In 1976, the U.S. Supreme Court reestablished that capital punishment was constitutional. Since that date, 13 states have put to death 123 criminals. California will execute its first death-row inmate in 23 years if convicted killer Robert Alton Harris fails in his final legal battle. Some 2,400 people now await their day of reckoning on death row.
By all accounts, we are entering a new era of executions. In contrast to results of opinion polls two decades ago, a majority of the public now apparently supports the death penalty. And political candidates are scrambling to announce their credentials in favor of capital punishment.
Public attitudes favoring the death penalty reflect a growing frustration with our failure to stanch criminal violence. And the public justifiably is outraged by well-publicized cases in which violent criminals walk free after a few years behind bars. But public sentiment and political expediency are unreliable guides to morality or public policy.
Nor does emotion offer a cogent basis for rejecting capital punishment. Some opponents of the death penalty rely on a distorted sympathy for the accused. Yet these accused are often savage and ruthless. Ted Bundy, executed in Florida last year, deserved no compassion or mercy. He committed multiple murders, all of them with cold-blooded calculation.
Not misplaced sympathy, but moral argumentation—about standards of right and wrong, about justice and the role of the state—can best sustain the case against capital punishment. That case begins with the assumption that a free society must recognize at least two fundamental principles. First, individuals have a right to pursue their own ends provided that they do not harm others. And second, individuals must be held responsible for their actions.
In this context, criminal action poses a particularly troublesome problem for architects of our political institutions. If criminals are not to roam freely among us, we must find some way of removing them from our midst—a task that involves some harm to the offender.
What, then, is the appropriate dose of harm to dispense? Ancient Roman law endorsed the notion of retaliation—"an eye for an eye," or, more extremely, "a death for a death."
The more utilitarian approach looks to punishment as a deterrent. It should be meted out, the argument goes, with sufficient clout to deter others from following down the path of iniquity.
Neither of these theories of justice is compatible with a free society. Retaliating for murder by executing the murderer may satisfy the desire of some for vengeance, but it does not create a more just society. French sociologist Emile Durkheim rightly noted that "there is a real and irremediable contradiction in avenging the human dignity offended in the person of the victim by violating it in the person of the criminal."
To make this argument is not to diminish the criminal's responsibility for his actions. Rather, it is to acknowledge that criminals, whatever they might have done, are still humans. If their crime requires that they lose certain rights as citizens to interact freely in a community, they do not, by their actions, lose their fundamental right to be treated as human beings.
By most ethical standards, the premeditated killing of one individual by another is immoral. The state, in implementing a system of criminal justice, ought not to be exempted from this moral standard. The state is not above the law, but is the guarantor of the law. State executions thus jeopardize the very principles that make peaceful society possible.
Arguing for capital punishment on the basis of its usefulness as a deterrent is also problematic. The empirical evidence that capital punishment does restrain would-be murderers is inconclusive.
And there is another matter raised by making deterrence a centerpiece for constructing systems of criminal justice. Certainly we want to diminish crime. But appealing to the "safety of the community" can become a convenient catchall to justify the death penalty as a deterrent to all sorts of actions. Indeed, it is just that sort of justification that lay behind the oft-criticized executions so frequently implemented behind the Iron Curtain in years past.
Criminal justice in a free society requires that we abandon retaliation and deterrence as our basis for action. A third approach—the retributivist view— would punish the offender to underscore that wrong actions carry with them adverse consequences. Unlike retaliation, retribution doesn't require the death of murderers to achieve this aim.
The retributivist view meshes well with a fourth view of the role of criminal justice—protecting society. This view concentrates not on the criminal, but on the community.