People have often argued that the death penalty is not morally legitimate in our civilized society which has the means to safeguard the social good without putting some very dangerous individual to death (for instance because we have prisons which it is virtually impossible to escape from, and thus convicts have no realistic chance, once inside, of ever getting out and threatening the public). Others, on the side advocating for capital punishment, have argued that if the state doesn’t allow for a sentence of capital punishment then there will be less incentive to think twice about committing some crimes. For instance if the sentence for murder is a lifetime in prison instead of capital punishment then there is less of a deterrent to commit murder, in just the same way as if the sentence were 40 years in prison instead of a life sentence. Against this those opposed to capital punishment have argued that, empirically speaking, given the statistical data, places where capital punishment exists as a sentence do no show any significant difference in the rate of crimes committed for which the sentence is capital punishment when compared with places where capital punishment is not within the state’s power to sentence.
Alternatively, those who have argued for capital punishment have argued that the state can legitimately sentence somebody to death not with anything else in view other than justice itself. When a person has done something truly and remarkably wrong, like torturing (both psychologically and physically) little girls over a period of a few months until they die, just to see them possibly transcend their own pain (as in the movie Martyrs), then the state has the right to exercise its authority to the extent of putting that person to death, not to deter others from committing the same crime, but to do that which it is just to do.
Opponents of capital punishment from the religious sector of society argue that only God has the right to judge somebody or to exact justice in the moral sense, and so it would be overstepping the role of state, and it would in fact be to intrude into the territory which belongs to God alone. Some such people have argued that capital punishment can only be legitimated in the case where it acts as a deterrent and so aims toward social good rather than justice.
I used to hold this position until it was pointed out to me that Canadian law explicitly indicates that the courts have the right to exercise their power to sentence not only for the social good, but for the sake of justice. I used to think, along with St. Augustine, that, in the words of Dr. William Cavanaugh (who lectured last night at Concordia University on A Politics of Multiplicity: Augustine and Radical Democracy) “[on the Augustinian view of political theory] coercive authority is temporarily necessary, but coercive government is not natural.” He noted, however, that Thomas Aquinas, contra Augustine, regarded the state as a natural institution, the legislation of which intends to direct people to the ideal, the highest good of society.
It was in thinking about that last night that I came to this new thought today. Perhaps capital punishment could only be legitimate if it had justice in view, and could never be legitimate if it were intended as a deterrent. If we accept that it is morally unconscionable (unjustifiable) to treat a human person as a means to an end instead of an end in themselves, then it seems obvious that we cannot kill somebody in order to deter others from committing their crimes. If we did, then we would be treating that person as a means to an end, the end being social good. However, if the state sentences somebody to death, or to time in prison, it should be for the sake of realizing justice, which it is legitimate to do insofar as it is natural. For the state to sentence with justice in view is plausibly natural, and so can be in step with natural law theory in ethics, along with new natural law theory. Therefore, a person could be sentenced to capital punishment, but the only morally legitimate way for some governing body to pass that sentence would be if that governing body were seeking to exact justice (not vengeance) instead of seeking to deter others from committing the same crime.
However, even in the Catholic Church there are canon laws which are meant to impose penalties precisely as deterrents. For instance, if a woman in the Catholic Church, or a man, either procures for herself, procures for someone else, or performs an abortion, then they are automatically excommunicated. If that canon law were changed the Church’s doctrine would not have been overturned. Rather, the Church aims to deter people from procuring abortions because of how morally outrageous and serious a crime against humanity such an act is, and means, by excommunication, to draw attention to the moral unconscionability of the act.
Perhaps a governing body can intend for some sentence to be a deterrent, without treating the person sentenced as a means to an end instead of an end in themselves. For instance, the state can have justice as the immediate intention, and can intend the sentence to act as a deterrent only secondarily.
Two final thoughts: 1) somebody once said to me that the reason capital punishment cannot be allowed is that we are sometimes wrong, and we can never give back the life which we have taken. My response was that we can also never give back years of somebody’s served sentence if wrongly convicted either. The questions here concerned have to do with when we have morally sufficient certainty that the convicted person is guilty, and whether the sentence of capital punishment is in proportion to the crime or crimes committed. 2) Another person once argued that capital punishment was actually too expensive for society, more expensive than a lifetime of prison related expenditures. I think such a point is dubious, but suppose for the sake of argument that it were true, couldn’t justice demand the state to exercise capital punishment even if it were an economic burden? I think so.
To be clear, I’m not for capital punishment in Canada necessarily, I am only here reviewing some arguments floating around in my head, and it looks to me like the better arguments are on the side of allowing capital punishment as a sentence for certain horrendous crimes.