Capital Punishment: The Peculiar Institution

Capital punishment in the United States as a policy and as an institution has a past older and just as horrible as slavery. The United States' death penalty is not morally justified because it is an excessive and deterrent punishment, and it denies the human dignity and worth of the prisoner, offering revenge instead of reparation for the crime.

When analyzing the moral justification behind capital punishment, we must first examine punishment itself. What is punishment, and what are the reasons or the rationale behind punishment in a society with a legal system?

The essential idea behind punishment is that an ordered, civil, and legally based society has laws to protect the rights of its citizens. When a criminal breaks a law, he or she breaks the bonds of the society. Without these bonds, society is not possible. Therefore, the criminal must do something, undertake some act to restore the bonds of society in reparation for his or her crime . Punishment is then reparation for an unjust act. Punishment cannot be justified as a deterrent to further crime, because the person being punished becomes a mere means to an end. By using someone as an example to deter crime, that person as a means loses his or her human dignity and worth. It is that dignity and worth that makes each of us human beings . Stealing the dignity of a person steals his or her very humanity, which is an excessive punishment for any crime. Also, punishment cannot be justified as revenge or retribution for a crime or injustice. Revenge for a crime carries the implicit notion that the criminal deserves the vengeful punishment. However in the instance of capital punishment, taking the life because the criminal deserves it totally denies the criminal's human dignity and worth . Therefore, revenge as well as deterrence is an unacceptable justification for punishment. In order or the punishment to be moral, it must exceed the injustice of the crime. The punishment must retain the dignity of the criminal, and must also, therefore, not be cruel. In order for the punishment to be justified, it must allow the criminal to restore his or her bonds with society.

It is upon this reasoning of punishment that I base my contention that capital punishment is immoral. In a post-September 11th world, this argument has become harder to accept. The idea of allowing perpetrators of horrible terrorist atrocities and mass murder to live is unacceptable to many Americans. However, capital punishment still remains an unjustifiable and morally unacceptable act because it deprives human beings of all their rights, as well as their human dignity.

A right is "a demand or an claim emanating from a self in regards to his or her due, and which other moral agents are obliged in conscience not to frustrate" . Human dignity is an absolute and inalienable right. There is no reasonable scenario by which someone may be deprived of his or her dignity, because it is that very dignity that makes us human beings. Without our inherent worth and dignity, we are no longer human. The exercise of some rights may be restricted justifiably. For instance, yelling "fire" in a crowded theater can endanger the safety and lives of others. In this case, a person's freedom of speech may be restricted. However, we do not lose the right altogether, it is merely restricted because full exercise of that right endangers others and threatens their own rights. Any natural and intrinsic right that we possess as human beings cannot be taken away unless we are killed. Obviously, all our rights are taken if we are killed. On the other hand, as human beings, we consent to restrictions on other rights because, as the old adage says, "my right to swing my fist ends at your nose." In order for society to work, we must only exercise our rights up to the point at which they infringe upon the rights of others. However, the crucial point underlying the definition of a right is that of justice. By giving each person his or her due, we sometimes restrict our own rights as in the fist metaphor. Each person restricting certain rights of their own ensures that other members of society receive their due and thereby justice is ensured.

This basic idea of a social contract and sense of justice are the bedrock foundations of our legal system. Bird's system of analyzing theories of justice better illustrates how integral the idea of justice is in discussing the morality of law and punishment. However, written law is not always the same thing as justice. For instance, German law in the 1930's required that all Jewish citizens wear identifying stars, and eventually required them to report to death camps. Henry David Thoreau wrote his famous essay "Civil Disobedience" for precisely the reason that some laws are unjust and must be protested until they are repealed. Capital punishment is also one of those laws. While laws may not always be just, justice should always be a criterion of the law. If a law does not contribute towards each person receiving his or her due, it must be unjust. Any legislation mandating a person to comply deprives that person of some right, and must therefore be in the interest of balanced justice, or it is unjust. Justice is based in natural rights because justice is our right; it is what is due to us, which makes rights the very basis of justice. Justice is also then an objective human normality because it is a right due to all humans. Therefore justice is it's own obligation, due to all people outside and inside legal and societal frameworks. Aristotle would even say that justice is a virtue; by giving each person his or her due, we each receive justice and give it, creating a completely virtuous, albeit utopian, world.

Ironically, the legal system is also known as the criminal justice system. All violence against humans in any situation must be justified. As a punishment, the death penalty falls short and cannot be justified. Some violence must be allowed, such as just wars, revolutions, and self-defense or defense of others. However, the state cannot find the moral authority to kill citizens, whether they have committed a crime or not. It is an excessive punishment, it is a vengeful punishment, and it is a deterrent punishment without any possible justification as a moral punishment. Perlmutter argues in favor of capital punishment, saying that the degree of the crime should be the measure of the punishment, meaning murderers should be killed and those who maim someone should themselves be maimed . However, Perlmutter does not explain why the custom of lex talionis, laws of retaliation, is justified. He hinges his entire argument on the statement that "if our standards of decency allow death as an acceptable punishment, then there are some crimes that warrant it as punishment."

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