty. Oxford: Oxford UP, 2004. 51-75. Print.

Van Den Haag, Ernest. "Justice, Deterrence and the Death Penalty." America's Experiment with Capital Punishment. Durham, North Carolina: Carolina Academic, 1998. 139-56. Print

Arguments for and Against the Death Penalty from http://deathpenaltyinfo.msu.edu/

Basis

First a reminder of the basic argument behind retribution and punishment: all guilty people deserve to be punished, only guilty people deserve to be punished, guilty people deserve to be punished in proportion to the severity of their crime

The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.

Justices A.S. Anand and N.P. Singh, Supreme Court of India, in the case of Dhananjoy Chatterjee

Arguments in Favour

• The death penalty guarantees that those executed will not commit any further crimes (Undisputed)
• Some criminals are intractable and you don't know what else to do with them (Undisputed)
• The death penalty deters crime (Heavily disputed and widely considered disproven)

• Prevents a criminal cycle of capture-training-re-offending (When we put criminals in prisons, they spend their time with other criminals, teaching one another how to become better criminals) (Undisputed)

  Executions, especially where they are painful, humiliating, and public, may create a sense of horror that would prevent others from being tempted to commit similar crimes... ...In our day death is usually administered in private by relatively painless means, such as injections of drugs, and to that extent it may be less effective as a deterrent. Sociological evidence on the deterrent effect of the death penalty as currently practiced is ambiguous, conflicting, and far from probative. Avery Cardinal Dulles, Catholicism and Capital Punishment, First Things 2001

• The death penalty is less expensive than life imprisonment (Contextual)

• The death penalty is less cruel than life imprisonment, in light of the brutality of some countries' prison systems. (Subjective)
• The anticipatory suffering of the criminal, who may be kept on death row for many years, makes the punishment more severe than just depriving the criminal of life (Contextual (some countries execute within days)
• The death penalty satisfies the desire for vengeance. (Partially disputed)
• The death penalty gives prosecutors extra leverage in gaining cooperation from recalcitrant defendants and co-conspirators. (Not disputed)
• Supports effective policing (Subjective / moralistic)

Plea bargaining is used in most countries. It's the process through which a criminal gets a reduced sentence in exchange for providing help to the police.

Where the possible sentence is death, the prisoner has the strongest possible incentive to try to get their sentence reduced, even to life imprisonment without possibility of parole, and it's argued that capital punishment therefore gives a useful tool to the police.

This is a very feeble justification for capital punishment, and is rather similar to arguments that torture is justified because it would be a useful police tool.

Japanese Mindset

Japan uses the death penalty sparingly, executing approximately 3 prisoners per year.

A unique justification for keeping capital punishment has been put forward by some Japanese psychologists who argue that it has an important psychological part to play in the life of the Japanese, who live under severe stress and pressure in the workplace.

The argument goes that the death penalty reinforces the belief that bad things happen to those who deserve it. This reinforces the contrary belief; that good things will happen to those who are 'good'.

In this way, the existence of capital punishment provides a psychological release from conformity and overwork by reinforcing the hope that there will be a reward in due time.

Oddly, this argument seems to be backed up by Japanese public opinion. Those who are in favour currently comprise 81% of the population, or that is the official statistic. Nonetheless there is also a small but increasingly vociferous abolitionist movement in Japan.

From an ethical point of view this is the totally consequentialist argument that if executing a few people will lead to an aggregate increase in happiness then that is a good thing.

South East Asia

Over the past year, Southeast Asia has witnessed significant setbacks with regard to the abolition of the death penalty, FIDH said in a new report published today, on the occasion of the 14th World Day Against the Death Penalty.

The report, titled “Going backwards: The death penalty in Southeast Asia,” provides an update on the status of the death penalty in the region since last year’s World Day. It also provides important recommendations to governments in the region with a view to make genuine and tangible progress towards the abolition of the death penalty for all crimes.

Since October 2015, Indonesia, Malaysia, and Singapore have all carried out executions. It is unknown whether any executions were carried out in Vietnam, where statistics on the death penalty continue to be classified as ‘state secrets.’

In the name of combating drug trafficking, Indonesian President Joko Widodo is rapidly becoming Southeast Asia’s top executioner. The Philippines, which effectively abolished the death penalty for all crimes in 2006, is considering reinstating capital punishment as part of President Rodrigo Duterte’s ill-conceived and disastrous ‘war on drugs.’

Answer 3

It is certainly not the case that killing in itself has generally been seen as a moral wrong, only unjustified killing (here taken to mean killing of person). Our ethics system considers the context of an act, and not just the act itself.

Not having capital punishment is a modern peculiarity. Killing people who break the law is as old as law itself. Different justifications are made, but they tend to boil down to certain beliefs.

1. People who break the law cause suffering.
2. If you cause suffering you should be punished.
3. Some crimes require the ultimate punishment.
4. The ultimate punishment is death.

At a time when most people died as children and all people believed in life after death, execution might not have been seen as such an extreme act, and it was the case that relatively minor crimes were capital crimes. As medicine has improved, the value of life has increased and so in most countries, execution is reserved for the most serious crime: Murder. Or has been abolished altogether.

The correctness of my points 1-4 can be questioned. I present them as a summary of the ethical justification of execution.

Considering each point

1. One may argue that not all crimes cause suffering, and that there are acts that do cause suffering that are not crimes. It is fairly uncontroversial that the most serious crimes do cause suffering.
2. This is justified either on the basis of revenge, restitution, or deterrence.
3. It is generally held that there should be some form of proportionallity between the crime and the punishment, this point is not universally held.
4. This point is also debatable and is not universally held.