The death penalty has always held a special place in public consciousness. It is worth talking about the death penalty as an instrument of criminal policy and a socio-cultural phenomenon, and attitudes to it are an indicator. The attitude of society to it is an indicator of the prevailing morals and attitudes in it, an indicator of how imbued it is with the ideas of justice, humanism, and civilization. Today, due to the profound global integration and globalization processes, the legal position of the individual cannot remain static.
Fundamental rights are recognized in the legislation of most states. However, on the road to absolute recognition of the right to life, many countries have consistently carried out the prohibition of the death penalty. The death penalty issue is inseparable from and incompatible with the general conception of human rights because it violates his rights and, above all, his right to life. The death penalty is contrary to international human rights law and violates the universally accepted norm of the right to life. The prohibition of the death penalty in contemporary international law is associated with establishing the basic principle of respect for human rights (Levine, 2018). The US Constitution recognizes the right to life as a pivotal constitutional right, but at the same time, 34 states in the country have not abolished the death penalty to date.
The death penalty is the deprivation of a person’s rights or interests, the diminution or imposition of a particular order for their realization, and the imposition of obligations that result from the punishment. The punishment is carried out to the fullest extent possible. The condemned person is deprived of the most valuable thing a human being possesses – his life. Generally, at the same time, he is denied all other rights and interests. However, this happens only after the execution of the sentence (Steiker, & Steiker, 2019). This point is very significant because, until then, the convicted person retains many rights.
A convicted person has several specific rights that are inherent to him or her as a death-row inmate. These include the right to appeal against the sentence, to write and send a petition for clemency, to receive visits from a lawyer, relatives, and clergy, and to receive and send letters. A person sentenced to death remains a citizen of his State until the last moment of his life. In this regard, he has certain general civil rights (taking into account, of course, his legal status): for example, to dispose of his property or to register or dissolve a marriage. All researchers of this form of punishment have noted that the death penalty causes suffering. This is a feature of any punishment, but a very significant feature cannot be overlooked in the case of the death penalty.
An inmate sentenced to death feels suffering at the moment of sentencing and awaiting the outcome of their appeals or clemency applications. In this situation, most convicts fear death, which is often combined with the awareness of hopelessness of their situation, sometimes with guilt (Bedau, 2019). However, the moment the sentence is carried out, they cease; society no longer needs the criminal’s suffering. The question appears whether society wants to deprive the person of life or whether it wants to avenge them for the evil they have done and cause the person additional suffering. In the history of criminal law, there have been and continue to be different answers to this question. In some countries, there are still capital punishment methods such as stoning, quartering, wheeling, or burning. These methods cause additional physical suffering, and at the same time, criminal’s human dignity is humiliated. Civilized countries, however, have tried to find other ways of carrying out the death penalty, which involve minimal suffering for the convicted person. These include, in particular, firing squad, electric chair, gas, and sedation.
Considering the approach and interpretation of the death penalty from a philosophical perspective, one of the most representative views is that of the German philosopher Immanuel Kant. For whom the sanctity of the human person was unconditional, Kant advocated the ‘death penalty by trial’ as a punishment applied by the State for murder. In Kant’s view, the only basis for applying the death penalty to a criminal was that he had committed a crime. Crime and punishment are linked as a cause and effect. No other aims of the punishment must be pursued, including deterring possible crimes: the penal law is a categorical imperative.
The justice of punishment is expressed primarily in its equality. If in the case of any other crime, it is possible to find a substitute for justice, in the case of murder, it is impossible because life does not equate to death. The equality of punishment with the crime here is only possible through the judicial imposition of the death penalty. Moreover, from Kant’s point of view, the penal law is so categorical that even if the civil society of its own will decides to disband, before this happens, all imprisoned murderers have to be executed. Everyone must get what he deserves; otherwise, the guilt of unpunished crimes will stick to the people, who will find themselves complicit in the public violation of justice.
According to Kant, in the case of malicious killing, the punishment cannot be measured by the amount of deliberate violence over a person’s freedom. It is because the malicious taking of life is not equal to the deprivation of liberty. Moreover, speaking out against the death penalty is a belittling of the absolute value of human life. Speaking out against the use of exceptional punishment for criminals who have committed extraordinary crimes refuses to recognize the absolute value of the life of those who have been killed deliberately with exceptional cruelty. Those people who question the death penalty on the grounds of respect for human life should go so far as to consider that punishment in the form of fines demonstrates a lack of respect for property.
Kant gave another argument in defense of the death penalty. In his view, refusing to apply the death penalty to a murderer is tantamount to insulting him or not recognizing in him a human being. It is claimed as not recognizing his capacity to be the cause of his actions and to be responsible for them. The argument that society does not have the right to apply the death penalty because it formed the criminal itself is what denies a person the freedom and ability to take responsibility for their actions. These arguments are sufficient to provide Kant’s philosophical argument regarding the death penalty.
Bedau, H. (2019). 8. The Eighth Amendment, Human Dignity, and the Death Penalty. In M. Meyer & W. Parent (Eds.), The Constitution of Rights (pp. 145-177). Cornell University Press. Web.
Levine, S. (2018). 6. Playing God: An Essay on Law, Philosophy, and American Capital Punishment. In Jewish Law and American Law, 1 (pp. 99-126). Academic Studies Press. Web.
Steiker, C. S., & Steiker, J. M. (Eds.). (2019). Comparative Capital Punishment. Edward Elgar Publishing.