Capital Punishment

Introduction
The most heinous crimes in our society arouse a chorus of emotions, from fear, sadness and despair to anger, rage and a desire for vengeance. Correspondingly, the ultimate punishment – the death penalty – is a topic that strongly divides our population. It seems that the same emotions that are evoked by the crime itself are heightened even further when contemplating the possibility of punishing the offender with death. If justice can be defined as giving each what is due to him , then is the inclusion of capital punishment in our criminal justice system just?

The battle that underlies the issue of capital punishment involves discussions surrounding a number of concerns. The safest issue in terms of public division appears to be the role of anger in the creation of our moral and legal framework, and the corresponding morality of punishing offenders in order to defend our societal standards. More debated concerns include the view of capital punishment as an enactment of vengeance, which some consider to be a reflection of a highly uncivilized society. Can a distinction between vengeance, retribution and justice be argued in overcoming this view? A related concern involves the victims and their need for closure as a result of the death sentence. Should this desire for closure be related to the implementation of capital punishment, or can it truly and substantially affect the emotional state of the victim?

Also of concern is the potential mitigating effect of repentance by the offender in relation to the ultimate punishment. Should true repentance result in a withdrawal of the death penalty? A related concern involves the social conscience from the perspective of mercy and forgiveness. What do these actions mean in the face of a capital crime and resulting death sentence?

Questions also arise in the relation to the discrepancy between the value of human life and the admittance of death as punishment in our justice system. Can the use of the death penalty be argued to increase the value that we place on human life? A final concern to be explored in relation to the death penalty is the role of religion. With both sides of the capital punishment debate relying on Biblical arguments, where does this religious contradiction leave us?

The exploration of these concerns is offered much conflicted guidance by a number of philosophers, public opinion, the Church, politicians, the law, the media and popular culture in general. The ultimate question comes down to whether one supports or condemns the use of death as the ultimate punishment in our criminal justice system. With the complexity of the issue and the strong emotional ties involved, many people tend to shy away from the evaluation of their associated beliefs, and those beliefs may never be fully tested until we find ourselves directly and personally faced with the issue.

The Moral Acceptability of Anger & Punishment
Anarchy has never been presented as a realistic and viable option for organizing our society. Therefore it is safe to say that the majority of people favour the implementation of a legal system that places high value on a structure of rules, morals and principals, and correspondingly the means to punish those offenders who willingly infringe the law to which they consent. Immanuel Kant describes a social contract whereby citizens have certain moral obligations in exchange for the guarantee of freedom. A failure to protect and punish the infringement of this social contract, according to Kant, would lead to the disintegration of the civil community. Therefore our justice system can be likened to a contract in law; if this contract is breached, both parties know that there are consequences, and these consequences serve to ensure the worth of a contract is not diminished.

‘The morality of anger’ is a phrase used by Walter Berns in his acknowledgment that some crimes are perceived to be so heinous that the severest punishment is morally necessary – and nothing less than the severest will suffice . I do agree that the laws of our society form a bond between all who abide by them, and that these laws form a unifying moral umbrella under which we reside. Therefore, we have a moral obligation to be angry with anyone who disobeys the law. Berns goes further to say that it is also morally right to express that anger publicly and officially, which may demand that the worst of them must suffer the ultimate punishment.

Punishment is the means in which we defend the dignity of our justice system, and our penal system should command respect for its moral framework. I don’t believe that a society can maintain law and order without anger, as it is this anger – the anger born of protection for our society’s moral framework and the demand for justice – that promotes obedience with the law. Societal obedience runs into moral accountability, and punishment is essential as a reminder that all actions have consequences, and crime will not be morally tolerated . Therefore, I am a firm believer of punishing crimes simply because the offender deserves it.

It seems, however, that the idea of punishment is not so debated as is the way and severity in which that punishment is enacted. Though Canada has long prohibited the death penalty, we have a clear view of the practice in many neighbouring states across the border. Accompanying this view is the ever present debate between those opposing and those who favour the termination of the lives of those who commit the most atrocious of crimes. A number of high profile capital punishment cases – including Timothy McVeigh and Stanley “Tookie” Williams – have led many people to question their beliefs on the severity of punishment in relation to these crimes, and the answers don’t present themselves clearly. This could likely be the result of the inclusion of some of our strongest emotions, from anger towards the offender and the crime itself, to sadness for the victim, fear of the existence of such offenders, and a horrible feeling resulting from the shake-up of our moral foundation.

Hollywood has dramatized capital punishment in movies such as Dead Man Walking, The Green Mile, The Chamber and Last Light. As a result of this dramatization, viewers are taken on a journey that focuses less on what the death penalty means to our justice system, and more on the question of whether a particular inmate deserves to die. These portrayals of the ultimate punishment take the issue to a purely emotional level, and choose to avoid the bigger issue of the societal moral framework and the effect this form of punishment may have on the protection or detriment of our justice system.

In exploring the justification of the death sentence in relation to the moral acceptability of punishment, it is important to look at the more specific objectives of punishment. Kant would likely argue that no further justification for the death penalty is needed beyond the greater extent of the offender’s violation of the law and the scope of harm inflicted on the victim. Reverend Alexander, in response to the execution of Timothy McVeigh agrees with Kant’s position in stating that “…it seems to me that it’s an irreversible miscarriage of justice when a person continues to live after heinously and in a premeditated way has taken a life or multiple lives.” In other words, their justification lies simply in the extent of the offender’s breach of the societal contract, and this can be seen as one of the driving forces behind punishment: to give people what they deserve. Additionally, the question must be asked: is it possible for punishment to signify the gravity of crimes which deserve death if their perpetrators are never visited with execution?

A second objective of punishment has widely been held to be deterrence. Does this mean that the extent that we punish a crime should only go to a level that might sufficiently deter further crime? I have a difficult time with this concept, because I think that emotionally we tend to dole out the most minimal punishment that is deemed necessary for deterrence, but does this then truly meet the objective for actual deterrence? I can see how this second objective of punishment will often undermine the first objective of simply giving people what they deserve, and in meeting this first objective, the deterrent measure will surely follow.

Coming back to the overriding question: does a person deserve to die when he or she kills another human being, and are we achieving the desired consequences as per the punishment objectives in doing so? This is where the issues of vengeance and retribution get tangled up with justice.

The Separation of Vengeance, Retribution & Justice
In acknowledging that anger helps to direct the formation of our society’s morals and corresponding penal system, I have a hard time believing that this anger goes beyond the breaking of these morals and into the realm of vengeance towards the harshest of offenders. Does the “because they deserve it” mantra for justifying punishment translate into a desire for the state to satisfy our bloodlust in putting a murderer to death? Does the death penalty push civilians over the edge from protectors of justice to uncivilized barbarians? Or can our justice system truly be defended with anger while avoiding the harsh definition of vengeful behaviour?

Vengeance is related to bloodlust, cowboy shoot-em-ups, and scenes involving a vengeful victim cackling with glee just before hurting or killing someone who has wronged him. There is the vengeance of Shakespeare’s Hamlet that became an all-consuming and misdirected rage, which plays into the definition of revenge as including the words ‘spite’ and ‘vindictiveness.’

We discussed during class the concept of revenge and how it is eagerly anticipated and sweetly devoured by many: a lust for revenge. Can this be compared to the idea of putting someone to death upon being convicted of a monstrous crime? Does this same drive for revenge truly play into the use of the death penalty? In order to answer this question, we need to define revenge and retribution and closely examine if and/or how they are incorporated into sentencing decisions.

I have struggled with two opposing views of the relationship between revenge and retribution. According to J. Budziszewski, retribution is to be differentiated from revenge, though we use them interchangeably on a regular basis. The two are guided by different motives, and therefore becoming aware of the distinction is important in determining the driving force behind punishment. In retribution the spur is the virtue of indignation, which responds to injury with injury for public good. Conversely, in revenge the spur is the passion of resentment, which answers malice with malice for personal fulfillment.

Robert Solomon, on the other hand, does not see this distinction, and seeks to establish vengeance as going beyond the overly passionate and irrational feelings that have a complete disregard for the public good. We are asked to consider that perhaps vengeance has some rationality to it, and that the only difference between vengeance and retaliation is how much thought goes into them. Solomon reverses the definitions set out for revenge and retribution as set out by Budziszewski.

Solomon’s metaphors for the rational enacting of revenge unintentionally seem to remove vengeance from the picture entirely, which would bring the role of punishment back to simply justice. The idea of an offender “paying his debt to society” presents the cost borne of breaching the social contract. The balance metaphor also goes back to Kant’s ideas of maintaining harmony in our culture, and that crime upsets the balance of society in general. This imbalance can only be righted with appropriate punishment. These metaphors seem to be more relative to retaliation than to vengeance, which lends further support to Solomon’s reversal of definitions. Solomon’s definition of vengeance seems to be in line with Budziszewski’s definition of retribution.

I disagree with Solomon’s discussion differentiating revenge and retribution and instead support the distinction put forth by Budziszewski. Vengeance is more primal, instinctive, and is typically acted upon for personal fulfillment in the heat of the moment. Retribution is more closely associated with the enactment of justice, as its concern is to protect the public good by correcting the imbalances caused by wrongdoings in our society. Retribution is about giving offenders what they deserve as per our justice system, and vengeance is about acting out against a personal wrong with little regard for justice as per societal morals.

In order to maintain the role of retribution in our justice system, and to protect vengeance from replacing it, penalties for crimes are set out and defined in the penal law prior to any wrongdoing. Additionally, the actual punishment is not determined by the victim, but is established by the court. If the victims themselves were allowed to determine the fate of the offender then any punishment would be more likely to express the collective anger of the group as opposed to the greater judgment on objective evil. This is the point of having legally sanctioned punishment versus allowing for personal vengeance. The former is just, whereas the latter would be simply evil. If punishment were to be inflicted in an attempt to placate the anger of the victim, then decisions concerning punishment would become grounded in notions of vengeance. This would in turn become morally suspect as it would likely tend towards cruel and unusual punishment in the form of purely anger-driven revenge. A good example of such vengeful behavior would be a lynch mob.

After exploring the interaction of revenge or retribution with the sentencing of death, I must return to a previous argument fostered by Kant’s beliefs. In acknowledging the differences between revenge and retribution, we must also acknowledge that though the idea of retribution may play a large role in dispensing justice, vengeance is not easily deterred. We are fully human, and as a result, the death penalty might whet the appetite for revenge. I don’t believe that the acknowledgment of the potential surfacing of revenge has any relevance to the argument over the inclusion of capital punishment to our penal justice system; these injustices are bound to occur in any judicial system and at any level or severity of punishment simply because we are human. If the intention of our justice system is held in reverence, then these injustices should be sought to be remedied, and the role of retribution as part of achieving justice will override the inherent feelings of vengeance. In other words, the “because they deserve it” mantra presented by the working of retribution in order to achieve justice does not in theory translate into the satisfaction of bloodlust brought on by vengeance.

Closure for Victims
Many people believe that the execution of an offender brings closure for the victims of the crime. This belief is also held by many victims themselves, which can lead to extreme disappointment at the obvious lack of closure upon the offender being put to death. It seems as though the concept of closure is something that cannot be quantified by neither law nor reason, therefore how is it to be determined if the law has any role at all in helping victims achieve the closure they need?

Closure is a term that doesn’t have a firm definition, and is likely understood to mean a million different things by a million different people. It could represent a newfound ability to manage a crisis or a negative emotion such as anger or sadness. I would define it as the bridge that carries an individual from emotional mayhem into a sea of calm where the mayhem becomes more manageable. Or does closure come simply with comfort, revenge, or perhaps closure can be aptly defined as an end. An end to what? In the vaguest of terms, closure can take the form of an end to whatever discourse is plaguing a person.

Could it be that closure is a myth that we elude ourselves into believing exists in order to make our suffering appear like it is more within our control? If we are to believe that we have the means to bring about closure, then we wouldn’t have to face the inevitable and natural process of grieving. If the idea of closure is a myth, then the grieving we experience will not end with an event, a punishment of the offender, or with anything that our society in general could provide. Perhaps the only thing that brings closure is time, but in believing that we can somehow consciously seek closure, this time can seem shorter. The danger in clinging to the false belief of potential closure is the possibility of eluding it entirely. Will closure ever come if there is nothing we can do but come to grips with the idea of living with an altered reality courtesy of an offender?

I find it hard to believe that all of the anger, sadness and bitterness of a victim would simply evaporate upon the death of an offender. Therefore, we must be careful not to mislead victims into thinking that any punishment is being given to honour the victims or to provide retribution for the surviving victims. It would be dangerous to imply that any punishment inflicted on the offender was to be done in an attempt to placate or redress the anger of the victim. To allow for punishment to be influenced by the victim, whether it be the death sentence or house arrest, moves its purpose away from justice and into the arena of vengeance.

Susan Bandes rightly suggests that forgiveness is akin to closure, and whether the victim still desires the offender to be put to death upon their forgiveness is irrelevant. I do agree with Bandes in that the notions of forgiveness, mercy and compassion are inextricably part of the process of setting norms for what is criminalized and how it is punished. However I do not believe that, once the norms have been established, these notions should be considered on a case-by-case basis. To believe this would be to also deem that our legal system was set up solely to allow victims to enact their vengeance.

Whatever it is that each individual victim requires in order to achieve some form of closure, the legal system cannot deem to provide. It is not up to the law to provide emotional sustenance to victims, especially when to do so would be a nearly impossible task given the subjectivity of the notion. I do firmly support the idea of victim counseling, but this is something that is provided outside of the scope of the law and should not hamper the balancing of justice within our legal system.

The Social Conscience – Forgiveness & Mercy
Forgiveness is an act that is conceptualized in a number of differing ways. Susan Bandes presents the view of forgiveness as an internal act, a change of heart that doesn’t dictate any course of conduct, and therefore doesn’t implicate public justice at all . Another definition of forgiveness holds that forgiveness consists primarily of taking less personal offense, reducing anger and the blaming of the offender, and developing increased understanding of situations that often lead to feeling hurt and angry. This definition supports Bandes’s view of forgiveness being based at an individual and internal level, but seems also to reach further outward in the individual’s external symptoms and actions. In any definition of forgiveness, I would acknowledge that it is the basis of social healing in the wake of an offense, and is driven by the social conscience that upholds the merit of forgiveness.

The question then arises if mercy is something that should come out of this social healing. Mercy in the capital punishment setting is most often associated with clemency – life in prison as opposed to execution. However, is it ever permissible for our courts to give the offender less than he deserves with regard to punishment? And if so, can the motive be said to be justice, or, conversely, mercy?

There is confusion surrounding the idea of who is to forgive who, and for what. In this section the forgiveness of the victim and it’s relation to mercy for the offender is explored. Is the family of the victim responsible for asking forgiveness for anything beyond their own vengeful feelings towards the accused? And can their forgiveness of the target of their distaste be granted in lack of any evidence of redemption? And even so, should this affect the punishment to be bestowed upon a crime of this nature?

The forgiveness aimed at the offender by the victim’s loved ones may serve only to remove any feelings of anger or vengeance as per the definition above. Forgiveness never returns things to the way they were, and to believe it will restore the situation to its former state will result in denial. The bigger issue is the separation of forgiveness and punishment, such that we should question whether mercy should be reflected in clemency, or in the simple act of forgiveness itself.

The fact that forgiveness does not come easily, assuming it is genuine, leads one to believe that it is a merciful thing for a victim to give to their corresponding offender. William Willimon writes:
"The human animal is not supposed to be good at forgiveness. Forgiveness is not some innate, natural human emotion. Vengeance, retribution, violence, these are natural human qualities. It is natural for the human animal to defend itself, to snarl and crouch into a defensive position when attacked, to howl when wronged, to bite back when bitten. Forgiveness is not natural. It is not a universal human virtue."

It is easier to remain vengeful and bitter than to offer up forgiveness to someone who has wronged us. In taking the journey towards forgiving the offender, this personal pardon should not absolve offenders from their obligations in justice. This would lead to detrimental effects in public authority, for if punishment is incompatible with forgiveness, then why hand out reprimands at any level?

Forgiveness is true mercy in action. To give the offender less punishment than he deserves under the guise of mercy runs in the face of justice. Justice and mercy are reconciled only when the deserved punishment is given, and the victim’s forgiveness should therefore have no bearing on the severity of that punishment. This reconciliation of justice and mercy is displayed in Psalms: “Great is thy mercy, O Lord; give me life according to thy justice.”

The Mitigating Effect of Repentance
The movie Dead Man Walking presented a striking view on the effect of repentance of the convicted murderer, Matthew Poncelet. In the hour leading to his execution, Poncelet admits freely his guilt for the killings and expresses extreme remorse, sadness and a desire for forgiveness. This repentance is followed by a complete flash-back to the time of the murders he committed, almost as though to remind us of the gruesome crime in light of his repentance. Poncelet was then executed, and the last visual we are left with is from the scene of the crime that in turn sent him to his death.

Repentance is something that we strive to impart in offenders; it is a reconciliation of the offender with God and an admittance of guilt to society, including the victims and their families. This is the rehabilitation that our system hopes for, though is it something that is questionably achieved. The question to be asked in relation to repentance and punishment is: does the prospect of death help or hinder the hope for repentance? And is it enough to spare an offender his life in return for life in prison?

Repentance does not reflect on a person’s prospect of readmission to society, but instead an acceptability of responsibility for, and an acknowledgment of the consequences of their actions. In the case of Poncelet in Dead Man Walking, I don’t believe that he would have come to the point of repenting had he not been forced to face the thought of his own death. If he had been made to spend his entire life in jail, his anger and denial would likely have led him to be more hardened than reformed. It would be difficult to argue that the death penalty therefore hinders rehabilitation, and if anything I would say that it contributes to it.

Reverend Alexander was questioned on the scenario of Timothy McVeigh’s potentially finding redemption, and the effect that would have on public opinion of his execution. His response was that he would be thankful that McVeigh found a perspective that broadened and deepened his sense of human community, but that given our legal system and societal structure, he must still be executed. Repentance to me is not an emotion that can affect punishment, as I have always upheld the biblical teaching – which was brought up in class discussions – that punishment did not disappear with repentance or forgiveness. Mercy does not mean that we forgo punishing a wrong-doing; though our sins may be forgiven, we must still bare the scars and the consequences of our actions. In other words, “making right,” in terms of repentance, may involve the experience of culpability, shame and remorse, but it still maintains the component of reparation. Part of the goal of punishment is this redemption, so why would we remove the punishment once it is achieved when we would have never gotten there if not for the assignment of the punishment?

The Value of Human Life: Humanizing Evil
A long-running argument within the issue of capital punishment concerns the value of human life. Some believe that giving the state the power to execute offenders cheapens humanity, and that society sinks to the same level as the common killer when the death penalty is imposed. In acknowledging the position that the ultimate punishment has a place in the contractual obligations of our society’s morals, it could instead be said that just as punishment of offenders is done in reverence of our moral and legal framework, so too is the death penalty enacted in respect of human life.

Genesis puts forth the idea that murderers deserve death because life is precious. Edward Koch mirrors this sentiment in stating, “It is by exacting the highest penalty for the taking of human life that we affirm the highest value of human life.” The highest value that we place on human life must be protected, and that protection may require the implementation of the ultimate punishment.

This does not mean that in protecting human life we must de-humanize the offender in order to take their life as punishment. Quite the opposite is true. By turning the offender into a monster, the application of the death penalty becomes morally questionable, as this de-humanizing would serve to absolve them of personal responsibility. If we lose sight that all villains are humans – not monstrous demons, dogs or dirt – we will not be equipped to see evil when it is right in front of us. This returns us to the idea of the social contract, which as human beings we willingly consent to, and under which we have obligations and responsibilities towards justice. Being held responsible for our wrongdoings makes us morally accountable human beings.

This is not to say that in being reminded of an offender’s humanity it becomes any easier to execute a human being. Greater emotion is aroused in humanizing the offender, but this emotion should not prevent necessary decisions from being made.

The Religious Contradiction
Religious Issues form the foundation of the moral arguments surrounding the use of the death penalty, and likely a book rivaling the thickness of the Bible could be written on these arguments. The problem is that both the pro- and anti-death penalty sides use the Bible as the basis for their strongest arguments. Therefore, what can we make of the words of the Bible and the contradictions presented on the merits of capital punishment?

Those against the death penalty typically hold that although the Old Testament holds much information on the use of death as punishment, there is no New Testament support for capital punishment. The argument that Jesus as the incarnation of divine love cancels the appropriateness of capital punishment in the New Testament era has, however, little backing.

In the New Testament support for capital punishment is easily found. St. Paul recognizes the legitimacy of capital punishment in stating, “For he is God’s servant to do you good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God’s servant, an agent of wrath to bring punishment on the wrongdoer.” This passage highlights another popular anti-death penalty argument that is summarized in the phrase, “we can’t play God.” Some may question taking upon us the ability to determine whether someone lives or dies, but what if God puts such powers into the hands of those who hold public authority? If the words of St. Paul (above) are to be interpreted as God placing this power into the hands of our justice system, then how then can we refuse the charge?

Jesus seems to acknowledge the death penalty that was instituted in the Old Testament as just penalty for murder as he states, “…for all who draw the sword will die by the sword.” Placed in context, this quote came of Jesus’ scolding of one of his followers who attacked a priest’s slave with a sword. I interpret the idea of drawing the sword as inflicting terminal harm, and therefore understand this passage to be in support of execution in cases of premeditated murder.

A constant theme in the Bible, whether the New Testament or Old Testament, points to the value of human life as the motivation for capital punishment in the case of premeditated murder. The passages that lend support to the pro-death penalty argument in the Old Testament can be argued to transcend Old Testament Law on the moral weight put on human life in present times. In Numbers we are told, “Do not accept a ransom for the life of a murderer, who deserves to die. He must surely be put to death.” And further support for the reverence of human life: “Do not pollute the land where you are. Bloodshed pollutes the land, and atonement cannot be made for the land on which blood has been shed, except by the blood of the one who shed it.” The most memorable and potent Old Testament reference associating the value of life with capital punishment is seen in Genesis: “Whoever sheds the blood of man, by man shall his blood be shed; for in the image of God has God made man.” These passages, though of the Old Testament, are strongly rooted in our moral societal standards that preserve the sanctity of human life; therefore I would argue that these teachings retain their force in our society today.

Amongst the oft-quoted passages in the capital punishment debate, the most widely referred to has to be that of Matthew 5:38-39: “You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I tell you, do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also.” This passage has been used predominately to refute the state’s right to punish murder with execution, and gives the triumph to forgiveness. However, since there is no direct reference to capital punishment in this text, then in following this line of thinking we would have to find that the justice system could not enforce any law to protect law-abiding citizens. Since we know this couldn’t have been the intention of the passage, it seems to apply to the relationship between two individuals rather than between the state and an offender. This passage could also be seen as giving support to the idea that despite forgiveness or ‘turning the other cheek,’ the offender must still be justly punished.

The Bible is open to such individual interpretation, and as such can be easily construed to fit any argument on nearly any topic. Therefore, what one person sees as contradictory in the words of the Bible, another may read to be completely complementary. In the formation of moral arguments concerning capital punishment, I believe the possible contradictions on the topic to be reconciled, and as such I am able to read the Bible in its entirety as giving support to our justice system’s use of the death penalty. I suppose the idea of Christianity being a personal journey also lends itself to the Bible being interpreted on an individual basis, and therefore little will likely be resolved on the interpretation of Biblically-based social morals.

Conclusion
Capital punishment gives rise to passionate arguments that battle over individual interpretations of the concerns that shape this issue. After personally evaluating each of these concerns, and in acknowledging justice as giving each what is due to him, it is my opinion that the death penalty fills a necessary role in our criminal justice system. Capital punishment is the ultimate retributive response to the ultimate crime.

We must continually be reminded of the purpose of our criminal justice system: to maintain law and order through the protection of our society’s moral framework. It is the role of our justice system to discount the personal and vengeful bloodlust sought in response to a capital crime, and to continue to uphold the civility of legally sanctioned and deserved punishment. Without the death penalty, it would not be possible for punishment to signify the gravity of crimes which deserve death, and the value of our societal morals – and correspondingly the value we place on human life – would be diminished. And that would be the greatest injustice of all.

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