This differs from the arbitrary revenge and attempts to provide a structure creating a ‘methodical revenge’, a morally right revenge. This leads to arguments about if there is a point when death is justified or is it always wrong. Theoretically now retribution has the same moral impression as a punishment. The second factor it’s is benefit to society. Does it have the same utilitarian essence of punishment? Modern interpretations of retribution argues that the wrongdoers not only obtain what they deserve but also shows how that society does not approve of that behaviour and condemns it.
This would consequently raise the ‘virtuosity’ of society. The theory seem to have developed correctly from ‘revenge’ to fill those gaps that differed it from ‘punishment’. The Old Testament does state ‘ an eye for eye, a tooth for a tooth’ , but retribution still derives from the concept of vengeance. Even if it claims that it’s beneficial to society as a whole, this cannot counter for the deeper immorality of its actions. This roots from its statement that the criminals ought to be punished on moral grounds, differing from revenge and its arbitrary judgement.
If we ought to punish someone on moral grounds it’s not right we do it immorally. If I kill someone, then the moral code says I’ve done something bad. By stating that killing is evil, if somebody would sentence me to capital punishment they would be going against their own personal creed meaning that morality is meaningless, rendering the first statement of ‘me killing somebody is wrong’ false or completely subjective. This reasoning is not to be misinterpreted. If somebody kills someone, consequently in most countries we would be take away it’s freedom.
This in any other context is morally wrong, but we are justified. We must find adequate punishments in order to maintain society integral. However death is too much of an immoral act. Philosophers such as Camus and Dostoyevsky believed that death penalty was unjust. They argued this on the grounds that the criminal suffered mentally before actually being executed. The long wait that preceded the certainty of getting killed, it served as an unwarranted psychological torture that added up to the death.
In my view I think that leaving a criminal alive, especially in cases like murder, is harsher. The criminal has to endure with the remorse and the moral guilt. Of course there are individuals who won’t feel any remorse, still in those cases keeping them alive would serve to the purpose of showing them the consequences of what they did every single day. Retribution was thought by Sir James Fitzjames Stephens not only as a way to teach a moral lesson to society, but also to repress the community’s resentment, hate and desire for revenge.
Such views and the example of the Old Testament, goes proving that retribution is founded on religious sayings or anyways to societies and ideologies of the past, incompatible with our present ones. If retribution focused mainly on why the death penalty or any punishment was imposed, deterrence is a theory that looks at the effects a punishment has. The effects itself justify on utilitarian grounds why the punishment is right. Thus the death penalty should recommend people on what not to do, or any punishment function as a tool to intimidate any unhealthy behaviour for society.
Unlike retribution, this theory does not rely on morality and it’s entirely a social tool to maintain order. By doing this it cannot be criticized like retribution to be punishing ‘evil’ with ‘evil’. Nonetheless deterrence falls under criticism when talking about the penalty corresponding to the wrongdoing. Retribution follows a similar degree between the crime and punishment. On the other hand deterrence main goal is to discourage a conduct to repeat again so the punishment is subjective to the society in specific.
Due to its purpose to deter, there could be a tendency for overly harsh sentences. The death penalty could be one of those exaggerated penalties. Mill being a utilitarian was in favour of sensible deterrents punishments including capital punishment: “when the attendant circumstances suggest no palliation of the guilt, no hope that the culprit may even yet not be unworthy to live among mankind”. A popular argument which I agree to, is that if between a life imprisonment and death, the first option is the most punishing.
Mill agrees to this but contrary he is in favour for “the short pang of a rapid death”. He opts for this purely as humanity towards the offender. So he supports some sort of opposite retribution. The main critique one could address to the deterrence is that it actually doesn’t deter. Strictly speaking this is very hard to test statistically speaking, but there is no evidence that crime rates have lowered in states where the capital punishment is in place. Mill replies that the deterrence is targeted to normal people and habitual offenders.
He then emphasizes the element of uncertainty on who is been deterred. Ultimately one might argue that the deterrence effect is inexistent. If we presume that to be sentenced to capital punishment one needs to commit something grave, like murder, then a very small proportion will rationalize before killing someone. They won’t think about the punishment and just act in the heat of the moment. Unable to use their judgements’ and clouded by their emotions and maybe psychological distress they would just go through with the killing.
Both theories rely entirely on how competently the justice system works. For deterrence the legal system has to be flawless, as there could be attempts of terrorizing the public with random punishments. The state could simply set up some fake courts and maybe extract false confessions through torture. For retribution, where we talk about ‘deserving the punishment’, there is the problem of the accidental mistake of sentencing innocent people. This has happened due to the complexity of the system and the fallibility of humans, for example errors from witnesses, jurors and prosecutors.
In the USA, 130 people sentenced to death have been found innocent since 1973 and released from death row. Mill acknowledges this issue and impossibility to pay compensation to the innocents sentenced. He accepts there will be mistakes and just argues that the legal system overall aims only to prosecute the criminals and if any ground-breaking information surfaces the sentenced should be commuted. The capital punishment in my view cannot be justified by any of the three theories.
Obviously rehabilitation is not a valid theory due to the type of punishment. Looking at the world we live in now, we can witness how we have socially evolved throughout our history. The death penalty is something widely accepted in past times, maybe supported by old creeds like revenge and retribution. This fails however on the moral side. Wrong punished by wrong. Deterrence is definitely more rationale but, never mind the difficulty of measuring it’s effectiveness, crime rates would really decrease with an increase in legitimate arrests and convictions.