Justification for the Death Penalty

Is the death penalty an acceptable punishment? Is it moral? Is it prudential? I will take a pragmatic position, arguing that the death penalty is an instrumental and symbolic act for maintaining order and harmony. Morality, that which appeals to a higher good, is typically codified by societal conventions and expectations. Arguing whether the death penalty is moral would require appealing to what is traditionally acceptable, or asking whether it benefits society in some way. In this case the question of the death penalty is a pragmatic one.

A society based on liberalism is characterized by the mutual collaboration of free and equal individuals working towards certain ends, with the most general end being the growth and flourishing of all of its constituent citizens. This is a feature of life more generally. Laws are created to preserve order and to ensure that this collaboration occurs justly, where liberty and equality are preserved for all. Why do we use the death penalty? This form of punishment is reserved for those who undermine the harmonious order, order that is instantiated to ensure the well-being of society, and is used for punishing the most heinous of crimes, most typically those committed by individuals who murder.

I argue that the death penalty is justifiable on moral and prudential grounds, that the authority established in the formation of the government, in which all citizens tacitly consent to, has ultimate power to exercise its interpretation of the law in order to justify punishments. Speaking broadly, this authority is derived not from its power to exercise rule, but because of the constitutional document which established it and the tacit consent of its citizens to exist under the rule of this document.

The argument in defense of the death penalty presented by Ernest van den Haag rests on the questions of justice and deterrence. In the opening paragraph of his essay In Defense of the Death Penalty, Haag establishes a dichotomy of justice and concludes that the death penalty is either always just or always unjust. Haag argues that while equality and justice are desired they are not identical and any argument against the maldistribution of justice is invalid. Haag argues that unless the moral drawbacks of an activity, like the death of innocent people, outweigh moral advantages, like saving peoples lives, the activity is warranted. If the advantages of human activities outweigh disadvantages, those activities are morally justified.

Haag’s argument for deterrence states that “our entire penal system relies on the proposition that more severe penalties are more deterrent than less severe penalties.” Matters of deterrence must then consider whether there is research between executions and murder rates that supports a deterrent effect. Haag says that if executions had a zero negative effect on murder rates, then the death penalty cannot be justified in terms of deterrence. Any indication that the death penalty deters murders allows for its moral justification.

He goes so far as to include arguments of vengeance to promote social solidarity against law breakers as a legitimate motive of “compensatory and psychologically reparatory satisfaction for an injured party, group, or society.” Haags says that the death penalty expresses a social disapproval that is a deterrent in and of itself.

Haags also provides a supporting argument revolving around the sacredness of life. He posits that if the death penalty is not just, “can one really say there is no act so irredeemably viscous as to deserve death?” The corollary is that if there is nothing worth dying for then there is nothing worth living for. .

“Thus, punishment’s both proclaim and enforce social values according to the importance given to them. There is no other way for society to affirm its values. To refuse to punish any crime with death, then, is to avow that the negative weight of a crime can never exceed the positive value of the life of that person who committed it. I find that proposition implausible.” (210)

The argument put forth by Haag regarding the death penalty revolves around values, specifically the values of a society. The implicit premise of this argument is that society’s greatest value is harmonious life. Values are assumptions that serve as the basis for ethical or right action maintained by individuals. They form a hierarchy of priorities that guide and justify actions. A principle value is a foundation upon which other values and measures of integrity are based. Values are normative and relative, rooted in culture and convention, as well as empirical and absolute, existing on behalf of sheer physical and physiological necessity. Regarding the normative values that Haag is referring to, the highest aim of a society based on liberalism, characterized by the mutual collaboration of presupposed free and equal individuals working towards certain ends, is that of the growth and flourishing of all of its constituent citizens. This aim can be attributed to all living organisms..

“Never to execute a wrongdoer, regardless of how depraved his acts, is to proclaim that no act can be so irredeemably viscous as to deserve death– that no human being can be wicked enough to be deprived of life.” (210)

For my argument, I would like to posit that society at large can be likened to a human organism, a body where every man is a specific cell with specialized duties that, when combined with other specialized cells, function as organs that perform unique tasks which are vital to the well being, not only to itself, but every other cell and tissue and organ. In this way the collaboration of all these cells, working within their individual ecology, yet cooperating with vastly different cells of varying compositions and duties, contribute to the harmony and well-being of the whole body and ensure that mind, the seat of authority and governance, can exercise a rule that only adds to the flourishing of all its parts. Seen in this light it becomes evident that, whenever possible, it is of the best interest of the whole to preserve the life and functioning of all constituent parts.

During infection, the body, containing the unanimous consent of its individual parts, does not reject the inflicted cell(s) outright but tries to rehabilitate at the mutual expense of all, such as when a body goes into fever to combat an infection. It is not until the infection compromises the integrity of the body to survive that the infected area is rejected.

However, on a microscopic level, when an individual cell malfunctions to the detriment of other cells around it, a disharmony or disequilibrium occurs that disrupts and jeopardizes the proper functioning of other cells, and the body wastes no time identifying this cell as something foreign and disposing of it so that harmony may be restored. In the same way, when the aim of harmonious life within the political body is undermined, society must take corrective action to remedy to defect and punish the violator, in the same way an organism protects itself from disease by sending white blood cells.

This analogy loosely illustrates a justification for the death penalty. Men at birth are like stem cells, equipped with the potential to fulfill any function of the body. Depending on the needs of the body these cells grow to perform given functions or duties. Each member of society has a duty to contribute to the well being of society. In the event that a member is infected, or acts irregardless to the well-being of society, this member must be rehabilitated or terminated.

While the topic rehabilitation is not within the scope of this paper, I will mention that the nature and extent of this rehabilitation should be the first priority of society and should be maximally explored before the termination of a citizen. As it stands, this is not the priority of America’s current judicial system. On the contrary, dissenting members are grouped together in isolation from society. I should also mention that dissenting citizens, from committing murder to seditious acts, are arguably good for society in the same way that infections force a body to adapt and evolve proper immune responses.

To conclude with this analogy, I want to point out that citizens are under the rule of the government in the same way the body is under rule of the mind. The existence of each are mutually dependent upon one another. The actions of the government often have consequences that are to the detriment of the body, but this is not in the best interest of government. A tyrannical government that does not act in accordance with the best interest of society will eventually undermine its ability to rule. Like a drunk who poisons his body for thrill at the expense of his judgment, the body will revolt in nausea. In this case the well being of many members of the body will be compromised or, in many cases, terminated. While the body will recover short term, consistent abuse will cause the members of the body to revolt, stripping the government of its power, until proper authority is restored that is in the best interests of the whole body.

While it is a comforting notion to think that all men are free, equal, and autonomous, this simply isn’t the case. Despite whatever ‘essence’ that is attributed to man, it is his constitution, as manifested by his actions, that determine his worth to society. The American constitution posited certain citizen rights, not as a token of their inherent worth, but as an expectation of their worth. For a citizen embedded in society, men have a responsibility to affirm a minimum worth by simply keeping with the laws. Because these ideal qualities are something to be attained, however, this task is not easy. Depending on your status within society, these ideals take different form and mean different things, irregardless of what the constitution intended them to mean. A man’s freedom is dictated by his power to choose decisions as well as the power to implement those decisions. Aside from whatever faculties nature endowed, we can see that education would play a tremendous role in expanding a person’s ability to choose, while wealth would impact a person’s ability to follow through on choices, despite their availability.

In conclusion, the death penalty is justified on moral grounds simply because it appeals to the higher good, namely to the harmony and well-being of society at large. It is prudential to terminate certain members irregardless of whether that justice was distributed fairly. Any maldistribution is simply a consequence of existing under the rule of that authority. In the event that tyrannical maldistribution becomes too extreme at the expense of the society, its members retain the ability to revolt and over throw the government.

Cahn, S. M., & Talisse, R. B. (2010). Political problems. (pp. 204-211). New York, NY: Pearson College Div.