Capital punishment is used as a punitive measure in the majority of the US states. Clearly, this type of punishment is used to respond to the most severe crimes.
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It also serves as a deterrent to crime (Fagan, 2006). However, capital punishment has been a topic of a heated debate for centuries. Thus, an Italian noble man of the 18th century, Beccaria, questioned the societal norms and inquired whether laws, which are “the expression of the public will”, in order to “deter citizens from murder… should order a public murder” (Bessler, 2009, p. 197).
At present, people living in different countries also struggle to ban the capital punishment. More and more countries are abolishing the death penalty. The American society is also divided into two camps as some citizens are strongly against it while others advocate this type of punishment. It is necessary to trace the history of the capital punishment as well as roots of the American legal system (in this respect) to understand why the debate is going on and which party will, eventually, win the lasting dispute in the USA.
It is possible to note that capital punishment is one of the most ancient types of punitive measures as ancient civilizations introduced it. The American legal system is rooted in the European law, which, in its turn, is based on Hammurabi’s Code and Mosaic Law. These two legal systems are seen as some of the oldest in the history of humanity.
The Hammurabi’s Code dates back to the 18th century BC. It was a Babylonian code of law and it was inscribed on numerous stone steles as well as clay tablets. According to this law code, the major goal of punishment was to make the criminal an example and deter others from committing serious crimes (Goel, 2008). In other words, people sought for a proportionate measure to punish any crime and capital punishment seemed an adequate measure for a murder.
The Mosaic Law (or the Code of Moses) is very similar to the Babylonian code of laws. Since it dates back to approximately 2nd century BC, it is possible to assume that it is based or partially grounded on the Code of Hammurabi. At any rate, the Mosaic Law appears in the Old Testament and it also included severe punitive measures.
As regards the capital punishment, the laws say “[T]hou shalt give life for life, Eye for eye, tooth for tooth” (as cited in Balmer, 2008, p. 784). Therefore, retributive justice has been the norm for people since ancient times. Hebrew civilization followed these norms and never questioned their morality.
These principles reigned in the western society in the Middle Ages up to the twentieth century. Greek and Roman legal systems were based on the two codes and, in their turn, influenced development of legal system of all European countries as the Roman Empire had a huge territory and imposed their laws in its numerous colonies. It is necessary to add that Christianity is closely connected with Judaism as the two religions refer to the Old Testament as one of major sources of knowledge (Copan, 2008).
The Ten Commandments are also seen as major laws of God and are never questioned by Christians. It can be seen as a universal code of conduct for all Christians. Thus, murder is one of deadliest sins according to all the three codes of law (Code of Hammurabi, Mosaic Law, code of Christians).
Needless to say, Christianity had a paramount impact on development of legal systems of European countries as well as their colonies. Interestingly, Christian priests promoted tolerance, humbleness and submission and this made the religion very different from the codes of laws mentioned above.
At the same time, the Holly Inquisition and its activities in European countries up to the 18th century suggests that there was certain dichotomy when it came to punishment of crimes (Goel, 2008). Goel (2008) notes the use of capital punishment in legal systems of European countries can be explained by alienation of secular power from the church.
Nonetheless, this can also be a result of the dichotomy of Christian principles. Executions were quite common in European countries and countries of the New World up to the twentieth century. Balmer (2008) argues that the principle “eye for an eye” often failed in the Middle Ages as even less serious offence could lead to the death penalty.
More so, in the eighteenth century, death penalty could be imposed for over 160 crimes including murder or hunting on certain territories. Balmer (2008, p. 787) adds that “typical punishments” could be whipping, banishment and branding. Admittedly, such justice could be hardly called proportionate. Notably, the major goal of such penalties was also prevention of crime (Balmer, 2008).
However, in the eighteenth and nineteenth centuries, people of the western world started questioning the moral background of capital punishment. This must be the result of the dichotomy rooted in Christianity. On the one hand, Christians tried to be tolerant. On the other hand, they still believed in retributive justice. As has been mentioned above, capital punishment was seen as a proportionate measure to punish murderers.
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However, an English thinker, William Blackstone (as well as many other people) believed that capital punishment was an immoral measure since people did not have the moral right to kill a person in order to punish crimes. Furthermore, in 1800s, many thinkers (for example, John Stuart Mill) argued that judicial systems were rather “vigilant” and “wrongful executions” could (and did) happen (Grimes, 2010, p. 180). To prevent, execution of innocent people, it was suggested that capital punishment had to be abolished.
In the twentieth century, the “eye for an eye” principle started taking other forms. For instance, people tried to understand whether the murder’s mental state was adequate whether the murder was a result of self-defense (Balmer, 2008). All these details were taken into account and the punishment could be milder. It is noteworthy that other crimes require milder types of punitive measures.
At this point, it is necessary to stress that the legal system of the USA was influenced by English and French legal systems as well as the principles of Christianity (with special attention to Puritanism). First settlers were devout Christians and the major reason for coming to the New World was their desire to keep their religious traditions.
Clearly, they were very serious about their religion and every facet of their life was shaped by religious principles. The country’s Constitution was also shaped by the discourses that were taking place in other parts of the world. Balmer (2008) argues that the US Constitution was influenced by ideas of Blackstone and Baccaria who advocated the ban of capital punishment.
It is possible to provide a number of examples. Hence, in New Hampshire Constitution of 1784, it is stated that all “penalties ought to be proportionate to the nature of the offense” but the “true design of all punishments being to reform, not to exterminate, mankind” (Balmer, 2008, p. 794).
In 1789, Pennsylvania abolished the capital punishment and some other states followed this example. When it comes to federal law, the eighth Amendment to the US Constitution prohibits “cruel and unusual punishments” (as cited in Balmer, 2008, p. 800). Thus, Balmer (2008) notes that the “eye for an eye” principle, which is employed in American courts, can take different shapes and, for example, in Kennedy v. Louisiana the court decided that it was unconstitutional to impose capital punishment for child rape.
Neumayer (2008) argues that the movement to abolish the capital punishment is deeply rooted in the concept of democracy and the trend to abolish the death penalty is closely connected with the spread of democracy. The researcher focuses on international trends. Thus, according to Neumayer (2008), abolition of the capital punishment is (in many cases) a byproduct of political struggle within countries. Democratic forces are winning in more and more countries and abolition of capital punishment is seen as an indispensable element of democracy.
In the USA, which is one of symbols of democracy in the world, the capital punishment still exists. However, the attitude towards this punitive measure has been changing during the twentieth and twenty-first centuries. Hence, Americans refer to Christian principles and stress that “it is the role principally of God to take a life for” punishing a crime (Jackson, 2010). It is noted that judicial system is far from being perfect and sometimes judicial mistakes occur. Americans also refer to their constitution where excessive punishment is prohibited.
At the same time, proponents of the capital punishment argue that criminals have to get proportionate punishment as this will prevent others from committing serious crimes. Grimes (2010) notes that 64% of Americans keep supporting capital punishment. It is necessary to look into reasons for such support.
Fagan (2006) notes that an economist, Isaac Ehrlich, published an article that became very influential and people have referred to it since 1970s. Thus, the economist provided results of his research that suggested that capital punishment “would influence would-be offenders to avoid punishment and forego crime” (Fagan, 2006, p. 255). The article was often referred to and the major idea people elicited from it was that one execution could save eight innocent lives (Fagan, 2006). It has been believed that capital punishment is one of most effective deterrents as criminals are often afraid of committing severe crimes due to the existence of the capital punishment.
When it comes to opponents of the capital punishment, their arguments have remained almost unchanged. One of the major arguments is that in the Christian society there can be no place for the death penalty as only God can take people’s lives. People have no moral right to kill a person even if it is proven that he/she is guilty of murdering another person.
Besides, the very existence of capital punishment contradicts democratic principles as every human has the right to live. Finally, civilized societies are often associated with sophisticated systems and codes while capital punishment is seen as something barbaric. As has been mentioned above, the number of people sharing such ideas is increasing.
It can be interesting to try to predict the way the public opinion can change in the near future. Grimes (2010) has conducted a survey and opinions of law students have been analyzed. This survey provides rather limited but quite interesting data on students’ beliefs and the survey can be regarded as certain evidence that capital punishment opponents are unlikely to be more numerous in the US society in the future.
The researcher focuses on arguments supporters of the capital punishment provide. Thus, these people believe in the humanness of the way execution is carried out. They also believe that life sentence can hardly be regarded as proportionate and effective punitive measure as the government spends a lot of money to keep inmates imprisoned and there are still chances that criminals can re-enter the society (through escape) and commit similar crimes. Interestingly, the students revealed almost no concern on executing an innocent person as they believe that technological advances eliminate the possibility of such incidents.
Interestingly, as for morality of the death penalty, the students note that the USA should not abolish the capital punishment just to satisfy other nations’ beliefs or aspirations. The research participants also claim that the capital punishment is justified for people who are “not conforming to the ideas we all agree upon” (Grimes, 2010, p. 193).
Finally, and it is very suggestive, students note that the capital punishment is deeply rooted in the “eye for an eye” principle. Clearly, one of the basic principles of the code of Hammurabi and Mosaic Law are still relevant in the contemporary society.
Law students can be regarded as people forming public opinion (or at least, shaping it significantly) in the future. Hence, their opinion is likely to be prevailing in the American society in the future. Thus, people will still believe that justice has to be retributive as the society has to impose proportionate punishment for offenders and deter others from committing serious crimes. The principle “eye for an eye” that were governing in the ancient societies are still persistent in the USA.
It is noteworthy that even though many countries are trying to abolish capital punishment seen as a sign of barbarian and anti-democratic measures, the USA is unlikely to do that. Americans do not want to satisfy other nations’ expectations on democratic principles as they see the USA a well-established democracy with laws that work and have to be preserved.
In conclusion, it is possible to note that Hammurabi’s Code and Mosaic Law are deeply incorporated in the worldview of contemporary Americans who believe in the major milestones of retributive justice. The ancient codes were adopted by the Romans and appeared in Christianity.
Therefore, the entire Christian world is ‘brought up’ on ancient principles. The US society, which is based on Christian values, also believes in “eye for an eye” principle. The public opinion has been changing throughout centuries and since the 18th century, people have been trying to abolish the capital punishment. However, in the USA, the death penalty is unlikely to be abolished in the near future, as people tend to believe in its efficacy.
Balmer, T.A. (2008). Some thoughts on proportionality. Oregon Law Review, 87(1), 783-818.
Bessler, J.D. (2009). Revisiting Beccaria’s vision: The Enlightenment, America’s death penalty, and the abolition movement, Northwestern Journal of Law and Social Policy, 4(2), 195-328.
Copan, P. (2008). Is Yahweh a moral monster? The new atheists and Old Testament ethics. Philosophia Christi, 10(1), 7-37.
Fagan, J. (2006). Death and deterrence redux: Science, law and causal reasoning on capital punishment. Ohio State Journal of Criminal Law, 4(1), 255-320.
Goel, V. (2008). Capital punishment: A human right examination case study and jurisprudence. International NGO Journal, 3(9), 152-161.
Grimes, J. (2010). The symbolic capital of capital punishment: A scholarly reflection. Journal of Theoretical and Philosophical Criminology, 2(1), 178-199.
Jackson, B.S. (2010). Human law and divine justice: Towards the institutionalization of Halakhah. JSIJ, 9(1), 223-247.
Neumayer, E. (2008). Death penalty: The political foundations of the global trend toward abolition. Human Rights Review, 9(2), 241-268.