Any attempt to justify the use of the death penalty in a liberal or parliamentary democracy evokes a paradox of sorts, since one is inclined to associate penal policies of democracies with those of enlightened societies, exemplifying standards of decency and humanity, epitomizing the most fundamental right of an individual – the right to life.
The intuitively moral and ethical question that therefore arises is:
How is it even possible for the Capital punishment retentionist to legislate away this fundamental and inviolable moral right to life inherent in another human being, —
and do so in a way that convinces an entire society that the death penalty protects them from the scourges of death and drugs?
The Kantian categorical imperative or unconditional moral law of treating human beings as an end in themselves rather than as a means to an end–
is increasingly subverted by technocrats of penality, who constantly conceive of new ways to maximize what they claim to be the greatest benefits for the greatest number in society– a utilitarian principle of morals propounded by the English philosopher, Jeremy Bentham.
As a consequence, the respect for the individual’ s moral dignity inhering within the fact that we are human beings capable of reason rather than animals with primordial instincts–
is displaced by an inclination for promoting populist policies reflecting the desires and wishes of a population;
desires that can only be relative to the sensibilities, emotions and thoughts evinced by a section of society; sensibilities varying according to the political rhetoric of governments invoking the desirability of Capital punishment.
So instead of relying on a universal moral law or a supreme principle of morality that would be true in any socio-political, cultural situation, and applicable universally to all human beings regardless of any contingencies involving possible benefits to society , —
bureaucratic technocrats of government evoke subjective, culturally relativist grounds to justify the killing of a convicted offenders, arguing a form of exceptionalism associated with the notion of Hobbesian Sovereignty.
The grounds for carrying out the death penalty may vary depending on particular penological theories invoked by politicians such as general deterrence, particularistic interests of Criminal justice stakeholders clamoring for the eradication of drug traffickers , and populists sentiments on punishment cloaking the collective desire for retribution or revenge in some cases.
A rather extreme historical example of State sanctioned killing undertaken to promote the collective interests, desires and retributive aims of a particular racial group in Society was the perpetration of the Holocaust of the Jews, Roma and Sinti Gypsies by Nazi Germany.
Prof. Michael Sandel of Harvard University presents his insight into the Categorical imperative posited by the German philosopher, Immanuel Kant. Kant rejected the idea that moral laws were to be derived from the pleasure-pain principle- a morality of one’s actions contingent upon that which achieves the greatest pleasure for the greatest number. Sandel explains Kant’s conception of the categorical imperative:
“We can’t base the moral law on any particular interests, purposes or ends, because then it would be only relative to the person whose ends they were.
But suppose there were something whose existence has in itself an absolute value, as an end in itself. Then, in it, and in it alone. would there be ground of a possible categorical imperative.’( Sandel 2010, p.121)
One might convincingly argue that the fate of individuals , whether they should live or die at the hands of an executioner –
should not be left to the decision making of capricious Politicians, seeking to entrench themselves in power and wealth, nor to the changing emotional sensibilities of a society whose desire for vengeance may be easily mistaken for a conception of justice;
An idea of justice that is premised on the tenuous ground of gratifying the desires and demands of sections of society conceived as a form of popular justice may sound ‘democratic’,
yet reveals itself as a hedonistic, pleasure seeking principle with the potential for legitimizing all manner of atrocities and human rights violations.
The moral failure of such Societies that affirm the juridification or the legalization of the death penalty legitimating the Capital institution lies in failing to recognize the intrinsic moral value of individual human beings as being part of humanity.
As Michael Sandel eloquently writes:
“What could possibly have an absolute value, as an end in itself?
Kant’s answer: humanity . ” I say that man , and in general every rational being , exists as an end in himself , not merely as a means for arbitrary use by this or that will”.
This is the fundamental difference, Kant reminds us , between persons and things. persons are rational beings. They don’t just have a relative value , but if anything has , they have an absolute value , an intrinsic value. That is, rational beings have dignity” ( Sandel 2010, p.122).
Defying these moral imperatives that affirm the human dignity of individuals, legislators and policy makers in parts of the United States and Asia persist in advocating an instrumentalist penal policy of death for an ostensibly undesirable category, class and race of offenders convicted of crimes portrayed by such technocrats of death as existential threats to society.
David Garland, Professor of Law and Sociology at New York University cites the US Supreme Court case of McCleskey v Kemp 1987 as a case in point;
a case where ‘the Court refused to consider statistical evidence showing that the state of Georgia routinely sentenced defendants to death on the basis of racial considerations.’ (Garland 2010, p, 282).
“two empirical studies of Georgia homicide cases between 1973 and 1979 conducted by Iowa law professor David Baldus and his colleagues – studies that were described by several of America’s leading criminal justice researchers as ‘among the best empirical studies on criminal sentencing ever conducted.
The most striking findings of the study was that fewer that 40% of Georgia homicide cases involve white victims , but in 87% of cases in which a death sentence is imposed the victim is white.
White – victim cases are roughly eleven times more likely than black victim cases to result in the death penalty.’ ( Garland 2010, p.282)
Such revelations of the racialized use of death penalty on a disproportionate number of ethnic minorities of lower socio-economic classes of convicted offenders in the US and arguably among some Asian countries should shock our senses.
Regardless of such empirically proven injustices associated with the use of Capital punishment, political technocrats of retentionist States continue to exploit the limitless potential for Capital punishment to be used as a penological tool of social engineering, one that could possibly engender a sense of security and stability for the majority in society, but at the cost of those human lives considered dispensable.
In discussing such socially constructed realities, David Garland points to five discursive metaphors employed by those operating within the Institution of Capital punishment:
‘the metaphors of rules, of war, of order and balance, of healing and of the people’s will.’ (Garland, 2010, p.61).
We proceed to consider the metaphorical device that privileges the will of the people over an individual’s right to life in legitimating the death penalty.
Democratizing the Death penalty: An invocation of the ‘will of the People‘
In invoking the ‘will of the people’ as a legitimizing force driving the retention of the death penalty, legislators and judges continue to abnegate any personal responsibility for State sanctioned killing of convicted murders and drug traffickers,
instead, spurious Capital punishment surveys of a small number of respondents in a population are periodically carried out by interested stake holders -Politicians and their justice departments – in attempts to sanctify the State’s infliction of extreme violence on those languishing on death row in our prisons.
It is as if the approval of the use of Capital punishment by a few hundred respondents living among millions of individuals in ethnically and culturally diverse Societies provides legislators and judicial officials with not only the democratic legitimacy, but also the emotional detachment necessary to kill a living human;
a killing undertaken without the need to experientially sense the repugnance, horror , disbelief and overwhelming disgust that one experiences when witnessing the sight, smell, sounds of death of a person whose neck is deliberately broken by a State official.
The existence of such an emotional detachment experienced by the Public in relation to State executions of offenders is possibly due to the lack of public visibility of the Capital Institution itself and its practices that remain a State secret.
Consider this: A number of societies in Asia prohibit members of the public including families of murder victims and convicted murders or drug traffickers from attending executions in prisons. The Capital institution itself including the number of inmates executed, their ethnical, social and economic backgrounds, and the process leading to the hanging of an offender is often shrouded in secrecy and guarded by State laws.
With the increasing sanitization and bureaucratization of executions and the death process itself carried out behind the closely guarded walls of State prisons, it is not surprising that respondents of Capital Punishment surveys may have no qualms about endorsing the death penalty.
What becomes clear is that the collective morality of a few – whether jurors or a section of the population- effectively seals the fate of a condemned prisoner; a fate perceived by significant parts of the civilized world to be a morally repugnant and cruel form of torture. Human Rights Watch reports:
In December, the General Assembly plenary is expected to adopt the resolution, which shows the world’s rejection of this inherently cruel and irrevocable form of punishment.
Only 39 countries voted against the resolution. The 11 from the Asia-Pacific region were: Afghanistan, Brunei Darussalam, China, India, Japan, the Maldives, North Korea, Pakistan, Papua New Guinea, Singapore, and Tonga.
(Human Rights Watch , Nov. 24, 2020)
The historical equivalent of such a brutish collective response to a perceived crime was the practice of lynching- the killings of Black Americans that persisted even after the end an era of inhumane slavery in the Southern States of the US in 1865….
As David Garland graphically writes:
“The bloody public lynchings of the Jim Crow South have long since ended, but the specter of lynching remains a presence in today’s death penalty , a continuing historical force that imparts a peculiar shape to the contemporary institution.
The official forms and administrative arrangements of contemporary capital punishment – which take great trouble to ensure extensive legal process, dispassionate administration, and dignified, humane execution – are a mirror image of the lynching process.
They work to differentiate contemporary capital punishment from the arbitrary , summary, racist violence that too often characterized America’s death penalty in the past.
But the social dynamics and distributions of the institution tell a different story.
The death penalty continues to be concentrated in the South. It continues to be driven by local politics and populist politicians.
It continues to be imposed by lay people. It continues to target blacks whose victims were white. It continues to produce false accusations and impose unwarranted punishments,
And it continues to be an occasion for political mobilization around demands for local sovereignty, traditional values, and popular justice. Distinct echoes remain.” (Garland 2010, p.280).
By it very nature a State sanctioned killing involves the taking of the life of a moral being, a creature of reason;
its perverse use of an individual human being as a means for achieving a political end such as deterrence, makes it no less morally repugnant;
even if such a political end is rationalized by officials as a legal right exercisable by a Sovereign State;
One might argue, however, that a legal right devoid of morality is indefensible.,…
What accounts for such popular support for Capital punishment among citizens of a State?
Do populist sentiments supportive of Capital punishment have anything to do with political narratives ceaselessly woven by death penalty advocates and cultural agents of the media, journalists and State officials?
Narratives that the death penalty epitomizes the will of the people, mediated by legislators in their enactment of Capital Crime codes and executed by prison officials when hanging inmates or injecting them with lethal poison?
Such a discursive project undertaken by State officials acquainted with the pervasive power of political rhetoric and its ability to transcend and define one’s ethical, moral and religious perspectives, acts as a meta-narrative from which people are urged to make their moral and ethical decisions.
Garland explains the effect of such narratives on cultures :
”Capital punishment must make sense in the culture in which it operates. It has to be made intelligible, legitimate , and if possible , compelling. This task is accomplished through narrative.
Cultural actors- which is to say officials , activists commentators journalists and artists- tell stories about the death penalty that give it sense and meaning , invoking metaphors and associations that anchor it in familiar cultural scripts and established forms of authority. .”( Garland 2010, pp.60-61).
The repetitious nature of such narratives with their particularistic metaphors and symbols justifying State sanctioned death in the face of what may be portrayed as an existential crisis that threatens to unravel society – the scourge of drugs, for instance—
is further reinforced by juridical endorsement of the courts acting to “shape perception , accord significance, and fix associations”. ( Garland, 2010, p. 61)
‘these narrative frames shape thinking and help form attitudes. They prompt people to think of the death penalty in this way rather than that , to adopt one perspective rather than another , to make particular associations and inferences rather than others that would be equally possible. They are, in short, a rhetoric of motives.’‘ ( Garland, 2010, p. 61)
The question of whether a society tends to embrace or reject such political narratives such as -the ‘death penalty works’ or is an ‘effective deterrent’ against potential murderers and drug traffickers –
is, as Garland argues, to some degree contingent upon its cultural, historical and political context, rather than on any presumed axiomatic truth about the legitimacy of Capital punishment.
The socialization of individuals within specific cultures in ways that lead them to integrate certain cognitive frameworks of thinking supportive of the death penalty, may in turn condition their emotional responses and rationalizations on the use of Capital punishment, responses reinforced and affirmed by the technocrats of death over time.
It may, therefore, be emotionally disturbing and possibly even morally repulsive for a society whose historical and cultural roots are entwined with the holocaust or genocide of particular ethnical, racial or religious groups to revive the use the death penalty which was once practised by a State bureaucracy of death.
Such culturally negative connotations associated with the use of the death penalty may evoke feelings that one intuits as morally disturbing.
Consider Bryan Stephenson’s insightful account of a lecture on Capital punishment he gave in Germany and the response of a scholar after his presentation:
And the room got very quiet, and this woman said, “There’s no way, with our history, we could ever engage in the systematic killing of human beings. It would be unconscionable for us to, in an intentional and deliberate way, set about executing people.”
And I thought about that. What would it feel like to be living in a world where the nation-state of Germany was executing people, especially if they were disproportionately Jewish? I couldn’t bear it. It would be unconscionable. (Bryan Stevenson·TED2012)
It seems that until and unless one recognizes the death penalty to be unconscionable, technocrats of Capital punishment will continue to convince us that it is here to stay……
Asian Nations Reject UN Vote Against Death Penalty, Human Rights Watch, November 24, 2020.
‘Michael J. Sandel, ‘Justice: What’s the Right Thing to Do?’ Farrar, Straus and Giroux, 2010
David Garland, ‘Peculiar Institution’, Harvard University Press, 22 Oct 2012.
David Garland, Punishment and Modern Society: A Study in Social Theory, 2012, University of Chicago Press