The Death Penalty as Retribution

The next argument that is put forward in favour of the death penalty is that it’s required as part of retributive justice.

The major problem with this position is that it has no basis in any sound ethical theories, and appears to be nothing more than a holdover from various religions.

Under Utilitarianism, actions we take must generate a tangible benefit over harm. On this view, I cannot fathom how the death penalty is ethical.Moreover, as this penalty constitutes an actual harm (the death of a person), on Utilitarianism the death penalty is just flat out unethical.

John Rawls is kinda the go-to philosopher when it comes to Justice. His two principles, sketched out briefly, are

  1. If you didn’t know who you were in the world (criminal or not), would you be willing to accept a rule (law) that put certain criminals to death.
  2. Any new rule in society must, at a bare minimum, maintain the gap between the advantaged and less advantaged in this context.

While the death penalty (in principle) doesn’t fail either of his criteria, it completely fails the second in practice: the people on death row are overwhelmingly from minority groups, people who are socioeconomically disadvantaged, or (usually) both.

So how can we hold this deeply unethical stance, and call it “Justice”?

The best argument (stated simply) that can be made is that:

  1. Society has checks and balances, and these need to be maintained for society to be ‘just’.
  2. If you commit a harm within society, you need to ‘pay’ for that, so that you haven’t freely ‘gained’ something at a cost to others.
  3. If you take a life (or do something comparatively horrendous), then you owe a life.

Let’s be clear here: this has no basis in either reality, nor any more theory. The “checks and balances” that society has are often terrible; I don’t mean that they are often insufficient for the crime, but they overpenalise the poor for their crimes. So the first premise is false.

The second premise requires supporting arguments, that fall in line with ethical theory. To cut to the chase: there are none. Sure, there are plenty of arguments, but none that fall in line with ethical theory. Fundamentally, this premise suffers from a critical failure of logic: no-one “gains” from the criminal’s death. The criminal isn’t “paying” anything: they are being killed. Setting them for a life-time of labour, whereby their physical output contributes to society would deal with this to some extent, but arguing in favour of death? It’s entirely irrelevant, and ‘pays’ no-one.

The third premise likewise doesn’t work. Even worse, when we look at the legal system in practice, this is not how the various legal systems of the world work. To take the overused example of the recent defrauding of the public by banks worldwide: thousands of people have been made homeless. Their belongings repossessed. They’ve been evicted, and their homes taken. Criminal prosecution for the people responsible for this? Less than 10. Lives have been destroyed, yet this people won’t be required to “pay that back”. Sure, it could be argued that ‘they should die’, but… what the hell? Who does this HELP? This seems to be an entirely purposeless endeavour set up to make us feel better.

It may be argued that the killing of the perpetrator of the crime is involved to show how the state values the victim: I cannot find a substantive argument for this, and (at best) this still falls afoul of the Two Wrongs Make a Right Fallacy. And really, I think our justice system should be a bit better than our pet cat bringing us dead things…

All in all, the arguments in favour of the death penalty as retributive justice are vapid and without support. Disagree? Please feel free to present one in the comments.

Part 1: The Death Penalty, Deterrence in Principle
Part 2: The Death Penalty, Deterrence in Practice
Part 3: The Death Penalty as Retribution
Part 4: The Death Penalty, The Economic Argument

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One response to “The Death Penalty as Retribution”

  1. Thanks for writing this wonderful series. I was assuming you would mention the concept of “free will” to destroy the argument of retribution. Once we understand that there is no such things as free will, argument of retribution totally evaporates. Like that psychopath with tumor example. If we know his tumor(or some seriously fucked up childhood) is making him kill people, we consider him victim of biology/environment but not so with “normal people” committing acts of murder/rapes.

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