Why the Death Penalty is Continue

In researching the death penalty, it becomes clear quite quickly that perhaps the most frequent debates concerning it center on whether or not the death penalty has the effect of deterring murder. There has been exhaustive research done on this question, hence there is a wealth of statistical information available over which to argue. Opponents of capital punishment cite studies that show no deterrent effect exists, while proponents just as readily point to studies which indicate that it does. Which side is right? Neither. In 2012 a report titled Deterrence and the Death Penalty was released by a National Research Council committee which stated in its conclusion: “[R]esearch to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates” (N.R.C., 2012 as cited in Nagin, 2014, Introduction, para. 6). In writing on the N.R.C. report Nagin finds the research on the deterrent effect of capital punishment to be flawed in two specific ways (2014). One flaw is that no studies take into account the alternative punishments available to states in murder convictions (Nagin, 2014). Without knowing what effect non-capital punishments have on deterring murder, the effect of the death penalty to deter murder cannot be estimated (Nagin, 2014). Second, studies cannot accurately assess a potential murderers perception of the risk of capital punishment, and so cannot determine how much of a factor risk perception plays in deterrence (Nagin, 2014). In quoting the N.R.C. report Nagin says “claims that research demonstrates that capital punishment decreases or increases the homicide rate by a specified amount or has no effect on the homicide rate should not influence policy judgments about capital punishment” (N.R.C., 2012 as cited in Nagin, 2014, Introduction, para. 6). If statistical research on deterrence is of no use in determining the justice of the death penalty, then its justice must be determined on the grounds of morality.

Attempting to use morality to justify capital punishment, though, leads to a problem: there are many different ideas of morality. One person’s moral code may be vastly different than another’s. In such a large country as the U.S. there are bound to be many competing conceptions of morality. Therefore, a fixed set of moral parameters is needed in order to adequately frame the debate on the efficacy of the death penalty. Considering that the question is one regarding U.S. law, it is logical to use the morality of the legal system to stake out the boundaries. U.S. law is based on the U.S. Constitution, and implicit in the “cruel and unusual punishments” (U.S. Const., amend. VIII) clause of its Eighth Amendment is the idea that a punishment should fit a crime. There would be no need to specifically prohibit cruel and unusual punishment if proportional sanction were not the expectation. The Supreme Court has verified the existence of this implication in several of its cases concerning capital punishment (Proportionality (law), n.d.). The concept of proportionality in sentencing is seen in practice every day. Speeding tickets come with fines, while more serious offenses garner incarceration, the lengths of which vary depending on the crime. The common perception of these variations in sentencing is that more serious penalties are reserved for crimes which are felt by society to be more egregious.

What then to do with a person convicted of the most egregious of crimes? Is life in prison harsh enough to punish murder? Is it right to assign the same punishment to someone found in possession of a large quantity of cocaine as we would to someone who slaughtered an entire family? Proportional punishment cannot be administered in cases of murder unless the penalty of death is available to the state. This is tacitly recognized by the criminal justice system in the absurd practice of administering consecutive life sentences. That practice appears to admit that the damage done by the crimes committed goes beyond that which can be recouped by the available punishment. When a life ends, it ends forever. Aspenson (2013) puts the state of affairs between victims and living perpetrators particularly well when he writes that “life in prison affords hope of regaining freedom, the opportunity for intellectual, moral, and spiritual advancement, for experiencing love (both loving others and being loved), for forming friendships, for experiencing and sharing art, entertainment, information, etc., and for the moment?by?moment enjoyment of existence, all goods murderers deny their victims” (Sec. 1, para. 3). Since our justice system is based on proportional punishment, and since death is the only punishment proportional to murder, then the death penalty is necessary to provide justice.

It is prudent here to refute some of the anticipated rebuttals to these arguments. A frequently used argument of death penalty opponents is that innocent people are put to death under our current system. They are not wrong. Innocents are put to death. However, innocents die regularly during routine activities. Highway traffic accidents, construction accidents, drownings, and other forms of death occur regularly, yet we don’t give up driving or building or swimming (van den Haag, 1991). Accidental deaths are a byproduct of living, and cannot be eliminated. Van den Haag (1991) aptly points out that deaths due to wrongful executions “are just as unintended, accidental and foreseeable” (p. 464) and that “Execution would be disadvantageous only if miscarriages were so frequent as to cause the risk innocents run to be executed to rival that of murderers” (p. 464). Another point of opponents is that black people are executed under current law more frequently than are white people. On this point they are also correct. However, Federal Bureau of Investigation statistics show that blacks commit more murders than whites (Federal Bureau of Investigation [F.B.I], 2016). The case can be made that discrimination plays a part in how many are arrested and convicted, but it is safe to assume that if discrimination exists in capital cases, it also exists in cases involving lesser crimes. If decisions about the death penalty were made using racial discrimination as a determining factor, logic would dictate that these decisions would also apply to lesser penalties. It would be quite foolish, though, to suggest that incarceration or fines no longer be considered just punishment simply because black people experience discrimination in their administration.

The death penalty must continue. Arguments against it based on deterrence are supported by faulty research, and arguments against it based on racial bias and miscarriages of justice suffer from faulty logic. Since we cannot trust the statistics, we must turn to morality. The morality of our justice system demands proportionality, and because of the gross imbalance of quality of life between murderer and victim, death is the only just punishment for the taking of a life.

References

1. Aspenson, S. (2013), The rescue defence of capital punishment. Ratio, 26: 91-105. doi:10.1111/j.1467-9329.2012.00524.x
2. Federal Bureau of Investigation. (2016). Crime in the United States, 2016. Retrieved February 12, 2019, from https://ucr.fbi.gov/crime-in-the-u.s/2012/crime-in-the-u.s.-2012/tables/43tabledatadecoverviewpdf
3. FindLaw's United States Supreme Court case and opinions. (n.d.). Retrieved February 12, 2019, from https://caselaw.findlaw.com/us-supreme-court/463/277.html
4. FindLaw's United States Supreme Court case and opinions. (n.d.). Retrieved February 12, 2019, from https://caselaw.findlaw.com/us-supreme-court/481/137.html
5. FindLaw's United States Supreme Court case and opinions. (n.d.). Retrieved February 12, 2019, from https://caselaw.findlaw.com/us-supreme-court/458/782.html
6. Nagin, D. (2014), Deterrence and the death penalty: Why the statistics should be ignored. Significance, 11: 9-13. doi:10.1111/j.1740-9713.2014.00733.x
7. U.S. Const. amend. VIII. Retrieved February 12, 2019, from https://www.heritage.org/constitution/
8. van den Haag, E. (1991). For capital punishment. Israel Law Review 25(Issues and 4), 460-465. Retrieved February 12, 2019, from https://heinonline-org.libproxy.csun.edu/HOL/Page?collection=journals&handle=hein.journals/israel25&id=468&men_tab=srchresults
9. Wikipedia contributors. (n.d.). Proportionality (law). In Wikipedia, The Free Encyclopedia. Retrieved February 12, 2019, from https://en.wikipedia.org/w/index.php?title=Proportionality_(law)&oldid=880315041

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