Montague’s Justification of Capital Punishment
Capital punishment has been the debate of many legislatures and courts throughout the world. Way back in history, civilizations have already practiced capital punishment in their justice systems while some others also forbid its application. Still, there have been various arguments in different countries around the world up to the present time if capital punishment should really be included in the set of punishments of the national society. Montague discussed such arguments and also laid out the different principles to understand the concept of the justification of capital punishment. This was evidently accomplished by explaining his theory of justice and the so-called comparative and non-comparative principles of justice that are very crucial in the deliberation of capital punishment as a method of societal-defense.
Montague explicitly stated that the justification of capital punishment is directly connected to the justification of punishment in general (Montague 131). To justify that the implementation of capital punishment; it is first important to justify the implementation of punishment and penalties in society. Upon proving that punishments done to persons who violate certain laws is justified as societal-defense, one also proves that capital punishment is a rightful method of giving justice to victims. In order to clearly rationalize the use of capital punishment, it is important that it be rationalized in principle and in practice.
To validate that capital punishment is just in principle; one has to examine its very nature whether a society considers such punishment to be morally right or wrong. Thus, principled justifications concern the moral values that a society has and implicitly relates this set of moral beliefs to whether capital punishment is wrong or correct. Conversely, to label capital punishment as practically justifiable, one has to look beyond the theoretical concept of punishments. This means that, in reality, where specific situations are concerned, the question that has importance is that, is capital punishment applicable to this specific person because of this specific violation that he or she has committed? In this circumstance then, it is required that to justify capital punishment, one has to prove that by implementing this particular punishment, unacceptable actions that may be done by suspected persons are successfully prevented. Thus, by preventing individual persons in society from doing criminal acts, capital punishment becomes justifiable. An analogy that can better improve such explanation is the relationship between self-defense and societal defense (Montague 132). In majority of the populations in various countries, if not throughout the world, self-defense is justified because it is considered protection of innocent individuals. For example, a woman, which is about to be raped kills her assailant in defense of herself. This is considered justice since the woman acts in accordance with the moral that it would be better that a criminal die rather than a victim. Looking at societal-defense, such situation is somewhat similar. In societal-defense, the criminal is given death penalty to act agreeably with the protection of the society. Although it is not directly observed that upon bestowing capital punishment, the people in the society are prevented from being abducted or killed; the very essence that would-be criminals are discouraged to execute their plans to murder people is an indication that capital punishment serves its purpose.
However, analyzing such an argument, another issue arises. Even if it is true that capital punishment becomes a deterrent for criminal acts, it does not imply that if a lesser punishment is employed rather than capital punishment, the quantity of the deterred criminals increases. It is therefore a question whether applying capital punishment in a system of punishment where it is not included in the past will actually decrease the number of crimes committed in the community. Furthermore, another factor that Montague excludes in the analysis is the fact that, if the number of criminals do decrease in a society upon the implementation of capital punishment is actually due to the very effort that this kind of punishment is applied rather than due to other contributing factors such as the reinforcement of the police visibility on the community. Nevertheless, let us not dwell on such view. In concentrating on the arguments that Montague presented, it is thus principally justifiable to employ capital punishment due to the deterrence factor that it creates and the analogy of societal-defense with that of self-defense which by scrutiny were rightly logical.
The question that is of relevance then is that concerning practical justification. Unlike principled justification, practical justification of the existence of capital punishment in society if very complicated to clarify since this area concerns that of specific circumstances and cases that happen in the judicial department. It is thus, a question of whether a particular case in the courts justifiably bestows capital punishment to an individual. To unambiguously elucidate this contention, comparative and non-comparative principles of justice should first be resolved. Therefore, it is fitting to discuss what Montague means with comparative and non-comparative principles of justice.
To better communicate these concepts, it is a necessity that a case example should be utilized. Thus, let us make use of Montague’s example which concerns McCleskey who is a black individual which was sentenced with capital punishment and yet, others who are of similar offenses as his where bestowed with lesser sentences (Montague 153). It is also significant to note in this particular case that all other criminals with the same offenses as McCleskey were white. McCleskey’s side thus made an appeal that the judge has unfairly sentenced him with capital punishment owing to the fact that other individuals with similar offenses as his were not sentences with capital punishment.
Arguing with the comparative principle of justice, it is clear that the judge has unfairly sentenced McCleskey. How is this possible? In comparative principle, it is important that justice requires similar treatment of relevantly similar cases and dissimilar treatment of relevantly dissimilar cases (Montague 138). Therefore, what has been done to McCleskey is in opposition of comparative justice since it is a situation of dissimilar treatment of relevantly similar cases. Nevertheless, it cannot be concluded that the bestowal of capital punishment on this case is injustice per se. This cannot be done since it is not the domain of comparative justice to explain justification in such individual cases. It means that comparative principle cannot assume that McCleskey’s punishment is not equivalent with that of his offense. Such matter is not contained in comparative justice. Specifically, comparative justice only concerns circumstances where a particular case can be weighed against other circumstances of similar conditions.
Thus, a singular standing case cannot be evaluated with comparative principle. To further expound this idea, it is important that McCleskey’s case be understood in all its possible perspectives. In his case, it is evident that similar cases which can be used as comparisons are available. However, such similar cases only concern the equality in which his sentence has with the other cases. Namely, McCleskey’s severity of sentence compared with that of the others was unjustly given. On the other hand, there is no reasonable cause that McCleskey’s sentence is wrongly chosen for his offense rather, it is quite correct that he receives capital punishment. What only matters here is that with such similar cases as his, those whose offense is the same as his should also be sentenced with capital punishment. It is interesting to note then that McCleskey is not actually appealing that his sentence be lowered but that his sentence be the sentence of the others who have similar cases as his. Such argument is an example of comparative principle.
Conversely, if comparative principle of justice cannot argue that McCleskey’s sentence is undeserved, non-comparative justice can argue with such matters since as its term implies, it does not require that comparison be made between several cases. Rather, non-comparative justice individually evaluates a criminal case such as that of McCleskey. In non-comparative justice, the concept is that everyone gets their specific appropriation or punishment. If a convicted individual receives a treatment it is because of the attributes of that particular individual and thus, does not concern the treatment of others (Montague 144). Consequently, in Montague’s example of McCleskey’s case, non-comparative principle is inapplicable. It is unsuitable in a way that the given information regarding the case is not substantial. Furthermore, if McCleskey’s appeal is taken into consideration, the client’s appeal is irrelevant because the very argument on which the case was based concerns those of other individuals with similar cases such as his and with lesser treatments as his. As stated, it explicitly draws reason from the fact that other cases are in contemplation which regards it as carrying out comparison.
By the very supplementation of comparison with the other treatments, the case takes on a comparative principle not a non-comparative one. To effectively deal with non-comparative principle in McCleskey’s appeal, therefore, he should revise his appeal and venture on the system of punishment available in the state. His lawyers should therefore search the existing laws of the state that confers his case and look for alternative treatments for his offense. As one will notice, in this plea, McCleskey requests that his punishment be changed. This is in contrast with comparative justice where he demands that others be treated the same as his and so, accepts his punishment.
Referring back to the justification of capital punishment, it is therefore important to keep in mind that in dealing with the issue of capital punishment, comparative considerations are irrelevant since such consideration requires that treatments occur in just systems and there is no way that such systems are evaluated (Montague 156). However, in dealing with the issue that if capital punishment be included in systems of punishment, non-comparative considerations should be employed since treatments are passed by such systems.
Montague, Phillip. Punishment as a Societal-Defense. London: Rowman & Littlefield Publishers Inc., 1995.