There are these proverbial dictums that speak of “an eye for an eye and a tooth for a tooth,” and an equal and opposing reaction for every action made. Perhaps, such may be used to fancifully position or even ground an argument in favor of capital punishment. It is still important to note that mere dictums do not hold absolute truth especially when human life is positioned at the brink of jeopardy. Different hard-hitting arguments such as the one presented by Ernest Van Den Haag (1978), however, generally maintain that capital punishment is a legal action that should be adopted and promoted to deter illegal acts and uphold positive social values. Yet, even though capital punishment has a sincere purpose of maintaining social order and upholding a sense of security, arguments such as impartiality in legal actions and decisions, cost inefficiency, non-justifiability on economic grounds, and retribution-oriented nature, all together make such legal measure unreliable, inconsistent, and questionable.
Against Capital Punishment
In the 31 May 1978 issue of the National Review, contributor Van Den Haag laid out some key points that have given capital punishment a positive note by arguing against popular criticisms. One such argument rebutted the notion that a death sentence is not attuned with the US Constitution, specifically the provision in the Fifth Amendment and Eight Amendment which prohibit deprivation of “life, liberty, and property without due process,” and bestowing of “cruel and unusual punishment” respectively. According to Van Den Haag, courts, in light of contemporary moral standards, can overrule these constitutional provisions with regard to the notion that such punishment is not an effective deterrence because of the still prevalence of particular capital offense; however, the author argued that the claim is vague. While crimes subjected under death penalty are considered “crimes of passion” or crimes committed out of irrationality, Van Den Haag said that the existence of capital punishment may have in fact been deterring those rational people. For the author, it is safe to say that capital punishment appeals to the rationality of the populace, and crimes committed out of passion are no less than isolated cases. There is also a notion that considers capital punishment as a barbaric act because it appears to be a mere legalized murder. Yet, as argued by the author, such legal dimension of this punishment is enough justification to consider it a humane act in that human actions and behaviors are actually categorized either from what is acceptable or unacceptable and what is legal or illegal. It is important to note that the author had extensively discussed various abolitionist notions while providing counter-arguments for each. Yet, it can be considered that the strongest argument of Van Den Haag in favor of capital punishment is his concluding statement that punishments are the only way in which a society can affirm positive values. By grounding punishments within legal dimensions, and by enforcing such, they both proclaim and enforce social values according to the importance given to them. In summarizing the extensive discussion of the author and pinpointing the unifying theme that has emerged from the overlapping of his arguments, it is thus regarded that context plays a crucial role in justifying capital punishment. Given the right situations and considerations, capital punishment is no less than an acceptable measure. It is a way of intimidating people from committing crimes thereby promoting social orders. It is an instrument that actually contributes to the definitions of illegal or unaccepted actions and behaviors. Such debunks the dictum that upholds the fact that the end does not justify the means. For Van Den Haag, it is clear that capital punishment is a legal eye for an illegal eye initiative, a legal reaction to someone’s illegal action It cannot be denied that the arguments laid out by Van Den Haag, in addition his general position about capital punishment, are highly convincing. Still, it is important to note that arguments, which disapprove capital punishment, are still prevailing.
One popular argument against death penalty revolves around the notion of its nature of being a mere act of retribution. While retribution has been grounded within context as mentioned by Van Den Haag, the bestowing of such is still problematic. There are instances that speak of the presence of discrepancies in legal actions and decisions. According to an argument by Daniel McDermott (2011, as cited in Brooks, 2004, p. 188), the practice of capital punishment is racially biased. By presenting a unique approach that urges supporters of such punishment to conduct a statistical review, McDermott makes a novel and profound argument. Yet, it is important to note, as mentioned by Brooks, that he still failed at making a convincing point apart from providing a possible direction for a abolitionist argument. In the case U.S. v. Quinones, however, Judge Jed Rakoff had argued that the emergence of advancements in so-called DNA testing has imperiled the favorable status of capital punishment. As mentioned by the judge, such DNA testing can prove that there are those convicted persons who are actually innocent from the crimes that have jeopardized them. Because of the discrepancies in legal and court processes that have emerged from DNA testing, Judge Rakoff deduced that capital punishment is unconstitutional because it denies accused people of due process of the law (2002, as cited in Brooks, 2004, p. 188, 194). Brooks said that the decision that has come from the use of a best legal process can prove to be inefficient since DNA testing can overturn the whole situation. For Brook, he believes that Judge Rakoff does not actually argue against capital punishment. It can be considered, nonetheless, that the McDermott, Judge Rakoff, and Brooks have positioned capital punishment as a legal measure that is not yet ready to be introduced in the society. Today’s legal practices are considered inadequate and with the newfound realizations that have emerged from DNA testing and other similar scientific methodology, legal decisions do not hold absolute truth. This is, of course, troublesome especially when a verdict is given to an otherwise innocent person. What makes such realizations troubling is the fact that a death penalty verdict bestowed upon an innocent person is no less than equivalent to injustice, inhumanity, immorality, and all other concepts that speak of devaluation of human life. The existence of capital punishment is thus unfit for the current capabilities of providing justice. It is certainly a paradox to the concept of justice since it has the tendency to bring forth injustice itself.
Capital punishment is also troubling as far as economic grounds are concerned. In the journal article “Welfare Economic Aspects of Capital Punishment,” authors David L. McKee and Michael L. Sesnowitz (1976) have dwelt on an argument that speak of capital punishment as a mere measure characterized by revenge and lack of expediency. Both authors mentioned that bestowing capital punishment does not actually contribute to the goal of repairing a particular injury. For them an injury, the authors’ reference to a crime, should be repaired and then prevented afterwards. Capital punishment does one of these. Thus, in adopting a welfare economic point of view, this form of punishment does not contribute to any economic and social welfare at all. The authors clearly stated that the lack of the potent ability of capital punishment to deter capital offenses tend to create infinite loss on the side of the guilty individual than the gains created on the side of the slain victim. McKee and Sesnowitz cited the concept of the Pareto principle in economics. Based on this, two states can be compared based on its predisposition to either Point A in which one person is better off than in the alternative state, also known as Point B. Because of the lack of potency to deter criminal offenses, capital punishment tends to predispose the state towards the Point B. This argument laid out by McKee and Sesnowitz speaks of the fact that capital punishment does not create a win-win solution at all. If considering the provision of justice as a negotiation between the prosecution side and defense side, capital punishment virtually removes the capacity of the accused to lay out his or her terms and serve particular terms in the negotiation. Capital punishment instantaneously cuts him or her off from the deal by taking his or her life away. This, of course, seemed even unfair to the part of the victim or his or her party for the reason that the guilty person actually did not pay any penalty at all. Death seemed to be a better escape than serving prison terms. The only side that suffers is those family members and friends who in reality do not have any direct association with the criminal offense.
The prevalence of arguments and counter-arguments in support of capital punishment, the continued heated debate between those who want to retain death penalty from those who want to abolish it have been in existed for over a century now, specifically in the United States. Even Van Den Haag wrote another article for The National Review in which he laid down emerging arguments against capital punishment (1988). While he dealt with some arguments by rebutting it, there are arguments that he supported. For example, he supported how abolitionists vie capital punishment as an instrument that promotes inequality. Van Den Haag agrees with the abolitionists’ claim that equality is impossible to achieve that’s why capital punishment should never be adopted at all. He also supported the fact that there is a wide discrepancy with regards to categorizing crimes as capital offenses that warrant capital punishments. For him, it is still not clear nor justifiable how the graveness of particular crime can be categorized, gauged, or measured. William O. Hochkammer Jr. however provided a suggestion on how to deal with the prevailing debate over capital punishment. He said that while it is true that the 150-year-old heated debate needs to reach conclusion, such settlement would not come from either the supporters of critics of capital punishment. The author said that conclusion should be weaved from collective public opinion. It is however important to note that both the arguments offered by those who are either in the pro or against sides are needed to influence and educate the public. From these discussions, it is actually clear that capital punishment is a subject that seems to have any resolution. The existence of arguments, both in support and in critic, tends to be ever expanding. Still, based on the way Van Den Haag position and repositioned his thoughts, and based on the suggestion by Hochkammer, it can be considered that consensus can be reached through synthesis. After all, combining a thesis with an anti-thesis result to the formation of a newfound solution characterized by compromise.
Crime is considered the disobedience of law, and those who commit such noncompliance are faced with consequences in the form of legal punishment. While it is true that the idea of penalizing an individual may serve as a tool to intimidate future crime offenders, thus deterring criminal acts (Duff, 2008), capital punishment is considered an extreme take on this idea. However, it can be considered that the arguments favoring capital punishments are considered to be acceptable, in the same way that the arguments against are also no less than acceptable. This creates a dilemma; a confusion. Yet, arguing against the abolition of capital punishment still prevails. As concluded in the discussion of Brooks, the society is not ready yet for such punishment. The conclusion from McKee and Sesnowitz moreover denotes the lack of capital punishment to assure justice. Capital punishment is certainly not a foolproof measure. It is considered a sorry excuse for poorly dealing with heinous crimes. It is an ineffective, unstable preventive tool, and it does not offer any curing capacity or solution. Thus, capital punishment currently has no place in the society simply because it does not serve any positive purpose.
Brooks, Thom. (2004). Retributivist Arguments against Capital Punishment. Journal of Social Philosophy. 35(2), pp. 188-197. Print
Duff, Anthony. (2008). Legal Punishment. In Stanford Encyclopedia of Philosophy. Retrieved on 3 May 2012 from http://plato.stanford.edu/entries/legal-punishment/
Hochkammer, William O. Jr. (1969). The Capital Punishment Controversy. The Journal of Criminal Law, Criminology, and Police Science. 60(3), pp. 360-368. http://www.jstor.org/stable/1141991
McKee, David L. and Michael L. Sesnowitz. (1976). Welfare Economic Aspect of Capital Punishment.American Journal of Economics and Sociology. 35(1), pp. 41-48. doi: 10.1111/j.1536-7150.1976.tb01212.x
Van Den Haag, Ernest. (1988, February 5). New Arguments Against Capital Punishment. The National Review. pp. 33-35. Print
–. (1978, March 31). The Collapse of the Case Against Capital Punishment. The National Review. pp.395-407. Print