Philosophy Paper:

Capital Punishment:

Two Arguments Against The Death Penalty

Abstract
This paper reviews two arguments against the death penalty, Lethal Injection and Disparity in Justice argument. Each raises a moral issue against the death penalty. The Lethal Injection argument argues that physician participation is essential to the execution process, but since physicians are morally barred from participating in executions, executions by lethal injections need to be abolished. The Disparity in Justice argument proceeds from an economic stance and says that a disparity in the awarding of capital punishment exists between wealthy and poor counties. Since this is morally wrong, therefore, it says, capital punishment should be abolished in favor of a punishment that all counties irrespective of their finances can execute equally.  This paper argues that while the former argument appears defensible, the latter fails to defend itself against objections raised in this paper.

Capital Punishment: Two Arguments Against The Death Penalty
The Death Penalty is one of the great incongruities of civilized society. Since retribution and exemplary deterrence are generally considered unethical, and since by its very nature a death penalty does not have any corrective consequences for the dead man, the utility of the death penalty vis-à-vis its dubious ethical nature has always been in question. Two interesting arguments have recently been put forward in favor of abolishing the death penalty. These are the Lethal Injection argument and the Disparity in Justice argument. The Lethal Injection argument says that it is impossible to administer the lethal injection to an inmate in a painless way without the active ministration of qualified physicians; but that physicians, following their medical ethics, should not participate in assisting in the taking of a life; therefore, the death penalty, at least using the lethal injection, does not avoid “cruel and unusual” pain and should be abolished. It is argued that this effectively abolishes death penalty as currently practiced, because lethal injection is considered the least painful of all methods of execution. The Disparity in Justice argument provides an economic reason for abolishing death penalty. It says that death penalty cases can only be handled in larger numbers by communities that are wealthier; therefore, there is a disparity in justice because if a person commits a capital crime in a wealthy community, there is more probability of his being given the death penalty than if he were to commit the same crime in another, poorer community. The argument says that because of this disparity in justice, the death penalty should be abolished in favor of a punishment equally affordable to all communities irrespective of their economic condition.
In what follows, I will present both sides of the case with regard to these two arguments, and conclude that while the former argument can be defended, the latter has logical limitations that make it indefensible.
Lethal injection has been used to execute death row inmates since 1977, when Oklahoma became the first state to adopt it. Today 37 of the 38 states using capital punishment, as well as the federal government, use lethal injection to execute capital offenders. The standard method of execution, developed in 1977 by Oklahoma state medical examiner Jay Chapman, is as follows: The prisoner is strapped to a gurney and a series of three drugs is injected into his vein. A massive dose of sodium thiopental, an anesthetic, is injected first, followed by pancuronium bromide, which paralyzes voluntary muscles, but leaves the prisoner fully conscious and able to experience pain. A third drug, potassium chloride, quickly causes cardiac arrest, but the drug is known to be extremely painful. It is known to cause a severe burning sensation, and coupled with pancuronium bromide, which paralyzes voluntary muscles, can cause a severely painful and terrifying death. The anesthetic is administered to counter this, but without the expertise of a trained physician, the three drugs may not act as desired, and the dying inmate may not loose consciousness before the pain begins, or may, like Ray Clarence Allen, require more than one dose of potassium chloride to stop heart movements. 

The following picture shows US states that use lethal injection:

The first person on whom lethal injection was used was Charles Brooks, Jr., of Texas, who was executed at the Huntsville Prison on 7 December 1982. Two years before this, an influential article published in the New England Journal of Medicine argued against physicians participating in the lethal injection protocol. The authors WJ Curran and W Casscells wrote that lethal injection “presents the most serious and intimate challenge in modern American history to active medical participation in state-ordered killing of human beings . . . [since] this procedure requires the direct application of biomedical knowledge and skills in a corruption and exploitation of the healing profession's role in society.” This article was followed by decisions from the American Medical Association (AMA) and other care societies that declared it unethical for physicians to participate in lethal injection executions. In its 1992 Code of Medical Ethics. Article 2.06 the AMA stated, "A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution." This follows from the Hippocratic principle of Primum non nocere or “First, not to harm,” from which derives the concept of nonmaleficence, which means that a physician’s primary duty is to preserve life and not do anything that will harm it. This idea is the foundation of the physician’s moral standing in society, and according to medical ethicists, helping execute even a violent offender goes directly against this principle.
But there are quite a few medical practitioners who argue for physician participation for one reason or another. Some of these are authors who firmly believe in the inhumanity of capital punishment and still argue for physician participation in it on humanitarian grounds. Two of these, D. Waisel and A. Gawande , both physicians opposed to capital punishment, argue that even if a physician holds capital punishment to be unethical, “it is honorable for physicians to minimize the harm to these condemned individuals and that organized medicine has an obligation to permit physician participation in legal execution.” But this is hardly true; unless one presumes that legal execution itself is not dishonorable. But a large part of the apparent honorability of capital punishment will derive from the fact of physicians actively supervising it so that undue pain is not caused the prisoner. Therefore, requiring physicians to participate in executions because it is honorable begs the question of its honorability. As another author has rightly pointed out, physician participation in executions “ …ignores the moral legitimacy that participation transfers to executions—a small amount of suffering possibly minimized at a huge cost in maintaining a mode of punishment morally suspect for many reasons.” Therefore the “honorable” argument of Waisel(2007) and Gawande(2006) fails to prove the moral imperative for physicians to go against their ethical standard of nonmaleficence and participate in capital punishment proceedings.
Now we will consider the Disparity in Justice argument put forward by J Douglas and H King Stockstill . After a study of certain South Carolina communities, these two researchers published another interesting argument against the death penalty.  They interviewed local prosecutors in a number of jurisdictions in South Carolina and reviewed that state’s capital offence caseload for 2005-07. While prosecutors in most instances were adamant that cost did not play a role in their demand for the death penalty, the statistical analysis that Douglas and Stockstill(2008) performed on death penalty data showed a conclusively positive correlation between wealth of a community and death penalty caseloads. According to the authors:
Death penalty cases are expensive for judicial systems to administer, in terms of both time and money. This is a potential problem for the equitable administration of justice when such cases are financed by local governments. The relative wealth of local jurisdictions varies, giving some a greater ability to raise revenues for public purposes. Given the scarcity of resources, especially in poorer jurisdictions, it is possible that cost considerations play a part in the decision over whether to file capital charges. We explore this issue in South Carolina through both interviews of local prosecutors and analysis of death penalty caseloads for 2005-07. While local prosecutors recognize that cost can be a concern, they claim that money issues do not influence their decisions regarding whether to file capital charges. In contrast, we find in our quantitative analysis a positive relationship between county wealth and death penalty caseloads.

They argue that this inequitable administration of justice creates a disparity in its distribution, which argues for a more affordable administration of justice than the death penalty.
Now, in order to consider the logical basis of this argument, we will need to see what Douglas and Stockstill(2008) mean when they say “serious inequities in the administration of justice ,” and whether such inequity is ethically wrong from the point of view of offenders.
In this research, a study of capital offenders in South Carolina was undertaken, both statistically and by interviewing prosecutors. South Carolina was chosen both because it has the death penalty option for a number of offenses, and also because it is a state where local counties pay for a majority of trial-court expenses. This latter can result in iniquities of available funding in various jurisdictions and counties in the state, which the author considered a good basis to focus their study on. There are 16 judicial circuits in the state of South Carolina, and each consists of between 2 to 5 counties. Each county has separate courthouses for cases originating within its border. Though a special state fund exists for capital cases, trial court circuits are dependent upon their local counties for a significant portion of their funding. In most cases, the proportion can be as high as 60 percent and above.
The findings of the research indicates that wealthier communities have larger numbers of filed capital cases. As the authors conclude, “The relationship between median household income and the number of capital charges filed in a county is statistically significant (p-value = 0.01), thus providing support for our hypothesis. Wealthier counties in South Carolina had more death penalty cases than less-wealthy counties .”  Thus, for the same offense, an offender in a wealthier county is more likely to receive capital punishment than in a poorer county; an offender in one county can get away with a lesser sentence for the same crime for which another offender in another county receives a death sentence. This is what Douglas and Stockstill(2008) mean when they find “serious inequities in the administration of justice.”
Is this inequity ethically wrong from the point of view of offenders? In order to understand the issues surrounding this, let us consider an example offered by the authors themselves to illustrate another kind of iniquity.  They compare the capital crime disparity issue with the disparity in funding faced by public school systems across counties. It is a recognized fact that the differences in funding levels affect academic achievement across schools. Vincent J.Roscigno and Donald Tomaskovic-Devey, in a 2003 study of inner city and rural schools of the United States reveal how lack of funding in poorer schools tend to decrease student performance. The solution to this is not that richer counties should reduce funding for their schools to make them at par with poorer counties, but for the federal or state government to help schools in poorer counties with special funding. Arguing the former raises only a sort of ad hominem argument, where the argument basically relegates to “since A cannot have X, therefore B too should forego X.” This would be defendable if it were the case that B’s having X directly affected A’s having or not being able to have X. But that is not the case in school funding as well as in the court jurisdictions, because one county is not going to provide for another county, either for its school or for its court, so for one county to spend less will not affect the spending of another. So there seems no basis to saying that inequality in school funding can be removed by forcing wealthier counties to spend less on their schools; and this is true of capital punishment as well.
Consider another issue: different states have different punitive measures for the same offense. Wisconsin will not execute an offender for any reason or offense, and while Georgia will execute for murder, it will not, unlike South Carolina, execute a child sex offender where the victim has not been killed. So the same situation obtains here as in the Douglas-Stockstill argument; an offender committing the offense of murder in one jurisdiction will get away with a life sentence, while another committing the same offense will be punished with death. This is a disparity of justice as well, especially from the point of view of the offender getting the “raw deal.” But ethicists would not entertain a plea from a capital offender in Georgia claiming that it is morally wrong to sentence him to death for murder while a fellow offender committing murder in Wisconsin only received a life sentence. The question for an ethicist will not be what the Wisconsin offender received, but whether what the Georgia offender received was justified according to the laws and particular precedents of the jurisdiction in which he committed the crime. That question can be answered without recourse to anything having to do with the Wisconsin offender, and if the answer is in the affirmative, no intelligent ethicist will claim that the Georgia offender – according to state laws and not according to debated moral values – was unjustly punished. Certainly there is a disparity of justice in one case against the other, but that does not make the one case unjust.
Implementing this logic in the present argument, we immediately see that there is no moral ground for the Disparity of Justice argument. Admittedly, offenders murdering people in Wealthy County A are more likely to get the lethal injection for their heinous offense than one who commits murder in Poor County B. But this only implies – like in the school funding issue – that arrangement needs to be made to provide Poorer Counties with the financial wherewithal to pay for their capital cases. It does not give any moral right to the offender in A to demand life sentence rather than death penalty, just because, ad hominem, another offender did the same crime but got a life sentence instead of a death penalty.
In conclusion, we see that though both the Lethal Injection and the Disparity in Justice argument were interesting approaches to the question of abolishing the death penalty, the latter fails to define a strong logical ground on which to make its stand. It correctly identifies the disparity in justice that exists with regard to capital punishment, but it fails by mistakenly identifying this disparity with a normative claim against death penalty. It also fails to take into account related examples that refute its position and make its fallacy more obvious; that the mere existence of a disparity does not make it immoral. As for the Lethal Injection argument, its weakness lies in the issue of how to interpret the physicians’ moral standards vis-à-vis their participation in executions. But the thrust of the argument is not to derive this conclusion, but rather to assume it as a given and conclude that lethal injection as currently practiced should be abolished. According to the present review, it derives this conclusion successfully.

 References: