PENALTY

majority of public opinion polls indicate support for the death penalty,
when confronted with financial analysis that indicates that a life
sentence without parole could produce savings that could instead go
towards compensation of victims and their families, public opinion
often tends to sway in favour of the latter option.
On the other end of the scale from the pragmatic approach are the
moral and value-based arguments regarding the death penalty. Chapter
4 addresses the relationship between the death penalty and values
through an article reflecting a victim’s perspective, two articles that
are potentially controversial, as is so often the case when values are
concerned—one dealing with major religious doctrine and the other
with politics, as well as two articles assessing the death penalty from
the perspective of international human rights obligations
Despite the lack of evidence of deterrence, retentionist’ arguments
can be articulated and are indeed perceived by some as moral ones.
Essentially, the reasoning is based on a “just retribution” argument—
changing the perspective from utilitarian to Kantian. If crime deserves
adequate punishment for moral reasons, it makes social consequences
and the deterrent effect (or lack thereof) less relevant. Furthermore,
even if capital punishment has negative social consequences, it should
be retained because it is proportionate to some crimes—vivat iustitia,
pereat mundus (justice should live even if the world were to die).
When discussing the death penalty from the perspective of values,
it is critical to bring the victims’ perspectives into the debate. Their
position certainly carries important moral and political leverage.
However, those perspectives at times seem to be quite different. Some
family members of murder victims are among the strongest supporters
of the death penalty, well organized and influential. But others are
equally strongly convinced that murder cannot be countered with
murder. They do not want the lives of their loved ones to be avenged
with more violence, and instead of focusing on retribution, they try
to set themselves free from their trauma through forgiveness, healing
and restoration. 17
It is also questionable whether, in practice, the death penalty helps
provide closure, as it is so often argued. In most retentionist states
it is gradually being reduced in scope to exclude minors, pregnant
woman, people with mental disabilities and many others. For example,
in the United States, prosecutors seek the death penalty in only about
2 per cent of intentional homicide cases, and the death sentence is
imposed in only about half of those. Of those death sentences, about
two-thirds are reversed on appeal. In the end, just about one-third of
1 per cent are executed, and this after an average delay of 12 years. 18
Does the possibility of the death penalty psychologically prevent closure
and healing—could these in fact come much sooner in cases that
result in a long prison term or a life sentence without the possibility
of parole? Does not the frustration of waiting in vain for a perpetrator
to be executed not actually hurt those seeking revenge more than if
there was no death penalty at all?
Are juries more reluctant to find defendants guilty if there is a chance
that they might be executed? Does that lead to more acquittals and
thus hurt victims and their families even more when they see suspects
go free? Furthermore, does the death penalty affect other innocent
third parties more than other penalties? Do families of convicts suffer
more because of the prolonged death threat to their loved ones? 19
May some of them not also be perceived as victims?
Although the analysis of the social, economic and psychological effects
of the death penalty clearly indicates its harmful effects, it can also be
attacked in a Kantian moral safe-haven, detached from any measurable
social effect and scientific evidence. In my view, the essence of the
moral opposition to the death penalty is the argument that killing is
simply wrong, whether we relate it doctrinally to a human right to life
and the right not be subjected to cruel or inhuman punishment, or not.
No one can blame victims and their families for wanting revenge,
including through the death penalty. In their pain and loss, they are
entitled to that desire. However, laws exist to prevent individuals from
17 In the United States they have formed an association called Murder Victims’ Families for Reconciliation.
Membership requirements are that a close family member has been murdered and
that they oppose the death penalty. Some of their stories have been collected in Rachel King,
Don’t Kill in Our Names (Rutgers University Press, 2003).
18 Gerber and Johnson, The Top 10 Death Penalty Myths, pp. 196-197 and 222.
19 Psychiatrists warn that many family members, especially those who were the primary support
of a capital defendant, experience depression and symptoms associated with post-traumatic
stress disorder.
16 17