Legal View: Most death penalty rationales fray under scrutiny

By Evan Wyloge

The Daily Record Newswire

"Tough on crime!"

We've seen that message before, and what politician could ever find success with an alternative stance toward criminals? But when does tough become ineffective?

In recent weeks, we've seen a criminal executed and another execution is scheduled pending a last-minute review. Every time Arizona doles out the most severe punishment humans have the capacity to inflict on one another, I find myself asking: When criminals are killed for their crimes, what are we hoping will result, and what actually results?

Before leaping to the answers to these questions, it can add a lot of clarity to think about what the criminal justice system and criminal penalties are designed to accomplish, and how the death penalty fits into the overall scheme.

There are only four goals to the criminal justice system.

First, criminal punishments are designed to facilitate rehabilitation, wherein a person's criminality is considered a problem that can be fixed by the justice system. A person would, if this is the goal, sustain their punishment, learn the errors of their ways, then be released back into society, under the belief that they will not commit those crimes again.

But a death sentence does not provide an opportunity to release a person from incarceration, so capital punishment does not serve this goal.

Second is ostracization through imprisonment. It's fitting to consider a life sentence here, where ostracization is the final goal. In essence, the criminal justice system has determined that a person simply is not fit to be a member of society.

The same goes for a death sentence, but given due process, court costs, attorneys' fees and the time and effort put toward executing someone, a death sentence costs more in resources than putting someone in a maximum security prison for the rest of their life.

Third, punishment is intended to deter future crime. In the case of the death penalty, proponents say the threat of losing one's most precious possession -- life -- is the greatest deterrent of all. But we need to consider which crimes the death penalty is applied to, in order to think more critically about this argument.

Capital punishment can be applied to first-degree murder and treason. In both cases, perpetrators typically believe they won't be caught. These crimes are premeditated, and this class of criminal believes they can commit the crime without ever having to face justice. It can also be applied to second-degree murder, which is a crime of passion, and where criminals hardly think about the results of their actions.

To test whether the death penalty deters these crimes, one only needs to compare states that use it with those that don't. According to information available at the Death Penalty Information Center, the difference between the murder rates in states with the death penalty and those without it actually shows a slightly higher murder rate in states with the death penalty. Richard Dieter, the center's director, said the data show that at the very least, the death penalty demonstrates no deterrent value.

The last reason for criminal punishment is retribution. Hammurabi codified this notion, as did the Hebrew Bible. The concept -- lex talionis or an-eye-for-an-eye -- calls for equal pain and suffering to be inflicted by a society onto a perpetrator of it.

Do we or do we not believe that we have the right or the reasons to inflict equitable suffering onto a criminal?

A person's death penalty stance based on this goal is often a guarded and passionate one, rooted in philosophical or religious beliefs. Given the deficiencies found in the other justifications, this goal is where intellectually honest discussions of the merits of the death penalty should be centered.

Let's move beyond the platitudes about who's tougher on criminals, and remember that criminal justice is supposed to serve rational goals.

Published: Wed, Apr 13, 2011