FAS1101 Full Essay: Does the objection from the inviolability of persons show that the death penalty is morally impermissible?

Introduction

When one considers the moral justification for the death penalty, some might argue that justice may only be restored to the victim through lex talionis (Pojman, 1998). Others would suggest that the death penalty deters would-be offenders from committing a capital crime (Kramer, 2011). In imposing retribution on the offender and deterrence on society, the death penalty seems to present a compelling case for safeguarding the inviolability of persons. However, though the aforementioned arguments claim to protect the sanctity of lives by restoring justice to the victims or protecting society at large, they glaringly fail to account for the sanctity of the criminal's life. The death penalty is hence morally impermissible as it defies the conventions surrounding human dignity and breaks past the upper limit of retributivism (Reiman, 1998). Moreover, the death penalty does not conform to the rehabilitative penance model of punishment (Conrad, 1983), which have been proven viable by alternatives of equal harshness that uphold the state’s duty to educate (Lacey, 1983). Finally, the death penalty is morally impermissible as a person’s right to life can be arbitrarily assessed based on their neurological maturity and culpability (Aronson, 2007). Altogether, the various accounts paint a distressing picture of the death penalty as the same wanton disregard for human life as the crime that had led to a punishment this severe. Though the death penalty may be justified in some cases, it is ultimately a violation of a person's right to life. To those ends, the death penalty is morally impermissible and ought to be abolished.

Retributivism and death penalty

The death penalty is morally impermissible as it defies the conventions surrounding human dignity and breaks past the upper limit of retributivism (Reiman, 1998). Reiman (1998) proposes that retributivism be interpreted proportionally, such that lex talionis is modified to represent the upper limit of punishment rather than a punishment that is exactly the same as the crime committed. He notes that:

When, because of our own moral scruples, we do less than this, we still act justly as long as we punish in a way that is compatible with sincerely believing that the offender deserves the full measure of the lex talionis (Reiman, 1998, p. 98).

Effectively, Reiman (1998) asserts that proportional retributivism seeks to mete out punishments that are both morally justified in imposing a proportional response to the victim’s suffering while “authorizing others to do to him what he has done, though they take him up on it only as far as it seems to them morally permissible” (Reiman, 1998, p. 97). The moral impermissibility of the death penalty is then ascribed to the violation of human dignity, as explained by the Kant-influenced intuitive approach. J. G. Murphy explains that the approach relies on human intuition and reasoning to determine the morality of an action (as cited in Petersen, 2010, p. 115). Granted, Petersen (2010) opines that the intuitive approach to determining ethics is unclear since opinions on dignity and punishment vary depending on the views of the individual. However, he acknowledges that intuition does play a role in how criminal justice ethicists define dignity, which may explain how the death penalty may not seem to them morally permissible since it violates the dignity of the criminal. In essence, given that the crude interpretation of lex talionis is “a tooth for a tooth, an eye for an eye and a life for a life”, the state is acknowledging the value of the life of the deceased victim by executing the offender. However, that would create a moral dilemma as the acknowledgement of the victim comes at the cost of the offender’s life. Lex talionis could therefore be a way out through the ambiguity of the Kant-influenced intuitive approach (Petersen, 2010) as it gives the leeway needed for the law to find a means of proportional retribution that both honors the value of the life of the deceased while not violating the life of the offender.

Reform, public education and the death penalty

Moreover, the death penalty is also unconscionable as it does not allow for actionable reform from the criminal, which constitutes a moral failing on the part of the state due to its failure to educate the offender. A punishment that denies the prisoner any chance of actively making amends fails to conform to the rehabilitative penance model of punishment (Conrad, 1983). To illustrate this, Conrad elaborates that the death penalty might allow the criminal to repent spiritually at best, but it would be virtually impossible for them to make any material impact on society once they are killed (1983, p. 42). Although Conrad emphasizes that atonement “is not a legal task”, he reasons that by allowing the criminal to live, the criminal would be given a chance to make amends by contributing to society, which fulfils the duty of the state to educate the offender. Indeed, this failure extends beyond the lack of opportunity for reform. The death penalty has been accused of betraying the duty of the state to educate society since it commits the very crime it seeks to punish (Lacey, 1983). Lacey points out that the death penalty “may, subtly and indirectly, heighten social tolerance of killing” by engaging in the same criminal act of murder and fuelling a society’s disregard for the human life of the criminal (1983). He also highlights evidence of criminals using the death penalty as a promise of martyrdom, where they are encouraged to kill because of the presence of the death penalty rather than deterred by it. In this case, the death penalty violates not just the life of the offender, but also the lives of those who were killed as a result of inaction from a desensitized public. Therefore, the death penalty arguably fails on every front as a means of public education, and ought to be abolished in favor of alternative punishments which adhere to the ideals of reform and upholds the inviolability of persons.

Deterrence and the death penalty

Critics may argue that the death penalty serves a moral utilitarian purpose (Pojman, 1998) as it deters other would-be offenders from committing a capital crime (Kramer, 2011), which makes a strong stand against the violation of other human lives in society. Through the Best Bet Argument by Ernest Van den Haag (as cited in Pojman, 1998), Pojman explains that the death penalty leads to reduced risk of additional murders since it is only logical that some potential murderers would be deterred by the punishment. Deterrent punishments induce fear into potential offenders, as Kramer (2011) elaborates:

Insofar as capital punishment or any other type of punishment is a deterrent, it tends to reduce the incidence of criminal activity by leading people to be frightened about the detriments that will be inflicted upon them if they engage in such activity. (pg. 8)

However, Pojman (2011, pg. 49-50) himself concedes that past research into the effectiveness of the death penalty as a deterrent has been inconclusive. Further studies conducted by Joliffe & Farrington (n.d.) has shown that criminals do not typically engage in cost-benefit analysis as proposed by Pojman (2011), instead establishing that crime is typically caused by individual variations and community influences. Naming the death penalty as an effective deterrent against criminals who engage in cost-benefit analysis erases the vast majority of criminals who commit crimes due to environmental circumstances rather than logical reasoning. Furthermore, the death penalty inherently violates the sanctity of human life as it objectifies the offender in the name of deterrence. Effectively, the offender is no longer treated as a human with rights, but as a warning to the public. The death penalty hence dehumanizes the offender and strips them of their value as a human being. Indeed, whether the death penalty is the most effective deterrent at all is a subject of contention. Notably, Bedau (1970) criticizes the effectiveness of the death penalty as a deterrent in relation to alternatives such as life imprisonment. He concludes that since proponents of the death penalty are unable to prove that the death penalty is superior to life imprisonment in terms of deterrence, it follows that by the principles of utilitarianism, the death penalty would be morally impermissible as the criminal’s life would be lost without any of the intended benefit to society.

Culpability and the death penalty

The clinical cruelty of the death penalty may also be found in how a person’s right to life can be arbitrarily assessed based on their neurological maturity and culpability (Aronson, 2007). The death penalty is morally impermissible in the way it is handed out, where normally inconsequential identity markers and circumstances may be the sole determinant between life and death, which is in itself often a highly debatable process. The recent case of Nagaenthran a/l K Dharmalingam comes to mind (Amnesty International, 2021). Nagaenthran had been accused of trafficking 43g of heroin or diamorphine into Singapore, where trafficking more than 15g of diamorphine is an offence that carries the death penalty (Misuse of Drugs Act, 2008). While the Singapore government maintains that Nagaenthran was mentally sound at the time of his offence and intends to proceed with the execution, activist groups around the world argue that Nagaenthran was intellectually disabled given his intelligence quotient (IQ) level of 69, and therefore unable to appreciate the deterrent purpose of the death penalty. Meanwhile, under Section 314 of the Criminal Procedure Code, persons below the age of 18 at the time of the offence may not be hanged for a capital offence, but must instead serve a life sentence (2015). The River Valley High School killing is a prime example of a young person who was spared the death penalty despite committing a capital crime (Lam, 2021). In both cases, the death penalty was handed out or avoided based on the offender’s supposed neurological maturity and ability, which is in turn inferred from neurological data or presumptions. In his paper, Aronson points out that such studies are highly contentious as there is no concrete evidence that neurological immaturity or disability results in reduced culpability, or vice versa (2007). Due to the rigid nature of the law, an offender on death row may not be assessed based on their individual circumstances. Given that a person’s right to life can be arbitrarily revoked based on their presumed culpability, the death penalty is morally impermissible as it haphazardly condemns some to death while sparing others.

Conclusion

For millennia, the death penalty has persisted as a means of punishment reserved for the worst of crimes. However, as societies evolve to value the worth of every individual, the death penalty has been abolished in many countries, with governments beginning to recognize the inviolability of persons and the moral reprehensibility of sentencing an individual to death. In countries such as Singapore, the gallows are prized as an effective tool for deterrence and public safety. Unfortunately for us, it seems that the death penalty is here to stay.

(1800 words)

References

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