One of the main issues in the Criminal Law causing a lot of discussions and debates is the issue of the death penalty. It is especially relevant due to the fact that many states are now mitigating the legislation abolishing the death penalty. This paper discusses the arguments of advocates and opponents in order to justify the legality and validity of the death penalty, as well as its necessity and appropriateness. The first part of the paper contains the arguments in favor of the death penalty, and the second part offers counterarguments to the main opinions of the opponents of the death penalty.
Arguments In Favor Of Death Penalty
The first argument deals with the need to prevent future crimes of the perpetrator. The death penalty is justified, if the perpetrator is extremely corrupt and dangerous to others, if he is able to repeatedly cause violence and murder. In such cases imprisonment does not guarantee the public safety of all citizens. Concerns arise from the fact that sooner or later the term of imprisonment will be over and the offender will be free again. Besides, for any convict there is always the possibility of escape. Even in prison the offender is be able to make attempts on lives of inmates, staff, guards or visitors. Taking into account all these possible threats the execution is the only way to save people from the impending violence. From this perspective, the death penalty is justified. By means of it the state protects the most important values developed by civilization, and especially the natural right to life of any innocent person.
The second argument is the need for a deterring example, to warn others from committing similar crimes. There are many people who are sometimes tempted to commit an immoral or illegal act. But a civilized individual is restrained by the moral and legal consciousness, fear of possible public condemnation and, ultimately, the fear of punishment. However, for some people the temptation can be so strong that the only way the government can use to stop them from committing crimes is the threat of inevitability of the most severe punishment. For them, executions of the convicts are a compelling warning, since most of the people are afraid of death. Fear of violent and premature death at the hand of the executioner keeps the potential perpetrators from violent acts. Thus, in ancient times public executions were popular. The development of civilization forced most states to abandon these terrible performances, but the death penalty is still capable of carrying out the preventive function of deterrence.
The third argument is the need for retribution for evil. The death penalty serves as a legitimate response of the state to the committed crime. Talion, the ancient law of reciprocity, demanded to reply evil for evil, and death for death. If the offender has taken other’s life, he should not complain that the logic of the principle of equivalent retribution will cause a similar reaction of the state. This was the traditional understanding of justice. According to it, the death penalty is justified.
The fourth argument is the right of the society to defend itself. If an individual is attacked by a criminal, the person has the right to kill an attacker for his defense. Human society is composed of individuals, and murdering of at least one of them can be regarded as an attack against society as a totality. Capital punishment is one of the means of protecting society in its integrity. It acts as an effective mean, by which the society seeks to protect itself and to protect its citizens from violence.
Counterarguments of Death Penalty
One of the most popular arguments of the opponents of the death penalty deals with the judicial error. No one can correct a miscarriage of justice if the person is dead. However, it is partly wrong to be guided by this principle. Considering such logic the society should prohibit complex surgeries, because the doctor can make a mistake and kill a person. Likewise exploration of space must be stopped, because scientists and engineers can make a mistake and cause deaths to astronauts. Any activity is connected with mistakes, and it is unclear why the issue of the death penalty is considered separately. Of course the death penalty should be imposed after a thorough investigation and trial to guarantee the correctness of decision. Abandoning capital punishment in these terms is wrong.
The opponents of the death penalty say that the society is responsible for the members, who have committed a crime, and it has no right to impose the death penalty because the society is also guilty for the crime. The idea that there is no justification for the taking of life by the state, put forward by the Italian jurist Cesare Beccaria in 1767 (Reggio, 1997).To some extent it is relevant, and the society is guilty. The decline of morals and general social environment motivates criminal activity. But why then the society does not free the perpetrators from any liability at all? After all, the whole society should be blamed. The answer is that each person chooses his own way in life whether it is law-abiding or not it is an individual choice.
A very popular argument is that the death penalty is the negation of the principle of punishment, the main goal of which is correction. Besides, the main goal of punishment may be called optional, because the state tend to be a supervisor, rather than an educator. Correction is the elimination of malfunctions, damage, and deficiency. However, what if the deficiency cannot be eliminated in other way, but by its total destruction? As cynical as it sounds, but elimination of a person can also be called a correction.
The opponents of the death penalty emphasize that in the countries where the death penalty is not applied, the crime rate is lower, than in the countries where the death penalty still exists (Hood, 1996, p. 180-189). However, it is likely that in this case the abolition of the death penalty is not the reason but rather the consequence of the reduction of crime rate. The countries where crime situation is favorable can afford to abolish the death penalty. Most likely this favorable environment has been achieved due to a long-term practicing of capital punishment.
There is an opinion, that sentencing to the death penalty and execution has a demoralizing effect on the society and sometimes leads to the commission of the same crimes in the manner of imitation. As a matter of fact, there is no perfect society. In any society, there will always be pathological murderers, rapists, maniacs, whose actions are not affected by the level of life, the general situation in the society, or the moral examples.
In any case, the true purpose of punishment is the protection of the society and its individuals. Protection against dangerous criminals can be done in two ways either by their complete isolation, or deprivation of life. In most cases both measures exclude the correction of the convict. Legislators should clearly define the goals of the punishment. Taking into account the fact that there is a category of incorrigible criminals, the death penalty is as natural and logical (though not morally justified) as life imprisonment or long-term imprisonment (Pojman, 2004, p. 74). Many opponents of the death penalty say that is “cruel, inhuman and degrading” (Amnesty International, 2011). The life imprisonment, which is offered as an alternative to the overwhelming majority of murderers, cannot be called a humane measure, especially if the correction role of life imprisonment is impossible.
The death penalty opponents also say that neither the state nor the people have the right to take the life for any reason. After all, the legislation allow killing people for example, in the case of self-defense or resistance of the offender during the arrest, not to mention wars, when there are generally no penalties for killing the enemy, but that enemy is also a human being and not a criminal. Can a murder ever be humane? What if sometimes there is simply no other choice? The stated above arguments prove the effectiveness of the death penalty. The arguments of its opponents can be easily contradicted.