Many people would agree that there are what we could call contingent reasons to abolish capital punishment:
- it’s practiced in such a way that it doesn’t meet basic standards of fairness and non-cruelty:
- for instance the racial discrepancies in the system in the U.S.
- the irreversibility in cases of miscarriages of justice
- and the methods used in Saudi Arabia)
- and it also doesn’t do what proponents say it’s supposed to do:
- it fails to deter crime when compared to life imprisonment without possibility of parole – see here and here
- and it fails to be retributive because in many cases it could be argued that murderers for instance deserve a fate much worse than death – capital punishment is often much less than an eye for an eye; however, few proponents of capital punishment are willing to take that road.
However, is there an argument for abolition that does not depend on contingent facts? Or, in other words, even if the punishment would be administered in a totally fair, correct and non-cruel way, and even if every execution would deter n murders, would we still have reasons to abolish it? To put it in yet another way: is there something inherent in capital punishment, in the very nature of it, that justifies its abolition?
I think there is. Before I tell you, however, I just want to say that it is in a sense futile because the contingent reasons for abolition are so strong that they are enough. I don’t think we can ever find a way to apply capital punishment without discrimination, without the risk of killing innocent people, and without any cruelty (even painless executions involve psychological cruelty, often for years on end). Hence it isn’t really necessary to make the case that even in perfect circumstances – which will never pertain – capital punishment isn’t justifiable.
But I’ll make the case anyway, because it reveals something that is philosophically interesting, even if it’s not practically useful. Imagine the perfect but in my view improbably if not impossible circumstances in which capital punishment is used as a fair, non-cruel and correct way of punishing certain criminals (correct in the sense of avoiding miscarriages of justice) and thereby deterring further crime. The intention of being retributive is almost impossible, even in ideal circumstances, as I have argued above, unless we give up traditional notions of cruelty which few proponents of capital punishment are willing to give up, so we can leave that aside.
So the focus is on deterrence. What does it mean to deter? It means that criminals are used as instruments to advance the collective interest. They are sacrificed for the greater good and a resource for the benefit of others (namely the intended future victims of future murderers). When the state instrumentalizes people in this way, it sends a clear message that this is a normal way of treating people, with possibly disastrous consequences. 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.
Now, you could say: how is this different from life imprisonment without parole? Isn’t that also meant to deter and hence open to the same criticism? No, it isn’t. Life imprisonment is intended to stop the criminal from doing further crime, and hence the criminal isn’t used to deter others. Furthermore, life imprisonment is intended to give the criminal the opportunity to make amends.