Death penalty and justice

One of the many reasons to oppose the death penalty is its incompatibility with the goals of justice. As a fan of systems thinking I feel that capital punishment deprives justice of its most valuable functions that make a system work.

The functions of justice

Due process: we want to know that a dispute is properly settled and justice was done. We (the plaintiff, the defendant, the court and society) want to know that due process was followed, that the truth was discovered, that the trial was fair and that our laws were applied. Due process reaffirms everybody’s belief that the system works and helps settle disputes within the scope of that system. If the process of serving justice doesn’t work, people wouldn’t be motivated to cooperate with it and the system would disintegrate quickly.

Fair result: a defendant should be acquitted or punished according to the governing ethics which inform the law. An unfair acquittal is as damaging as an unfair punishment as it weakens society’s trust in the system.

Restitution: the damage caused by a crime should be repaired. Harm must be undone and ill gotten gains must be returned. This ensures that a glitch in the system is fixed.

Prevention: the publicity of due process, affirmation of the law and the gravity of punishment should set a positive example (the system works and perpetrators receive their fair punishment) as well as a negative example (crime doesn’t pay). Positive and negative reinforcement ensure that actors behave in line with the rules of the system.

Improvement: punishment [edit 2021.05.16 and correctional measures] motivates perpetrators to correct their views and behaviours towards a future life that is in tune with governing ethics. A life within the rules of the system is easier and more rewarding than a life fighting against the system (until it isn’t, but that is an entirely different topic).

Revenge: as sad and primal a feeling it may be, revenge is part of the human condition. Victims have an understandable motivation to seek emotional closure by exercising revenge through the means of the law.

Rehabilitation: convicted defendants (whether they were rightfully or wrongfully convicted), have a right to closure. That right extends to proof of punishment and restitution so that convicts can be reintegrated into the system and continue their life free of debt and guilt.

Practicality: living with a system of justice should be a net win for society over living without one. This means that the cost of following due process, giving out and serving sentences and repairing damages is outweighed by the benefits of living in a safe and just society. Either the system is self sustaining, in which case it will continue existing, or it isn’t in which case it will collapse without constant external reinforcement. Justice can not be more expensive than the damage it prevents.

Grading death penalty against the functions of justice

I’ll briefly contrast death penalty against the functions of justice discussed earlier and see how death penalty fares as a tool in the system of justice.

Due process: if the death penalty is a possible result of due process, then the death penalty is compatible with justice in that regard. However, due process sometimes fails – false testimonies, errors in prosecution, errors in judgement and laws that were later found unjust jeopardise the process. Correcting mistakes is part of the process; unless of course it is too late and the defendant has been executed; in that regard, the death penalty is incompatible with justice. Zero points.

Fair result: if death penalty is acceptable within the governing ethics and assuming due process has been followed, then the death penalty is compatible with justice in that regard. One point.

Restitution: the death penalty does not undo harm. More importantly, it permanently prohibits a convict from working towards (even partially) undoing the harm they caused. Hence the death penalty is incompatible with justice in that regard. Zero points.

Prevention: we know from studies that death penalty does not prevent crime, for several reasons: serious crimes are either committed in absence of rational thought (eg. rage, drugs), in premeditation (with low expectation of being discovered) or in self-defence (eg. absence of alternatives). The death penalty also occasionally exists against the governing ethics of society which makes it difficult for courts to apply it, because judges, too, have a conscience. I still will not reject all claims regarding deterrence because the belief that the death sentence prevents crime is so wide spread that I suspect at least the people believing it are deterred from committing such punishable crimes. Hence the death penalty is partially incompatible with justice in that regard. Half a point.

Improvement: as a convict’s biography ends with the death penalty, there is no chapter on improvement and life after. Hence the death penalty is incompatible with justice in that regard. Zero points.

Revenge: casual zapping through evening news should provide sufficient first-hand experience that victims associate the death penalty with revenge. Hence, the death penalty is compatible with justice in that regard. One point.

Rehabilitation: the death penalty does, ironically, provide at times a bizarre form of closure for the victim, the convict and society, although this will depend on idiosyncrasies and the concrete circumstances. The death penalty is partially compatible with justice in that regard. Half a point.

Practicality: unburdening public expenses by the cost of an inmate may seem at first practical. However, the costs associated with court cases, appeals (the prospect of a death sentence motivates defendants to exhaust all legal means), forensics, execution, prolonged incarceration and last but not least the dissent it sows in society reduce the death sentence’s practicality. In that regard, the death penalty is partially compatible with justice. Half a point.

Conclusion

The death penalty scores 3,5 out of 8 possible points on the “is this justice?” scale whereas virtually every other widely applied punishment (from fines to community service to lashes to life sentence) clears the maximum score. The death penalty’s biggest issue with regard to the functions of justice is in the areas which affect post-conviction, net contribution to society. There is no alternative to viewing the death penalty as an intentional devaluation of life and a capitulation of the justice system to the responsibilities of correction and rehabilitation.