Ideas On: The Death Penalty. Can it be justified?
The last execution in the United Kingdom occurred in August 1964. It has been close to 60 years since its abolition in 1965. While it is largely correct to call capital punishment a settled political issue in the U.K., it remains an idea with significant support amongst the public. Support for re-introduction consistently sits at around 40% and less reputable polls show support exceeds 50% in specific cases. Lucy Letby, the now convicted child-murderer, is just one recent example. Lee Anderson, now former Deputy Chair of the Conservative Party has advocated for restoration.
The purpose of this article is to examine what has changed between the 1960s and 2024. Is the case stronger than before? Has technology and science overcome the doubts that always underlined death sentences? If we have, is the wave of abolition which swept across the European world in the second half of the 20th century about to be undone?
Polling
I can think of no better summary of the issues with polling than the famous national service scene from ‘Yes, Minister’. A recent article from YouGov explains the issue as applied to the death penalty in particular but, in summary, public support increases from 40% to 50% in the following circumstances; multiple murders, child murder, and terrorism.
The problem with the discourse around capital punishment is that it occurs within one of two scenarios: a complete vacuum or illustrated by a particular event. I suspect that this is because we are normally idealists but become more ‘emotional’ when confronted with heinous illustrations. More ‘emotional’ does not mean less rational or correct — ignoring emotion and intrinsic senses of justice when considering punishment for criminal offences is an error. Justice is a democratic concept not a scientific one and public consensus is the ultimate arbiter. It is for this reason that continued abolition must be defended — even if it feels like a settled issue.
Philosophy
An opinion on the death penalty will be highly influenced by your perspective on the purpose of the justice system. In western philosophy it is easiest to to divide the issue into two camps: the Utilitarian and the Retributivist.
For utilitarians, the justification for all action revolves around the the ‘good’ it causes or, in other words, its ‘utility’. Putting aside the fact that what is and isn’t considered ‘utile’ is a source of great debate amongst subscribers to this school of thought, it is generally accepted that the utility of punishment for crimes is:
- Deterrence
Punishment is justified because it will prevent further harm.
- Cost
It is cheaper to take a criminal in custody than to allow them to run riot.
- Rehabilitation
Intervention can reduce recidivism (re-offending).
For retributivists, punishment is justified because it is ‘deserved’. This is called ‘desert’ in philosophy. Punishment therefore follows the crime, not in the utilitarian sense where the severity of a punishment is escalated until a net positive position is established. But rather punishment should be severe enough to equal the crime committed — reestablishing a sort of judicial balance. This very much follows the the principle of lex talionis a concept more commonly understood as “eye for eye and tooth for tooth”.
And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth.
— Exodus 21:24
The concept of punishment being justified based on ‘desert’ is as old as humanity and it would be dishonest for anyone to say that they didn’t have a basic affinity for it. It feels good to see the person that wronged you being wronged in the same way.
Your perspective on the death penalty will therefore be based on principles you believe that punishment is justified with. For a retributivist the death penalty is a logical conclusion of an equal society. If you have committed the ultimate crime you must pay the ultimate price. The only consideration that must be made is whether the method of administering the final penalty is more severe that the crime as this would, in effect, have the same unbalancing effect of the original crime. In the US, for instance, Capital Punishment is considered legal so long as it does not cross the threshold of ‘cruel and unusual’. This is actually the subject of a new controversial execution in the US state of Alabama where a prisoner was killed using the novel method of nitrogen gas. This new method was called ‘cruel and unusual’ by the United Nations — this threshold being itself established under the UN Charter of Human Rights.
For a utilitarian the answer is much more complicated and the consequences in need of more analysis. Obviously, the penalty does nothing to promote the rehabilitation of the criminal but, remember, we need only a net positive outcome to justify the punishment. So, let us look at the last two factors in more detail:
The financial burden
When analysing this factor, it is important to understand that this article is written from the prospect of modern day Britain and, perhaps more broadly, Western Europe. The administration of capital punishment in the Kingdom of Saudi Arabia is very much likely to be cheaper than if Britain adopted the punishment. Suffice it to say that the US is the only ‘developed’ country and ‘just society’ to still employ the method and for this reason it will serve as our illustrative example.
In the USA the facts are absolutely clear on the matter. According to Amnesty International the median cost of the death penalty is $1.26m and the cost of a ‘comparable non-death sentence’ was $740k. The death sentence is, in other words, 70% more expensive to administer. However, these figures are based on a 2003 ‘audit’. More recent studies of equal validity are hard to come by and there seems a reluctance for these statistics to be published. But it it is illustrative that in the last 13 years the State of Louisiana has executer zero inmates while incurring costs in excess of $7m.
There is a simple explanation to these high costs; the death sentence is a hard sentence to have upheld through the whole appeals process. According to the Death Penalty Information Centre (DPIC) ‘most cases in which the death penalty is sought do not end up with the death penalty being imposed’. Even when the sentence is imposed there is no guarantee that it will be upheld all the way to execution. The prolonged process (compared to a life sentence) is the main cause of it’s cost. The DPIC also explains other parts of the process become more complicated: jury must be screened for their view on the death sentence; most defendants for this type of crime cannot fund their own lawyers, leaving the state to pick up the cost; and inmates are usually incarcerated in a special facility for solitary confinement.
Clearly, there is no evidence to support the death penalty being cheaper than life in prison.
Deterrence
Proving the deterrent effect of any punishment, let alone for the the death penalty, is nye on impossible. When considering deterrence most people defend its effectiveness by asking people who have never considered a crime whether they would prefer to have their hand chopped off or rob a bank. But such hypotheticals ignore the fact that most people are instinctively deterred against criminal behaviour and that most criminals are desperate and already understand the consequences of being caught. There is also significant evidence to suggest that the biggest deterrent is being caught not the punishment itself. That is because social shame is a powerful force and because desperate criminals understand that they are doing something ‘wrong’.
If we consider the American situation again, another metric to consider is the intentional homicide rate between Europe and the United States. The rate per 100,000 in the US is 6.38 whereas the rate in Western Europe is 3.73 and other parts in Europe have even lower homicide rates and this includes the UK which has a rate of about 1.0 — please note that the U.K. has not reported this data since 2020.
There are of course may differentiating factors between these countries and the USA. You may already be thinking about the gun-ownership factor. However, I believe that this only goes to prove how little importance deterrence has against other drivers of criminal behaviour: desperation, necessity, and, especially when it comes to homicide, opportunity.
The conclusion to this section follows the inconclusive nature of deterrence science.
Protecting the innocent
With the exception of mutilation, capital punishment is unique in its permanency. Death cannot be reversed and therefore miscarriages of justice which result in death can never be remediated. So, what are the chances of a miscarriage? The USA, the only developed democracy to still practice capital punishment, estimates that the rate of false conviction amongst those sentenced to death is 4.1%. This is according to the a 2014 study published by the The National Academy of Sciences. Out of context this figure seems very small and results in an accuracy rate of practically 96%. However, if we apply this to the 263 people executed in the USA between 2012 and 2022, 10 people may have been innocently put to death.
While it is undoubtably true that accuracy in conviction has increased with the advent of modern science and the increasing quantity and quality of the evidence available to courts (e.g. CCTV, location data, etc…) can we ever be accurate enough to avoid what would, in effect, amount to the murder of innocent citizens?
Whether or not you consider this to be an acceptable cost of the punishment will depend on ones approach to crime prevention. After all, the justice system exists as a consequence of crime in order to deter its occurrence.
Conclusion
I believe that most people are aspirational utilitarians when it comes to the criminal justice system. That is to say that when you ask people, outside the context of a specific criminal, whether they believe that the primary objective of justice is rehabilitation or punishment they will tend to espouse the prior. But this belief is held is an idealistic one and, generally, when presented with a particularly heinous criminal (e.g. a child-rapist) people tend to become a lot more retributivist. This hybrid perspective, I think, is actually quite productive. These heinous criminals tend not to be desperate individuals who are pushed into an involuntary life of crime and are usually bagaged with a panoply of mental issues. To put it simply: a shop-lifter is more rehabitable than someone who murders for pleasure.
Does this leave space then for the death penalty? I don’t think so. Our judicial system, like our political system should be aspirational and should exist to fight our less rational outbursts. Because the ideal is utilitarian, justice exists to remove criminals from the public (by imprisonment) and return them when they are safe. That could means people spend life in prison but it shouldn’t mean their death.
This article was updated by the author for clarity on the 6th of April 2024.
