Essay on Retributivist and Consequentialist Punishment Philosophies

To what extent can retributivist and consequentialist punishment philosophies, in conjunction with key sociological perspectives on the role and function of punishment be used to justify the use of the death penalty?

Capital punishment is the government-sanctioned practice whereby an offender is legally executed by the state as punishment for a crime. Its usage dates back to the beginning of human civilizations for, without developed prison systems, there has historically been no other alternative to incapacitate and punish criminals. Today, fifty-six countries retain the death penalty. There were at least 690 executions in 2018, with 19,336 people under sentence of death (Amnesty International, 2018). In the United States of America alone, an average of thirty-five people a year have been judicially executed since 1608 (Haines, 1996). Countries such as India and Japan, wholly democratic and fully industrialized, still rely on this form of punishment as a deterrent (Garland, 2005). Although antiquated methods such as burning at the stake, disembowelment or flaying are no longer practiced; seemingly barbaric methods such as beheading, stoning and gas asphyxiation are still employed today. Capital punishment is a deeply rooted form of punishment and has long-standing cultural values (Kaplan, 2012).

Despite its extensive historical use, capital punishment is, today, a highly contested issue and one on which the majority of the world stands firm on. The death penalty has been entirely abolished in 102 countries, with Article 2 of the Charter of Fundamental Rights of the European Union prohibiting its use and The United Nations General Assembly calling for a universal moratorium on all executions. Finding its roots in the writing of Montesquieu, Voltaire and Bentham, the abolitionist movement believe that capital punishment is inhumane and the worst possible violation of human rights (Malone, 1979).

To justify any form of punishment, we must demonstrate that the sanction imposed achieves its desired objectives, but also that those objectives cannot be attained in some other way. Punishment may be justified by reference to forward-looking or backward-looking theories, namely consequentialism and retribution. Where consequentialism holds that punishment is justified where it can secure some valuable end, such as the protection of the innocent or by preventing further crime; the theory of retribution holds that punishment is not justified because of some socially advantageous outcome, but simply because punishment is deserved.

This essay will endeavor to assess the extent to which capital punishment is justified under the doctrine of consequentialism or retribution. Ultimately, this essay will find that neither theory can prove justificatory enough and will instead advocate for an alternative.

Consequentialism holds that punishment may be justified where it can be shown that its infliction leads to a greater good. The use of the death penalty, they posit, not only eliminates the offender from society and prevents re-offending but may also deter others from engaging in similar criminal conduct. Jeremy Bentham (1830), regarded as the founder of modern utilitarianism, believed that punishment itself is reprehensible for it inflicts further suffering and so should only be carried out so far as it promises to prevent a greater evil. Should it fail to accomplish such objectives, then according to the consequentialist view, the infliction of punishment will be unjustified. Consequentialist justifications for punishment are largely premised upon incapacitation and deterrence, this essay will evaluate each in turn to assess the extent to which they prove justification for capital punishment.

Incapacitation limits an offender’s capacity to commit a further crime by temporarily or permanently depriving them of their liberty, often by incarceration or the employment of the death penalty. Honderich (2006) refers to imprisonment’s ‘capacitating effects’ where he who is incarcerated may now be exposed to new opportunities for criminal activity such as sexual crimes against other prisoners and gang affiliations which often introduces the offender to more heinous crimes. By executing the offender, there is no opportunity for further crime. By simply eliminating an offender from society, consequentialists believe that we can maximize pleasure and minimize further pain and suffering.

Secondly, punishment is justified by its deterrent effect on criminal behavior and thus capital punishment too may be justified where it can prevent others from engaging in criminal activity. The more severer the sentence, the higher the deterrent effect in intimidating potential offenders (Walker, 1993). Perhaps surprisingly, for the utmost utilitarian, such as Markman and Cassell in the Stanford Law Review (1988), it would be entirely justified to execute innocents should it have the effect of deterring others. The fear of death will factor into an individual’s calculation of the cost and rewards of their behavior (Lempert, 1981).

This theory proves redundant on both fronts. Incapacitation by way of executing an offender only furthers the critique of the consequentialist theory. By eliminating a person from society, we are not maximizing happiness. Capital punishment leaves no room for rehabilitation, is significantly more costly than life imprisonment (Gibbs, 1978), and further adds to the suffering of the defendant's family.

It is assumed that most individuals are rational agents and will thus be able to calculate the risk of punishment against the potential pleasure gained from committing a crime. However, the very logic of such rational choice theory is questionable. Golash (2005) suggests that most people do not calculate such costs when committing an offense, but rather they do so out of passion, opportunity, and impulse; things that are not thought out in advance. With regards to capital punishment, the probability of being executed is around 1 in 1,000 (Hood, 2000) and any rational agent would view this as a very remote risk. Bentham, a strong supporter of punishment’s deterrent effect, made clear that we cannot deter by punishing an individual for an act that they did not know was wrong, such as those who are mentally ill. How then, can we reconcile with cases such as Bobby Joe Long who was executed in Florida in 2019 despite medical experts stating that his service-related injuries had damaged the areas of the brain responsible for judgment and behavior control? Or the case of Akmal Shaikh who was executed in China in 2009 despite evidence of mental illness? Even despite such flaws with the theory itself; such deterrent effect of capital punishment as espoused by consequentialists simply has no empirical data to support its utility. Deterrence theory holds that crime rates will be lowest in places where offending evokes the most pain, such as in retentionist states. Sellin (1980) found that those who commit serious offenses, such as murder, are extremely unlikely to re-offend. The New York Times (2000) discovered that it was the 10 of the 12 states without the death penalty that had lower than-average homicide rates. Radlett and Lacock (2008) reiterated an overwhelming consensus among criminologists that the death penalty provides no more deterrent effect than that already achieved by imprisonment. Any evidence of a deterrent effect is far too inconclusive to justify such an extreme punishment. Hood (2000) believes that for there to be any overall deterrent effect, there would have to be a much higher rate of executions, even on those who have committed murders not deserving of death, invariably reaping further injustice. To add insult to injury, where deterrence does work, it is usually for those who need it least (Scott, 2013). Those with economic stability, strong social ties or a career, for example, are much more likely to be deterred from crime because they have so much to lose. It is those that have nothing to lose, such as those impoverished, that are less susceptible to any deterrent effects of capital punishment. Mathiesen (2006) posits that our penal system punishes the poorest the hardest and general deterrence is a way of maintaining social order by sacrificing the poorest in society.

Beccaria, although an avid opponent of the death penalty, saw one circumstance where imprisonment does not go far enough and capital punishment should me employed; “when, though deprived of his liberty, he has such power and connection as may endanger the security of the nation” (Beccaria, 1764). This, utilitarians believe, is an example of where capital punishment is capable of fulfilling a socially advantageous purpose. Admirable in theory, utilitarianism simply cannot reconcile with real-world factors. To illustrate, Saddam Hussein was executed in 2006 in the hopes of instilling peace in Iraq. Unlike what Beccaria may have envisaged, the execution of Hussein only caused further unrest between the two Muslim groups in Iraq, Sunnis, and Shias, with 75 people being killed in the crossfire only hours after his death (Bardenwerper, 2016). Capital punishment, even in the name of humanity, does not prevent further evil, and often only furthers strife.

Bentham strongly believed that we should not punish where doing so would be inefficacious, unprofitable, or unable to prevent further crime. The death penalty achieves no greater good and only causes further needless suffering. To reiterate Beccaria, this form of punishment is both unnecessary and useless.

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Where consequentialism attempts to justify punishment on the basis that it will achieve some identifiable good, retribution theory makes no such claim. Both Immanuel Kant and Friedrich Hegel believed that a good action was one undertaken for its own sake, not because of some extrinsic reward, for ‘a man can never be treated merely as a means to the purposes of another’ (Kant, 1796). Retributivists believe that we should punish an offender simply because they deserve to be punished for the crime that they have committed. Durkheim (1893) believed that a crime is an act that greatly offends society's collective moral beliefs and attitudes, the collective conscience. The natural response is a cry for vengeance and the need to reinforce solidarity by the use of punishment. Hegel (1832) too, dismissed the idea that punishment should act as a deterrent or provide rehabilitation, but rather punishment should simply right the wrong. When someone takes the life of another, the balance of justice is disturbed, and in order to restore that balance, we must impose a counterbalancing disadvantage on the offender (von Hirsch, 1976). Advocated by philosophers such as John Stuart Mill and Thomas Aquinas, the doctrinal belief is that retribution is more than mere vengeance, but rather a natural urge to punish those who have forfeited their right to life. Central to the theory of retribution is the principle of proportionality; that the punishment should be proportionate to the gravity of the offense. He who commits murder must himself be put to death, argues Kant, for no other sentence is sufficient to restore justice, for ‘there is no similarity between life, if however wretched it may be, and death. Central to the theory of retribution is this principle of lex talionis, the law of retaliation, which follows the biblical teaching of “an eye for an eye”.

The doctrine of retribution can be seen in our current sentencing framework and was defined as a primary rationale for punishment in the Criminal Justice Act (1991). The US Supreme Court also justified the use of the death penalty in the retributivist language (Garland, 2005). What was once seen as callous and anachronistic is now a coherent objective evident in our modern penal system, but can it truly provide a justification for the retention and use of the death penalty?

If a crime must warrant death, then society must be the murderer to carry out that sentence. Cesare Beccaria, in his essay On Crimes and Punishment, denounced the use of the death penalty due to its barbaric nature and questioned whether anyone has the right to take another life. Capital punishment sets a ‘beastly’ example (Beccaria, 1764) with not only its contempt for human life, but for its effect of brutalizing society by legitimating such violence (Bowers, 1974). Highly publicized executions legitimate lethal violence and demonstrate that it is acceptable to kill another human being should they offend you, whilst punishing the very same act. Indeed, Foucault (1979) reminds us of the history of capital punishment, how it had never been concerned with fairness or justice, but rather it was a public spectacle that set apart the powerful from the powerless, but at the same time such visible brutality implicated spectators in acts as brutal as those attributed to the criminal. Its historical use was to remind people where power lay and to maintain social order. Retributivists rely on the biblical teachings of lex talionis to justify such contradictory killing. Yet lex talionis has never been concerned with the law of retaliation, but rather the law of reconciliation; “but I tell you not to resist an evil person. If someone smites you on your right cheek, turn to him the other also” (Matthew 5:39).

Hegel (1832) believed that injustice arises where ‘there is one lash too many, or one dollar or one cent, one week in prison or one day, too many or too few’. Although admirable in theory, the discrepancies evident in the practice of capital punishment go directly against what retributivist theory purports: that justice is satisfied only where the guilty are punished and in proportion to the gravity of their offense. Kramer (2011) put forward the idea of a purgative rationale, where members of society have a duty to purge those who are defiling evil. However, for Kramer, ‘defiling evil’ was a description reserved for the worst, more grievous offenders. Yet it is clear that the death penalty is not reserved for the worst offenders, but often the most marginalized and those lacking sufficient resources.

Concerns are often raised regarding the ‘disturbing correlation between race, both of the victim and the defendant, and the imposition of the death penalty (United Nations Committee on the Elimination of Racial Discrimination, 2001). Despite capital punishment being reserved for the worst possible crimes, ethnic minorities are time and time again, being sentenced to death for a crime that merely deserves imprisonment. An illustrative case is that of Johnny Martinez, a Hispanic man who was convicted for the murder of a white man. Despite an array of mitigating factors such as genuine remorse, full cooperation with the police, no previous criminal record, and pleas from the victim’s mother for clemency; Martinez was executed in 2002. The Universal Declaration of Human Rights Article 7 states that ‘all are equal before the law and are entitled without any discrimination to equal protection of the law’. This is clearly not the case when, in the US for example, African Americans are disproportionately represented amongst those on death row, and account for one in three of those executed since 1977, despite only making up 12 percent of the US population (Amnesty International, 2003). In addition to being sentenced to death for crimes not necessarily deserving of the death penalty, African Americans are also being sentenced to death for crimes that there white counterparts would not be similarly sentenced for. There are six times as many black men as white men in custody and, as Carson (2014) found, 3 percent of all African American men were incarcerated, compared to the 0.5 percent of white males. Gross and Mauro (1989) also found that 28.8% of black defendants whose victims have whitely received the death penalty, compared to the 6% of black defendants whose victims were black under near identical circumstances. Around 28 percent of African American men will be incarcerated in their lifetime (Bureau of Justice Statistics, 2003). In McCleskey v Kemp (1987), it was held that “disparities in sentencing are an inevitable part of our criminal justice system”, but how can retributivists reconcile their support for the death penalty with such obvious racial disparities that are apparent in the American criminal justice system? South Africa, for example, could not reconcile such discrepancies and in 1995 (State v Makwanyane) ruled death penalty unconstitutional due to deeply rooted racism which often played a role in the ultimate decision of who should live and who should die.

In addition to race, social class is a significant contributor to whether an offender will be sentenced to death. An alarming proportion of those on death row come from a low social class. In Furman v Georgia (1972), Thurgood Marshall admitted that “it is evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged members of society” for they cannot afford to maneuver throughout the legal system to circumvent the death penalty in a way that their wealthier counterparts able to. Research has shown that ineffective legal counsel is one of the most significant, yet preventable, reasons for offenders receiving the death penalty (Cole, 1999). The poor are disadvantaged at every phase in the legal process. Street crime, for example, is targeted at a much higher rate and subject to prosecution disproportionately compared to white-collar or corporate crime (Reiman & Leighton, 2013). Marxist theory depicts law as a tool used by the ruling class to control the working class and punishment as a state apparatus of economical conditioning and a way of maintaining rigid class divisions. Karl Marx believed that the way in which we punish criminals has the effect of securing a ruling class dominance. Neo-Marxists suggest that punishment will be harshest when labor is plentiful and human life cheap and that it is a means in which to control the poorest in society (Rusche, 1980). Crime is not a willful attack of the collective conscience, as Durkheim would suggest, but rather a form of rebellion by the proletariat against the bourgeoisie. Retribution can provide no justification for capital punishment when it is clearly not simply about guilt, but rather an array of arbitrary and capricious factors such as a person's socioeconomic position.

With such severe punishment comes insurmountable risks. How can we justify such a final form of punishment where there exists any possibility for error? Since the introduction of DNA testing in the 1980s, the number of innocent people being sentenced to death has largely diminished, but we cannot say with absolute certainty that even today, innocent lives are not taken for a crime that they did not commit. To illustrate, Clifford Williams and Charles Ray Finch were both wrongly convicted of murder in 1976 and sentenced to death. 42 years later, in 2019, both were exonerated after being found innocent. It is impossible to know how many cases there have been where an innocent life has been taken before they could be exonerated. The use of such irreversible methods should be avoided when, as Naughton (2005) suggests, there are likely many more miscarriages of justice than is thought to be the case.

Central to retributivists' justification of punishment is that there must be a lack of arbitrariness or bias, both of which are clearly inconsistent with the application of the death penalty. The principle of proportionality is compromised by real-world factors such as race and judicial errors. Braithwaite and Pettit (1990) point to the criminal justice system’s bias towards the most powerful in society at the cost of the most marginalized, stating that ‘where the desert is greatest, the punishment will be the least. As suggested by Hood (2000), capital punishment simply cannot be applied without an unacceptable degree of arbitrariness, bias, errors, and undue cruelty. For Kant (1796), the autonomy of individuals requires that everyone is treated with dignity, yet those on death row are treated ‘as bodies kept alive to be killed’ (Johnson & Carroll, 1985). In addition, the killing of innocent people goes directly against the concept of just deserts. The retributive doctrine does not leave itself open for many critiques; for it makes no instrumental claims, only that punishment is simply deserved. However, this is precisely the reason why it cannot serve as a basis for capital punishment. The retributive theory provides no solutions to specific problems and errors that occur frequently under the current system of capital punishment.

Consequentialist justifications of punishment are also largely based on rehabilitation; the process of re-educating those who commit crimes with the ultimate goal of allowing them to reintegrate into society and once more become a member of the conscience collective. Durkheim stresses the importance of social integration and, as many of those who turn to crime are often those already cast out from society, rehabilitation provides a way for them to strengthen ties with their social group. In using Durkheim’s analogy of society is a living organism, in which each organ plays a vital role in keeping the being alive, crime is an illness and society should respond not by amputating a limb, but by treating that illness. Forward-looking theories idealize punishment as preventing some further evil, yet capital punishment clearly does not achieve such a goal and only furthers the vicious cycle of crime, whilst executing individuals who could have been helped and reintegrated into society. Utilitarians believe that if an alternative option could produce greater happiness, then that method should be invoked. Methods of rehabilitation and restorative justice clearly strive to do this, allowing the offender to reintegrate into society, limiting the suffering of the offender’s family, and oftentimes, allowing the victim's family to move on from their grief by meeting with the offender. From a utilitarian perspective, the significant cost of capital punishment is a negative side effect. A better use of such money, and one that would indeed be socially advantageous, would be to spend it on rehabilitation programs, or perhaps increase police forces in order to deter crime without killing of a human being to do so.

Similarly, the theory of retribution is fundamental to our current penal system and is hugely popular amongst the public, yet it simply cannot provide a justification for capital punishment and the many problems associated with it, those of which go directly against the doctrine’s fundamental teachings.

Neither of these doctrines can provide adequate justification for the practice of capital punishment. It is an outdated, barbaric form of punishment that brings with it an array of specific problems that neither of these theories can provide answers for. We can, however, always be committed to punishing a criminal for his actions, without being committed to the infliction of punishment through the use of capital punishment. Von Hirsch acknowledged a moral obligation to punish but also recognized a moral objection against the infliction of pain or suffering. There are many forms of effective punishment that do not involve further pain or suffering. By incapacitating an offender by imprisoning them, whilst also striving to rehabilitate them into society, we satisfy the retributivist's need for punishment, whilst insisting that the way we punish be justified on utilitarian grounds. The balance of justice may be restored by having an offender give back to society, such as through community service, which arguably maximizes happiness for both the individual and society. There are simply too many factors at play from arbitrariness and bias, to judicial errors and botched executions, to justify the use of the death penalty.

In conclusion, there is no theoretical or empirical justification for the use of capital punishment. It achieves no greater good, prevents no further evil, and is plagued with an array of issues that utilitarians and retributivists have yet to sufficiently address and provide solutions for. Capital punishment is not merely theoretical, for it has real-life consequences that must be addressed. Complete abolition of the death penalty is the only humane option. Instead, we should provide alternative forms of punishment such as imprisonment and rehabilitative programs.