(Not) Punishable By Death

Last week, Luigi Mangione – the man accused of fatally shooting UnitedHealthcare CEO Brian Thompson – received an unexpected reprieve. Two of the charges against Mangione were dropped, meaning that he is no longer eligible to receive the death penalty. The following week, New Hampshire voted against the reinstatement of the death penalty, while – on the same day – Alabama renewed its efforts to expand the use of executions to crimes beyond murder. While entirely unrelated, these events demonstrate the USA’s complicated relationship with the death penalty. And this is why it’s such a common topic of conversation in ethics classrooms. But there’s a more fundamental question that’s often overlooked: does the death penalty even count as punishment in the first place?

Providing a full and accurate definition of legal punishment is a big project. But, on most standard accounts, there’s widespread agreement: Whatever else it involves, punishment necessarily requires harm. Think about the many ways in which people are (and have been) punished for breaking the law: floggings, fines, prison sentences. In every case, the offender’s life is made worse-off in some way. So, in order for the death penalty to count as a punishment, it must harm the offender. But when, precisely, does it do this? As I see it, that harm has to occur either during, before or after execution. So let’s consider these one at a time.

Option 1: The Offender is Harmed During Execution

Executions used to be very painful affairs. Whether it was the guillotine, the gallows, or the firing squads – a sentence of death was a sentence to a significant amount of physical suffering. Nowadays, things have (mostly) changed. Provided that an execution is carried out in the right kind of way, it’s possible to end an offender’s life in a way that causes no pain.

But what about the other kinds of suffering necessarily associated with an execution? Facing one’s imminent death is likely to cause immense fear and dread. Could this be the harm that cements the death penalty’s status as a punishment? It seems not.  This is because the psychological suffering that occurs during an execution is neither necessary nor sufficient for the satisfactory completion of that sentence. Suppose, for example, that an offender faints thirty minutes prior to his execution, and remains unconscious for the entirety of the process. Chances are, we’d still see that offender as having received their sentence – even though they experienced no psychological suffering during their execution. This shows that such suffering isn’t necessary for the successful completion of the death penalty.

Consider an alternative scenario. Suppose that, through some elaborate (and somewhat sadistic) charade, we cause an offender to believe they are being executed – but instead merely render them unconscious, reviving them a few minutes later to, say, serve a life sentence instead. In such a case, we’d probably see the offender as having avoided their sentence – even though they experienced all the same psychological suffering as they would have had they been executed. This shows that such suffering isn’t sufficient for the successful completion of the death penalty.

Option 2: The Offender is Harmed Before Execution

Perhaps, then, we might look to the period prior to an offender’s execution to find the harm of the death penalty. The amount of time an offender spends on death row can be extensive, and is filled with the dread and existential fear associated with impending death. This might be compounded by the labyrinthine appeals and the subsequent uncertainty surrounding whether and when their sentence will even be carried out.

Once again, however, this suffering is neither necessary nor sufficient for the satisfactory completion of the death penalty. Consider cases in which offenders – for various reasons – suffer no psychological harm while on death row. Perhaps their faith allows them to feel no fear of what is to come. Or perhaps they’re merely blessed with a particularly stoic demeanour. Consider, also, cases of summary execution where an offender simply doesn’t have time to consider their imminent demise. Whatever the cause, it’s likely that when these offenders are executed, we will still see them as having received their sentence. If this is the case, then suffering prior to execution isn’t necessary for the successful completion of the death penalty.

Consider, in the alternative, cases in which an offender is on death row for many years, but then receives last-minute clemency. In such a case, we would say that the offender has avoided their sentence – even though they might’ve gone through all of the associated psychological suffering beforehand. This, again, shows that such suffering is not sufficient for the successful completion of the death penalty.

Option 3: The Offender is Harmed After Execution

Of course, we might argue that the harm of the death penalty lies in what comes for the offender after death. Perhaps we feel confident that post-execution, they will find themselves in a place of perpetual torment. But this is a tricky line of reasoning. Ultimately it rests on two rather large assumptions: (1) that there is an afterlife; and (2) that said afterlife will involve harm for the offender. There are many who might reject one or both of these claims. What’s more, even if we believe both, evidence of either can be hard to provide. What this means, then, is that whether or not the death penalty causes harm to the offender – and whether, then, it meets the definition of being a punishment – becomes largely unknowable.

So where does this leave us? In order for the death penalty to count as a ‘punishment’ it must harm the offender. I’ve argued that any suffering that occurs during or before an execution is neither necessary nor sufficient for the successful completion of the death penalty. What’s more, the occurrence of any harm after execution is either non-existent or, at the very least, unprovable.

But here’s the thing: harm doesn’t come exclusively in the form of pain or suffering. Sure, many punishments harm us by giving us something bad. A public flogging, for example, does precisely this. But many other punishments instead harm us by depriving us of something good. This is what happens when we receive a fine (which deprives us of money) or a prison sentence (which deprives us of liberty). Perhaps this is what’s going on in the case of an execution. Perhaps the harm of the death penalty isn’t found in the bad things it might (though doesn’t have to) add to our lives, but rather in the good things it takes away. It’s this possibility I’ll turn to discuss next time.