Revisiting capital punishment

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batori.inHuman life is perhaps the most precious gift of the nature, which many describe as the Almighty. This is the reason why it is argued that if you cannot give life, you do not have the right to take it. Many believe and I am one of them that capital punishment should not be imposed irrespective of the nature and magnitude of the crime. Others think that death penalty operates as a strong deterrent against heinous crimes and there is nothing wrong in legislative prescription of the same as one of the punishments. The debate on this issue became more intense in the second part of the 20th century and those belonging to the first school of thought succeeded in convincing the governments of about 140 countries to abolish death penalty.

Capital Punishment as a notion has an unbridgeable gulf between its contenders. In fact, capital punishment is more motive that being a simple category of punishment. There appears to be no third position on the contentious notion. The notion is essentially contested, that is the concept of the death penalty by its very nature invites no compromises or reconciliation. The proponents argue that the death penalty deters future offenders and therefore minimizes loss of human life or that the offender may be inflicted suffering to the extent the victims or his relatives had to suffer, which is part of justice.  However, the proponents have differing views. The proponents argue over the moral justification of punishment, which is even more acute when it comes to death penalty. The opponent on the other hand argue that firstly, as statics show, there is no evidences of deterrence and secondly, even if capital punishment deters future offenders, there is still no justification for taking human life. The proponents argue that if large number of lives is saved the consequentiality and the deontologists should vigorously pursue the harshest possible punishment as their agenda.

In this article I intend to explicate the theories claiming moral justification for death penalty. I would then take up some efforts at a reconciliation of various claimed moral positions. I would then argue that being an essentially contested concept a reconciliation is only reverting back to the moral arguments and as such there cannot  be any justification for capital punishment and the solution in fact lies elsewhere.

There can be no dispute over punishment as an integral requirement and thus part of a civilized society. The controversy rests on the limits of punishment as inflicting suffering on the offender. Punishment in its widest connotation means depriving the offender of normal rights, which may include confinement, reformation, etc. It is interesting to note that The Oxford English Dictionary takes sides in providing deontological connotation of punishment as “To cause an offender to suffer an offence”. The Oxford Dictionary is suggesting that inflicting suffering is inherent in punishment. However, ignoring the rather restricted sense attached by the Oxford English Dictionary, punishment can easily be shown to logically compromise three different theories or two different theories with one of them having two different sub-approaches. Punishment may be retributive or other than retributive, that is utilitarian, which mar argue for deterrence or reformation, as pointed by Mabbott.

“The main division between theories of punishment is that which separates the retributive theory from the rest… [it] is a special case of…dispute between Utilitarian and their opponents…”

In case of death penalty the choice is naturally limited to two that is to retributive and deterrence, one of the sub-approaches of utilitarian argument. It is obvious that there is no possibility of reformation in it, unless by it we mean reforming the society, which would absurdly stretch the argument beyond the limits of appreciation.

The utilitarian approach to capital punishment is that consequences bring about deterrence preventing future offender, through general deterrence or by incapacitation of the offender. The crux of the argument is that loss of a life, and that too of the offender, is easily justifiable if it prevents more crime in future. However, a very argument against deterrence is forwarded by Mabbot who has argued that deterrence is not part of punishment. The deterrence, if at all, follows from the publication of the punishment and not the punishment itself. The deterrence coming from publicity is not part of the punishment for it is not pronounced by the judges to publicize it. It was for this very reason that the gallows ere erected in the center of the town. It is interesting that the humanitarian approach to capital punishment starts to raise its head once the possibility of publicity winded its net. If a person is quietly pronounced guilty and death penalty is imposed the deterrence definitely fails. In other words, deterrence is not a part of the meaning or significance of the punishment. The utilitarian argument therefore starts to fail in its very foundation.

The utilitarian argument prima facie counts human life, innocent or guilty, equally. The matter is treated as a purely arithmetical matter of counting so that if more crimes are prevented compared to death penalties imposed then the latter is to be preferred even if an innocent life may be lost in the process, which is justified as operation of moral heuristics. However, what is also missing in the utilitarian argument is that it fails to distinguish between premeditated murder and mere wreckless murder like compassion killing. The utilitarian argument fails to explain why it is not obliged to adopt even harsher and brutal punishment. And still more why is drunken driving case of BMW the culprit should not be meted out with death penalty.

The statics too are not very helpful to the utilitarian proposal of deterrence for the larger welfare of the society. The abolition of death penalty in Canada has reduced the murder rate. Countries like England where death penalty is not recommended has smaller crime rate.

The utilitarian still insists of the efficiency of his formula and suggest that loss of one innocent to protect a much larger number is an acceptable principle. The argument can be seen to be fallacious if we draw an analogy with the case of a doctor. Is the doctor permitted to sacrifice a patient to save the lives of five critically ill patients who require the immediate transplant of one of five different vital organs?

However, there are still other issues, it is sometimes argued, and not without substance, that murders may increase with deterrence for the offender may feel that a witness should not be left behind to protect himself from going to the gallows, which adds to the taking of life. Again, with death penalty the offender feels it is a onetime affair and he has not suffered again and again. All these actually weaken the utilitarian argument and make it hang on the fringes of acceptability.

The retributive theory fares better in certain respects than the utilitarian deterrence. The principle invoked by the retributivists in an allusion to the suffering the victims and close relatives have to undergo. The argument is that capital punishment is an adequate and proportionate response. It may be noted here that the common sense view with regard to punishment is more akin to the retributivist thesis as Hacker has pointed out,

            “The retributive position does not command much assent in intellectual circles, but there seems little reason to suppose that it does not continue to retain a strong hold on the popular mind”.

The appeal to the popular mind for retributive theory is the advantage it has of punishing on the basis of guilt; in short it specifies that only guilt will lead to punishment. The obviously has the advantage of not loosing innocent lives.

However, the notion of eyes for an eye and tooth for a tooth does not have many takers in academia and serious intellectual circles, for the simple reason that it rings of barbarism. The notion of deontological principle of proportionality of punishment the victim and her/his relatives had to suffer is condemned in its inception. The notion of punishment based on such a principle will find it hard to justify why it restricts itself to death penalty and not extend itself to other crimes and accordingly rape a rapists, torture a torture, rape and then murder those who rape and murder or steal from the house of a thief, in order to provide a proportional response to the suffering they have inflicted. As Mabbott, a retributivist, rightly points out,

“The retributive theory has a very few defender in these days. Philosophers have mostly rejected it and practical men have welcomed its decline in our penal arrangement”.          

As was suggested the utilitarian principle of deterrence is unable to accept proportionate punishment, in a similar manner the retributivist also finds himself restraint. The lack of response from either of the schools simply suggests a natural restriction on extreme punishment and points the way to a deontological limitation on the kinds of punishments we are justified in imposing, on either retributive, or for that matters utilitarian grounds. The argument from the proponents of capital punishment is that it is not only morally permissible but also morally obligatory. The limits of punishment are called into play. The utilitarian argument denies any moral demarcation prohibiting extreme punishments. Utilitarianism takes as morally tantamount the prevention of future crime reducing the possibility of suffering inflicted by future offenders.

The problem turns up with the retributive theory is twofold one the not acceptable morality embedded in it and the other that the proportionality cannot be determined. Mabbott in order to overcome the problem argues that retribution provided an explication of the meaning of punishment and not its justification. He then tries to overcome the problem of retribution by introducing the notion of legal system avoiding all questions of morality. The argument is attractive for in view of the retributive theory advocating the establishment of guilt naturally leads to the legal system.

John Rawls has taken the cue of relating the systemic and individual. He draws a distinction between the general and the particular. His argument is that the morality of punishment is to be dealt with in the general where questions of establishment and maintaining of the system is concerned. He narrows down the retributive to be functional in the case of individual punishment. The distinction draws is between the function of legislature and the courts. Rawls argues that the general is the moral and dealt with by the forward looking utilitarian theory and the deliverance of punishment is the backward looking, that is where past guilt is established and is dealt with in retributive manner.

The argument of Rawls is presented while considering the role of the government as an agent whose moral obligation is to minimize loss of life. The government has to be seen as proactive for omission on its part is classified as ‘inaction’ and morality condemnable. The argument defends deterrent preferences and therefore it appears that government has to prefer a few life losses, even if innocent, to larger losses. In short, the strength of the argument depends on invoking and therefore justifying the regulatory responsibility of the government. However, this fails to draw the important moral distinction of criminal justice at large and capital punishment, which involves purposeful taking of life leaving no other alternatives. It was for this reason that it was stated right at the beginning that there are only two set of arguments justifying capital punishment and no reconciliation. In fact, Rawls lands up at the most by providing or explicating procedures for administering justice and thereby side stepping the basic moral problem of capital punishment. From his point of view the moral question will be dealt with in utilitarian manner by the legislature, however, this implies that the moral question is still left even after his treatment. I imagine Rawls as a legislature trying to justify the imprisonment of Gandhi when the judge while pronouncing the six year sentence stood up and apologised to Gandhi admitting moral infirmity in the law. A similar kind of example provided by Mabbott, where while knowing the discipline rule to be not right he had to impose it as the rule stood, implying the morality is to be debated elsewhere. However, punishment is prescribed for being implemented that sets an example for others, we return to the question of morality and the debate it generates creating and inescapable vicious circle.

It appears that no solution to the problem is in sight and all attempts land up without addressing the moral question. The reason for this may be that there are no moral answers to the taking of life of an individual either as private murder or public execution. An attempt by retributivist or utilitarian ends up in not being able to account for the morality. The retributivists like Mabbott are honest enough to admit no allusion to morality. The statics need to be explained too where the countries, such as England and Canada, without capital punishment register lower murder rates. But then this can be countered with the example of Saudi Arabia where severest punishment, including death penalty, is prescribed for the offender of the smallest crime, like severing hands of a thief. Saudi Arabia shows a very low rate of crime. This shows that there are other factors preventing crime than deterrence.

The argument I present is that any civil society cannot do without punishment. It is a fact that all societies have advocated capital punishment at some point of their history, however, with time the same may have been abolished. The main reason for this is that a particular level of condemnation of the crime has been achieved. In India even today murder is not taken so seriously and honour killings and female foeticide are condoned in parts of the county, which reflects the attitude at the grass root level and the value system in grip of the popular mind. My proposal, at the level of understanding and policy, is an attempt through education to develop a level of moral conscience which condemns murders of all kind. It is difficult to see how till such time that seriousness of the crime of taking somebody’s life is universally accepted would be heinous crimes stops being committed to create a crime free environment. If the broader connotation of punishment of placing restrictions on normal rights or taking away of these rights is adopted as the definition of punishment and not retributive punishment or deterrence as the goal, then only the basic of punishment will be served that is of reduction in the crime rates.

Paras Nath Singh

(The writer is a law third year student at Aligarh Muslim University Mallapuram Centre)

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