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A Response to John Stuart Mill, on Capital Punishment

Daniel Brady, copyright, 2011

This is a response to a speech made John Stuart Mill on Capital Punishment. I have, to facilitate the understanding of my response, labeled the sections with N for Narrator, the person who wrote the article originally, and making the introduction, JSM for text attributed to John Stuart Mill and DPB to indicate passages written by myself.  It has to be understood that Mr. Mill wrote in another time and place, which, for the intents and purposes of my response to him, should be considered another world.  I respect Mr. Mill and do so in my writing here - and in several ways.  First, his writing warrants a response as proponents of Capital Punishment today still use portions of his argumentation.  Second, because of his influence in philosophy and his standing in history, it is needful to respond as best I am able and then, hopefully, to promulgate my response so as to improve the argumentation used by opponents of Capital Punishment when debating the issue.  Last, it is a testament to his lucidity and brilliance that I see a need to provide a response from the perspective of the 21st century.   Lastly, I'll thank the author of the piece making Mr. Mill's commentary known to me, however, I do not know who that person is.

An introduction to John Stuart Mill and his perspective

N: We know from the Code of Hammurabi that the death penalty has been practiced even in biblical times. As long as it has been in use, scholars have debated the morality and effectiveness of its implementation. Modern society still struggles with the concept of killing an individual, even if that person is a proven murderer. During the mid-19th century in England, a philosopher named John Stuart Mill revolutionized thinking about capital punishment through his adaptation of the humanitarian argument to support the taking of a criminal’s life. In our effort to offer the best criminal justice information available we have provided this article on John Stuart Mill’s contribution to views of justice as well as modern critiques and alternatives to his theory.

N: A British political philosopher born in 1806, John Stuart Mill illuminated views on the effective leadership, liberty, civil rights, justice and the economy. The formative years of his life involved a rigorous education set out by his father, who publicly acknowledged his goal of creating a genius. In accordance with this aim he led John through coursework involving classical philosophy and politics as well as contemporary works of history, science and language. Though he never pursued a formal secondary education, he was well respected in the academic community and gained membership at the American Academy of Arts and Sciences and a position as Lord Rector at the University of St. Andrews later in life. As a Liberal Party candidate in 1865, he was elected to parliament to serve as representative for Westminster. While in power he pursued many reforms including civil rights reform for women and the Irish people and advocate for organization of the people to promote political change. He died in 1873 in Avignon, France.

N on JS: Throughout life his focus was on creating a utilitarian government where the policies in effect serve to guide the actions of citizens to lead better lives. He wrote many treatises on the role of government and the responsibilities of the individual within society. These include thoughts on women’s rights, slavery and freedom. These views would likely today be associated with moderate libertarianism, though Mill had complex views on protecting the environment that would not sit well with modern advocates of unlimited freedom. He believed every law should serve a specific purpose in society by creating incentives for positive action and deterring criminal acts and detrimental behaviors.

N on JSM: One of Mill’s most insightful and utilitarian works involves the place of capital punishment in society. Mill devised a way to argue for capital punishment using the argument of respect for life typical of anti-death penalty thought of the time. Throughout his argument he emphasizes that immediate death may actually be a far less harsh punishment than lifelong confinement to a prison cell. The speech highlights the importance of deterring crime through implementing punishments sufficient to the nature of the crime so that any gain by an individual by criminal act would be negated by the subsequent punishment. Though he supports capital punishment in the case of heinous crimes, he adds that deviants must be unquestionably guilty and have drawn motivation for the act from their own character defects rather than external pressures or self-defense. In Mill’s mind, these factors would warrant a lesser punishment, since the criminal act was provoked or necessitated by circumstance uncontrollable to the individual.

DPB: While I agree that “immediate death” is a far less harsh punishment than lifelong confinement to a prison cell, I disagree that this should be the measure upon which approval or disapproval of capital punishment should be decided.  The term “Capital Punishment,” after all, refers to a punishment, and it, as with all punishments, is meant to deter the actions of those in receipt of them.  I can support a program in which person who has criminally taken another’s life should be sanctioned (punished) but that simply being executed, in turn is, in fact, an easy way for a criminal to escape any responsibility for their action. Also, while I agree that “implementing punishments sufficient to the nature of the crime so that any gain by a criminal act would be negated by the subsequent punishment” is laudable, I hold that simple execution does not do that.  It, of course, prevents the executed individual from repeating their act, but does not deter others.  I hold that the person, who has criminally taken another’s life, should be responsible, primarily, for making redress of the losses incurred by their victims, that person’s family and the community.  Such a sanction would have at least as much deterrent power as execution but would have the advantage of providing a visible and continuing reminder to the perpetrator and all who know him or her of the consequences of a making a grievous error.  This also eliminates the serious societal error of executing the wrong person and has the added possible boon that the perpetrator may, some day, in some way, be redeemed by those he or she harmed.

DPB: I would then add a further comment because of the statement: “In Mill’s mind, these factors would warrant a lesser punishment, since the criminal act was provoked or necessitated by circumstance uncontrollable to the individual.”  Thus we see the notion of what is presently called “diminished capacity”.  To this I would add that although most murders are done when the perpetrator is, in some way, “not themselves”.  That is to say drunk, intoxicated with one or more drugs, suffering from some form of delusion or the extremes of anger or jealousy while others, in the midst of perpetrating another crime, murder in an attempt to secure gain.  In all such cases the person is not at all deterred by the relatively distant chance of being executed.  Further, I would submit that in most of these cases there should be little leniency because the nature of their diminished capacity was self induced.  On the other hand those who plan and conspire to achieve an end, via murder, are likewise not at all deterred.  For these, my remedy is all the more called for.  They who planned for gain surely must have understood the possibility of loss and a large part of their consequence should be enduring that loss.  They should not “enjoy” the respite that execution brings. While I too accept that diminished capacity is a factor when considering how society should treat with a murderer. I still maintain that their responsibility would be to redress the losses of the victim, their family and community. Of course defining just what “diminished capacity” means is a region that should be carefully thought through for justice’s sake, as there are those who are not sane, capable of understanding reason or do not know what they are doing and so forth.  For these unfortunates, Mills, as myself, believe that execution is not warranted.

Speech in Favor of Capital Punishment

N: This speech was presented in front of the members of parliament in 1868 as a response to a proposition to ban capital punishment throughout the United Kingdom. Critiques and further reading follow it on John Stuart Mill.

JSM: “…It would be a great satisfaction to me if I were able to support this Motion. It is always a matter of regret to me to find myself, on a public question, opposed to those who are called–sometimes in the way of honour, and sometimes in what is intended for ridicule–the philanthropists. Of all persons who take part in public affairs, they are those for whom, on the whole, I feel the greatest amount of respect; for their characteristic is, that they devote their time, their labour, and much of their money to objects purely public, with a less admixture of either personal or class selfishness, than any other class of politicians whatever. On almost all the great questions, scarcely any politicians are so steadily and almost uniformly to be found on the side of right; and they seldom err, but by an exaggerated application of some just and highly important principle. On the very subject that is now occupying us we all know what signal service they have rendered. It is through their efforts that our criminal laws–which within my memory-hanged people for stealing in a dwelling house to the value of 40s. - laws by virtue of which rows of human beings might be seen suspended in front of Newgate by those who ascended or descended Ludgate Hill–have so greatly relaxed their most revolting and most impolitic ferocity, that aggravated murder is now practically the only crime which is punished with death by any of our lawful tribunals; and we are even now deliberating whether the extreme penalty should be retained in that solitary case.

DPB: So here we acknowledge that “aggravated murder” is the topic under discussion and the debate is whether or not capital punishment should continue to be applied to perpetrators of that crime.

JSM: This vast gain, not only to humanity, but to the ends of penal justice, we owe to the philanthropists; and if they are mistaken, as I cannot but think they are, in the present instance, it is only in not perceiving the right time and place for stopping in a career hitherto so eminently beneficial. Sir, there is a point at which, I conceive, that career ought to stop. When there has been brought home to any one, by conclusive evidence, the greatest crime known to the law; and 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, nothing to make it probable that the crime was an exception to his general character rather than a consequence of it, then I confess it appears to me that to deprive the criminal of the life of which he has proved himself to be unworthy–solemnly to blot him out from the fellowship of mankind and from the catalogue of the living–is the most appropriate as it is certainly the most impressive, mode in which society can attach to so great a crime the penal consequences which for the security of life it is indispensable to annex to it.

DPB: Here then is his argument, in its essence: if by conclusive evidence, it has been determined that an individual has perpetrated “aggravated murder” and the circumstances offer no hope via a “palliation of the guilt”, nor that the perpetrator may be worthy of living having, I assume this means he or she has given dispositions indicative of a unrepentant, reprobate, and that the crime was not due to some form of diminished capacity nor, in some way, a departure from his or her character - that this proves the criminal unworthy of continued life.  In such an extreme I would be tempted to agree, nay, I might well holler for it, were one of my loved ones horrifically murdered.  But I would also have to say that Mr. Mill and all others must be prescient beyond all human norms if they can say, with certainty, of anyone, that there is “no hope hat the culprit may even yet not be unworthy to live among mankind”.  I submit that my notions of having the criminal make full redress to the victim’s, their family and community is an alternative worthy of consideration.  It may be unlikely, even rare, but not impossible.  To this extent I hold my remedy as superior to the capital punishment.  I say as long as the perpetrator draws breath, there is hope.  As long as the perpetrator is confined and directed to constructive pursuits and dedicated to the amelioration of his or her debt then there is hope as long as there is life - whereas with no life there is, of course, no hope. 

JSM: I defend this penalty, when confined to atrocious cases, on the very ground on which it is commonly attacked–on that of humanity to the criminal; as beyond comparison the least cruel mode in which it is possible adequately to deter from the crime. If, in our horror of inflicting death, we endeavour to devise some punishment for the living criminal which shall act on the human mind with a deterrent force at all comparable to that of death, we are driven to inflictions less severe indeed in appearance, and therefore less efficacious, but far more cruel in reality. Few, I think, would venture to propose, as a punishment for aggravated murder, less than imprisonment with hard labor for life; that is the fate to which a murderer would be consigned by the mercy which shrinks from putting him to death. But has it been sufficiently considered what sort of a mercy this is, and what kind of life it leaves to him? If, indeed, the punishment is not really inflicted–if it becomes the sham which a few years ago such punishments were rapidly becoming–then, indeed, its adoption would be almost tantamount to giving up the attempt to repress murder altogether. But if it really is what it professes to be, and if it is realized in all its rigour by the popular imagination, as it very probably would not be, but as it must be if it is to be efficacious, it will be so shocking that when the memory of the crime is no longer fresh, there will be almost insuperable difficulty in executing it. What comparison can there really be, in point of severity, between consigning a man to the short pang of a rapid death, and immuring him in a living tomb, there to linger out what may be a long life in the hardest and most monotonous toil, without any of its alleviations or rewards–debarred from all pleasant sights and sounds, and cut off from all earthly hope, except a slight mitigation of bodily restraint, or a small improvement of diet?

DPB: The sum of this portion has to do with Mr. Mill’s debunking the idea that capital punishment is humane compared life imprisonment with hard labor.  I disagree.  While death is a cessation of life, its struggles and all its sufferance – it is also a relief from all responsibility and while I hold that a life of hard labor is infinitely more difficult those are not the only two choices, I offer a third way, by saying that, for safety’s sake and convenience, a convicted perpetrator of murder is to be confined, but I hasten to add that they must be allowed such opportunities, as may be designed by the prisoner, the community or the justice system, to allow him or her to ameliorate their grievous act and that this effort should continue until it is found that he or she has been redeemed in the judgment of the victim’s family, the community and the courts. Thus will their work be productive and contributory and thus will each and every day bring them closer to a cherished goal so that each breath or bite of food will remind them of the liberation that awaits them should they complete the task society and justice has set for them.

JSM; Yet even such a lot as this, because there is no one moment at which the suffering is of terrifying intensity, and, above all, because it does not contain the element, so imposing to the imagination, of the unknown, is universally reputed a milder punishment than death–stands in all codes as a mitigation of the capital penalty, and is thankfully accepted as such. For it is characteristic of all punishments which depend on duration for their efficacy–all, therefore, which are not corporal or pecuniary–that they are more rigorous than they seem; while it is, on the contrary, one of the strongest recommendations a punishment can have, that it should seem more rigorous than it is; for its practical power depends far less on what it is than on what it seems. There is not, I should think, any human infliction, which makes an impression on the imagination so entirely out of proportion to its real severity as the punishment of death. The punishment must be mild indeed which does not add more to the sum of human misery than is necessarily or directly added by the execution of a criminal.

DPB: Here Mr. Mill argues here presents his opinion on the nature of how or why punishments are effective and remarks upon how these considerations relate to capital punishment.  I feel that a convict’s steady, even if long term, effort towards redemption is one that would be seem far more rigorous that it would seem, even though it would seem extremely difficult.  For, as I’ve said, each day and in every way the convict would be making progress and would both know this and feel it.  They would have this as the sole design of all their efforts and such a focus would render the passage of time palatable.

JSM: As my hon. Friend the Member for Northampton (Mr.Gilpin) has himself remarked, the most that human laws can do to anyone in the matter of death is to hasten it; the man would have died at any rate; not so very much later, and on the average, I fear, with a considerably greater amount of bodily suffering. Society is asked, then, to denude itself of an instrument of punishment which, in the grave cases to which alone it is suitable, effects its purposes at a less cost of human suffering than any other; which, while it inspires more terror, is less cruel in actual fact than any punishment that we should think of substituting for it. My hon. Friend says that it does not inspire terror, and that experience proves it to be a failure. But the influence of a punishment is not to be estimated by its effect on hardened criminals. Those whose habitual way of life keeps them, so to speak, at all times within sight of the gallows, do grow to care less about it; as, to compare good things with bad, an old soldier is not much affected by the chance of dying in battle. I can afford to admit all that is often said about the indifference of professional criminals to the gallows. Though of that indifference one-third is probably bravado and another third confidence that they shall have the luck to escape, it is quite probable that the remaining third is real. But the efficacy of a punishment which acts principally through the imagination, is chiefly to be measured by the impression it makes on those who are still innocent; by the horror with which it surrounds the first promptings of guilt; the restraining influence it exercises over the beginning of the thought which, if indulged, would become a temptation; the check which it exerts over the graded declension towards the state–never suddenly attained–in which crime no longer revolts, and punishment no longer terrifies.

DPB: Here we have an apt description of deterrence.  I have already treated with this.  In sum, I say that the argument of deterrence assumes that everyone thinks things through all the time and weighs, rationally, the consequence of their acts.  This is simply not the case.  When most all murders involve individuals in thrall to some intemperate passion, self-induced diminished capacity, drugs or alcohol, the furtherance of an crime or other forms of hate such as those based on race, religion or class; there is no reason to suspect deterrence enters their minds.  For those whom it does, those involved in a premeditated plan of murder for gain, of some kind, these also are not deterred.

JSM:  As for what is called the failure of death punishment, who is able to judge of that? We partly know who those are whom it has not deterred; but who is there who knows whom it has deterred, or how many human beings it has saved who would have lived to be murderers if that awful association had not been thrown round the idea of murder from their earliest infancy? Let us not forget that the most imposing fact loses its power over the imagination if it is made too cheap. When a punishment fit only for the most atrocious crimes is lavished on small offences until human feeling recoils from it, then, indeed, it ceases to intimidate, because it ceases to be believed in.

DPB:  He is correct in pointing out that there is no way to know how well deterrence works.  Who knows how many have been deterred.  And I have to say that is also true, no one knows how may are deterred.  Thus it cannot be an argument.  Also, just as those statements are true it is also true that capital punishment is not the only factor deterring individuals from murder.  Many other factors must be considered: religion, proper upbringing, the values of society, education and the nature of civilized life ought not to be ignored in this consideration.

JSM; The failure of capital punishment in cases of theft is easily accounted for; the thief did not believe that it would be inflicted. He had learnt by experience that jurors would perjure themselves rather than find him guilty; that Judges would seize any excuse for not sentencing him to death, or for recommending him to mercy; and that if neither jurors nor Judges were merciful, there were still hopes from an authority above both. When things had come to this pass it was high time to give up the vain attempt. When it is impossible to inflict a punishment, or when its infliction becomes a public scandal, the idle threat cannot too soon disappear from the statute book. And in the case of the host of offences which were formerly capital, I heartily rejoice that it did become impracticable to execute the law. If the same state of public feeling comes to exist in the case of murder; if the time comes when jurors refuse to find a murderer guilty; when Judges will not sentence him to death, or will recommend him to mercy; or when, if juries and Judges do not flinch from their duty, Home Secretaries, under pressure of deputations and memorials, shrink from theirs, and the threat becomes, as it became in the other cases, a mere brutum fulmen; then, indeed, it may become necessary to do in this case what has been done in those–to abrogate the penalty.

DPB: A good point, though troubling, Mr. Mill understands the changing nature of society and how a changing sense of justice follows along.  In the United States, early on, there were many crimes, which were punishable by death, but over time, this number diminished.  I should think he would not be surprised to see how rarely Capital Punishment is now used, I mean he did say, “It would be a great satisfaction to me if I were able to support this Motion. It is always a matter of regret to me to find myself, on a public question, opposed to those who are called–sometimes in the way of honour, and sometimes in what is intended for ridicule–the philanthropists.”

JSM: That time may come–my hon. Friend thinks that it has nearly come. I hardly know whether he lamented it or boasted of it; but he and his Friends are entitled to the boast; for if it comes it will be their doing, and they will have gained what I cannot but call a fatal victory, for they will have achieved it by bringing about, if they will forgive me for saying so, an enervation, an effeminancy, in the general mind of the country. For what else than effeminancy is it to be so much more shocked by taking a man’s life than by depriving him of all that makes life desirable or valuable? Is death, then, the greatest of all earthly ills? Usque adeone mori miserum est? Is it, indeed, so dreadful a thing to die? Has it not been from of old one chief part of a manly education to make us despise death–teaching us to account it, if an evil at all, by no means high in the list of evils; at all events, as an inevitable one, and to hold, as it were, our lives in our hands, ready to be given or risked at any moment, for a sufficiently worthy object?

DPB: I find it interesting that he equates the elimination of capital punishment with effeminacy and that with enervation.  He then questions the severity of capital punishment by talking about death in such a fashion as to make it seem far harsher to suffer a life as a prisoner than to be executed.  Again, I have no argument with that proposition.  I agree and have said, “Death is an easy out.” I agree that people sacrifice their lives for good causes, for there are causes more valuable than an individual’s life and for this and other reasons do most account death in a negative fashion, even if other evils are considered to be greater.  However, these considerations do not counter my proposition that a convicted murderer should ameliorate the damages they caused.

JSM:  I am sure that my hon. Friends know all this as well, and have as much of all these feelings as any of the rest of us; possibly more. But I cannot think that this is likely to be the effect of their teaching on the general mind. I cannot think that the cultivating of a peculiar sensitiveness of conscience on this one point, over and above what results from the general cultivation of the moral sentiments, is permanently consistent with assigning in our own minds to the fact of death no more than the degree of relative importance which belongs to it among the other incidents of our humanity. The men of old cared too little about death, and gave their own lives or took those of others with equal recklessness. Our danger is of the opposite kind, lest we should be so much shocked by death, in general and in the abstract, as to care too much about it in individual cases, both those of other people and our own, which call for its being risked. And I am not putting things at the worst, for it is proved by the experience of other countries that horror of the executioner by no means necessarily implies horror of the assassin. The stronghold, as we all know, of hired assassination in the 18th century was Italy; yet it is said that in some of the Italian populations the infliction of death by sentence of law was in the highest degree offensive and revolting to popular feeling.

DPB: Here Mr. Mill again dissuades against from considering Capital Punishment as severe by alluding to the fact that death is just another incident of our humanity; that, in the past, it was of less importance.  He admonishes as to how, by his time, his society is shocked by death in general and cares too much about it in individual cases.  I think that the trend he spotted has continued on into my century but evolved as well.  In modern day America we care about those we know directly more than any others, when it comes to death and dying.  I would say that this is an indirect comment on the issue of capital punishment. I think that social norms inform and change as time passes and so does the sense of what justice is change.  Mr. Mill seems to accept that differing societies manage their affairs differently as well.  These considerations seem to suggest that Mr. Mill would understand why capital punishment would disappear as civilization develops in a healthy direction.

JSM; Much has been said of the sanctity of human life, and the absurdity of supposing that we can teach respect for life by ourselves destroying it. But I am surprised at the employment of this argument, for it is one that might be brought against any punishment whatever.

DPB: Mr. Mill attempts to dismiss the inconsistency between a stated social value, that is to say the sanctity of life, and a societal practice, the execution of a certain class of criminals.  I have heard the argument as well.  But it is a terribly poor argument.  Consider the following examples; one does not teach a child not to steal, respect for property, by stealing from him or her, one does not teach a child not to lie, tell the truth, by lying to them nor does one teach a child any proper value by modeling its opposite.  The idea that the inconsistency between capital punishment and right to life is similar to that of “any punishment whatsoever” is not supportable therefore, as those examples illuminate.  By this I mean death is final, whereas something stolen can be returned or replaced, a lie can be found out and the truth told whereas a person executed cannot be brought back to life.

JSM: It is not human life only, not human life as such, that ought to be sacred to us, but human feelings. The human capacity of suffering is what we should cause to be respected, not the mere capacity of existing. And we may imagine somebody asking how we can teach people not to inflict suffering by ourselves inflicting it? But to this I should answer–all of us would answer–that to deter by suffering from inflicting suffering is not only possible, but also the very purpose of penal justice. Does fining a criminal show want of respect for property, or imprisoning him, for personal freedom? Just as unreasonable is it to think that to take the life of a man who has taken that of another is to show want of regard for human life.

DPB: I question then, the “very purpose of penal justice” that is to say that its purpose is to deter suffering by inflicting it.  I reiterate that the purpose of justice should be restitution and amelioration of the damages caused by a criminal in a criminal act.  The purpose of justice then would be for the perpetrator of a crime to restore what once was and make full restitution.  This would allow for a complete rebuilding and redesign for a justice system that would make that possible.  It is far better than what we have now and far, far better than simply, and wastefully, executing criminals of whatever stripe.

JSM: We show, on the contrary, most emphatically our regard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself, and that while no other crime that he can commit deprives him of his right to live, this shall. There is one argument against capital punishment, even in extreme cases, which I cannot deny to have weight–on which my hon. Friend justly laid great stress, and which never can be entirely got rid of. It is this–that if by an error of justice an innocent person is put to death, the mistake can never be corrected; all compensation, all reparation for the wrong is impossible. This would be indeed a serious objection if these miserable mistakes–among the most tragical occurrences in the whole round of human affairs–could not be made extremely rare.

DPB: Herein lay what is capital punishment’s most damning flaw.  It is an absolute “infallible” consequence produced by a fallible system.  Mr. Mill was and is certainly not alone in trying to defend Capital Punishment against this essential flaw of the legal process.  He certainly would be aghast at the circumstances, which exist in the United States of my time in which many persons, on death row, have been removed from that circumstance because evidence of systemic error came to light, which put their conviction into doubt. 

JSM: The argument is invincible where the mode of criminal procedure is dangerous to the innocent, or where the Courts of Justice are not trusted. And this probably is the reason why the objection to an irreparable punishment began (as I believe it did) earlier, and is more intense and more widely diffused, in some parts of the Continent of Europe than it is here. There are on the Continent great and enlightened countries, in which the criminal procedure is not so favorable to innocence, does not afford the same security against erroneous conviction, as it does among us; countries where the Courts of Justice seem to think they fail in their duty unless they find somebody guilty; and in their really laudable desire to hunt guilt from its hiding places, expose themselves to a serious danger of condemning the innocent. If our own procedure and Courts of Justice afforded ground for similar apprehension, I should be the first to join in withdrawing the power of inflicting irreparable punishment from such tribunals. But we all know that the defects of our procedure are the very opposite. Our rules of evidence are even too favorable to the prisoner; and juries and Judges carry out the maxim, “It is better that ten guilty should escape than that one innocent person should suffer,” not only to the letter, but beyond the letter. Judges are most anxious to point out, and juries to allow for, the barest possibility of the prisoner’s innocence. No human judgment is infallible; such sad cases as my hon. Friend cited will sometimes occur; but in so grave a case as that of murder, the accused, in our system, has always the benefit of the merest shadow of a doubt. And this suggests another consideration very germane to the question. The very fact that death punishment is more shocking than any other to the imagination, necessarily renders the Courts of Justice more scrupulous in requiring the fullest evidence of guilt. Even that which is the greatest objection to capital punishment, the impossibility of correcting an error once committed, must make, and does make, juries and Judges more careful in forming their opinion, and more jealous in their scrutiny of the evidence.

DPB: This is the defense usually offered by those in favor of Capital Punishment.  That the system is fair, care is taken and, due to the severity of the consequence as well as it irreversibility, the system is set to err on the side of forbearance.  Well, that does not seem to be the case, certainly not now.  A person on trial for their lives has an increasing chance of surviving depending upon their wealth.  The wealthier an individual the less likely it is that they will even face trial, much less stand for a capital offense.  The argumentation is weak, in sum, for Mr. Mill, and others, who espouse this argument, assume too much and there are many cases to counter indicate the assumption that the system is fair and is able to sort out the guilty from the innocent.  I assume, also, that Mr. Mill would be one of the first to declare Capital Punishment an abhorrence were he alive to day and hear of the many cases where DNA evidence has cleared so many persons accused of murder.

JSM: If the substitution of penal servitude for death in cases of murder should cause any declaration in this conscientious scrupulosity, there would be a great evil to set against the real, but I hope rare, advantage of being able to make reparation to a condemned person who was afterwards discovered to be innocent. In order that the possibility of correction may be kept open wherever the chance of this sad contingency is more than infinitesimal, it is quite right that the Judge should recommend to the Crown a commutation of the sentence, not solely when the proof of guilt is open to the smallest suspicion, but whenever there remains anything unexplained and mysterious in the case, raising a desire for more light, or making it likely that further information may at some future time be obtained. I would also suggest that whenever the sentence is commuted the grounds of the commutation should, in some authentic form, be made known to the public. Thus much I willingly concede to my hon. Friend; but on the question of total abolition I am inclined to hope that the feeling of the country is not with him, and that the limitation of death punishment to the cases referred to in the Bill of last year will be generally considered sufficient.

DPB: In the first part of this section of his statement I hold.  These important issues, raised against Capital Punishment, are important but chief among them may well be the idea that the trial may not provide all the needed information to make a just decision.  Although, I hasten to add, that I believe a just decision cannot include Capital Punishment, for, and I will reiterate here, it should be the responsibility of the guilty party to make recompense to their victim(s) and to the community.  I also hold that should a person be executed and later found to be innocent then all those participating in the trial are likewise responsible for making just and proper recompense in a fashion that is relevant to the issues of the case.  I would only add that only God would be of assistance to any such individual(s) who, in their participation in a trial where a prisoner is wrongfully executed, performed in such a way as might be called incompetent, or, God forbid, corrupt; the latter being a vital and serious offense worthy of the most severe consequence.

JSM:  The mania which existed a short time ago for paring down all our punishments seems to have reached its limits, and not before it was time. We were in danger of being left without any effectual punishment, except for small of offences. What was formerly our chief secondary punishment–transportation–before it was abolished, had become almost a reward. Penal servitude, the substitute for it, was becoming, to the classes who were principally subject to it, almost nominal, so comfortable did we make our prisons, and so easy had it become to get quickly out of them. Flogging–a most objectionable punishment in ordinary cases, but a particularly appropriate one for crimes of brutality, especially crimes against women–we would not hear of, except, to be sure, in the case of garotters, for whose peculiar benefit we reestablished it in a hurry, immediately after a Member of Parliament had been garrotted. With this exception, offences, even of an atrocious kind, against the person, as my hon. and learned Friend the Member for Oxford (Mr.Neate) well remarked, not only were, but still are, visited with penalties so ludicrously inadequate, as to be almost an encouragement to the crime. I think, Sir, that in the case of most offences, except those against property, there is more need of strengthening our punishments than of weakening them; and that severer sentences, with an apportionment of them to the different kinds of offences which shall approve itself better than at present to the moral sentiments of the community, are the kind of reform of which our penal system now stands in need. I shall therefore vote against the Amendment.”

DPB: In this concluding portion of his statement he holds that punishments and or consequences have become ineffective because of their inconsequential nature.  To this I would still agree.  Not that prison is a “free ride” by any means.  But this, again, harkens back to my main objection to the current system as well as the system Mr. Mill knew and dealt with.  It should be the bounded duty of each person, found guilty of a criminal act, to make restitution, amelioration and amends to whatever degree is necessitated by the nature of their offense.  This would, in my mind, be justice.  That the guilty make good their foul or mean deeds and so redeem themselves in the eyes of their victims, the community and in the view of the justice system.  In this sense I hold that the current system is lax, provides no real or meaningful consequence in the punishment it metes out and, in fact, many former inmates have reported that they are not at all made whole by the process.  Not only that, but many come out worse and, making matters much worse, society sanctions them which, even if that is quite understandable, only makes the problem of reintegration far worse than it need be.  I would, lastly, add that those managing an accused’s case bear a similar responsibility should an innocent suffer any unjust consequences.

N: The author of the article presents the following addendum for further consideration.  As these are not the words of Mr. Mill I did not comment upon them but included them for your worthy consideration. 

  .    In Response to John Stuart Mill is an article from the economist refuting the claims Mill makes in his speech. It dissects the specifics of his argument and claims that criminals are not the only ones who suffer from a system that incorporates the death penalty.

  .    The Death Penalty is an Affirmation of the Sanctity of Life utilizes the claims of John Stuart Mill to argue for the death penalty. It includes the experiences of the author, district attorney of Ventura County, in cases that warranted the death penalty and uses emotional appeal for much of its evidence.

  .    John Stuart Mill features critiques and analysis of the philosopher’s life works from various academic sources and resources describing his life and works. It also hosts some of the John Stuart Mill’s major works including translation in Spanish and French when available.

Pressing Questions

  .    Mill stresses the importance of imagined severity of punishment versus the actual harshness. What does he mean by this and what does it say about how the justice system operates?

  .    Mill claims that a life in prison is crueler than capital punishment. Does this argument still hold true today?

  .    In relation to the previous question, what are the aspects of life that Mill believes necessary? Do these views conflict with the seemingly arbitrary way he describes the inevitability of death?

  .    Mill defends his argument on the basis of respect for the humanity of criminals. Does the death penalty promote respect for humanity and life?

  .    Mill proposes certain qualifications to his argument including stipulations that the criminal is undeniably guilty and that the criminal act arose from the criminal’s character and not from emotion. How does modern society address these uncertainties in the justice system? Is it possible or even desired to prove criminal character in an individual? Do criminals actually possess different traits than the rest of society, or are they just influenced by more dire situations?

Alternative Theories

Capital punishment is frequently debated even today. Though most arguments employ the humanitarian and utilitarian claims explained in John Stuart Mill’s speech, innovative thinkers have deliberated on new perspectives of the death penalty. These pages explore the varied ideas on capital punishment from spanning thought predating John Stuart Mill to modern theorists.

  .    The Death Penalty and the Principle of Goodness updates Kantian logic on the subject of capital punishment. It proposes a moral system for guiding individuals to agree or disagree with the death penalty completely, rather than attempt to justify it for certain crimes while banning it for others.

  .    Kant on Capital Punishment is a summary of Kant’s categorical imperative and its application to the criminal justice system. Kant’s ideas were basis for the backlash against capital punishment Mill was responsible to and can be seen as a foil to the utilitarian goals of Mill’s speech.

  .    In Theory: Opinions on the Death Penalty gives the opinions of three religious leaders on the effectiveness of the death penalty in deterring crime and the moral questions it raises. The authors are two Christian pastors and a Rabbi and their response show fundamental differences between these cultures in their views on justice, even though they share similar dogmas.

  .    The Death Penalty: Specific Issues includes papers on deterrence, retribution, concerns of innocence, economic arguments and other aspects of capital punishment. The opinions come from both sides of the issues to give a comprehensive view of modern theories of justice.

  .    The Humanitarian Theory of Punishment offers the views of C.S. Lewis on capital punishment, justice and views of humanitarianism. Through his cynical wit he argues that humanitarian ideas on justice are misplaced and that concepts of pardon and mercy are mere illusions people use for their own ends.

  .    Punishment and the Death Penalty includes videos, essays and other materials from professors of ethics and law at various schools around the country. It also features popular media on the topic from reputed sources like PBS and talk radio’s NPR.

  .    Rational Choice and Deterrence Theory examines the legal structures in place to deter people from committing crimes and their efficacy. The article serves more as a background to theories of deterrence and poses questions about key assumptions of the theories.

  .    Internet Encyclopedia of Philosophy: Punishment examines the differences between utilitarian and retributive theories of punishment and explains some efforts made to combine the two for a more balanced system of justice.

  .    Capital Punishment in Great Britain explores the changing attitudes of British citizens and scholars towards capital punishment from the onset of the 20th century until its abolition in 1963. The theories expressed here explain the reasons behind abolition from moral, rational and political perspectives.

  .    The Ideology of the Death Penalty is a refutation of the concepts of retribution central to ideas of capital punishment and the justice system in general. The paper examines revenge and retribution throughout history and highlights their failure to achieve the desired ends.


A Contractarian Argument Against the Death Penalty is an interesting denial of both deterrent and retributive theories of justice and instead proposes that legal systems are contractual agreements between individuals and their governments. Claire Finkelstein, the author, claims that no reasonable person would enter into a contract including the death penalty, as it is too abhorrent a stipulation to be agreed upon.