This Radical Rant will explore the ethics of capital punishment through defending an extreme response to the question: Should murderers convicted of first degree murder be executed in the same fashion as their victims?
Radical Response: Yes.
Authored by Rebecca Harris, Chief Editor of The Existential Millennial
A murderer’s execution should mimic the death of their victim(s) as closely as possible (based on the evidence of the crime) in duration and method if that murder is proven premeditated. This type of execution (“an eye for an eye”) is permissible because it would better deter murder within the society, the murderer forfeited his or her basic right to life in violating the social contract governing all, the victim of the murderer and the public are owed retribution, and it is the moral responsibility of the state to establish justice and insure order and security for its citizens. The current method of execution does not service the People or the concept of Justice. While the morality of such lex talionis executions would be questionable (if not completely unethical) by the public, it has a higher probability of producing greater good than the execution methods in the past and present. This is the position that will be argued.
The death penalty existed in America before the United States came to into realization. The death penalty was first infused with American history in 1606 when George Kendall was executed as a spy by firing squad, but the death penalty (as an official punishment for crime) has a much longer history in human civilization.1 The penalty was established in Eighteenth Century B.C. under the great Mesopotamian king, Hammurabi of Babylon.2 Hammurabi’s Code of Law is famous in ancient history for the innovative principle of justice, lex talionis, or better known as “an eye for an eye” – the Law of Retaliation, “where by the punishment resembles the offense committed in kind and degree.” This is the idea that someone who has wronged another will be penalized in the same way. The codes were not always implemented equally, but the death penalty in ancient Mesopotamia served the same purpose the death penalty does in present day America – to establish justice, reparation, order, security, and to deter murder.
In all great civilizations throughout history, capital punishment was practiced. Ancient executions are known to have been carried out through “such means as crucifixion, drowning, beating to death, burning alive, and impalement.”3 According to Time Magazine, execution by hanging is the most prominent method of execution in America’s history, followed by electrocution, then lethal injection, gas, firing squad, “other”, and burning with 63 recorded executions by fire.4 Not quite as gruesome as ancient history’s methods. You might even say these methods are more civilized; however, from the time of Hammurabi to the present day, how much more civilized are we? In the 38 centuries since Hammurabi, the death penalty has been delivered in many different ways, but none of those methods have yet to deter murder.
Graph of Execution Method*
*see source link for “most recent figures”
The concern over the humaneness of execution in America arose in the late 1800s. Hanging was originally thought to be the quick death for inmates, but instant death rarely occurred. 5 America truly began her quest for a “merciful death” in the 1890s with the introduction of the electric chair as a more “humane” method than hanging, but that proved still too violent a death. Following that, the gas chamber was then adopted in 1924, and then in 1982 Charles Brooks became the first person to be executed by lethal injection.6 Today there is a more forceful push than ever to abolish capital punishment completely in America. Some states who have abolished the practice are seeing lower murder rates than states practicing capital punishment. This hollows out the strongest ethical reasoning for the death penalty today – deterrence. 7
If we peer at the statics and consider the paradoxical nature of the death penalty, it would appear most logical to do away with this old tradition and embrace a new more civilized world, but I do not believe it to be the most rational approach. I see American capital punishment in need of reformation, not abolition. I am not concerned with the humanness of execution. Justice and reparation are more important – more of a social good – than mercy for society’s greatest offenders. Capital punishment in America is a failing system in more than one way, but I will only discuss the method of execution in this article.
Capital punishment is obviously paradoxical, but it serves many justifiable purposes. Unfortunately, those purposes lose justice when they fail to produce the results they promise. The right to live is a basic human right allotted to all who exist, and that right is defended by the state. However, once an individual is proven to have robbed another of that right to life, he or she has upset the scales of justice and forfeited their right to live. Lex talionis would describe this as “a life for a life.” This rationale behind capital punishment is a difficult one to contest. Yes, one could say execution is hypocritical – killing someone for killing someone. However, killing and execution are not the same beast. Killing is malicious and execution is serving justice. Justice is a major virtue of society and a detrimental stone in the foundation of civilization.
‘Justice’ is one of the justifiable purposes of the death penalty. Deterrence is another and possibly the most debated. Deterrence is where capital punishment has failed. Capital punishment is meant to deter the most evil in our society by appealing to their self-preservation. It is our hope that their instinctual fear of death may encourage them to control their vicious appetites, but it seems many are beyond that instinct or overconfident in their ability to avoid persecution. It is my belief that the state and public hold these offenders as like-minded as healthy, sane, moral individuals. A murderer who tortures his victims gruesomely is not of the same material (psychologically or ethically) as a man volunteering at a food bank. The threat of death will not affect them equally. It seems to me that the current death penalty fails to deter murder because it is not threatening enough. It fails to invoke the fear necessary to reach the “sociopaths” of society… although one does not need to be a sociopath to commit such atrocities.
Executions of today, while necessary to establish justice, are simply not enough to incite true fear in many of these violent individuals, or at least the type of fear needed to deter them from committing murder. I suggest a new system; one that goes back to our roots of lex talionis in the most literal and reasonable sense. I suggest that the execution of murders be carried out to mirror their premeditated killing. By premeditated, I mean the murder was committed by the convict with the full intention of causing death or great harm that resulted in death. First-degree murder is defined by intent, deliberation, and “Malice Aforethought.” 8This type of execution excludes accidental killings, self-defense, or crimes of passion. I strictly mean murderers who kill in the first-degree should experience the pain and suffering of their victim(s). They are not deserving mercy from the state; they are deserving of capital punishment. We should feel no remorse (empathy is appropriate) for inflicting such agony as we, a country of civilians bound by the same laws, are simply establishing the justice that the murders too once enjoyed but rejected (and stole from another). Philosophers Kant and Hegel argued the morality of execution, insisting that it is a requirement of the state “for the sake of the convict’s dignity” – a deserved execution affirms the convict’s “humanity by affirming his rationality and responsibility for his action.”9
This type of execution entails the cruelty that lex talionis can sometimes imply, but in a graver sense and discretion-free distribution than Hammurabi’s reign. Hammurabi’s Code, while innovative, was imperfect and discriminatory. What I propose is a sexless, classless, race-less, and merciless practice where the most evil of our society suffer a death equal to that of their victims. A very rough draft of such a system would call for the state to create an intuition specifically designed for such executions. These institutions would be commissioned to deliver the same quality of suffering that murderer delivered to his victim(s). The state would be required to hire educated, professional, and highly trained factuality to analyze the victim’s death for emulation, organize the method of execution, and keep transparency with the public. The state would of course need to insure the faculty’s identity is protected and that their general and mental health is evaluated, monitored, and prioritized.
While this system would be more complicated, especially when it comes to multiple murders (serial killers) or the possible condemnation of a wrongfully convicted suspect to a undeserved (possibly horrendous) death, I predict this method of capital punishment would be more successful in deterring murder in the first-degree than the current methods – and surly more effective than abolition. There is also the issue of mental illness that make this severe punishment even more problematic, but please keep in mind that this is only a roughly drafted idea. However, I’d like to touch on mental illness for just a moment. While I passionately feel that mental health deserves a greater priority in American health care, it seems to me that individuals with mental illnesses that hinder their ability to empathize, stay in tune with reality, or control their anger/sadistic desires are not individuals that could ever function in society without posing a threat to other civilians. The best method for stopping them would be threatening them with a punishment more terrifying than death – doing unto them as they did to another/others. Locking them up in facilities of confinement as punishment for murder may be considered more ethical, but also not quite logical – it is a huge expense on a public they violated. Also, with such mental disorders, imprisonment could easily lead them to murder again; that is hardly a deterrent practice. Yes, the state does have a responsibility to those who are mentally ill (as well as those who are sane), but these unwell individuals have a responsibility to the state as well – a “social contract.” When they violate that contract, they should be held to the same punishment as their mentally stable neighbors. The mentally ill should not be permitted exemption, but maybe, on a case-by-case basis, impunity from the full ruthlessness of a death that mirrors the ruthlessness of their crime.
There are general and finer details for such a system would need to be organized and approved by the upper courts, but this system I am proposing exists in a reformed America where the justice system itself is less faulty. While it is unlikely that the American justice system will ever be infallible, I still suggest a new, and more serve institution for punishment. The current one fails to deter the worst murders and hardly fulfills the retribution the victim deserves. Jeffrey H. Reiman, an American University professor of Philosophy, agrees that the death penalty is “a just punishment for murder.”10 Reiman supports lex talionis, and that the worst crime should be punished with society’s worst punishment; however, Reiman is an abolitionist of the death penalty, believing that “society’s worst punishment need not duplicate the injury of the worst crime.”11 Rieman’s translates lex talionis as a murder should be punished in a way that is proportional to his or her crimes, and “that there is a range of just punishments that includes some that are just though they exact less than the full measure of the lex talionis.”12 He believes that it is not unjust to torture tortures, but that it would be “barbaric,” making the literal interpretation of lex talionis immoral.
Rieman’s argument is well defended, and I can see virtue in his solutions – proportionality is an appropriate punishment for lesser crimes than first-degree murder. However, I have to disagree with his interpretation of lex talionis when it comes to the death penalty. He sees it as a right owed to the victim. I too hold the same opinion, but I believe it extends as a right owed to the victim and the People – both are members of a community and represented by the state. It is the right of the state to act on the People’s behalf, justifying a true lex talionis execution. Also, as previously said, murder and execution are not related. Rieman, like many, seems to correlate the death penalty as murder, not retribution. Murder is “barbaric” and execution is civilized. Execution is implemented to serve justice, not only to the victim, but to the whole of society. When a just execution, lex talionis or not, is carried out, it is not the state killing a member of society as the convict can no longer be considered a member of society. When an individual intentionally (without just cause) commits the ultimate offense as a member of a society – the murder of another member – that individual is no more a member of that society. Is that not the idea upheld when someone is imprisoned for theft? They committed and offense that forfeited their rights to the freedom, and they are marked as breakers of the law. They are, in essence, removed from society until they have served a punishment proportional to their crime.
As I mentioned before, there is a social contract one enters as a citizen with their fellow citizens. This contract is created to pool collective power and form a popular sovereignty – a government. This contract holds everyone of this country to specific duties such as the duty to avoid infringing on the rights of other members, to obey just laws, to comply with and help enforce just contracts, to serve on juries, and to defend the community, and in return for those duties, citizens receive social goods such as security, defense, social institutions, and protection of property, and the written rights of citizenship (life, liberty, and the pursuit of happiness). English philosopher, John Locke, saw breeches of the contract as “so serious that the social contract is entirely broken and the parties enter a state of war in which anything is permitted, including killing the violator.” 13 Socrates, deemed one of the great philosophers, saw the value of these social agreements and accepted his execution from the State he . 14 It would be no breach of contract or encroachment on the convict’s rights by the state to punish murderer convicted of first degree murder in the lex talions fashion. The state no longer owes that individual rights, and that individual becomes an enemy of the state who has harmed one of its civilians. It is the state’s responsibility to the people to seek reparation on that victim’s behalf. It is also the responsibility of the state to utilize whatever method necessary and constitutional to deter violence, keep order, and insure justice.
The type of harshness presented here does not come naturally to our society – perhaps even betrays the very core of our humanity – as answering violence with violence is something we strive to move beyond, but capital punishment is deeply rooted in the foundation of civilization. It need not be seen as answering violence with violence but serving and preserving justice. Upholding justice, seeing out retribution, deterring first-degree murder, and establishing order through a justice system owed to us as a social good are not immoral. Those of us who do not follow the contract are reprimanded appropriately – proportionally. Lex talions seems a very appropriate and ethical punishment for murder not just in it proportionality, but also in the goods it would produce. I hope I have properly stated my claim for offering such a ruthless and questionably unethical solution to the current penalty’s failings. I, like all of this country, want a safer, more civilized society, and I understand how much of that dream relies on justice and retribution.
Note from the author: This article is an intellectual exercise for entertainment’s sake. It is NOT an ethical proposition submitted to promote a personal belief or assert a political position. The ideas and arguments made are not reflective of the principle character of B_History or a statement of The Existential Millennial.
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- “Part I: History of the Death Penalty.” Death Penalty Information Center, 2015, http://www.deathpenaltyinfo.org/part-i-history-death-penalty
- “Part I: History of the Death Penalty.”
- Chris Wilson, “U.S. Every Execution in U.S. History in a Single Chart.” TIME, 2014, http://time.com/82375/every-execution-in-u-s-history-in-a-single-chart/.
- “Descriptions of Execution Methods.” Death Penalty Information Center, 2015, http://www.deathpenaltyinfo.org/descriptions-execution-methods.
- “Deterrence: States Without the Death Penalty Have Had Consistently Lower Murder Rates.” Death Penalty Information Center, 2015, http://www.deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates.
- Thomson Reuters, “First Degree Murder Overview.” FindLaw, 2013, http://criminal.findlaw.com/criminal-charges/first-degree-murder-overview.html.
- Ernest van den Haag, The Ultimate Punishment: A Defense (Harvard Law Review, Vol. 99, No. 7 (May, 1986), pp. 1662-1669) 1669.
- Jeffery Reiman, Justice, Civilization, and the Death Penalty: Answering van den Haag (Philosophy & Public Affairs, Vol. 14, No. 2 (Spring, 1985), pp. 115-148) 119
- Reiman, 120
- Reiman, 120
- “The Social Contract and Constitutional Republics.” Constitution Society, 2007, http://www.constitution.org/soclcont.htm.
- Celeste Friend, “Social Contract Theory.” Internet Encyclopedia, http://www.iep.utm.edu/soc-cont/#SH2b.