The death penalty is a form of capital punishment whereby the state punishes an offender by putting him or her to death. The person is executed upon being sentenced to death by a court of law. The sentence is meted out for capital offences. Retribution is anchored on the “eye for eye” maxim known in legal circles as lex talionis. Retributivists argue that the criminal should be punished in a manner that causes the same degree of harm that was caused by his crime. Retributivists are of the opinion that the punishment should always fit the crime.
A Gall-up poll reviewed that 48% of members of the public who support the death penalty do it on grounds of retribution. The issue of retribution has raised a lot of debate in public and legal circles. Should a murderer be murdered because he murdered? Is a robber robbed because he robbed or a rapist raped because he raped? Proponents of the death penalty on basis of retributivism argue that killing a murderer guarantees that he or she will never kill another person again and deters would be killers from committing the crime. Opponents on the other hand argue that an “eye for an eye” policy is unjust and enforceable.
This debate is epitomized by the views of Claire Finkelstein and Michael Davis. Claire Finkelstein, a passionate abolitionist is of the view that there is no objective criterion for determining morally acceptable crimes.
The death penalty is as inhumane as torture. She argues that retributivism as a punishment theory fails to justify use of the death penalty. Michael Davis, a retributivist, on the other hand, argues that it is possible to set a standard or humanness and determine the crimes which are morally acceptable in the society. Religion also forms another ground for debate. Opponents argue that even if the murderer deserves to die, the state does not have authority to execute him/her as life and vengeance belongs to God. Proponents on the other hand insist that authorities are instituted and given power by God and failing to obey them is failing to obey God.
Arguments for Retributivism
In his discourse, “The Right of Punishing”, Immanuel Kant opined that the evil that a person does to another ought to be regarded as the person has committed it on himself or herself. “If you strike another, you strike yourself, and If you kill another, you kill yourself”. Kant stipulated that every murderer must die but must be killed in a humane way. Deterring people from commission of crimes is a fundamental characteristic of any criminal justice system. Michael Davis argues that retribution justifies the use of the death penalty by fitting the crime to the punishment and by matching the severity of each crime with the severity of every punishment.
Punishment has always been used to deter future criminals from engaging in unlawful activities. There is a high interest in society towards prevention of the commission of murder. The most severe sentence should therefore be used to deter commission of crime and the strongest punishment available is the death penalty. If murderers are killed, then people who are intending to kill will reconsider their actions for fear of loss of their life.
The death penalty is said to deter murder more than any other punishment, because most people fear death more than everything else. It also deters prisoners who are doing other crimes such as killing prison guards and other offenders. Most of all it discourages the executed murderer from ever killing again whether in the prison or in the outside world. Conventional retributivism is of the opinion that the criminal accepts death penalty as a crime, since he volunteers to commit the prohibited crime. Professor Ernest van den Haag argues that, by going ahead to commit a crime, the criminal volunteers to suffer the risk of enduring a punishment that he could have easily avoided. Taking someone’s life means the disturbance of justice that can only be restored by taking away the murderer’s life. Retribution is based on religion which preaches an eye for an eye policy.
Arguments against Retributivism
Abolitionists of the death penalty argue that the death penalty does not deter anyone from committing murder. States that have abolished the death penalty in the United States record fewer murders than those which support it and countries that have abolished the death penalty in Europe also have less incidences of murder (Garland, 2010). Claire Finkelstein argues against the proportionate retributivism that was proposed by Kant whereby a murderer is executed in a humane way as moral equivalence cannot be achieved. Murders are frequently committed by people at the moments of anger or passion or by people under the influence of drugs. Such people do not have the time to weigh the consequences and the death penalty cannot be said to be a deterrent to them. Society’s safety can be guaranteed without use of the death penalty by sentencing murder convicts to life imprisonment without parole.
Opponents of the death penalty view retribution as a form of revenge which is unjustifiable. Killing murderer only results in another murder which extends the cycle of violence. Families of victims do not support the death penalty because it does not bring their loved ones back to life. At the end of the day most of the people who face execution are not the ones who have committed the most heinous crimes, but are the ones who lack resources to put forward a strong defense.
Sometimes innocent people end up being sentenced to death. Execution is irrevocable and nothing can be done if it is later discovered that the executed person was innocent. For every seven people executed, one of them is innocent. A research by The Columbia University law school reported that for every capital case that was retried, 70% of the accused were acquitted while over 80% of the accused persons were given sentences other than the death penalty. By doing away with the death penalty and substituting it with life imprisonment without parole, the risk of losing innocent lives is eliminated. Claire Finkelstein argues that retributivism does not provide any justification for application of the death penalty. Most of the accused persons facing the death penalty cannot afford their own attorney and have to rely on poor services of state appointed counsel. The death penalty is therefore unfair and discriminative.
Recent Court Findings
In ATKINS v. VIRGINIA 536 U.S 304, the United States Supreme Court ruled that execution of mentally retarded person violated the Eighth amendment of the constitution which bans cruel and inhumane punishment. In KENNEDY v. LOUISIANA, 07-343, the court held that the sentence death penalty for the rape of an eight year old child was a proportional sentence. In EDMUND v. FLORIDA,458 U.S 782, the court ruled application of the death penalty was unfair where the crime was not intended to cause or failed to cause the victim’s death.
It is very unfortunate when an innocent person gets executed as the action is irreversible and irrevocable. I concur with Claire Finkelstein that retribution offers no justification for the death .The criminal justice systems have numerous weaknesses and sometimes legal technicalities, police harassment and technical hitches result in execution of innocent people. The death penalty is also discriminative as it does not ensure that every murderer in the world gets murdered. Life imprisonment without parole is therefore a better option since the offender pays for the crime in a humane way. It does not extend the cycle of violence and also effectively deters would-be offenders from committing the crime of murder.
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