Capital punishment is just one of many types of punishment for criminal activity. The main purpose or function of all criminal punishment is prevention (some other functions are social recognition of a criminal act, social condemnation, recognition of the victim, support for the victim, establishing the facts etc.).
Prevention through punishment
Prevention through punishment is the attempt to use punishment of a particular crime in order to prevent future crimes of the same type. Punishment therefore increases social welfare. It is believed that punishment can prevent future crimes in three ways:
- incapacitation: by punishing a criminal, here or she is incapacitated (physically restrained or killed) and hence cannot commit any more crimes (this type of prevention is limited to a particular person being prevented from committing more crimes)
- fear and deterrence: the example of a punishment will deter other people from committing a similar crime; another word for fear – terror – can be found in the word deterrence (this type of prevention, as the next one, covers potentially the whole of society)
- education: by punishing a criminal, society receives a messages from an authoritative source that certain types of behavior are immoral (punishment is kind of an official reaffirmation of morality); the public spectacle of punishment therefore infuses society with morality and it is hoped that people will internalize this morality and act accordingly, so that future crimes and punishments become less ubiquitous.
Of these three ways in which punishment is believed to be able to prevent crime, only the second one figures prominently in discussions on capital punishment. Its success in deterring crime is, by many, believed to be the main justification of capital punishment (although the statistics aren’t clear about that). Obviously, incapacitation cannot justify capital punishment since life imprisonment incapacitates equally well. In this post, I will argue that there are practical and moral objections to the use of punishment as a deterrent (irrespective of the discussions on the possible success of this strategy), and that the same objections hold with respect to punishment as education. However, this doesn’t mean that I argue against punishment as such.
Deterrence is inherent in all types of criminal punishment, not just capital punishment. Punishment is intended to instill fear in other potential criminals. People are aware of the punishment for certain crimes, because the trial system is open and public, and this awareness leads them to make cost-benefit analyses. The threat of punishment for a crime creates a cost, a disincentive, that should outweigh the possible benefits of committing this crime. Proponents of capital punishment believe that only this type of punishment imposes a high enough cost to deter certain crimes.
There are several problems with this statement:
Believers in deterrence assume that all or most criminals undertake a rational calculation of costs and benefits before committing their crime. That’s obviously not true. There are the crimes of passion, for example, which do not follow from such a calculation. And many types of criminals aren’t rational at all, or aren’t able to make the necessary evaluation of cost and benefit. Hence, many criminals are undeterrable. (Think for example also of the extreme case of the suicide terrorist). One should be careful taking a life when there may be no benefit in doing so.
It’s well known that many if not all laws suffer from under-enforcement. The chances of being arrested and convicted for any particular crime are less than 100%, and often much less. Criminals who do engage in rational analysis of costs and benefits, and who are therefore potentially deterrable, will take under-enforcement into account, and this will sharply reduce the effect on them of another person or even persons being punished. If a potential offender perceives the likelihood of punishment to be very low, then the deterrent effect of the severity or even cruelty of previous punishments for similar crimes is nullified.
3. Blindness to the causes of crime
Capital punishment, or any other form of punishment which focuses on deterrence as a means to prevent future crime, overlooks other, perhaps more fruitful ways of preventing crime. Addressing the underlying causes of crime, or people’s motivations to engage in crime, and working on the social conditions which foster criminality, may be more successful as a prevention strategy than merely relying on punishment, fear and unlikely cost-benefit considerations.
4. The immorality of deterrence
However, the strongest objection against deterrence, especially when it takes the form of capital punishment, it its immorality. One of the most important lessons we have learned from Immanuel Kant and others is that we should never use fellow human beings as means to an end. An offender, even the worst possible offender, has a certain value as a human being, a certain dignity if you want, which should be respected and which cannot be canceled in the process of punishment. An offender shouldn’t be a mere tool to send warnings and intimidations to possible future offenders.
Punishment is said to achieve prevention of future crime because it is educational. It educates society about the wrongfulness or immorality of certain actions by doing certain things to offenders. And it thereby reinforces internalized morality and encourages law-abiding behavior. And, say the proponents of capital punishment, the message sent to society is stronger if the punishment is more severe. Punishment therefore not only applies and enforces rules and norms, but also creates them because it internalizes them, or better helps people to internalize them. However, objection number 4 which I leveled against deterrence is also applicable here. Education as a function of punishment also doesn’t take persons seriously, in the words of Rawls. It instrumentalizes offenders and uses them to send messages to society. And reducing people to a means is a kind of dehumanization.
And what about the victims?
It could be argued that all this puts too much importance on the offenders, and ignores the victims and their relatives and friends. On the contrary, I think. I take the preventive function of punishment very seriously (while at the same time pointing out other functions which also benefit victims or potential victims, see above). I just wanted to point out that deterrence isn’t necessarily very effective as a prevention tool (something which can explain the statistics cited above). We should therefore be careful when imposing harsh punishments on people while assuming that the harsher these punishments are, the more crime we can prevent. People just don’t do cost benefit analysis quite as often as we assume.
And I also wanted to point out some other problems with deterrence, problems not of a practical but of a moral nature. When we allow the justice system to instrumentalize people for the sake of deterrence, but also for the sake of education, we mirror the practices of many criminals, and therefore justify these practices. Criminals typically use other people as means, and violate a fundamental moral rule. When we allow the justice system to violate the same rule, and instrumentalize offenders, we legitimize this instrumentalization, and hence we will encourage criminal behavior rather than prevent it.