Capital punishment refers to the death penalty, which has elicited controversy in regard to the justification for its implementation. In the U.S., the federal government and the military recognize capital punishment as legal in 29 states (National Conference of States Legislatures, 2019). On the other hand, several states have taken legislative steps to abolish capital punishment, replacing the death penalty with life imprisonment without the possibility for parole. The debate on whether to abolish or retain capital punishment attracts mixed reactions, with factions taking sides. For instance, the abolishment of capital punishment by the Nebraska legislature in 2015 was reversed in a statewide vote that reinstated it in 2016.
Similar mixed reactions are evident in the legal apparatus with courts in Washington and Delaware ruling that the death penalty in the states was unconstitutional (National Conference of States Legislatures, 2019). The debate on capital punishment in the states centralizes on fairness, reliability, and cost of implementation; while other determinant factors include the scope of aggravating factors, nature and procedures of execution, trial and appellate procedures, modification of laws that influence litigation outcomes, and repealing the process in its entirety. The judicial and legislative review processes in support of or against capital punishment have a basis on a number of concepts in the modern criminal theory.
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Classical criminology refers to the legal reform initiated in the 18 th century by the likes of Beccaria and Bentham and had significant influences on modern crime and deterrence discourses and rational choice. The philosophical foundation for classical criminology is that social phenomena can be understood using economic transactions and the assumption that rational choices made by individuals are intended to exploit opportunities and maximize their utility (Criminal Justice, 2020). The underlying assumption in classical criminology is that behaviors of groups or individuals are reflections of their efforts to maximize pleasure and minimize pain. Advocates of criminology theories share a consensus on the variability and subjectivity of utilities and activities that make perceptions of crime attractiveness to differ. The differences are captured in the rational choice theory that addresses the relationship between preferences and choices.
Application of the rational choice theory to capital punishment draws from the deterrence school of thought advanced by Beccaria, which recognized sufficient punishment by swiftness and certainty. Critics of capital punishment would argue that the deterrence element of the rational choice theory is essential in influencing people’s perceptions of pleasures and pains about engaging in crime. On the contrary, supporters of capital punishment argue from the economic transactions involved. Grigoryeva and Matsueda (2014) noted that alternatives to capital punishment such as life imprisonment have deleterious effects, including stigmatization, disruption of community cohesion, and undermining of the legitimacy of the law among disenfranchised communities.
My position on capital punishment is that it should be retained. Scholars in the field of classical criminology and rational choice theory have noted the likelihood of capital punishment as a deterrent measure to fail to be high (Criminal Justice, 2020; Grigoryeva & Matsueda, 2014). On the other hand, alternative measures such as life imprisonment have a high cost-benefit ratio, making them unsuitable. Judicial review of the processes leading to capital punishment and other elements must focus on the delivery of fair and just judgment to ensure only deserving offenders face capital punishment. Making the punishment fit the crime is integral to support the retention of capital punishment. People’s perceptions need consideration to ensure that the process is conducted in conformity within the best interests of the community.
Classical Criminology versus Positivist Criminology
The birth of classical criminology during the 18 th century, by Cesare Beccaria and Jeremy Bentham, centralized on measuring punishment to the crime. For instance, Beccaria advocated for the creation of a fixed legal scale of crime based on perceived seriousness (Burke, 2018). Ranking crime from the least to the most serious and having a corresponding scale of punishments that is proportional to the offenses in terms of severity was the central tenet of classical criminology. Emphasis on punishments is based on the assumption under the classical criminology theory that criminals act on free choice and calculate the cost-benefit ratio of their actions. Classical criminology primarily dealt with setting up an effective system of responding to crime, with little focus given to causes of crime. The critical factor was the criminal act and not the motivations or circumstances leading to the act.
Positivist criminology marked a substantial shift from classical criminology by focusing on the motivations and context of the offender. Under the positivist theory, the root causes of crime are associated with factors that are both intrinsic and extrinsic to the individual. An individual may or may not be in control of these factors. The theory attributes a crime to a set of distinct characteristics in an individual or the setting to which they are exposed to (Burke, 2018). Under positivist criminology, research plays a crucial role in the identification of critical differences between criminals and non-criminals. The theory postulates the existence of two sources of crime, the individual, and the social context. The former is addressed under the concept of individual positivism, which associates crime with individual characteristics, classified as individual pathology. The other source is social positivism, which attributes criminal acts to the social settings that are external to the individual. Therefore, the positivist criminology theory focused on defining causes of crime rather than punishments.
In my view, it is worth prescribing to the positivist criminology theory. The choice is informed by the understanding that the theory addresses the causality element of a crime, which increases the effectiveness of deterrence measures (Homel, 2012). In a judicial system, positivist criminology offers an opportunity to determine whether the offender committed the crime willingness or under the influence of other individual or social factors. The theory adopts a diverse view of the causes of crime by considering biological, psychological, and social factors. Under this theory, the propensity to commit a crime is often a direct outcome of the underlying individual or social factors.
The positivist criminology theory lays out a basic definition of crime and its causes. For instance, under individual positivism, a criminal act is perceived to be an outcome of a person’s abnormality or disorder. The problem can either be biological, personality, or intellectual. The problems play an important role as determinants of behavior and lead to a violation of the moral agreement on legal codes. The seriousness of the crime is determined by temperament, personality, and the degree of socialization (McLaughlin & Muncie, 2012). This aspect of positivist criminology differs from that of classical criminology because it associates crime with specific personal and social traits that influence behavior. Individual and social factors have a role in determining the seriousness of the crime. Therefore, it is possible to treat criminals by eliminating the abnormal condition using medicine, therapy, or re-socialization.
In relation to social positivism, crime is seen as a result of social pathology, a term used to refer to dysfunctions in social, economic, and political discourses. The dysfunctions have a deterministic effect on individual behavior leading to violation of their collective conscience. The different socio-economic and political milieu are responsible for the regional variation in crime. The theory highlights the need for varied approaches in the treatment of crime because seriousness can be looked objectively by examining the social context of the individual and the crime (Hirschi, 2017).
References
Burke, R. H. (2018). An introduction to criminological theory . Routledge.
Criminal Justice. (2020). Classical criminology. Retrieved from http://criminal-justice.iresearchnet.com/criminology/classical-criminology/5/
Grigoryeva, M., & Matsueda, R. (2014). Rational choice, deterrence, and crime: Sociological contributions. Encyclopedia of Criminology and Criminal Justice . https://doi. org/10.1007/978-1-4614-5690-2_410
Hirschi, T. (2017). On the compatibility of rational choice and social control theories of crime. In The reasoning criminal (pp. 105-118). Routledge.
Homel, R. (2012). Policing and punishing the drinking driver: a study of general and specific deterrence . Springer Science & Business Media.
McCarthy, B., & Chaudhary, A. R. (2014). Rational Choice Theory and Crime. Sociology . https://doi.org/10.1007/978-1-4614-5690-2_39
McLaughlin, E., & Muncie, J. (Eds.). (2012). The Sage dictionary of criminology . Sage.
National Conference of States Legislature. (2019). States and capital punishment.
Retrieved from https://www.ncsl.org/research/civil-and-criminal-justice/death-penalty.aspx
