The death penalty is one of the most controversial ethical issues since it questions whether one person can kill another one according to the proportional principle of punishment. People believe that imprisonment cannot solve the serious crimes so that the death penalty is the only (and the most optimal) solution in this case. Moreover, they assume that the death penalty will prevent crime, protecting society from unjust violence. However, crime continues to exist as well as serial criminals although the death penalty should have stopped it because of its strict procedure. It means that the death penalty is not effective and that the principle of proportionality becomes only a conditional realization of justice which does not solve the problem of crime in society. Moreover, it is unclear whether all the criminals deserve to die. Due to unanswerable issues, the death penalty arouses the prolonged controversy that leads to the reflection on its legitimacy as a permissible form of punishment. From the perspective of utilitarian theory, the death penalty is morally unacceptable since it does not lead to the common good but even increases suffering as a direct manifestation of evil.
The classical retributivist theory of punishment suggests that a person deserves a punishment for the crimes he/she committed. It refers to the Kantian deontological ethics according to which the moral imperative defines the motives and consequences of human actions. Therefore, a person must act in accordance with a certain ethical maxim, which implies the idea of proportionality. On the contrary, any crime is a culpable act of demerit, thus it is an intentional transgression (Pincoffs, 1980, p. 538). For example, if a person wants to receive love, then he/she should love others without asking for more than he/she can give. A similar principle corresponds to the death penalty, proving that a deliberate murder of another person must be addressed in the same way. However, it does not mean that if a perpetrator raped and killed his/her victim, he/she should also be raped and killed.
The retributivist theory suggests that a perpetrator must be punished and convicted in accordance with the nature of the crime. The leading proponents of the theory consider that it is morally right when the punishment is proportional to the crime. Otherwise, if a criminal is not committed to a fair trial, it is an immoral act since it imbalances the justice in the society. A wrongdoer cannot remain without an appropriate punishment, and, therefore, when he/she suffers in proportion to his/her wrongdoings, it is morally better (Rawls, 1955, p. 5). In other words, the theory holds a specific measure of punishment, which concerns the actual, not the future scenario of events. Thus, the core of the retributivist theory is to equalize causes and consequences in terms of the justification of punishment regarding the present. As a whole, the classical retributivism asserts that the only acceptable reason for punishing a person is when the punishment is equal to the crime. It equates crime and punishment, thus making the sentence morally justified and inevitable.
The utilitarian theory considers the role of punishment according to what is best for the society in terms of pleasure and good. According to this belief, good is a pleasure, and evil is suffering. Therefore, crime multiplies suffering and reduces pleasure for most people. However, the problem is that the punishment is also a crime. As a result, the utilitarian must respond to crime maintaining the public good. The punishment should have precisely such a degree of severity that the probable disutility of greater severity balances the possible gain in utility (Brandt, 2011, p. 316). Therefore, it means that the punishment for a particular crime must always be greater than the possible reward for committing a crime. In other words, the penalty must stop a perpetrator from committing a crime in the future. For example, if someone wants to pay a bribe to a police officer, the penalty should be ten times more, so that the person will not do again. Following this logic, Brandt (2011) states that more serious offenses should carry the heavier penalties, stimulating the criminals to commit a less serious rather than a more serious offense (p. 317). Finally, the reductive principle of punishment will force the criminals to commit fewer and fewer serious crimes and, therefore, to cease to do them in the future.
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Contrary to the followers of retributivist theory, the proponents of the utilitarian theory are more interested in the future consequences of punishment rather than on the current fair decision. Hence, the utilitarianism focuses on the future consequences that derive from the present decisions (Rawls, 1955, p. 5). Since the purpose of utilitarian punishment is to prevent recidivism, the utilitarian theoretic believes in jail as a precautionary factor for the future crimes. If a criminal is in jail, he/she will no longer be able to commit a crime against people as well as to increase the evil, regardless of what type of crime he/she carried out before. Consequently, the utilitarian theory insists that punishment should be inflicted only for the violation of the law. Accordingly, penal institutions must punish the offender in order to provide the good of society, thus they should not only follow the abstract principle of proportionality. It will humanize penal institutions, protecting people from unfair punishments.
We should apply the utilitarian theory of punishment since it is aimed to reduce suffering for the whole society and not just to ensure justice for particular individuals. Contrary to the retributivist theory, utilitarianism treats crime as a part of the common well-being and establishes its level of seriousness in accordance with the level of harm. Utilitarians clearly understand that the punishment cannot be a good method in its nature, so we need to tackle crime through the idea of utility. Bentham convinces that the punishment has consequences not only for the criminal but also for the good of society (Bradnt, 2011, p. 317). Therefore, utilitarians focus on the ways to balance the level of punishment and its consequences for the society, so that there will be no crimes.
Undoubtedly, it is not easy to determine the relevance of punishment to the good of society, but such a criterion is more humane than the retributive concept. Moreover, the fair punishment can be an example to others although it is not and cannot be an absolute solution to the illegal acts. The core of utilitarianism is that it only reduces the future possibilities of crimes but does not abrogate them. On the contrary, the retributivist theory focuses on a specific punishment, which, in fact, does not concern the well-being of society. It supports only the principle of justice, which conditionally balances the outcomes of crimes in accordance with the idea of proportionality.
However, there are certain flaws in the utilitarian theory of punishment. The main problem is the infliction of suffering on innocent people. Specifically, Rawls accurately states that utilitarianism mostly offends the interests of a small group of people in order to achieve the common good. The question is how to use the idea of utilitarianism fairly if at least one person suffers from the consequences of punishment. In this regard, the punishment is equally expedient although it is impossible to carry out an unequivocal boundary since there is no such ethical criterion that could completely eliminate all suffering. In general, utilitarians know that someone will suffer in any case although their ideal model tends to eliminate all suffering. However, the problem does not only relate to a type of punishment but mostly to those who decide to punish. Thus, Rawls affirms that the emergence of innocent victims as a result of the utilitarian theory is almost impossible when we accept competent officials and institutions. Accordingly, utilitarians do not accept innocent victims as the targets for the achievement of good and pleasure, but, on the contrary, they prevent their appearance because it dehumanizes the idea of utilitarian just punishment.
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The death penalty cannot be morally acceptable from the utilitarianism perspective since it does not reduce suffering and pain. On the one hand, it seems the death penalty reduces suffering because it involves the restoration of balance in society due to the implementation of fair punishment. A person intuitively understands that if the perpetrator killed ten people, the death penalty would be the best way of establishing justice at least for the families. On the other hand, the death penalty does not stop the suffering of relatives, thus it does not solve the problem of justice in general. It is possible to have a solitary confinement because a perpetrator would live with the thought of his/her actions until the end of his/her life. Therefore, he/she would not be dangerous for society. However, the death penalty does not reduce the suffering of other people, the potential victims or perpetrators, because this sentence does not have any value for them. According to the utilitarian theory of punishment, pain does not bring pleasure to the society. Moreover, people might not understand why the murderer has to be executed. In most cases, they intuitively accept the death penalty as the only method of punishment without considering alternative methods.
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Accordingly, the death penalty removes any possible classification of the crime, depriving the offender and society of a chance to eliminate the reasons which drive people to commit a crime. Thus, the death penalty does not have any benefit to society since it does not allow to achieve a common good for the largest number of people. The principle of proportionality works only in the form of retaliation (eye for an eye), which does not consider the interests of the majority. It can be compared with the situation when a father hits a child for a bad act without explaining why he does it and what effect his/her deed might have in the future. The idea of proportionality resembles a vicious circle, where each subsequent death penalty is just another reaction to the extreme crime. Moreover, it abolishes the idea of a prison as a sufficiently effective mean of punishment. In fact, the supporters of the death penalty are against prisons because they do not believe that they change the situation. However, the consequences of the death penalty are meaningless for society because they can address only a specific group of people. Most people will be punished for murder without evaluation of how specific the murder is. Hence, one’s understanding and realization of a crime are impossible within the legalization of the death penalty since any possibility of educational work is neglected. The death penalty definitively abolishes special restraint and rehabilitation, considering them incompatible with the crime.
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The problem is whether the death penalty can be useful to society as a method of deterring the next crimes. According to the utilitarian theory, the death penalty only implements the principle of proportionality and justice for a particular person, without worrying about the consequences for the society. Van den Haag’s (1978) idea of deterrence is not effective because the death penalty equates the various unique cases of crimes to a single punishment (p. 54). In other words, society understands only the general formula that the killing of a person should be responded with the death of a murderer. Thus, the death penalty is the best way. This decision should resolve the issue, but the main problem is that it does not work as a form of law for others. Hence, the future reduction of crime exists as an extreme form of retaliation. There is no objective guarantee that the death penalty will stop the perpetrators from committing crimes. It is equally difficult to agree with Van den Haag that the death penalty protects subsequent victims from criminals who will be afraid to commit a crime one more time. It also does not reduce suffering since it does not foresee when the death penalty can only solve and generalize different types of crimes, canceling any chance for humanization.
Finally, the death penalty concerns the utilitarian distinction between the perpetrator and the crime, which unifies the role of a legislator in relation to punishment. As a result, this could lead to the death penalty as the most effective but still wrong way of solving problems, especially if the performer will execute innocent people for justice. Van den Haag states that the death penalty is similar to medicine and air crashes since it implies the accidental involvement of innocent people. This argument is wrong because the death penalty is not an accidental process, which may result in innocent deaths, but it refers to a deliberate and purposeful murder. According to utilitarianism, it must suppress suffering, when the retributive recognition of punishment merely affirms it. The lack of distinction between the perpetrator and the crime leads to the fact that almost every person who intentionally or accidentally ruins other lives should be condemned to the death penalty. Instead, the utilitarian theory is particularly sensitive to the perpetrator of a crime, distinguishing different levels of punishment according to the well-being of society.
In conclusion, the retributive and utilitarian theories of punishment are significantly different. When the first one tries to counterbalance the crime and punishment, another one cares more about the goodness of society. Taking into account the utilitarian theory, the death penalty is inadmissible because it does not involve public good. On the contrary, it increases suffering because it does not solve the problem of certain individuals and society in a whole. In fact, this is no longer a kind of just punishment but a method of revenging concrete people who want to balance their loss in such a way. Hence, the death penalty cannot be an effective deterrent because it unifies and deregulates all the crimes without providing a gradual reduction of crimes in accordance with the understanding of punishment. In fact, it completely removes any interpretation of the perpetrator and the crime, creating dangerous conditions for the involvement of innocent people. Therefore, the death penalty is an inhumane and ineffective punishment which deprives people of the opportunity to become better.