The Ideology of the Death Penalty – Retribution and Revenge

“Retribution is vengeance in disguise.” – Oliver Wendell Holmes, The Common Law

What keeps the death penalty alive in the United States? What helps this archaic, illogical, and barbaric practice to still breathe? There are four basic and acknowledged reasons for having state sanctioned punishment: rehabilitation, prevention, deterrence, and retribution. Obviously, one can rule rehabilitation out as a factor for the death penalty, unless of course the executed finds salvation in the afterlife. Prevention is a moot point because the sentence of life without parole accomplishes the same goal. Deterrence, the last best hope of death penalty retentionists, is often castrated from a utilitarian standpoint when countless examples of statistical evidence show that the death penalty is no more effective than life imprisonment in deterring murder. So what is left? Only the under-appreciated step-child; the embarrassing uncle on the mother’s side of the family; the black sheep of the clan; retribution, revenge, vengeance, or whatever term one chooses to use. Retribution is the backbone for the prevailing ideology behind the death penalty. It is an outdated respirator which continues to keep pumping life into capital punishment. The following will: discuss the retributive theory of the death penalty, compare and contrast the concepts of retribution and revenge, and discuss the underlying merits of retribution.


The Retributive Theory

In ancient times, “blood feuds” were common place, “a victim’s family might seek vengeance by killing a member of the murder’s family, provoking a long cycle of murder and retaliation” (Costanzo, 10). An organized society cannot function efficiently in this manner, as a result, the state assumed punishment for murderers to preserve community order and restrict the scope of killing motivated by vengeance. The first established death penalty laws date as far back as the 18th century B.C. in the Code of King Hammaurabi of Babylon, which codified the death penalty for 25 different crimes. A murder was avenged by taking only the life of the murderer, lex talonis or “an eye for an eye.” But the notion of retribution “does not mean that the punishment should duplicate the harm the criminal imposed, since in many cases this is not possible” (Pojman, 71). Rather, a state sanctioned penalty should be found which is equivalent to the harm caused.

The manner in which retribution is interpreted by retentionists today is heavily influenced, like many other ideas, by G.W.F. Hegel. Hegel believed that “crime upsets the equality among persons and that retributive punishment restores that equality” (Reiman, 89). In a society based on liberalism and democracy, the application of lex talonis relies on the assumption that everyone is equal, and that crimes of murder threaten to destroy the moral balance. Thus one reaches the final and most concise definition of the retributive theory; “the equality and rationality of persons imply that an offender deserves, and his victim has the right to impose on him, suffering equal to that which he imposed on the victim” (Reiman, 92). Note that the state or criminal justice system supplants the role of the victim in imposing punishment. As stated before, retribution must be state approved to maintain order and sovereignty over the population.


Retribution versus Revenge

“Retribution derives from the Latin retribuere, which means ‘to pay back.’ It means punishment that is deserved and appropriate to the crime” (Lifton, 201). In contrast, many believe that “revenge is related to vindicate, vengeance, and vendetta. Rather than renounce one’s personal anger . . . one pours that anger into action” (Lifton, 200). The effort to distinguish retribution from revenge is not an original endeavor, nor is it a straightforward one. The task for retentionists is to strengthen the former while discouraging the latter. Enormous theoretical thought has been put into the effort to distinguish between the two, “philosophers such as Kant and Hegel are well known for their embrace of retributive punishment and their critiques of vengeance” (Sarat 1, 37). The following will first discuss the distinguishing differences between retribution and revenge, and proceed to demonstrate that the two concepts are now more closely related with respect to the ideology of capital punishment.

The modern system of criminal justice is founded on the belief that revenge is a primal and improper human instinct. The law is created to repress it, “legal punishment can be founded on reason, due process can discipline passion, and these categories are knowable and distinct” (Sarat 1, 39). There are distinctions about retribution and revenge among retentionists and abolitionists alike which are widely held. Revenge is often thought of as a visceral, personal desire to hurt the wrongdoer and retribution thought of as a deep desire to uphold society’s values and morals. According to Robert Nozick, “retribution is not a motive, whereas revenge is; revenge knows no upper limits, whereas retribution does; revenge is personal, whereas retribution can be impersonal” (Sarat 2, 57). Furthermore, retentionists uphold that the two ideas are distinctly different, despite the fact that they are often intermixed in applied practice. As stated by Louis Pojman, “retribution is an impartial and impersonal response to an offender for an offense done against someone . . . you cannot desire revenge for the harm of someone to whom you are indifferent” (Pojman, 52). In theory, there appears to be a solid conceptual boundary between retribution and revenge. Unfortunately, the criminal justice system and the American public are composed of flesh-and-blood human beings, not emotionless computers. The contrast between revenge and retribution reflects a tension between passion and reason that permeates the legal system, in part because it is an ongoing battle within every human being. In their “unceasing efforts to overcome id with superego and to construct a legitimating ideology, Western legal orders attempt to substitute the . . . stern but controlled authority of retribution for the emotionalism of revenge” (Sarat 1, 39). This distinction is a false one. Retribution is the bastard child of vengeance. In more and more cases, justice becomes the public and passionate voice of the victim (often from beyond the grave), or the vengeful anger of the victim’s kin. The detached and rational state bureaucracy, who speaks for “the people” against whom all offenses to the criminal law are said to be directed, soon becomes lost.


Retribution: Legal Vengeance Incarnate

This clouding of the retributive theory leads to obvious questions of how this occurred in the first place. Putting aside the philosophical arguments about human nature and Freudian ids, egos, and superegos, one movement stands out as confounding the legal system’s disconnected sense of retribution. Immediately following the civil rights movement, the women’s liberation movement, and the movement to expand the rights of criminal suspects, the victims’ rights movement burst on the scene in the early 1970s and quickly became a powerful political influence. Advocates believe that they are speaking for “the forgotten men and women of the criminal justice system” (Sarat 1, 268). The modern victims’ rights movement has become the means by which raw, vengeful, human emotion infiltrates death penalty proceedings in the criminal justice system. The following will discuss the key elements of the victims’ rights movement: victim quality, victim impact statements, and death penalty linguistics.

In less brutal murders, because of the unique nature of capital punishment, both prosecutors and jurors may unintentionally let supplementary factors influence decisions to pursue and decide the death penalty. For example, although seldom discussed openly, “part of the calculation in deciding whether to try for the death penalty has to do with what some prosecutors call ‘victim quality’” (Costanzo, 82). The reasoning behind it is logical and realistically reasonable, albeit prejudicial. Jurors are more likely to impose a sentence of death if the victim is easy to relate with. So it is easier to obtain a death sentence if the victim was a law-abiding, altruistic, father of four, than if he was a drug addicted, dead-beat dad with an arrest record. The decision to seek to death penalty is often a pragmatic one as much as a legal one. Victim quality is not on any official list of aggravating factors. But jurors, perhaps unconsciously, often “assess the worth of the victim” (Costanzo, 84). The empathy the jury feels for the victim has a direct connection to the acceptance of revenge as valid reasoning for retribution. If the jury feels that the victim is someone of similar or admirable background, a pseudo-personal connection is formed. This connection has the potential to become as strong as one shared between the victim and their family or friends. Naturally, primitive instincts of revenge and vengeance surface if an act of violence has been committed against a member of your family, social sphere, or community. Revenge “is personal, whereas the agent of retribution need have no special or personal tie to the victim” (Sarat 1, 41). The victims’ rights movement has amplified the attention brought to victim quality, in turn, increasing the biased influence of revenge and vengeance in capital cases.

Retentionists of capital punishment often have an almost unassailable response to any argument given by a death penalty abolitionist: What about the victims? Indeed, the question forces a person to choose sides. One must either be on the side of the victim and the victim’s family (for the purposes of this discussion, ‘victim’ will from now on also refer to any persons connected to the primary victim who feel deeply wronged by the crime) or on the side of the murderer. This creates problems for arguing against victim impact statements, because those who do must do so from an inferior moral ground. This in part may have been the motivation behind the Supreme Courts’ ruling in Payne v. Tennessee (501 U.S. 808). In Payne, the Supreme Court reversed an earlier position in Booth v. Maryland, and allowed the use of victim impact testimony during sentencing. Payne effectively “ended the repression of revenge and gave it constitutional legitimacy in a way that no other decision of the United States Supreme Court ever had” (Sarat 1, 35).

Risking the pretense of overstating the matter, one must acknowledge that Payne v. Tennessee is the moment the flood gates were opened. For Justices Stevens and Marshall, the use of victim impact evidence erodes the separation of reason from passion. Furthermore, Justice Stevens expresses that the only way to preserve the retributive theory for capital punishment is to prohibit the use of such statements. But the victims’ rights movement wanted more and the Supreme Court gave it to them. Payne legitimized revenge and caused irreparable damage by fusing the emotion of vengeance with the calculation of retribution. The case “gave a voice to victims by expanding the legal recognition of victimhood to include the collateral suffering of those left behind and insisting on vengeful justice for the survivors” (Sarat 1, 44). To demonstrate this change, one must examine the symbolic transformation death penalty sentencing has undergone as a result of victim impact statements. The penalty phase “is remade into what sociologists call a ‘status competition’ between the offender and those who were directly or derivatively injured by the crime” (Zimring, 54). Basically, the prosecutor presents him or herself as the victim’s lawyer instead of the state’s lawyer. The trial is now a competition between the claims of private parties. As previously mentioned, the retributive theory for capital punishment is dependent upon an impersonal relationship between the state and the crime. In addition, the prosecutor must represent the best interests of society, not any specific individual or personal interest. If retribution can still be used as a justification for capital punishment, it is evident that the symbolic change to the sentencing phase of capital trials weakens that justification unless the ideology of revenge is openly acknowledged.

Many American citizens would worry about, and rightly so, whether the facilitation of private vengeance is a proper goal for state punishment and a moral one for a civilized culture. The connotations behind terms such as revenge and vengeance are ugly ones. These anachronistic terms do not improve the image of pro-death politicians, nor do they alleviate the collective conscience of the public when read in newspapers and magazines. In order for the revenge-retribution symbiosis to survive, a new term had to be coined. In this context, “the evocative term ‘closure’ was a public relations godsend” (Zimring, 57). Victims’ rights advocates, opportunistic politicians, and the mass media understood the value of semantic and linguistic manipulation. But while “closure” can be trivialized as only a political and journalistic euphemism; for victims it is transformed from a politically correct term into an elusive search for emotional satisfaction. But in several interviews, victim’s families who were desperately seeking closure, admit that the executions provided no such thing. Sister Helen Prejean’s Dead Man Walking directly addresses the concept of closure, or lack thereof, for victim’s families after executions take place. She summarizes her conversation with Vernon Harvey (father of the female victim), “He just can’t get over Faith’s death . . . It happened six years ago but for him it’s like yesterday . . . with Robert Willie dead, he doesn’t have an object for his rage [anymore]” (Sarat 2, 195). In fact, many clinical psychologists believe that the concept of “closure” is only an illusion. “Family members’ sense of horror, pain, and loss may gradually diminish over time, but no outcome can enable them to be free of such feelings” (Lifton, 204). The reality is that the act of executing a human being has gradually become more disconnected and mechanized. Modernity and liberalism demand that society be “humane” when murdering individuals. It is paradoxical that the convicted be sentenced to death in an environment influenced by the personal emotions of the victims, but then be put to death in a manner depriving the victims of the very satisfaction they desire. The mere fact that victim impact and closure for victims play such an important role in the ideology of the death penalty is not evidence that there is any benefit for the private parties involved. The concept of closure is rendered inconsequential.
The conclusion must then be that the term “closure” was primarily created to boost public opinion about capital punishment and increase the support for the victims’ rights movement. According to combined U.S. news sources, “the combination of ‘capital punishment’ and ‘closure’ grows almost geometrically” (Zimring, 60) from 1986 to 2001 in published articles. The expansion of the term is directly related to the shift in justification for the death penalty. The slogan “revenge-retribution hybrid ideology” does not roll off the tongue and sound as sweet to readers as “closure” does.


The Rejection of Retribution

Since 1981, surveys gauging public opinion for the death penalty show a wide margin becoming more and more comfortable with stating retribution as the main reason for supporting state sanctioned killings. A Gallup poll in February of 2000 found that “46 percent cited retribution; 12 percent stated that it ‘saves the taxpayer money,’ and only 8 percent mentioned deterrence” (Lifton, 219). Unfortunately, a great majority of the public associates the term “retribution” with “revenge, vengeance, or lex talonis (“an eye for an eye”)” and not with the retributive theory of criminal justice. This association has been made easier to admit in the last two decades because of the infusion of victims’ rights and personal emotion into the ideology of capital punishment. Vengeance may have always been the most popular motive; but before the victims’ rights movement, Payne, and popular terminology, supporters of the death penalty probably found it more socially correct or less embarrassing to emphasize other reasons. Despite a recent wave of approval for retribution as the main motivation for capital punishment, loyalists to the original spirit of the law should reject this tainted reason for state killing.

Justice Thurgood Marshall, in his concurring opinion in Furman v. Georgia, believed that “the fact that the State may seek retribution against those who have broken its laws does not mean that retribution may then become the State’s sole end in punishing.” Rejecting the ideology of retribution and revenge, in effect, destroys the last best justification for the death penalty. No reasonable liberal theory of constitutional government can support the proposition that one of the legal system’s objectives is to act out of revenge. The thirst for revenge and the desire to use punishment as a vehicle for revenge are powerful emotions which must be controlled by each individual in varying degrees. When this emotion pervades the criminal justice system, it becomes a motive for punishment. Revenge usurps the legal system and invalidates any moral authority society claims to have in order to obtain justice. Defenders of the death penalty might claim to reject revenge as a motive and insist instead that they advocate and support only retributive theory. It is always easier to support capital punishment in the abstract. They believe that “retribution is the form justice takes in punishment, and is precisely what the criminal justice system is supposed to achieve” (Sarat 2, 49). Punishment is only retributive by its theoretical nature. Regrettably, pure retribution as a motive for punishment is not only a fantasy when capital punishment is practiced in reality, but also will forever be tainted by human nature and ideas such as lex talonis. No legal system is capable of deciding life and death in an infallible, evenhanded way. If retribution, in all its forms, is rejected, then the way the state punishes can properly serve society according to the utilitarian goals of rehabilitation, prevention, and deterrence.


“Deep inside every civilized being there lurks a tiny Stone Age man, dangling a club to rob and rape, and screaming ‘an eye for an eye.’ But we would rather not have that little fur-clad figure dictate the law of the land.” – Arthur Koestler












Bibliography

1.) Sarat, Austin. When the State Kills. Princeton University Press; Princeton, NJ. 2001.

2.) Sarat, Austin. The Killing State: Capital Punishment in Law, Politics, Culture. Oxford University Press; New York. 1999.

3.) Lifton, Robert. Mitchell, Greg. Who Owns Death?. William Morrow; New York. 2000.

4.) Pojman, Louis. Reiman, Jeffery. The Death Penalty: For and Against. Rowman & Littlefield Publishers, Inc; Lanham, MD. 1998.

5.) Zimring, Franklin. The Contradictions of American Capital Punishment. Oxford University Press; New York. 2003.

6.) Costanzo, Mark. Just Revenge: Costs and Consequences of the Death Penalty. St. Martin’s Press; New York. 1997.