Two rival death penalty initiatives are on the November ballot. Proposition 62 seeks to abolish the death penalty. Proposition 66 intends to make it more efficient. The moral questions raised are complex.
Opponents of the death penalty argue that killing is always wrong. Defenders of capital punishment believe that some criminals deserve death. Between these two positions there is little common ground.
Death penalty defenders often understand punishment as retribution. Retributive justice is intuitively appealing. The scales of justice are balanced by restitution and retaliation. Thieves should pay back what they’ve stolen. And if you take a life, you owe a life.
Critics worry that retributivism is too closely linked to revenge. Revenge seems to provide emotional catharsis. There is pleasure and power in hurting those who harm us.
Donald Trump tapped into this emotional element this week when he called for “just and very harsh punishment” for a recently captured terrorist. Someone in the crowd yelled, “hang him.”
Death penalty opponents reject vengeful calls for harsh punishment. At the 6th World Congress Against the Death Penalty this year, Pope Francis argued that the death penalty “does not render justice to victims, but instead fosters vengeance.” He continued, “The commandment ‘Thou shalt not kill’ has absolute value and applies both to the innocent and to the guilty.”
Modern executions don’t satisfy vengeful emotions. Lethal injection kills without spilling blood. The modern trend is toward more humane and less cruel punishments. A possible place for common ground is found in the idea that cruel bloodlust is wrong and that suffering should be minimized.
We certainly don’t behead or crucify people – and we condemn other cultures that do. We don’t hold public executions. Crowds no longer mock the condemned on the gallows.
But a more public and bloody execution system might work as a deterrent for crime. Our sanitized, secretive and infrequent executions don’t scare anyone.
If the death penalty worked as a deterrent, it might be justified as socially beneficial. However, research on the deterrent effect of the death penalty is inconclusive. And the death penalty is applied so infrequently in California that any deterrent effect is lost.
There are reasons to be skeptical of the deterrent effect of the death penalty. Violent criminals seem to accept violence. Armed bandits understand that they may be shot while committing a crime. The threat of execution will not deter suicidal terrorists.
Further reflection points toward political questions. For example, some fear expansive and corrupt government power. In a debate about capital punishment with Hillary Clinton, Bernie Sanders said, “I just don’t believe that government itself should be part of the killing.”
Libertarians tend to agree with Sanders about limiting the state’s power to kill. Libertarian presidential candidate Gary Johnson opposes the death penalty because he worries that innocent people may be executed. He has reportedly said, “I don’t want to put one innocent person to death to punish 99 who are guilty.”
Concern about the chance of executing an innocent person is connected to larger concerns about fairness in the justice system. Racial and class-based issues should be considered here. Abolitionists think that the justice system will not fairly apply the ultimate punishment. Reformers want to make sure that the system is fair and just.
In her debate with Sanders, Clinton asserted her trust in the federal court system. She defended the use of the death penalty for heinous crimes and said that she has “confidence in the federal system.”
It may be surprising that Clinton agrees with Trump about the justification of the death penalty. It is not surprising that Trump goes further than Clinton in supporting aggressive policing – and even torture – as necessary for maintaining social order.
Beyond the politics, we should consider higher moral goods. Death penalty opponents extol peaceful virtues such as mercy, gentleness, and forgiveness. But death penalty advocates see retributive justice as required by the ancient law of eye for eye, life for life.
Serious and good people have disagreed about this for millennia. There are compelling arguments on each side. Before voting in November, take time to discuss the issue. And acknowledge that decent people will disagree about capital punishment, as we do about other vexing moral questions.