Extended Examples: Capital Punishment

Extended Examples: Capital Punishment


Punishment and its justification

  • A) The deliberate infliction of deprivation and hardship on a person; hence, it has great disutility.
  • B) “Not the sort of thing one would freely consent to have imposed on oneself” (Bedau, "Capital Punishment", p. 170); hence, potentially, it violates autonomy.
  • C) It may violate human rights, including the rights to freedom (liberty), happiness, and even life.

Some general constrains:

  • Can I defend CP to the society of rational beings who are well informed and rational? Why or why not?
  • If I were to talk to someone who is innocent yet sentenced to death, how would I defend (justify) what the society does to him or her?

Forward Looking (Consequentialist) Reasons for Punishment

Bentham: “If it ought at all to be admitted, it ought to be admitted in as far as it promises to exclude some greater evil.” (p.134)

  • A) Rehabilitation Theory: Punishment reforms (rehabilitates) offenders and corrects their actions.
  • B) Social Defense Theory: Punishment prevents crimes by a) deterring potential criminals, and b) incapacitating past and potential offenders.
  • C) Punishments brings comfort to the families and friends of the victims and may benefit society in some other way.

A Retributive Theory of Punishment (or backward looking reasons for punishments)

The reason for punishment is that a crime was committed, and that crimes ought to be punished. The idea is that punishment is fair/just repayment for some wrong (or crime) being done. It’s a non-consequentialist reason.

Kant: "If he has committed a murder, he must die. In this case, there is no substitute that will satisfy the requirement of legal justice. There is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is no equality between the crime and the retribution unless the criminal is judicially condemned and put to death. But the death of the criminal must be kept entirely free of any maltreatment that would make an abomination of the humanity residing in the person suffering it. Even if a civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves around the world), the last murderer remaining in prison must first be executed, so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do this, they may be regarded as accomplices in this public violation of legal justice." (The Metaphysical Elements of Justice (1797), transl. (1965), p. 102; see Rachels, p. 142))

For Kant, punishment should be retributive as well as proportional to the crime. 

Some people look upon capital punishment as a form of vengeance or violent revenge. But for Kant, capital punishment was a way of respecting the criminal as a person. You use the criminal’s “maxim” (permitting killing) when you deal with him.  Kant: “His own evil deed draws the punishment upon himself.” 

But does it mean that punishment is just revenge? There are some similarities but there are also very important differences

  • Retribution is done for wrong, while revenge may be done for an injury, harm, or slight. 
  • Retribution sets an internal limit to the amount of the punishment.
  • There is (or ought to be) a "fair proces" determining what the proper punshment is. Such process does not exist in so far as revenge is considered.

So, revenge is not the same thing as fair (just) punishment. 


  • (AR) Absolute (Extreme) Rejectionism: No matter what, CP is not (and cannot be) justified. (An analogous view in the domain of "Just War Theory" is an absolute pacifism imp-lying that no war, not even a defensive one, is ever justified.)

CP involves a deliberate and intentional killing of a person; according to some, such an act is never justified  (it’s murder); it undermines the ideal of the sanctity (special worth) of human life (because of various slippery slope considerations);

  • (EP) Extreme Proportionalism: CP is always justified; it is the only fitting form of punishment for the cases of murder, for it is only form of punishment that is proportional to the harm inflicted in such cases.

Se Kant above. 

  • (C) Contextualism: Whether CP is justified or not depends on the circumstances, including the possible effect of punishment, whether or not it can be administered fairly, alternatives, and similar factors.


Alleged Benefits:

Rehabilitation: It may apply to some forms of punishment but it does not apply to CP. An executed person is killed rather than rehabilitated.

Social defense: Allegedly, CP incapacitates a person and deters others. In fact, there is no empirical (scientific) evidence that CP prevents future crimes, lowers the rate of violent crimes, etc. 

Closure: Maybe, but usually what works is some counceling and therapy. 

Real Harms:

Is Capital Punishment Especially Cruel (and Unusual)? 

Jonathan Glover: What seems particularly cruel and horrible about CP is that the condemned man has the period of waiting, knowing how and when he is to be killed. Many of us would rather die suddenly than linger for weeks or months knowing we were fatally ill, and the condemned man's position is several degrees worse than that of the person given a few months to live by doctors. He has the additional horror of knowing exactly when he will die, and of knowing that his death will be a ritualized killing by other people, symbolizing his ultimate rejection by the members of his community. The whole of his life may seem to have a different and horrible meaning when he sees it leading up to this end. ("Execution", in Causing Death and Saving Lives)

Wrongful convictions and excutions:

Even according to the most pro-CP organizations, at least 39 innocent people have been executed in the United States from 1992 through 2004. Between 1973 and 2005, 123 people in 25 states were released from death row when new evidence of their innocence emerged.

These numbers seem way too conservative. A recent study implies that about 4% executed people are innocent.

Some additional special reasons against CP:

It is not (and it can hardly be) applied fairly. It involves the discrimination against the minorities and poor people.

 It is expensive (at least 2.5 more expensive than life in prison w/o parole); see "Financial Facts about the Death Penalty" (http://www.deathpenaltyinfo.org/costs-death-penalty). 

We can achieve the very same benefits without imposing on people the death penalty. The life in prison would achieve just that. So, based on the consequebtialist considerations, CP is not justified when this alternative exists.



Retributivism requires that past crimes are punished. But it does not tell us in and of itself how to punish them.

So, is CP justified? To use Kant's Imperative (the formula of respect), an act or a policy is justified when they do not involve treating anyone merely as a means. CP is an extreme infringement on persons autonomy. In many cases, it is a violation of autonomy of innocent people. And there is no reason to to impose such an extreme punishment (given there are better alternatives). It does not seem like it can be justified on Kantian (retributivist) grounds either. 



 Some questions to ask yourself

1. Am I willing to allow innocent people to be killed by the state in order to maintain capital punishment when I know that, comparing to the life in prison without a parole, it has no positive social effects (and it has some negative social effects)?

2. Would I still be willing to accept those 39 deaths (in facts 100s of deaths, according to the recent study) if those individuals wrongly executed were all people that I know and love, such as my parents, or children, ot friends?

3, If I were to meet one of these innocent person who are about to be executed, could I honestly look into his eyes and say we have to do it because _________ (fill in the blank)?

Additional readings and recourcess