Resolved: A just society ought not use the death penalty as a form of punishment
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This topic is the United States' National Forensic League's Lincoln Douglas Topic for September and October 2007. This document is a communal workspace for debaters and coaches interesting in working on it. The discussion tab, above, can be used for asking and answering questions on this topic. People can also submit case for comments. Click here to see a sample case from a different topic. To submit your own sample case, you can click on the edit tab from an existing case, and then copy the case. Create a new document with your case and insert a link to it below under sample cases.
This is an oddly worded topic. It is hard to imagine what one would use the death penalty as other than as a form of punishment. Indeed, for most people, "penalty" and "punishment" are synonymous. However, while the NFL wording committee has chosen awkward phrasing, there is nothing about this wording that should make debates on this topic anything other than classic death penalty debates.
The classic defense of the death penalty comes, ironically, out of the natural law tradition. The idea is that people have a natural right to life that they forfeit when they knowingly commit certain heinous crimes. That the miscreants understands what they're doing is wrong is an important qualifier to this argument, though it's worth noting that it took the United States Supreme Court a good deal of time before it finally decided to prohibit the execution of the mentally handicapped.
Though historically there have been a long list of crimes subject to the death penalty, today few death penalty supporters other than members of the Taliban support the death penalty for actions that do not result in the death of innocent people. The argument usually runs that it is just to take the lives of those responsible for the death of others. Some even go so far as to argue that any punishment short of death would be unjust. Those who kill, they argue, ought to be killed. Of course, this "eye for an eye" theory of justice is not practiced in other parts of the law: rapists are not sentenced to be raped. Nonetheless the moral symmetry of killing the killer remains attractive to many people. Often, proponents of the death death penalty will ask: "If someone were to kill your loved one, wouldn't you want to see that person dead?" A desire for vengence is a normal human emotion and it is likely that many people would feel better knowing that a vicious killer had been killed. Whether it is just to satisfy people;s desire to see a criminal suffer the same fate as their victims victims is open to debate.
A Just Society
Many rounds will likely end up being debates over the definition of a just society. Political philosophers and theorists have debated for centuries what constitutes a just society and it's unlikely that this issue could be settled during a forty-five minute debate. The wording committee, in all likelihood, included the phrase "a just society" to focus the debate on the issue of the death penalty itself as opposed to problems that have arisen in applying it. It is doubtful, however, that the division between theory and practice will be easy to sustain, though a creative negatives may try. The wording committee may have hoped to focus the debate on the narrow question of whether it is moral for the state to kill a person who is, without a doubt, guilty of the most heinous of crimes, rather than have the debate focus too much on the practical problems that arise when trying to make the death penalty law. However, since the topic asks whether a just society will use the death penalty, the question of whether a just society should entrust its government with the authority to use the death penalty remains subject for debate. A potentially very strong argument for the affirmative is that the a just society simply would not entrust its government with the authority to kill its prisoners. That their may be people who nay have forfeited their right to life, the affirmative could argue, is besides the point. The problem, the affirmative would contend, is that just societies recognize the importance of limited government and the government's inherent fallibility.
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
A just government, the affirmative should posit and and a fair minded negative accept, is not a society of angels but a society of people. Some negatives may try to argue that a just society is a society governed effectively governed by angels. An affirmative can fairly respond that it's unfair to assume that justness can only be attributed to the government in a just society. This is particularly true given that one could reasonably argue that a just society would be a democratic one in which people are only asked to obey laws they have given to themselves. If the distinction between the governors and the governed is lost, it becomes difficult if not impossible to argue that only the government and not the citizenry can be assumed perfectly just.
This raises the question of whether a just society, knowing that it's government would be a government not of angels but of men, would need to be checked in its authority and limited in its power. Affirmative can, in this way, bracket the question of whether the death penalty is inherently just and focus, instead, on the question practical question of use. In this instance, the American experiment with the death penalty become particularly informative. While no one would argue that America is a perfectly just society, it has struggled now for decades to find a way to practice the death penalty justly. A clearly exasperated Justice Harry Blackmun, writing in dissent of the Supreme Court's refusal review a Texas death panalty case, emphatically declared that he would no longer rule in favor of the death penalty:
I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored...to develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies... Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness 'in the infliction of [death] is so plainly doomed to failure that it and the death penalty must be abandoned altogether.' (Godfrey v. Georgia, 1980) I may not live to see that day, but I have faith that eventually it will arrive. The path the court has chosen lessen us all." (Callins v. Collins)
Though Justice Blackmun holds open the possibility that the Court might one day figure out a way to insure the just application of the death penalty, he clearly does not see this as likely and, in all likelihood had come to question the morality of the death penalty itself. Some of those who oppose the death penalty in the United States, arguing that the Constitution is a living document and that the death penalty that may have been constitution when the Constitution was first ratified had become unconstitutional as time have changed. Blackmun, though, does not seem to be arguing along those lines. He seems to be arguing that in practice the state and federal government have failed to find a just and fair way to implement the death penalty. Negative might try concede the practical problems of implementing the death penalty and try separate those from the question of the morality of putting a criminal to death. An affirmative who focuses on the importance of limited government to a just society, who confronts a negative who concedes the practical problems with the death penalty, will need to argue that since the topic asks about the use of the death of the penalty that the debate cannot ignore problems of use. To preserve clash in the round, however, the affirmative may also want to argue that its senseless to argue to that a punishment that a just society could not "develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability" in practice ought not be used.
The death penalty, also known as "capital punishment," is the execution of a convicted criminal by the state as punishment for a crime or number of crimes.
Form of Punishment
It ought not be necessary for either side define "form of punishment," but given that there is always some debater out there who will figure out an abusive way to define a term, it is probably best to offer a definition. A "form of punishment" can be defined simply as a type of penalty imposed for wrongdoing.
The word "ought" is commonly used to indicate "moral obligation or duty." It is sometimes distinguished, particularly in formal academic debate, from "should.".
Debate topics are often, though misleadingly, divided into three categories: fact, value and policy. Some strict adherents to this taxonomy argue that if a topic includes the word "should" that it should be understood as a question of policy. "Ought" is what identifies a topic as a proposition of value.
This distinction between "ought" and "should" is not reflected in ordinary language: most people simply use the words interchangably.
However, given that this a topic for formal devate within the context of an American debate community that still widely recognizes a distinction between "should" and "ought," an interesting question arises: can the negative consistently and persuasively maintain that, in practice, a just society should not use the death penatly but that, in principle, it not morally impermissable for a just society, under certain conditions, to employ it. This, in fact, was something like the line of reasoning offered in the majority decision in Furman v. Georgia in which the United States' Supreme Court effectively ruled capital punishment unconstitutional, a decision the Court was later to reverse.
A negative that argued along these lines could concede all the practical problems with the death penalty and could even argue that that most every existing just society should consider the death penalty bad public policy. What the negative would be arguing is that under certain conditions-conditions that are perhaps unlikely to occur-that it would be morally acceptable for a just society to adopt the death penalty. Such a negative could concede that the United States should abolish the death penalty, but argue that this is because the conditions that would allow for the just use of the death penalty do not exist in the United States.
The affirmative's burden, negative would argue, is to prove that the death penalty is categorically wrong: not just wrong here and now or under certain conditions, but inherently wrong.
Indeed, many negatives will likely run a weak version of this case. They will try to argue that since the resolution refers to a "just" society that affrmative can't argue against the death penalty on the grounds that it is often inflicted in an arbitrary or discriminatory manner. These negatives will attribute "justness" only to the government of the society. The citizens of a just society, they will argue, will continue to commit crimes that merit death, but the government they will insist will be free of injustice and capable of handing out death sentences in a fair and equitable manner. The problem for this negative will be explaining why justness is attributed only to the government.
The problem for the negative that might adopt a stronger version of this line of reasoning, is making sure the judges understand this distinction between "ought" and "should" that is not commonly made. Many judges might consider it splitting hairs when a negative tries to argue that the death penalty is generally wrong in practice but is acceptable in theory. The benefit of this strategy, however, is that it doesn't force the negative to argue that a just society ought or should have the death penalty. All the negative would have to argue is that a just society could conceivably justly use the death penalty as a form of punishment.
A second, related issue with the definition of "ought" concerns its juxtaposition in this topic with the word "not." In crafting this topic, the NFL wording committee chose not to observe a commonly accepted norm in topic writing: the topic puts the burden on the affirmative to prove a negative. The reason they chose to do this, I suspect, is that they realized the affirmative would have a tough time with this topic: "A just society ought to use the death penalty as a form of punishment.". Affirmative definitely would have a tough time explaining how it is morally obligatory to use the death penalty and how, as a result, almost every developed nation in the world that has abolished the death penalty has done so immorally.
The burden on the negative, then, probably should not be understood as being to prove that every just society ought to use the death penalty but, rather, simply to prove that under certain conditions it would be morally acceptable for a just society to use it. Negative should be sure to point this out if need be.
Values and Criteria
Any of the usual overly abstract Lincoln-Douglas value premises can safely be employed on this topic: justice, morality, dignity, etc.
Given that the topic stipulates that we're discussing a "just" society, "justice" is a rather obvious, though not particularly enlightening, value premise. If either side chooses justice as a value premise, it will be important to offer something a little more than "giving each his or her due" as a value criterion. What justice demands that a society do when confronted with heinous crimes is anything but obvious. The negative may want to explore whether weighing arguments using a utilitarian calculus might prove effective, though this might overly discount retribution as a potential justification for the death penalty. The idea that some crimes merit certain punishments, regardless of the consequence on society of inflicting the punishment, is not easily explained using the language of utility.
Another problem that the negative might confront in choosing a utilitarian value criterion will be confronting the intuitive sense that many people have that it might not make sense to value individuals in the purely egalitarian way that most utilitarian theories require. The presumption of innocenceis widely considered a hallmark of a just society. Most people would agree with some formulation of Blackstone's ratio, that it is "better that ten guilty persons escape than that one innocent suffer." To justify this ratio, the utilitarian would have to show that somehow the pain and suffering of one innocent person outweighs the harm to society of so many guilty people going free. This might prove difficult to do. Similarly, there is a line of cross examination that affirmative can pursue if the negative argues in favor of using the death penalty to deter or prevent crime that can embarrass the utilitarian negative. If all a just society needed to do was count up the numbers of lives that putting a person to death could potentially save, the affirmative might question, would it really matter if the person executed were in fact guilty? Suppose, for the sake of argument, that the police realize that one of two brothers undoubtedly committed a crime, but are utterly unable to determine which of the two is the guilty party. The two brothers, loyal to one another, steadfastly refuse to admit which of them is guilty and which is innocent. With it certain that one of the two is undoubtedly guilty, the state decides, considering that the brother who is not guilty is not cooperating, to implicate both brothers and execute the two of them. They reason that this will act as a deterrent to other criminals and that in the end more lives will have been saved by killing the two brothers rather than letting the two live.
Another obvious value premise is "life." Obviously human life is very valuable commodity and ought not be disposed of without good reason. If the affirmative offers a value premise of life and a criterion of best protecting life, and negative accepts them, a relatively straightforward debate should ensue. The affirmative will argue that the death penalty is an ineffective means of preserving or protecting life, the negative can respond that this is false. These debates will likely be won by the debater with the better research skills. There has been an enormous amount of research done on the death penalty. The problem, of course, is that it is difficult if not impossible to determine what inspires people to commit crimes and what prevents them from committing them.
If the affirmative offers a value of life, but argues that because life is a highest value it is never right for the state to kill, a number of different debates might ensue. Negative will probably want to question a criterion to make sure the affirmative isn't trying to get away with the "it is necessary but not just" line of reasoning to claim that it might be necessary in some cases to use the death penalty but that when this is true the society in question is not just. That's just begging the question. Thankfully the topic does put a burden on the affirmative of proving that a just society ought not use the death penalty, so it won't be possible for the affirmative to argue something along the lines of "the death penalty can be used in some cases, but this doesn't make it just."
Negatives will need to consider how important the argument for retributive justice or lex talionis will be for their case when deciding on what value structure to accept for these debate. The foundation of any theory of retributive justice is that it is morally acceptable for a society to punish a person for having committed a crime regardless of whether this punishment achieves any other goals. Theories of retributive justice are deontological as opposed, for instance, to purely consequentialist, utilitarian theories of criminal justice. To the extent that the negative wants to rely on retribution as a justification for using the death penalty it will be important not accept a consequentialist value premise or criterion. The negative who wants to argue for retribution benefits in not having to prove that the death penalty somehow protects society more than life imprisonment would, but does need to offer a value structure that would explain why a penal system based on the Old Testament maxim of an "eye for an eye, a tooth for a tooth" is a moral one. Mahatma Gandhi remarked that "an eye for an eye and a tooth for a tooth and the whole world would soon be blind and toothless." The negative needs to explain why it would be just to kill someone even if society benefits in no tangible way from the killing.
One option that the affirmative has, in choosing a criterion for the round, is to forego a value criterion and, instead, to present criteria that justify the intentional taking of a human life. Affirmative can structure a case in two parts: first, a description and justification of criterion under which it would be justified to take a life and, second, an explanation of how the death penalty does not fit these criterion. A state can kill, the affirmative might argue, when it is necessary to protect the lives of innocent people. The negative might claim that the only way to be absolutely sure that a killer will not kill again is to impose the death penalty. The affirmative can respond by arguing that the only way to insure that state won't itself kill an innocent person is to prohibit the state from killing people other than when there is an immediate and otherwise unavoidable threat to the lives of innocents. A convicted and imprisoned murderer is not, the affirmative will argue, does not constitute an immediate threat to society. Similarly, the negative might offer criteria that justify the taking of a life and showing how a society, when those criteria are met, would be justified in using the death penalty. Negative will need to be careful to offer criteria that do not make it seem as using the death penalty is morally required of a just society. Such a burden is probably to heavy for the negative to carry through a round.
Affirming the Topic
Looking at the list of countries that continue to employ the death penalty, one can't help wondering if the resolution hasn't been proven true in practice if not in theory. The list of countries that has the death penalty is something of an international rogues' gallery. The United States is clearly not in good company. This is something that Associate Justice Kennedy has pointed out in some of his recent opinions, much to the chagrin of Associate Justice Scalia. Of course, that the vast majority of what are usually described as just societies have abolished the death penalty does not prove the death penalty inherently immoral. Nonetheless, it is definitely worth wondering why so many countries have abandoned the practice of execution.
One could argue that in a truly just society there would be no need for the death penalty since people would not commit crimes worthy of the death penalty. However, it is too much to assume that a just society is one in which no citizen ever commits heinous crimes. Fyodor Dostoevsky supposedly wrote that a "society should not be judged on how it treats its outstanding citizens but by how it treats its criminals." A just society is one that treats its citizens humanely, it is not a society of angels that has no criminals. Similarly, for much the same reason that in a just society no no citizen commits a crime, it would be wrong to assume that a just society is one whose government never acts wrongly or unjustly. Plato may have imagined that the ideal society would be one ruled by philosopher kings, but we have long since abandoned the ideal of enlightened despotism as the highest form of government. For this reason, a just society would be one which recognized the fact that neither the governors nor the governed could be trusted to always act justly. Even a just society governments will make mistakes. This is perhaps the most compelling argument against the death penalty.
Killing is not always wrong. Weak affirmatives might try to argue that killing is always wrong and that therefore the death penalty is wrong. However, few reasonable people really believe that killing can never be justified. Surgeons attempting to save the lives of their patients sometimes are forced to perform procedures on their patients that carry with them the risk of death. A patient who dies on the operating table at the hands of a skilled surgeon is not considered a murder victim, the surgeon not a common criminal. The patient may have died as a direct result of the surgery, but the surgeon has committed no crime. Similarly, the policeman who is forced to shoot a deranged gunmen threatening children is considered a hero when he shoots the gunmen before the gunmen has had a chance to slaughter the children. Further, few people consider it a person's duty to die rather then defend oneself against violent attack.
What the affirmative can argue, however, is that what is always wrong is killing for no good reason and that there is no good reason for the death penalty.
The strongest argument in favor of the death penalty, the affirmative has to concede, is that it is the only way to completely insure that a murderer will never strike again. Indeed, no one could guarantee that a murderer whose life was spared could never potentially kill again. The burden, then, on the affirmative is proving that a just society would take the risk of a murderer killing again rather than permitting its government to take the life of the murderer.
Negating the Topic
One of the things to consider while moving ahead with the negative is that the resolution specifies that the debate is taking place within the context of a just society. This could be helpful defensively for the negative when the aff makes arguments about how the death penalty can be misapplied or unfairly applied (i.e. it targets minorities unfairly) since that would presumably not be a problem in a just society.
- Leslie Ye's Case.
- Supreme Court Decisions
- Search of all cases from the Legal Information Institute.
- Furman v. Georgia (The Court rules the death penalty is unconstitutional on equal protection grounds)
- Gregg v. Georgia (The Court reinstates the death penalty)
- Atkins v. Virginia (The Court determines that executing the mentally handicapped is unconstitutional)
- Roper v. Simmons (The Court holds the juvenile death penalty unconstitutional)
- Search of all cases from the Legal Information Institute.
- Country by country list of legal position of Death Penalty from Encarta
- About.com's Pros & Cons of the Death Penalty and Capital Punishment
- 1000+ Death Penalty links all in one place
- U.S. and 50 State DEATH PENALTY / CAPITAL PUNISHMENT LAW and other relevant links from Megalaw
- Updates on the death penalty generally and capital punishment law specifically
- Texas Department of Criminal Justice: list of executed offenders and their last statements
- Two audio documentaries covering execution in the United States: Witness to an Execution The Execution Tapes
- Article published in the Internationalist Review on the evolution of execution methods in the United States
- Definition and much more
Resources opposing capital punishment
- The Death Penalty Information Center
- Except's from Clarence Darrow's summation in the trial of Leopold and Loeb
- Death Penalty Focus: American group dedicated to abolishing the death penalty
- Amnesty International: Human Rights organization
- The Council of Europe (international organization composed of 46 European States): activities and legal instruments against the death penalty
- European Union: Information on anti-death penalty policies
- Reprieve.org: United States based volunteer program for foreign lawyers, students, and others to work at death penalty defense offices
- Campaign to End the Death Penalty
- American Civil Liberties Union: Demanding a Moratorium on the Death Penalty
- Asia Death Penalty blog: information about the death penalty across Asia
- Anti-Death Penalty Information: includes a monthly watchlist of upcoming executions and death penalty statistics for the United States.
- World Coalition Against the Death Penalty
- National Coalition to Abolish the Death Penalty
- Australian Coalition Against Death Penalty - human rights organisation for total abolition of Death Penalty, worldwide.
- NSW Council for Civil Liberties: an Australian organisation opposed to the Death Penalty in the Asian region
- IPS Inter Press Service International news on capital punishment
Resources favoring capital punishment
- Ernest van den Haag, perhaps the death penalty's most cogent supporter, offers a brief defense of the Death Penalty.
- Off2DR.com is an Interactive pro death penalty information resource & place for discussions
- Pro Death Penalty.com
- Pro Death Penalty Resource Page
- Capital Punishment - A Defense
- 119 Pro DP Links
- Criminal Justice Legal Foundation
- DP Info
- Pro DP Resources
- The Paradoxes of a Death Penalty Stance by Charles Lane in the Washington Post]]
- Clark County, Indiana, Prosecutor's Page on capital punishment
- In Favor of Capital Punishment - Famous Quotes supporting Capital Punishment
Religious views on the death penalty
- United States' Catholic Bishops campaign against the death penalty.
- Evengelium Vitaeu, paper encyclical on the inviolability of human life.
- The Dalai Lama - Message supporting the moratorium on the death penalty
- Buddhism & Capital Punishment from The Engaged Zen Society
- Orthodox Union website: Rabbi Yosef Edelstein: Parshat Beha'alotcha: A Few Reflections on Capital Punishment
- Jews and the Death Penalty - by Naomi Pfefferman (Jewish Journal)