As I write this a 46 year old woman is waiting on death row in Georgia – due for execution at midnight tonight (March 2nd) our time. The interesting thing about her case is that her boyfriend stabbed to death her husband after she’d asked him to – she didn’t actually do the killing herself. On a plea bargain he escaped the death penalty – essentially exchanging his own fate for hers. Something about this case leaves a nasty taste in my mouth – what would our great moral thinkers have said?

Justice as a concept dates way back to the Greek thinkers. Plato and Aristotle both recognised that justice was one of the great building blocks of the eudaimonic society. But what exactly does this idea mean? It has two major components.

1. An issue of retribution

Justice is the way society gets retribution for harm done to it or a member of it. So in the traditional Old Testament lex talionis, the idea of retribution meant ‘an eye for an eye, a tooth for a tooth, a limb for a limb” (Exodus 21:24). The problem with this as a moral idea is that, as Gandhi observed I think correctly, ‘an eye for an eye makes the whole word blind’ because we can get into a cycle of retribution on both sides of an argument (think of the Israeli-Palestine conflicts). Many of the great moral movements have been driven by reconciliation, not revenge.

Immanuel Kant rather interestingly supported the death penalty. He argued that anyone treating their fellow human being with such means as an end contempt as to kill them had forfeited their own right to life. He universalised a world in which a rational person would want a murderer to have their life forfeited. Indeed, to be consistent Kant argued that the murderer would will their own death because the sanctity of morality is greater even than the sanctity of life. But such a view of murder ignores two things: one is that there are degrees of murder (first second, third degrees in law depending on motive and circumstances).

And secondly, Kant quite rightly argued for the importance of intention. Our motive is crucial to our guilt. Did Henry II intend those two knights to go and murder Thomas a Beckett in 1170 when he said ‘who will rid me of this turbulent priest”?

Did Kelly intend Gregory Owen to kill her husband or was she just enraged and exaggerating?

2. The issue of distribution

For justice to operate then there must be a fairness of distribution – in legal terms everyone is exactly equal in the eyes of the law. The problem with American justice is that this isn’t the case. Justice seems racially and economically skewed in favour of the rich and/or the white. 42% of people on death row are black. Your ability to escape death often depends on the resources you have at your disposal to hire a good lawyer.

Notice also that justice of the distributive sort is a central problem for utilitarian ethics. For on some versions of utilitarianism, it is okay to kill an innocent person because it would increase the security for everyone else. So, as is sometimes argued, it is important to have the death penalty as a deterrence to anyone else thinking of pulling the trigger.

This may not be true of Mill’s weak rule utilitarianism though. He argues that rights and justice are much higher in the scale of utility. In other words, for a happy society we need to entrench rights and entrench the liberal Harm Principle he came up with in On Liberty. The only justification for denying the liberty of one person is to prevent harm to others. So on this argument, justice is about protecting society – removing a harmful person, rather than getting revenge.

There is an argument, then, that for Mill the possibility in an imperfect and unequal world of miscarriages of justice would mean he would argue against the death penalty on social welfare grounds. A society is in the end happier, and also fairer, if we don’t believe that we always get it right when we sentence someone to death.

On a lighter note (but not in calories, of which there are 4,200) Kelly has requested for her last meal: cornbread with a side of buttermilk; two Burger King Whoppers with cheese; two large orders of fries; cherry vanilla ice cream; popcorn; a salad with boiled eggs, tomatoes, bell peppers, onions, carrots, cheese and Newman’s Own buttermilk dressing; and lemonade.