”For centuries the death penalty, often accompanied by barbarous refinements, has been trying to hold crime in check; yet crime persists.
Because the instincts that are warring in man are not, as the law claims, constant forces in a state of equilibrium.”
—Albert Camus ( 1957 Nobel Prize laureate for Literature)
Camus’ chilling words conjure macabre images of Politicians feverishly invoking capital punishment as a panacea for ridding society of its scourge of drug traffickers and murderers;
The Myth that State sanctioned Death Penalty is legitimate
The paradox arises as to how liberal democracies, the bastions of human rights, as well Parliamentary democracies with their inclusive forms of governance are able to claim standards of decency and humanity while retaining the death penalty as a form of judicially sanctioned punishment
What remains problematic for such Capital Penalty States is the impossibility of sanitizing a form of punishment which historically involved one witnessing the sight and sounds of immense human suffering and torture ;
the visage of death at the hands of an executioner….
David Garland , Professor of Law and Sociology at NYU, refers to this dilemma as:
‘the problem of the body in Capital punishment’.
”Modern capital punishment aims to avoid the body, and certainly to avoid being seen to punish the body.
Its aim is to terminate life without implicating the body—a impossible aim, of course, but one that is assiduously pursued nevertheless’ ( Garland p.772)
This paradox of being able to dispassionately take human life, invoking the Laws of a Sovereign State, without appearing to be brutish and uncivilized is captured by Foucault’s depiction of the ‘modern, democratic contraption-
…..the guillotine introduced in 1791 by the French authorities.”( Garland p.773)
‘‘The aim of this modern, democratic contraption was to avoid “physical confrontation,” to minimize “contact between the law and body of the criminal,” and to reduce that awkward encounter to a split second.
As the guillotine’s inventor, Dr. Joseph Ignace Guillotin, remarked:
“With my machine I’ll cut off your head in the blink of an eye and you will feel nothing but a slight coolness on the back of your neck” (quoted in Smith 2008: 125)( Garland p.773)
The Death Penalty’s eliminatory power goes beyond the taking of human life…….The political and legal right to exist as a ‘ juridical subject’ in Society is essentially forfeited with the law’s legitimization of the death penalty.
With every execution , a human being is killed , but the intended application of the Positive Laws of the State , as Foucault argues, —
is to ‘a juridical subject, the possessor, among other rights, of the right to exist.” The modern state’s death penalty “was to have the abstraction of the law itself” (Foucault 1977:13 cited in Garland p.773).
”The history of the modern death penalty is indeed the history of reducing the scaffold’s torments, relaxing the executioner’s hold on the body, and hiding the corpse from public view —-
while developing techniques that do not wound, distort, or disfigure the condemned body, or cause it to emit the sounds and signs of bodily suffering.” ( Garland p.773)
One questions whether modernizing the techniques of Capital punishment—
in ways that cloak the sight, sounds and smell of suffering ordinarily evoking feelings of guilt, disgust and repulsion —
‘would dignify the use of the death penalty, and in some way legitimize it?
Judge Stephen Reinhardt, US Court of Appeals for the Ninth Circuit, explained it like this:
”what US federal law now requires is nothing less than the complete elimination of all “degrading, brutal and violent aspects of an execution”
and the staging of “a scientifically developed and approved method of terminating life through appropriate medical procedures in a neutral, medical environment” (Campbell v. Wood, 702′) ( Garland pg.781)
This essay argues that:
Such is the fiction of the death penalty:
The idea that Capital Punishment laws embodying the Political morality of State officials and supported by technologies of Death —
efficiently implementing them under the guise of Modernity, legitimizes the elimination of undesirables….
‘ the fiction of a disembodied death penalty and an execution
that “ends life without touching the body” help ensure the “dignity”
and acceptability of capital punishment.
These evasions and avoidances have helped sustain the life of capital punishment in this country long after it has been abolished elsewhere in the West. The disappearing body helps prevent the disappearance of the death penalty ( Garland p.790)
As Garland wrote:
“To think of punishment as a calculated instrument for the rational control of conduct is to miss its essential character, to mistake superficial form for true content.’
‘The essence of punishment is not rationality or instrumental control – though these ends are superimposed upon it – the essence of punishment is irrational, unthinking emotion fixed by a sense of the sacred and it violation.’ ( Garland 1990: 32)
The Mythology of Death Penalty’s Deterrence Effect
Capital punishment may be conceived as a form of ultimate violence, since it settles for nothing less than the killing of a human being;
This begs the question of whether the death penalty epitomizes a rational, justifiable form of violence-
no different from the kinds of violence justified in the eyes of Criminal law’s doctrine of self-defence constituting the use of reasonable force- protecting Society from dangerous Criminal elements….
Relying on such logic , might the political instrumentalization of the death penalty therefore justify, or perhaps even legitimize the State’s use of lethal violence on a living person adjudged guilty of a serious crime by a Court of law ?
To the political philosopher Hannah Arendt, ‘violence, being instrumental by nature’… ‘is rational to the extent that it is effective in reaching the end that must justify it. (Finlay 2009, p.28).
For Arendt however , violence resides only in the realm of justifiability, and is not legitimized by short term goals, which can only act as an imperfect rationale to justify the ends.
From this perspective, the instrumentalization of the death penalty as a form of ultimate violence can never be deemed legitimate;
Rather, Its justification, if it does exist as some vociferously argue , may only be found in its meeting of short term goals which adherents of the deterrence approach to punishment subscribe to.
Such justificatory logic associated with the use of the Death Penalty , however, is questionable:
How does one even begin to control or engineer the desired outcome of deterrence when dispensing such extreme forms of violence analogous with Capital Punishment?
The impossibility of ensuring that–
for every offender hanged or electrocuted, a potential drug trafficker or murderer is deterred from committing a similar crime?
Is it even humanly possible for politicians to wield such forms of omnipotence, mediated through Capital punishment over the existential choices of others in society?
Choices involving the killing of another or trafficking in Heroin or Crack Cocaine…..
Does the Deterrence effect of carrying out the Death Penalty strike fear in the hearts of the Public, ‘fear of the punishment they may receive if they break the law’ ? ( Carrabine 2009, p.296))
In respect of the general deterrence effect of punishment, Eamonn Carrabine , Professor of Sociology at the University of Essex. argues that it is ‘important to recognize that the effects are easily overestimated’ ( Carrabine 2009, p.296),
more so, as this essay argues , when the medium by which such deterrence is to be effected is the death of a human being…..
Retributivist Principles of punishment, additionally, do little to dispel the moral ambiguities underlying the application of the the Death Penalty, despite its origins that may be traced to the Enlightenment philosopher, Immanuel Kant ( 1724- 1804).
As Carrabine states:
‘For Kant the duty to punish was a categorical imperative that restored the moral equilibrium —-
a view that led him to famously declare that even on the dissolution of Society ‘the last murderer remaining in prison must first be executed.‘( Carrabine 2009, p.301)
Yet, the question remains unanswered, why Punish by imposing Death?
In what way could the State’s act of Killing a convicted Offender reverse the wrong suffered by victims of murder or drug traffickers, recalibrate the moral universe of such victims of Crime, their families and the Public, and restore balance to the scales of Justice?
Underlying the philosophy of Kantian retributivist thinking is the inexplicable need to do ‘what we have a right to do……..irrespective of any future beneficial consequence’ ( Carrabine 2009, p.301)
The problem is that relying on a legal right enshrined in the Positive Laws of a State to take a human life may not necessarily mean that one possesses a moral right to do so ……..
Such laws may legalize the Death penalty without legitimizing it …..
The irreconcilable contradictions inherent within these various philosophical justifications for imposing the Death penalty are further emphasized by the International Human Rights Organization, Amnesty International
”Scientists agree, by an overwhelming majority, that the death penalty has no deterrent effect. They felt the same way over ten years ago, and nothing has changed since then.
States without the death penalty continue to have significantly lower murder rates than those that retain capital punishment.” (Amnesty International 2020)
Empirical research cited in a December 2018 report by the Abdorrahman Boroumand Center, a Washington, DC-based organization promoting human rights and democracy in Iran found that:
’10 out of 11 countries that have abolished capital punishment ‘experienced a decline in murder rates in the decade following abolition’ . (Death Penalty Information Center 2019)
The Abdorrahman Boroumand Center Report stated that Countries had to fulfill the following criteria to be selected for the Study:
“they had formally abolished the death penalty at least ten years ago, at least one death sentence had been imposed or carried out in the decade prior to abolition, and murder rate data was available from the World Trade Organization’ (Death Penalty Information Center 2019)
The countries that met the study’s criteria were Azerbaijan, Bulgaria, Poland, Serbia, Estonia, Latvia, Ukraine, South Africa, Kyrgyzstan, Georgia, and Albania.”(Death Penalty Information Center 2019)
Additionally, the Study found that:
”One decade after abolition, the murder rates in these countries declined by an average of six murders per 100,000 population.”(Death Penalty Information Center 2019)
“Death penalty advocates’ fears that the state relinquishing the ultimate punishment will embolden potential criminals, or at least weaken deterrence, —prove to be unfounded in light of this evidence.”(Death Penalty Information Center 2019)
A survey done In 1996 by Radelet and Akers surveyed sixty-seven leading American criminologists revealed that:
‘overwhelming majority of the experts agreed that the death penalty never
has been, is not, and never could be superior to long prison sentences as a
deterrent to criminal violence’ ( p.490, Radelet and Lacock, (2008-2009)
Radelet and Akers argued:
“Our survey indicates that the vast majority of the world’s top criminologists believe that the empirical research has revealed the deterrence hypothesis for a myth.
In short, the consensus among criminologists is that the death penalty
does not add any significant deterrent effect above that of long-term
imprisonment.‘(Radelet and Lacock, (2008-2009)
A similar survey done by the same authors more recently in 2008 support their earlier findings:
‘large minority populations jeopardize the dominance of ascendant groups’ (Blumer 1958; Blalock 1967)—with the consequence that racially dominant groups make ‘political demands for punitive measures that target minorities’(Jacobs, D. and Stephanie L. Kent. 2007).
‘support for capital punishment is greater in areas with larger minority populations ‘ (Baumer, Messner, and Rosenfeld
2003); And that:
‘the probability of a legal death penalty is greater where black populations are most substantial (Jacobs and Carmichael 2002 quoted by Jacobs, D. and Stephanie L. Kent. 2007)
”Public support for capital punishment can be expected to expand after a growth in the nonwhite population.And,Executions should increase after expansions in nonwhite populations. Minority threat ought to have greater effects on less affluent and the less educated (Turner 1969; Edsall and Edsall 1991; Bobo and Johnson 2004)–who are more likely to support capital punishment and whose opinions have a greater influence on the polls than elites.”
Jacobs, D. and Stephanie L. Kent. 2007)
“The intentional killing of another person is wrong and as Governor, I will not oversee the execution of any individual. Our death penalty system has been, by all measures, a failure.
It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation.
It has provided no public safety benefit or value as a deterrent. It has wasted billions of taxpayer dollars.
Most of all, the death penalty is absolute. It’s irreversible and irreparable in the event of human error.”
Gavin Newsom, Governor of California, 13 March 20191 ( Amnesty International p,7)
David Garland, 2011, ‘The Problem of the Body in Modern State Punishment’, Social Research, Vol. 78, No. 3, The Body and the State: How the State Controls and Protects the Body, Part II, pp. 767-798
Jacobs, D. and Stephanie L. Kent. 2007. “The Determinants of Executions Since 1951: How Politics, Protests, Public Opinion, and
Social Divisions Shape Capital Punishment.” Social Problems 54(3):297-318.
‘Study: International Data Shows Declining Murder Rates After Abolition of Death Penalty’, Death Penalty Information Center, 3 June 2019.
Policy Issues, Death Penalty Information Center, 2020.
‘A CLEAR SCIENTIFIC CONSENSUS THAT THE DEATH PENALTY DOES NOT DETER’, Amnesty International 2020.
Finlay, C. J. (2009) ‘Hannah Arendt’s critique of violence’, Thesis Eleven, 97:1, pp 26–45.
Michael L. Radelet, Traci L. Lacock, Do Executions Lower Homicide Rates: The Views of Leading Criminologists’, 99 J. Crim. L. &
Criminology 489 (2008-2009)
DAVID GARLAND, Punishment and Modern Society: A Study in Social Theory. Oxford: Clarendon Press, 1990