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The last section deals with the Church and the Christian viewpoint on capital punishment. Since time immemorial, societies have utilized the death penalty. The reasons for its use and the manner in which it has been used have changed, but the death penalty itself remains. In the early colonies the death penalty was inflicted for a wide variety of reasons: Hanging was a common method of execution, although history books disclose burnings at the stake and various torture methods of execution as well. Executions at this time were public and attended by vast numbers of people.

Previous to , official records of executions were not kept. Since , however, there have been somewhere near 7, executions in the United States. The year was a record year for executions; there were Since executions have been carried out for seven different crimes: The last execution, to be witnessed by the public, took place in Missoula, Montana in The frequency of executions eventually began to recede and we appeared to be moving away from use of the death penalty.

By the late sixties most of Western Europe had abolished capital punishment. Britain abolished its death penalty in Although the United States did not abolish capital punishment, a moratorium of almost ten years began in In , the United States Supreme Court, in a five to four decision Furman v Georgia , ruled that the death penalty, as then imposed, was capricious and discriminatory and therefore unconstitutional.

Following this ruling, many states changed their statutes to a mandatory death penalty for certain crimes, hoping to meet the specifications of Furman. In the Supreme Court upheld the death penalty in Gregg v Georgia. The Georgia statute provided for a bifurcated approach for conviction and sentencing and also called for mandatory expedited review of all death sentences, as well as consideration of aggravating and mitigating circumstances. The court would later strike down mandatory death sentences in Woodson v North Carolina. Since that time, three other persons have been executed: Since , capital punishment has grown in popular support.

Thirty eight states have enacted or reinstated capital punishment to date. There are presently persons on death row across the nation. Montana's death penalty statute has been revised and, having been patterned after Gregg, the current statute has been upheld. There are three persons on death row in Montana. Punishment is commonly held to have four purposes. The first three items will be dealt with in this section. The fourth item, deterrence, will be dealt with separately as it remains the greatest topic of debate in the controversy over capital punishment.

Protection With regard to protection of society, there is a definite alternative to capital punishment; that alternative, of course, is incarceration. The subject of parole inevitably arises. The chance of a paroled murderer repeating his crime is actually quite low. That is slightly over one percent. For that person who continues to remain a threat to society Charles Manson is perhaps an example "real" life with no parole is still an alternative to execution.

Retribution Retribution is defined as something administered or executed in recompense, to return in kind. It is defined by some as simply revenge.

Part of the reasoning in the retribution theory includes Hegel's notion of establishing an equilibrium of restoring the state of being to what it had been before the crime was committed. This, of course, is impossible because the victim cannot be restored. Where, then, is the rational logic for retention of the death penalty for inflicting death? Rehabilitation The purpose of rehabilitation is obviously forgone in a case of capital punishment.

The issue of deterrence is currently the most debated subject on the topic of capital Punishment. The Criminal and the Crime We must consider whom we are trying to deter and some of the circumstances involved. A great majority of homicides occur between persons who know each other.

The risk of serious attack from family, friends, spouses and acquaintances is almost twice as great as it is from strangers. A large portion of murders involve alcohol. Murder is often a successful assault, the outcome depending on whether a weapon was present or not, and what type of a weapon it was. Neither Swift Nor Sure "Theories of criminology stress that a necessary condition of deterrence is that there be swift and sure administration of the criminal law.

The death penalty is not "sure". A person convicted of murder has a ninety eight per cent chance of not being executed. In the median time between imposition of the death sentence and the execution was One of the three persons on death row in Montana has been subject to pending execution since Due to the very nature of the death penalty and our doubts about it we have created a complex and lengthy legal procedure to safeguard the defendant.

The Studies The studies at present are held to be inconclusive. While revealing some interesting insights, they consist largely of uncontrolled data. The most widely acclaimed study, done by Thorsten Sellin, compared the homicide rate in states with capital punishment with homicide rates in states without capital punishment. There were no statistical differences. In Sellin also compared prison murders. Taking eleven states, he found 59 prison murders committed in states with capital punishment and 43 murders committed in states without capital punishment.

An econometric study done by Isaac Ehrlich suggested "an additional execution per year may have resulted on the average in seven or eight fewer murders. A very recent study, published in October of , traced the history of executions in New York between and and found that on the average there were two additional homicides in the month after an execution. In Britain abolished capital punishment. Since that time, the statistical chances of being murdered remain the same, three in a million. Increases Violence The study, showing the additional homicides following an execution, would indicate that capital punishment actually increases violence.

Additional support for this idea lies in the theory of "capital punishment as a vehicle for suicide. What he fears is life, with its miseries and desperate conflicts. To such a one, prison is to be feared above all else, for it promises a continuation of the old miseries. Death by execution fits these psychological needs, and the mere existence of the death penalty encourages these pathological gambles with fate. Our criminal justice system is a human institution; it is not infallible.

This system is the one we use to decide who will live and who will die. A utilitarian approach to capital punishment is inherently comparative in this way: It follows, then, that a utilitarian approach relies on what are, in principle, empirical, causal claims about the total marginal effects of capital punishment on offenders and others.

A classic utilitarian approach to punishment is that of Jeremy Bentham. The general object which all law have, or ought to have in common, is to augment the total happiness of the community. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil. The immediate principal end of punishment is to control action.

Beccaria called for abolition of the death penalty largely by appealing to its comparative inefficacy in reducing the crime rate. In Chapter XII of his essay, Beccaria says the general aim of punishment is deterrence and that should govern the amount of punishment to be assigned crimes:. The purpose of punishment… is nothing other than to dissuade the criminal from doing fresh harm to his compatriots and to keep other people from doing the same.

Therefore, the intensity of a sentence of servitude for life, substituted for the death penalty, has everything needed to deter the most determined spirit. The idea here is that an execution is a single, severe event, perhaps not long remembered by others, whereas life imprisonment provides a continuing reminder of the punishment for misconduct. Beccaria adds to this thinking at least two claims about some bad social effects of capital punishment: Thus, Beccaria opposes capital punishment by employing utilitarian thinking: Another major utilitarian, John Stuart Mill, also exemplifies distinctive facets of a utilitarian approach, but in defense of capital punishment.

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Capital Punishment

Since the deterrent effect of a punishment depends far more on what it seems than what it is, capital punishment is the better deterrent of others while also involving less pain and suffering for the offender. A utilitarian approach to capital punishment depends essentially on what are, in fact, the causal effects of the practice, whether the death penalty is, in fact, effective in incapacitating or deterring potential offenders.

If, in fact, it does not effect these ends better than penal alternatives such as lengthy incarceration, then capital punishment is not justified on utilitarian grounds. In principle, at least, the comparative efficacy of capital punishment is therefore an empirical issue. A number of social scientific studies have been conducted in search of conclusions about the effects of capital punishment, at least in America.

With respect to the end of incapacitation, any crime prevention benefit of executing murderers depends on recidivism rates, that is, the likelihood that murderers again kill. Recent studies of convicted murderers—death row inmates not executed, prison homicides, parolees, and released murderers—indicate that the recidivism rate is quite low, but not zero: These crimes, of course, would not have occurred were capital punishment imposed, and, so, the death penalty does prevent commission of some serious crimes.

On the other hand, for a utilitarian, these benefits of incapacitation through execution must exceed those for possible punitive alternatives. The data reflects recidivism rates under current practices, not other possible alternatives. If, for example, pardons and commutations were eliminated for capital crimes, if atrocious crimes were punished by a life sentence without any possibility of parole, or if conditions of confinement were such that prison murders were not possible for example, shackled, solitary confinement for life , then the recidivism rate might approach or be zero.

One issue, then, is how high or low a recidivism rate decides the justificatory issue for capital punishment. Another issue is the moral permissibility of establishing conditions of confinement so restrictive that even murders in prison are reduced to nearly zero. Since the mid-twentieth century, in America a number of empirical studies have been conducted in order to assess the deterrent effects of capital punishment in comparison to those of life imprisonment. Scholars analyzed decades of data to compare jurisdictions with and without the death penalty, as well as the effects before and after a jurisdiction abolished or instituted capital punishment.

Sophisticated statistical studies published in the mids claimed to show that each execution deterred seven to eight murders. This exceptional study and its methodology have been much criticized Bailey, Determining the deterrent effects of capital punishment does present significant epistemic challenges. Numerous variables may or may not explain the data attempting to link crime rates and the death penalty in different places or times Pojman, Second, as Beccaria notes, for example, deterrent effects plausibly depend importantly on the certainty, speed, and public nature of penal responses to criminal conduct.

These factors have not been much evident in recent capital punishment practices in America, which may explain the lack of evidence revealed by recent statistical studies. Third, deterrence is a causal concept: So, the challenges are to measure what does not occur—murders — and to establish what causes the omission—the death penalty.

The latter element is even more challenging to measure because most who do not murder do so out of habit, character, religious beliefs, lack of opportunity, etc. Deterrence studies, then, attempt to establish empirically a causal relationship for a small minority of people and omitted homicides within a death penalty jurisdiction. For example, abolitionists typically see that, despite numerous attempts, the failure to provide conclusive evidence strongly suggests there is no such effect: Defenders of capital punishment are inclined to interpret the empirical studies as being inconclusive: And all this is further complicated by the fact that some studies focus on the effects of capital statutes and others look for links between actual executions and crime rates.

Regardless of the outcomes or probative value of statistical studies, justifying capital punishment on grounds of deterrence may still have merit. The deterrence justification of capital punishment presupposes a model of calculating, deliberative rationality for potential murderers. What people cherish most is life; what they most fear is being killed. So, given a choice between life in prison and execution by the state, most people much prefer life and therefore will refrain from misconduct for which death is the punishment.

Another way of looking at capital punishment in terms of deterrence relies on making the best decision under conditions of uncertainty. If capital punishment is not, in fact, a superior deterrent, then some murderers have been unnecessarily executed by the state; if, on the other hand, death is not a possible punishment for murder and capital punishment is, in fact, a superior deterrent, then some preventable killings of innocent persons would occur. Given the greater value of innocent lives, the less risky, better option justifies capital punishment on grounds of deterrence.

But the argument crucially depends on comparative risk assessments: Furthermore, the argument openly assumes that not all lives are equal—those of the innocent are not to be risked as much as those who have murdered—and that, for some, is a fundamental moral issue at stake in justifying capital punishment see section 2c; Pojman, Utilitarian approaches to justifying punishment are controversial and problematic, perhaps most often with respect to possibly justifying punishment of the innocent as a means to preventing crime and promoting total happiness of a society.

Even ignoring this issue and focusing only on justifying the proper amount of punishment for the guilty and the death penalty, in particular, there are concerns to be considered about a utilitarian approach. The objection is that a utilitarian approach to the death penalty relies on a suspect general criterion—deterrence—for establishing the proper amount of punishment for crimes.

It is often argued that, for purposes of crime prevention through deterrence, a utilitarian is committed, at least in principle, to excessively severe punishments, such as torturous and gruesome executions in public even for crimes much less serious than murder for example, Ten, , The idea is that the pain of excessively severe and public punishments for minor crimes is more than counterbalanced by a significant reduction in a crime rate. It is also argued that significant crime rate reductions could perhaps be achieved, in some circumstances, by disproportionately minor punishments: Utilitarians respond to such possibilities by indicating additional considerations relevant to calculating the total costs of such disproportionate punishments, while critics continue creating even more elaborate, fantastic counterexamples designed to show the utilitarian approach cannot always avoid questions about the upper or lower limits of morally permissible penal responses to misconduct.

Another common criticism of the utilitarian approach points to the very structure of justifications rooted in deterrence. Capital punishment, then, aims to deter actions of potential killers by inflicting death on actual ones: No gain in deterrence, incapacitation, or other beneficial effects can justify deliberately killing a captive human being as a means to even such desirable ends as deterring others from committing grave crime.

The argument, then, is that justifying capital punishment on grounds of deterrence is a morally impermissible way to treat persons, even those found to have committed atrocious crimes. In discussions of capital punishment, it is deterrence that receives much of the attention for those exploring a utilitarian approach to the moral justification of the practice. There are, however, other significant consequences of the death penalty that are relevant, as noted even by classic utilitarians.

Beccaria, for example, asserts a brutalization effect on society: Such claims are, in principle, empirical ones about the causal effects of the practice of capital punishment. As with recent deterrence studies, there is no clear empirical evidence of any brutalizing or civilizing effects of capital punishment. For classic utilitarian thinking, another important consequence of punishment is its effect on the offender.

This penal aim of reform or rehabilitation may suggest capital punishment is not justifiable for any crime. But that need not be the case. But he also defends capital punishment as a kind of merciful euthanasia: Plato also defends capital punishment by looking to its impact on the offender. In his late work, The Laws, Plato explicitly prescribes capital punishment for a wide range of offenses, such as deliberate murder, wounding a family member with the intent to kill, theft from temples or public property, taking bribes, and waging private war, among others MacKenzie; Stalley.

In a utilitarian approach to capital punishment, then, attending to the end of reforming offenders need not be irrelevant to possible moral justifications of the death penalty. A cluster of distinctive approaches to issues of justifying punishment and, at least by implication, the death penalty, are united by taking seriously the idea of punishment as expression or communication. Hard treatment, deprivations, incarceration, or even death can be, and perhaps are, vehicles by which messages are communicated by the community.

To see capital punishment as a deterrent is to see it as communicative: Various developments of punishment as communication, though, attend to other messages expressed, some emphasizing the sender and others the recipient of the message. One version of this kind of approach emphasizes that, with capital punishment, a community is expressing strong disapproval or condemnation of the misconduct.

The punishment for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the object of punishment as being deterrent or reformative or preventive and nothing else. In the United States, Supreme Court decisions in death penalty cases have more than once employed such reasoning: Georgia , as quoted in Gregg v. For example, the approach presupposes some moral merit to popular sentiments of indignation, outrage, anger, condemnation, even vengeance or vindictiveness in response to serious misconduct. There are significant differences between expressing such emotions and punishing justly or morally see section 2b.

Secondly, the structure of the thinking seems entirely consequentialist or utilitarian: Third, it leaves unanswered why the expression of communal outrage—even if morally warranted—is best or only accomplished through capital punishment. Why would not harsh confinement for life serve as well any desirable expressive, cathartic function? And does not the death penalty also express or communicate other, conflicting messages about, for example, the value of life?

Other uses of the idea of punishment as communication focus not on the sender of the message, but on the good of the intended recipient, the offender. Punishment is paternalistic in purpose: The justified amount of punishment, then, is tied to the magnitude of the wrong committed Some employing a similar reliance on punishment as communication are less ambivalent about its implications for the death penalty. This argument for death penalty abolition takes seriously the expressive, communicative function of punishments: Punishment as education is not a conditioning program; it addresses autonomous beings, and the moral good aimed at is persons freely choosing attachment to that which is good.

Furthermore, it is argued, capital punishment conveys multiple messages, for example, about the value of a human life; and, it is argued, since one can never be certain in identifying the truly incorrigible, the death penalty is morally unjustified in all cases. Duff puts the abolitionist point in Punishment, Communication, and Community , "punishment should be understood as a species of secular penance that aims not just to communicate censure but thereby to persuade offenders to repentance , self - reform, and reconciliation" xvii-xix.

Approaches to capital punishment as paternalistic communication are challenged on several grounds. First, as a general theory of punishment, such expressive theories posit an extraordinarily optimistic view of offenders as open to the message that penal experiences aim to convey.

Are there not some offenders who will not be open to moral education, to hearing the message expressed through their penal experiences? Are there not some offenders who are incorrigible? On these approaches to capital punishment, the reasons against executing serious offenders are essentially empirical ones about the communicative effects on the public of executions or the limits of diagnostic capabilities in identifying the truly incorrigible. Second, with respect to capital punishment, perhaps for some offenders, the experience of trial, sentencing, and awaiting execution does successfully communicate and effect reform in the offender, with the death penalty then imposed to affirm that which effected the beneficial reform in the offender.

Focusing on reforming or educating a recipient of a message suggests very individualistic and situational sentencing guidelines. Not only may this not be practical, such discretion in sentencing risks caprice or arbitrariness in punishing offenders by death or in other ways see section 5 ; and it challenges the fundamental, formal principle of justice, that is, that like case be treated alike. Finally, the implications of these approaches to punishment are quite at odds with the system of incarceration employed so universally for so many offenders. The implications of punishment as communication aimed at the offender would require radical revisions of current penal practices, as some proponents readily admit.

Much philosophic focus on punishment and the death penalty has been rooted in theoretical questions and principles. A result is that philosophers have mostly ignored more practical matters and moral facets of the institution of capital punishment. That historical tendency began to change in the mid-twentieth century with a decidedly American concern: By the early s, a series of United States Supreme Court decisions established especially elaborate criminal procedures to be followed in capital cases: After implementation of these Court-mandated procedures for death penalty cases, a number of empirical studies indicated continuing concerns and problems with the practice of capital punishment in America.

For example, studies of capital cases conducted in some southern states showed that disproportionately large numbers of convicted murderers received death sentences if they were black, a disproportion even greater when the convicted murderer was black and the victim was white Bedau, The Death Penalty , Also, especially with the advent of new, scientific sources of evidence for example, DNA matching , studies suggest that numbers of persons innocent of any crime have been wrongly convicted, sentenced, and even executed for committing a capital crime Bedau, The Death Penalty , Morally justifying punishment in theory is distinguishable from whether it is justified in practice, given extant conditions.

For some, even though questions of theory and practice are distinguishable, they may not be unrelated. At each one of these points of decisions, it is argued, there is room for arbitrariness, mistakes, even discrimination. Furthermore, it is impossible and undesirable to remove all latitude, all discretion, in order to allow each of these decisions to be properly made in light of the particularities of the case, person, situation. A criminal trial and, more broadly, criminal procedures in toto are exemplars of what John Rawls, in A Theory of Justice , characterizes as imperfect procedural justice.

Whether due to inherent vagaries of legal language, the necessity of discretion to judge properly complex, particular cases, the fallibility of human beings, or political pressures and other factors affecting decisions made within the system, such as clemency, the risk of error is not eliminable for the institution of capital punishment. Given unavoidably imperfect criminal justice procedures, at issue, then, is the moral import of any arbitrariness, caprice, mistake, or discrimination in the institution of capital punishment.

The appeal to procedural imperfections is often employed by those opposed to capital punishment and who seek its complete abolition on the grounds that its institution is intolerably arbitrary, capricious, or discriminatory in selecting who lives and who dies. This abolitionist reasoning is challenged in various ways. Given the fact that there are imperfections in the system or practice of capital punishment, what follows is not abolition of the death penalty, but justification only for procedural improvements in order to reduce problematic outcomes. A second issue, aside from disputes about the actual frequency of problematic outcomes, is a question of thresholds: Abolitionists tend to have near-zero tolerance, whereas some defenders of capital punishment argue that some arbitrariness is acceptable.

And in as much as any deterrent effects are linked to certainty of punishment, any degree of arbitrariness in administering capital punishment does affect a central utilitarian consideration in determining whether the institution is morally justified. For retributivist approaches, the question is whether some arbitrariness in the institution violates requisite pre-conditions for morally justifying the institution of capital punishment see section 2c.

A third issue for appeals to procedural imperfections involves limiting the scope of the argument for abolition. Since all criminal cases are administered through unavoidably imperfect procedures, if arbitrariness justifies abolishing the death penalty for murder, then it would seem also to justify abolishing lesser punishments for less serious criminal misconduct. In short, the imperfect administration of capital punishment matters morally only if the death penalty is distinctive among punishments.

Punishment by death is often said to be distinctive because, unlike incarceration, death is irrevocable. But years spent imprisoned, for example, can also not be revoked, once they have been endured. The idea must be that incarceration, if found to be mistaken, can be ceased: On the other hand, a death sentence, once executed, has none of those qualities: Another major issue involves distinguishing the kinds of imperfect outcomes resulting from the criminal procedures employed in capital cases.

For example, the arbitrariness evident in the procedures may be one of selectivity: As Ernest van den Haag argues, that some who merit the death penalty escape that punishment does not make morally unjustified selectively executing some who do merit that punishment Nathanson, Analogies with selective ticketing for excessive speed support this kind of reasoning: Justice requires treating similar cases in similar ways, and this kind of arbitrary imposition of the death penalty violates that requirement.

Furthermore, it may matter morally what are the grounds of selecting only some convicted killers to receive death sentences or to be executed. If the selectivity is based on race, for example, then the moral import of the arbitrariness might be far greater, whether for traffic tickets or the death penalty for murder. Aside from the moral import of arbitrariness as selectivity, there is also an arbitrariness that issues in mistakes , where persons who did not commit a capital crime or perhaps did not commit any crime at all are wrongly convicted, sentenced and executed.

This sort of imperfect outcome would seem far more problematic morally than the selective execution of only some of those who merit the death penalty. Criminal justice systems that administer the death penalty operate in the context of a society that may or may not itself be entirely just. The procedures employed in capital cases, then, can be imperfect due to external social factors affecting its outcomes, and not only due to features internal to the structure of a legal system itself.

Various sources of data suggest to many that American criminal justice procedures produce disproportionately large numbers of capital convictions and death sentences for the poor and for African-Americans. In short, it is claimed, the institution of capital punishment is imperfect, capricious, or arbitrary in a particular way: At numerous decision points, a lack of funds affects how the process proceeds for a poor person charged with a capital crime: Given the high correlation in America between poverty and race, any disproportionate outcomes with respect to economic class parallel those with respect to race.

Opponents of the death penalty, then, see factors of race and poverty as increasing the likelihood of error in capital cases, and see such discriminatory outcomes as especially problematic from a moral point of view. This line of reasoning invokes the specter of discrimination in the institution of capital punishment. The issue is not necessarily one of intentional racial discrimination, though that may occur, as well.

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Considerations of perhaps unintended discriminatory outcomes, however, need not support abolition of the death penalty. Aside from disputes about the data supporting the basic empirical claim of disproportionate outcomes, responses parallel those reviewed above with respect to the internal structures of criminal justice procedures in capital cases see section 5a. In particular, it is argued that disproportionate outcomes support reforms to mitigate such discrimination, such as quality legal representation being provided for the poor, increased budgetary allegations for defense of the indigent in capital cases, etc.

And given that what explains the disproportionate outcomes are social conditions external to the process itself, it would seem that discriminatory outcomes are not inevitable in the way that the effects of ineliminable discretion might be. Does it matter morally that the institution of capital punishment exists amidst a society insufficiently just regarding matters of economic class or race? For a utilitarian approach to capital punishment, the issue is addressed in terms of total consequences for the society. As with other kinds of arbitrariness previously reviewed, any discriminatory outcomes of the institution of capital punishment are part of the total cost of the practice and are to be considered along with all other costs and benefits.

Depending on the causal consequences of the practice in a society at a given time, then, capital punishment is or is not morally justified. For some retributivists, however, the relevance of current social conditions can be quite different for whether capital punishment is morally justified.

For example, the fairness approach to punishment and the death penalty presupposes a society with reasonably just rules of cooperation that bestow benefits and burdens on its members. Whether America today, for example, satisfies such a pre-condition is, for some, doubtful; and thus, it is argued, even if justified in theory, capital punishment is not justified under current social conditions for example, Reiman. Also, retributivists typically presuppose punishment is to address misconduct that is voluntary, a matter of free choice. But Marx, for example, maintains that such a presupposition of free will is simply false, a delusion:.

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Is there not a necessity for deeply reflecting upon an alteration of the system that breeds these crimes, instead of glorifying the hangman who executes a lot of criminals to make room for the supply of new ones? Though Marx is himself sympathetic to a retributivist justification of punishment, theory and practice cannot be divorced. Marx and many Marxists oppose capital punishment because it is inapplicable to the actual conditions of society where criminality is rooted in structural inequalities of wealth Murphy.

Thus, for some retributivist and utilitarian approaches to capital punishment, the death penalty may be morally unjustified because of inherently imperfect legal procedures, morally problematic outcomes, or the social conditions surrounding the institution. In recent years, issues of medical ethics have been a facet of philosophic focus on the institution of capital punishment, especially in America. Health care professionals—including physicians—can be active participants in the actual execution of a death-row prisoner.

Medical expertise needed for an execution itself can include administering medicines or psychiatric treatments to calm the condemned, judging whether intramuscular or intravenous techniques are best, or actually injecting a lethal dose of drugs to bring about a death Gaie, 1. Even if not directly participating in executions and regardless of the method of execution employed, health care professionals can be involved by providing capital trial testimony related to findings of guilt or punishment, such as competency to stand trial, possibly exculpating mental illness, or forensic analyses of murder scene evidence.

Physicians are needed to certify death following a successful execution, and they may have a role in possible organ donations arranged by the deceased Gaie, 2. All such participation requires relevant expertise and is important to contemporary death penalty practices. An important question, however, is whether it is morally permissible for health care professionals to be involved or participate in the institution of capital punishment. A common assumption is that health care professionals—physicians, at least—have significant moral duties to those they treat or administer to.

Many, like Gaie, address such issues of professional ethics as independent of the morality of capital punishment itself. Others maintain that, analogous to relieving the suffering of a torture victim so that they can be further tortured, physicians ought not participate in executions in order to reduce the suffering of the condemned Dworkin. Physician participation in an unjust practice, such as capital punishment, makes them complicit and, so, they ought not be involved.


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Since the early s, lethal injection has almost completely replaced electrocution as the preferred method of execution for those convicted of a capital crime and sentenced to death in the United States. This recent, novel method of execution has itself generated considerable controversy. First, unlike other constitutionally permissible modes of execution in America that is, electrocution, hanging, firing squad, gas inhalation , a lethal injection requires medical expertise in order to be administered properly. Thus, health care professionals must be direct participants in executions: In comparison to other methods of execution, such participation is more essential, more direct, and ethically more problematic.

Execution by lethal injection makes more acute and controversial the ethical issues surrounding the involvement of health care professionals in the institution of capital punishment. Some foreign-based companies face legal restrictions on exporting drugs for such uses, and some foreign and domestic drug companies, for reasons of public image or ethical considerations, for example, choose not to manufacture or supply their pharmaceutical products for use in executions.

This sometimes delays execution or leads governments to employ alternative drugs for which there may not be sufficient evidence of their effectiveness in effecting a human death. Third, whether any formulas for lethal injections are a humane way or a more humane way of causing death is itself controversial, with disputes about the science or lack thereof behind the drug formulas and protocols used, disagreements about the evidentiary significance of physiological data from autopsies used to assess the humanity of death by lethal injection, etc.

Cases do occur where the condemned endure an extended process of dying that sometimes suggests lingering sentience, discomfort, or suffering.

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As with other facets of the institution of the death penalty, there is disagreement about the import of such practical challenges for the moral justification of capital punishment. At least in popular discourse, if rarely among philosophic discussions, considerations of monetary cost are adduced with respect to morally justifying capital punishment. As Stephen Nathanson rightly recognizes, in its bald form it is a simple economic argument: Even among proponents, though, cost considerations are perhaps plausibly relevant only as secondary, subsidiary supplements to some anterior justification for executing murderers: The argument depends crucially on the empirical claim that, in fact, it is less costly to execute murderers than it is to imprison them for life.

But the facts do not support this supposition. The costs are not only those of a single execution, but for a system of due process and an infrastructure of facilities and personnel needed for the institution of capital punishment Nathanson, Eye Such an approach may save some economic costs but increase the cost of thereby perhaps increasing the frequency of mistakes or arbitrariness. Furthermore, reliance on comparative costs in determining who is executed potentially introduces a novel, morally suspect kind of arbitrariness.

The costs argument risks introducing a kind of age and medical status discrimination into the imperfect procedures employed to determine who merits the death penalty for murder. Exploring fully whether capital punishment is morally justified leads to considering a normative account of the modern state, its foundations, proper functions, and penal powers.

The modern practice of capital punishment presupposes a state which has the authority to make, administer, and enforce criminal law and procedures and then, if merited, impose the death penalty to address serious misconduct. On what basis does the state possess the authority to punish by death? Any authority of the state to punish by death is, then, consent-based. And so, Rousseau maintains, the political society has the right to put to death, even as an example, those who cannot be preserved without danger to others or the society itself.

The general idea is that a system of social cooperation is just if it would be consented to by rational, mutually disinterested individuals making their choice while ignorant of particularities about themselves and their own place in the system. Such contractarian approaches typically support a penal system which merges both retributivist and utilitarian approaches in establishing a just system of punishment. Whether such contractarian approaches justify capital punishment depends, as do classic social contract theories, on the details of the conditions under which a rational choice would be made.

A recent proponent of a contractarian theory of punishment, for example, argues that individuals would consent to an institution only if it would leave individuals better off than they would be in its absence. There is a paradoxical air to individuals consenting to a system whereby they may be executed. Finkelstein argues that, even if the death penalty deters, the benefit principle is not satisfied by a system of punishment that includes the death penalty.

On this contemporary contractarian theory, then, capital punishment is not justified because it would not be agreed to by rational individuals choosing the social institutions under which they would live. A quite different approach to justifying state authority to punish by death appeals to the idea of societal self-defense or self-protection. Whether a society has a right to threaten or impose a death penalty for murder, then, is based on its efficacy for deterrence and incapacitation, that is, as a protector of society. A second, slightly different argument appeals more directly to the model of individual self-defense as a right.

Just as an individual has a right to use deadly force to address imminent, unavoidable aggression against self or other innocent parties, so society, as a collective, has a right to employ deadly force to address violent aggression against innocent third parties within that society. Whether as an exercise of a right of self-protection or self-defense, the state then has the right to institute capital punishment for serious crimes such as murder. Bentham, Beccaria, Mill Empirical Considerations: Incapacitation, Deterrence Utilitarian Defenses: Context and Basic Concepts a.

Historical Practices Much philosophic focus on the death penalty is modern and relatively recent. Stuart Banner summarizes the early American practices: Hart, [w]hat we should look for are answers to a number of different questions such as: Kant then explicitly applies these principles to determine the punishment for the most serious of crimes: Kant then employs a hypothetical case to insist that any social effects of the death penalty, good or bad, are wholly irrelevant to its justification: