A Moral Argument Against The Death Penalty

by rabbifink on November 19, 2009 · 33 comments

Electric ChairIn the last few months there have been a few death penalty executions. Most notably the D.C. Sniper was executed on November 10, 2009. Since that time I have been thinking about the death penalty. I have discussed it on Twitter and in real life.

The last unit of our Criminal Law course was the Death Penalty. Professor Levenson asked for volunteers to argue for and against the death penal. Normally, I don’t jump at opportunities like this, I prefer to watch and observe other students try to make coherent arguments in front of their skeptical peers… Yet, my had shot up. It was almost involuntary. And I found myself on the side representing “against” the Death Penalty.

There were three of us and we split duties. I chose to make the moral argument against the death penalty. What follows was my basic argument.

In the USA, murder is against the law. One citizen may not take the life of another. This is a good law and is a basic law in any civilized country. The law is based upon our sense of morality. That means that the starting point when thinking about the morality of taking another’s life is, that it is immoral.

Of course there are exceptions. One who fears for his life may defend his life and is justified in killing his would-be murderer. This is called self-defense.

The application of this defense is very specific. There are other defenses or justifications to First Degree Murder but none will serve as a complete defense, they will only mitigate the charge or perhaps affect the sentencing. In other words, taking the life of another is never completely justified unless it to save one’s own life.

There should be no exception for the government. The State and Federal Governments have a duty to observe the same laws of morality the citizens must observe. The only moral excuse for killing is in self defense. Self defense can only be argued when the danger is imminent. Once a murderer is apprehended and incarcerated there is no self defense excuse. An incarcerated prisoner poses no imminent danger, thus the taking of his or her life is by definition immoral.

We are not bound to punish criminals by the same heinous acts they committed. The law of our country does not hold lex talionis. We don’t punish a criminal with the same act he criminally committed. We shudder at the thought of torturing a torturer or raping a rapist or battering a batterer, how could we be so callous about taking the life of a killer.

We have no moral ground to stand on if we take the life of a murderer. Taking the life of a killer simply turns us into murderers.

Related posts:

  1. World Against the Death Penalty Day
  2. Should a Death Row Inmate Be Able to Choose to Die?
  3. Murder In Jewish Law and United States Law

Tagged as: capital punishment, death penalty, Laurie Levenson, law, law school, morality

  • http://twitter.com/MarkSoFla Mark

    In the USA, murder is against the law. One citizen may not take the life of another. This is a good law and is a basic law in any civilized country. The law is based upon our sense of morality. That means that the starting point when thinking about the morality of taking another’s life is, that it is immoral.

    But you’ve fallen for the logical fallacy of first introducing “murder” and then “taking [a] life”, and using the fallacious relationship for the rest of the argument. It’s akin to the very common translation error of translating “לא תרצח” as “do not kill” (incorrect) rather than “do not murder” (correct). They are two completely different things and two completely different concepts.

    In addition, using your fallacious argument, the logical conclusion would be that you cannot wage war except directly against those that are an immediate threat to you, which, of course, is not the way war is ever waged.

    • http://finkorswim.com rabbifink

      The definition of murder in the USA is an unjustified taking of another’s life. So it is not a fallacious argument at all.

      And war is different because the power to wage war is expressly given to the Federal Government and there is no corollary to civilian law. Further, I would argue that we could only wage war in self defense or a pre-emptive self defense, something that even the criminal law recognizes.

      • http://twitter.com/MarkSoFla Mark

        The definition of murder in the USA is an unjustified taking of another’s life. So it is not a fallacious argument at all.

        How can you argue if something is “justified” (i.e. capital punishment) if the very definition of the thing you are using to base your argument on expressly uses the word “unjustified” in its definition? It is quite clear that the “unjustified taking of [a] life” is quite different than “taking [a] life”, otherwise that modifier wouldn’t be necessary!

        And war is different because the power to wage war is expressly given to the Federal Government and there is no corollary to civilian law.

        I think perhaps that at the base level of definition, the power to wage war is a natural right – because I believe the right to self-defence, either individually or collectively, is a natural right.

        Further, I would argue that we could only wage war in self defense or a pre-emptive self defense, something that even the criminal law recognizes.

        I would generally agree with these parameters on waging war. Of course that also presupposes that the current world borders are “perfect”, and there is never any excuse to wage war to capture more territory, eliminate a neighboring rival, and/or to strengthen ones own country, strategically or otherwise.

  • The Law

    your argument makes too many leaps.

    having the gov bound is a HUGE leap.

    there are other legal defenses to murder.

    last you are assuming the gov only has an interest in protecting and not punishing. and no credence is given to deterrent and future prevention. since if even one life is saved by death penalty its worth it.

    last line is too emotional murders kill with malice, we execute murders with just intentions not malice.

    gotta work on your closing…

    but you did the best with the terrible side you had to be on…

    • http://finkorswim.com rabbifink

      - If the government is not bound, they need a law that excludes them.

      - I note that there are other legal defenses, they are not complete defenses, thus indicated that the act of killing was still morally objectionable

      - deterrence is a non-starter, the statistic PROVE there is no correlation between capital punishment and deterrence.

      - malice does not mean cold-hearted, it means intent to cause bodily harm

      • The Law

        – I note that there are other legal defenses, they are not complete defenses, thus indicated that the act of killing was still morally objectionable

        nit true. defense of other is complete defense. fleeing felon is complete defense.

        – If the government is not bound, they need a law that excludes them.

        government has created the law. its called teh death penalty. your argumen on this one is circular.

        – deterrence is a non-starter, the statistic PROVE there is no correlation between capital punishment and deterrence.

        it is a starter and since correlation can NEVER be proven 100% with anything (any statistician will confirm that fact) saying it doesnt correlate is just as weak.

        – malice does not mean cold-hearted, it means intent to cause bodily harm

        this is not correct, re-read your outline for manslaughter man 1. and Murder 1 and murder 2 and felony murder.

        i applaud your argument, and your defense of your argument though….

      • http://twitter.com/MarkSoFla Mark

        If the government is not bound, they need a law that excludes them.

        But they did … it’s the law that created capital punishment. In fact, it is a law that IIRC was once reversed and then reinstated later!

        • http://finkorswim.com rabbifink

          The power to wage war is specified in the constitution. Our discussion begins with no starting point – we are debating the merits of creating a law that allows capital punishment. War and the death penalty are inherently different.

          • http://twitter.com/MarkSoFla Mark

            Now this is a different, and better, argument. Does authorizing capital punishment require an amendment to the Constitution or not?

            If so, then the Federal Government has no right to apply such a punishment. HOWEVER, since it is not mentioned in the Constitution, the States have every right to legislate it as they see fit.

    • PJR79

      “The Law”: you could hardly conceive of more “malice aforethought” than taking the life of another, deliberately, at a pre-designated place and time.
      As Eli said, there are other “defenses” but they are EXCUSES, which mitigate the crime, rather than JUSTIFICATIONS, which make it morally acceptable (the right thing to do).
      As for “unlawful”, that will depend on what the law is. If unlawful is defined as any unjustified homicide, then Eli’s argument is solid. And whether homicide as punishment is justified or unjustified is, obviously, what his entire argument is about.

      • The Law

        As Eli said, there are other “defenses” but they are EXCUSES, which mitigate the crime, rather than JUSTIFICATIONS, which make it morally acceptable (the right thing to do).

        no thats wrong too. all are affirmative defenses that can be classified colloquially as “justifiable homicide”. defenses like mental defect, or other mitigating factors are not in the same framework.

        “The Law”: you could hardly conceive of more “malice aforethought” than taking the life of another, deliberately, at a pre-designated place and time.

        even if i were to accept this as correct, which i dont (so arguing in arguendo) you still havent satisfied the basic elements of murder.

        As for “unlawful”, that will depend on what the law is. If unlawful is defined as any unjustified homicide, then Eli’s argument is solid. And whether homicide as punishment is justified or unjustified is, obviously, what his entire argument is about.

        well the law permits it so its not unlawful. if you want to argue that the law should be changed then you need to have a completely different discussion under constitutional rubric. Fink knows this, but he also knows that he would lose 8th amend. challenge so he went emotional smoke and mirrors. the only problem is he stopped short. he SHOULD have argued that we know that ppl get wrongly convicted and later exonerated. that means we have undoubtedly executed innocent men. if thats the case, from a moral (NON LEGAL) perspective we have a duty to condemn the death penalty as its risks outweigh potential reward….

        • http://finkorswim.com rabbifink

          Some other guy argued about “getting it wrong”. I argued even if we get it right, it is wrong to kill another unless it is in self defense.

  • The Law

    The definition of murder in the USA is an unjustified taking of another’s life. So it is not a fallacious argument at all.

    actually its the UNLAWFUL killing of another with malice aforethought. thats murder 1.

    • http://finkorswim.com rabbifink

      yes correct

      still not a fallacious argument

      • The Law

        i dont think i ever said fallacious, ill advised and unfinished maybe, but not fallacious…

  • The Law

    – I note that there are other legal defenses, they are not complete defenses, thus indicated that the act of killing was still morally objectionable

    nit true. defense of other is complete defense. fleeing felon is complete defense.

    – If the government is not bound, they need a law that excludes them.

    government has created the law. its called teh death penalty. your argumen on this one is circular.

    – deterrence is a non-starter, the statistic PROVE there is no correlation between capital punishment and deterrence.

    it is a starter and since correlation can NEVER be proven 100% with anything (any statistician will confirm that fact) saying it doesnt correlate is just as weak.

    – malice does not mean cold-hearted, it means intent to cause bodily harm

    this is not correct, re-read your outline for manslaughter man 1. and Murder 1 and murder 2 and felony murder.

    i applaud your argument, and your defense of your argument though….

  • Dudley Sharp

    You made no moral arguement against the death penalty.

    You wrongly, amorally or immorally, equated murder and execution.

    “Killing equals Killing: The Amoral Confusion of Death Penalty Opponents”
    http://homicidesurvivors.com/2009/02/01/murder-and-execution–very-distinct-moral-differences–new-mexico.aspx

  • Ellen

    One who fears for his life may defend his life and is justified in killing his would-be murderer. This is called self-defense.

    I think execution is a kind of societal self-defense. When a criminal’s deeds are so severe that they disrupt the very fabric of society, we can either lock him away forever, or send a violent message back to other would-be psychopaths.

    • http://finkorswim.com rabbifink

      Self defense require am imminent danger (or at least a perceived imminent danger) so if you were under attack and then the attacker is behind bars, the self defense excuse is gone.

      Further, there no evidence that executing a killer “send a message” to any would be killer and certainly not to a “psychopath” who likely won’t get ANY messages…

  • http://conversationsinklal.blogspot.com Prof K

    Re the deterrent aspect, statisticians have been carefully monitoring those states with the death penalty and those without. In addition, they have looked at pre-death penalty figures and post-death penalty figures. They are pretty much unanimous in saying that having the death penalty does not serve as a deterrent based on state by state comparisons and pre and post comparisons. Now it could be that there is no statistically significant deterrent effect because the death penalty is not applied all that often, and the time from sentencing to actual death can be years and years thanks to the appeals process. Or it could be that anyone who seriously contemplates murder, and not just psychopaths, has a mental makeup that would require more than the knowledge that he could be executed if caught, tried and sentenced.

    I’d agree that the deterrent aspect is a very weak point to support a pro-death penalty argument.

    • The Law

      there are plenty of other variables at play including but not limited to: gun control laws by state, if they tally all homicides or just murder charges, actual executions carried out, population density, etc…

      the sample sizes are completely skewed and cannot be accurately compared.

      Re the deterrent aspect, statisticians have been carefully monitoring those states with the death penalty and those without. In addition, they have looked at pre-death penalty figures and post-death penalty figures. They are pretty much unanimous in saying that having the death penalty does not serve as a deterrent based on state by state comparisons and pre and post comparisons

      this is disingenuous since there is no consensus. the only thing everyone agrees on is that there is no real data to corroborate either claim on a state by state comparison since all comparisons end up being apples to oranges. the data, at worst, is inconclusive…

      for example, you cannot honestly compare Florida and Massachusetts. there are too many other factors to consider.

  • http://innate-differences.blogspot.com The Bray of Fundie

    I don’t see why the threat needs to be imminent. It is assured and it’s moral for a government to protect ALL possible victims of the murderer.

    What is the recidivism rate for murderers? How many juvenile offenders grew up to repeat as adults?

    Is it moral to maintain a justice system that punishes the innocent and makes them pay with their lives, for the unwillingness to execute capital punishment?

  • http://innate-differences.blogspot.com The Bray of Fundie

    I don’t see why the threat needs to be imminent. It is assured and it’s moral for a government to protect ALL possible victims of the murderer.

    What is the recidivism rate for murderers? How many juvenile offenders grew up to repeat as adults?

    Is it moral to maintain a justice system that punishes the innocent and makes them pay with their lives, for the unwillingness to execute capital punishment?

    • http://finkorswim.com rabbifink

      I don’t see why the threat needs to be imminent. It is assured and it’s moral for a government to protect ALL possible victims of the murderer.

      Incarceration protects us. Period.

      What is the recidivism rate for murderers? How many juvenile offenders grew up to repeat as adults?

      Not very high. Almost all 1st degree murderers die in prison.

      Is it moral to maintain a justice system that punishes the innocent and makes them pay with their lives, for the unwillingness to execute capital punishment?,/i>

      No. But that is not what happens. Not by a long shot.

      • http://twitter.com/MarkSoFla Mark

        Bray – What is the recidivism rate for murderers? How many juvenile offenders grew up to repeat as adults?

        E Fink – Not very high. Almost all 1st degree murderers die in prison.

        Rabbis and lawyers, always adding qualifiers! :-)

        What is the recidivism rate of murderers? Not those convicted of the legal construct we call “1st degree murder”. Also, please try to keep in mind that “recidivism” doesn’t only mean “after prison/jail”.

  • Dudley Sharp

    Prof K makes a number of common errors in the deterrence discussion.

    This should help clear the fog.

    “Deterrence and the Death Penalty: A Reply to Radelet and Lacock”
    http://homicidesurvivors.com/2009/07/02/deterrence-and-the-death-penalty-a-reply-to-radelet-and-lacock.aspx

    “Death Penalty, Deterrence & Murder Rates: Let’s be clear”
    http://prodpinnc.blogspot.com/2009/03/death-penalty-deterrence-murder-rates.html

    23 recent deterrence studies finding for deterrence, Criminal Justice Legal Foundation,
    http://www.cjlf.org/deathpenalty/DPDeterrence.htm

  • Sean – Sammie – Philo.

    Your argument is not true or at least not proven. It is impossible to prove that the incarcerated prisoners are not going to murder someone in prison or break out and repeat their actions. Your argument in standard form as far as we have gathered is as follows

    M is J if and only if S.
    Only S if D.
    P is not D
    —————————–
    Thus, M of P is not J

    M being murder
    J is moral
    S is self defense
    D is imminent danger
    P is prisoner(s)

    If this was your intended argument you may want to think of a proof of how prisoners do not pose any imminent threat.

    your line “P is not D” is not proven. Therefore you cannot prove your conclusion. The premises must support the conclusion for a strong or true argument and in this case that is not how things play out.

    • http://finkorswim.com rabbifink

      Once incarcerated the murderer can be isolated. It is entirely possible to preempt any further murders by a murderer. The fact that we don’t just shows that we as a society don’t care enough (justifiably or not) about our prisoners.

  • Pingback: World Against the Death Penalty Day | Pacific Jewish Center | Rabbi

  • http://twitter.com/shlomoabraham Shlomo Abraham

    You kicked me here from Twitter re: Troy Davis.

    Your arguments are based on the precarious point that ‘government isn’t different’. Government is fundamentally very different. Society empowers government to act on their behalf, and that moral authority permits justice to be exacted by society in ways that individuals cannot. Courts can compel people to pay fines, for an individuals that is called blackmail. Courts can deprive people of their freedoms through incarcerations; if an individual did that it would be kidnapping. And courts can deprive people of their lives, individuals cannot.

    Your entire argument could be re-written to apply to most forms of court-administered punishment, which I’m guessing you would then disagree with.

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