Abstract

This paper examines the death penalty as a deterrent and argues that states have not only the right but the duty to apply the death penalty to criminal cases because it is incumbent upon states to back the law with force. The death penalty acts as a forceful and compelling consequence for those who should choose to violate the law and commit murder. For that reason it can be said to be a deterrent. This paper also examines the opposing arguments and shows that those would say it is not an effective deterrent cannot offer any quantitative proof for this argument because no measurements exist that could possibly render such a claim factual or provable. The paper concludes by showing that the death penalty should only be administered in states where there is harmony between social justice and criminal justice.

Introduction

While it may seem ironic that the death penalty should be considered as a deterrent for murder, the underlying premise that supports the proposition is simply this: laws must be backed by force in order to be compelling, and if the force is insufficient to carry the weight needed to compel order and respect for the law in society, both law and order will be unenforceable and therefore unsupportive of the natural aims of society. From this perspective, therefore, it may be seen that the death penalty carries no actual ironic tone in terms of acting as a deterrent for murder but rather that it acts as the necessary force of repercussion or consequence that a murderer can expect to experience should he violate the law which forbids the taking of life. In order to protect life, liberty and the pursuit of justice, the force of justice itself must be clear, palpable and discernible by those in society. If it is not, the moral compulsion to respect laws and follow them, including the law forbidding the killing of another person, will not be effective enough to deter persons from behaving badly. The moral order must be supported by the social order or else the social order itself will be undermined by its own lack of respect for moral law. Hammurabi in ancient times promoted this concept in his “eye for an eye” approach to law. The Old Testament mirrored this sentiment: “But if there is any further injury, then you shall appoint as a penalty life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise” (Ex 21:23-25). Though the teachings of the New Testament have suggested to some that such a concept was abolished by the law of Christ—“You have heard that it was said, ‘Eye for eye and tooth for tooth.’ But I tell you not to resist an evil person. If someone slaps you on your right cheek, turn to him the other also” (Mat 5:38-39)—the reality is that this was not the only pronouncement that Christ made upon the subject of killing. Indeed, He also stated that “those who live by the sword will die by the sword” (Mat 26:52). One can see in this important reminder from the most central figure in the history of the world that actions must have consequences, and it is up to those who would uphold the law that this concept not be lost on the public. For that reason, this paper will show that the death penalty must act and does act as a deterrent for murder when it is effectively applied in a system of justice that is fairly and equitably distributed.

No Respect for Law: When Capital Punishment May NOT Act as a Deterrent

In a society where the system of justice is unequally distributed by the upholders of the law, the application of the death penalty as a deterrent for murder cannot be said to be effectively applied. This is why it is imperative that the system of justice and the rule of law itself be implicitly and explicitly respected and enforced fairly and equitably for the death penalty to serve as a deterrent for murder. Consequences for actions must be established clearly and consistently in order for them to carry weight, to be seen as meaningful, and to be expected as the social and personal outcome of individual decisions (Weaver, 1984). If legislation is passed that prohibits certain acts but the prohibition of these acts is only executed sloppily or at best inconsistently, whatever deterrents might be utilized as consequences for breaking the law will be scorned by the general public. Indeed, history offers a perfect example of this principle with the Era of Prohibition in the U.S. during the 1920s when alcohol was outlawed and scofflaws (so-named because they scoffed at a law that was both despised by the public and ineffectively enforced by law enforcement officers). Individuals violated the laws of prohibition routinely by way of speakeasies, subversion of the legalistic parameters of the law (which allowed one to imbibe alcohol with a doctor’s note—similar to the way in which medicinal marijuana laws today allow one to legally escape prosecution under federal law for imbibing a schedule one narcotic), and other criminal activity. The end result of the lack of a true deterrent being able to be applied (mainly because of the lack of moral justification for the law in the first place) was that the social order became worse after than it was before: the rise of organized crime was ushered into existence... In order for the death penalty to serve as a deterrent for murder, it must therefore be applied in a system of law that is moral, consistent, equitable and fair. If that system is pervaded by other unjust laws, is inconsistently applied with regard to fairness and equitability, or is riddled with corruption (“the law’s delay” and the “insolence of office” as Shakespeare put it in Hamlet), the application of the death penalty as a deterrent cannot be justified simply because the law itself is ineptly executed and justice is unfairly served. In order for capital punishment to deter, law and order must already exist. In a society where neither can be said to exist, capital punishment serves no purpose other than to excuse a system of tyranny in a social system that has abandoned the need for moral justifications.
The law itself must be in accordance with morality or moral law. If it is judged to be opposed to the moral order that is innate in mankind, the social law will be rejected and spurned and the consequences of breaking it will also be despised (Bazelon, 1975). In other words, if the law is immoral, no so-called deterrent will effectively act as such because the law itself will not support a moral justification for such repercussions. Pretending as though they do is the perfect way to introduce the concept of martyrdom into the public arena once more. For instance, a martyr is one who is unjustly made to suffer (usually by way of execution) for violating a law (the consequence of which is death) that is unjustifiable in a moral society. Criminal justice and social justice must be in accordance, as Bazelon (1975) asserts, in order for a system of law to work, to be fair, to be equitable, and to be effective. In a society where social justice is at odds with criminal justice, the death penalty may not be prescribed as a deterrent to murder because the two systems—social justice and criminal justice—are out of alignment. To propose a negative solution to a minor problem without actually addressing the real major problem would be like attempting to fix an engine whose rod bearing is disintegrating by changing the oil. The effect will be innocuous at best, dangerous at worst (especially if it is assumed that the deterrent will satisfactorily address the problem of murder). In such an environment where social justice and criminal justice are out of alignment, where the moral order is not supported by the legal order or framework, deterrents are more tyrannical than they are morally enforceable. This is why it is imperative that criminal justice and social justice be united within a system of law and order. Failure to unite makes the practice of justice impracticable.

In the American system of justice, there is a clear controversy as to the extent to which social justice and criminal justice are in harmony. In the speeches of Angela Y. Davis (2012), it can be seen that the African American community is deeply distrustful of the criminal justice system specifically and precisely because it has such a long history in the U.S. of being at odds with social justice where fairness and equitability are practiced without respect for race, creed or ethnicity. Unnever and Cullen (2007) support this perspective, noting that there are clear racial disparities in terms of the distribution of capital punishment. National statistics on the race of defendants executed in the U.S. since 1976 show that 34.5% of those executed were black (“National Statistics on the Death Penalty and Race,” 2018). Yet according to the 2010 Census, blacks only make up 12.6% of the U.S. population. This is nearly a 300% increase in representation—a shocking figure when one considers that whites make up 72.4% of the population according to the same Census, yet only account for 55.6% of all persons executed in the U.S. since 1976 under the death penalty—nearly a 20% decrease. If the ratio of whites executed under the death penalty to whites in the U.S. population is lower, why is exponentially higher for blacks? The answer is supplied by social justice activists like Davis (2012) who says that the criminal justice system in America represents the US Organization—a violently racist system of oppression designed to marginalize blacks and install them in a new system of slavery manifested in the rise of the prison-industrial complex. From her position, the criminal justice system is an “ideological campaign to persuade us once again…that race is a marker of criminality” (Davis, 2012, p. 38). So if criminal justice in America is blocked by racist ideology implementing a system of law and order that is in harmony with actual social justice, when is it appropriate to use the death penalty as a deterrent for murder?

When Social Justice and Criminal Justice are in Alignment: Deterrents are Necessary

The answer to that question is simple: when social justice and criminal justice are in harmony, the death penalty may be appropriately administered as a deterrent for murder. In this harmony, it is acknowledged by society that the criminal justice system, that the framework of law and order in the community, is moral and justifiable and can and should, therefore, be respected. Out of this respect comes the acknowledgement that the…