On the Death Penalty – By George J. Marlin
The political tide appears to be running against the death penalty. The New York Times reported that “for the first time in modern history of the death penalty, 60 percent of all American executions took place in Texas.” New Jersey abolished the death penalty in December 2007; Connecticut’s Superior Court is contemplating if the death penalty discriminates against minorities; the U.S. Supreme Court is reviewing if the three drug lethal injection execution method is “cruel and unusual punishment.” And in New York, thanks to Governor Pataki’s wanton approval of flawed death penalty legislation, the Court of Appeals in June 2004 struck down key provisions. As a result, convicted Wendy’s restaurant mass murderer John Taylor’s death sentence was tossed out by the state’s highest court on October 24, 2007.
Many of those fighting to maintain the death penalty sentence believe they enhance their cause by arguing it is justified because it is a deterrent. This line of reasoning, however, is flawed – the evidence is inconclusive, contradictory and fundamentally irrelevant.
Punishment is inflicted by the state and deserved by the criminal because of the crime; it is not primarily intended “to deter others from similar acts.” If deterrence were the sole purpose of punishment, it is possible that criminals might actually commit more crimes, since, in the words of Rousseau, “they will soon enough discover the secret of how to evade the laws.”
The primary purpose of the state is to maintain order and to perform the duty required in the use of power to prevent and punish criminal activity. The death penalty is a means of retributive justice to re-establish the balance of outraged justice against the most serious of crimes. As Justice Potter Stewart declared in Gregg v. Georgia (1976): “Capital Punishment is an expression of society’s moral outrage at particularly offensive conduct.”
Outrage is a legitimate form of moral indignation. When American forces entered the liberated Nazi death camps, they were outraged. General Eisenhower vented his outrage by ordering the German citizens living in the vicinity to view the effects of their ideological madness, and to bury the dead. The Nuremberg trials were held to express the world’s moral outrage and the convicted Nazi thugs received just retribution – the hangman’s noose.
Retributive justice cannot be abolished because justified punishments are inherently retributive. Retributive punishment can only be administered by the state and not by individual citizens for one reason, because only the state is neutral. It does not act out of vengeance as individuals easily may. In fact, retribution is the primary reason for punishment. That is why only the state may administer justice. Revenge and vengeance compound an evil, but justice is a good act. To throw out retribution as a so-called relic of the Dark Ages is wrong.
While taking of innocent life is always morally wrong, it cannot be argued that the taking of a life is always wrong – otherwise it would be wrong to defend oneself against an unjust aggressor. The natural law gives a person the right to kill in self-defense just as it gives the state the power to make war against – and kill – an unjust invader who threatens the common good.
The Nuremberg Trials revealed to the world the injustices, the cruelties, the viciousness, the human degradation perpetrated by the Nazi regime. As Robert Jackson, the American prosecutor, stated, “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”
The trials proved “beyond all peradventure” a conspiracy of evil, and most of the defendants were condemned to the gallows. Their execution did not violate their human dignity, but it was a means of restoring lost dignity to the millions of victims of Nazi atrocities.
To promote their cause, advocates should drop the deterrence defense and instead argue that the death penalty remains an essential part of the state’s criminal code and helps to ensure the preservation of the common good and the dignity of its citizenry.