13.3 The Death Penalty

The death penalty has a long and complex history in the United States and continues to attract a great deal of controversy. Some people claim that it should be abolished, while others are firmly in favor of it and insist that it should be used much more frequently than it is. We certainly won’t settle these debates here, but the death penalty is a great example for bringing into focus the various arguments about crime and punishment in general that we have been considering here. What I’d like to do in this section is talk about how the two basic theoretical justifications for punishment in general might address the topic of the death penalty. Then I’ll develop an argument as to why, while it may be justified in principle there are some good reasons to be opposed to it in practice.

Utilitarian Arguments

How might a utilitarian consider capital punishment? As we have seen in other cases utilitarianism doesn’t really allow us to determine whether or not something is right or wrong in principle but instead requires us to ask about particular cases and find out whether one choice or another leads to a “greater good” than other available alternatives. This would seem to leave us in the difficult position of not being able to have any more general policy governing a punishment like the death penalty and to force us instead to decide each case individually. In other words, we’d seem to have to look at each particular criminal case and decide which possible punishment from among the available options would lead to the best overall outcome and then go with that one. But this doesn’t really provide us with any guidance as to whether or not the death penalty should even be one of the available options. We can however, avoid this difficulty if we follow the lead of a version of utilitarianism which we have so far neglected to mention, “rule utilitarianism.” “Rule utilitarianism” is an attempt to address what we might call the “information overload” problem that ordinary utilitarianism seems to face. The ordinary version of utilitarianism evaluates each individual act, one at a time, to determine whether or not it leads to the best outcomes among those of all of the available alternatives. But following this procedure for every decision we might make seems like it is beyond the capacity of mere mortals like us. So rule utilitarians basically say, well that kind of calculation of the outcomes of every decision we make is only a problem for “act utilitarianism,” we can take a much more efficient approach and look at what tends to happen in similar kinds of cases and in that way can come up with general rules to guide our choices. Of course, sometimes what usually works out for the best just doesn’t but if we are careful and decide what general moral rules we’ll follow based on decent research in to what does in fact tend to happen, we are all set.

In the case of the death penalty, as long as we follow the lead of rule utilitarianism it does in fact seem that we can come up with a general account of the morality of capital punishment. If capital punishment tends to maximize utility overall, then it would be a justified punishment to keep available as an option in particular cases. If it does not tend to do so, then we should abolish it. What this line of argument does is to turn the moral debate about capital punishment into a policy debate about whether capital punishment does sufficient good to compensate for the harms it causes. And it does cause harm. Remember that according to utilitarianism, everyone who is affected by the consequences of our actions counts, and in this case this certainly includes the person who is executed. Considerations of justice and who deserves what are just not part of the utilitarian framework for moral decision making, so no matter how counterintutive it may seem to do so in cases on crime and punishment, in looking at the utilitarian approach to capital punishment we need to leave them out.

Keeping these points in mind how do things stand for a utilitarian evaluation of the morality of capital punishment? The answer is that if we can show that in general capital punishment does more good than harm then it would warranted as at least an option in certain cases according to utilitarianism. Two ways of looking at this issue are often brought up in debates about capital punishment that are relevant here: the idea that capital punishment alone offers a sense of “closure” to victims and that it is thus justified, and the idea that capital punishment has a significant deterrence value which would offset the harms it does. Let us look at each of these points in turn.

The first utilitarian argument about capital punishment hinges on the idea that executing someone who has harmed people in a serious way can do certain things for victims that not executing them cannot. By “victims” here I mean not the immediate victims of a crime that has led to the seeking of the death penalty since typical capital cases are murders and the immediate victims are dead. I mean the “secondary” victims such as friends and family of the immediate victims. Thus the argument is often given that these secondary victims lack something, a sense that justice has been served, that the case has been closed, that the murderer will never strike again, and so on, as long as the murderer remains alive. If capital punishment can provide this sense of closure to these victims then it is legitimate, according to this argument, as long as this feeling outweighs the harms that capital punishment does. The presumption that proponents of this argument typically make is that it will in fact provide such feelings of relief to these secondary victims. Some in fact claim that it does, but then again some claim that it does not. It is, as we might imagine, very difficult to generalize for all cases of capital punishment. Sometimes the victim of a murder might happen to be someone who was well loved and their survivors might happen to feel a great sense of relief and the ability to “move on” after their killer is executed. Other victims might not have had much in the way of friends and family at all, or in case they do, their friends and families might just not feel any relief at all. It seems to me at least that resting the legitimacy of capital punishment on an attempt to generalize based on a “typical” case of murder and the effects of an execution on the people left behind is too fraught with difficulties to be workable.

Well what then about the second utilitarian argument about capital punishment, one that might appeal to the good that it might do by having a deterrent effect? Once again this is an argument that is contingent upon how things play out in the real world, since it is an argument about the real or likely consequences on a particular punishment on particular people. To see whether or not capital punishment does have any effect on murder rates would require extensive and careful analysis of data on crime and punishment. And it is not quite clear from this data whether or not particular punishments do in fact have much to do with decision making on the part of “would be” criminals in the future. One staunch proponent of the death penalty is the philosopher Ernest Van den Haag who has argued that if it could be shown that “some” potential murderers are deterred by the thought of the “ultimate” penalty this would make the death penalty “worth it.”15 This strikes me as more of an appeal to common assumptions about what should happen rather than as a completely solid argument in favor of the death penalty. As even van den Haag himself admits, finding out what the actual deterrent value of the death penalty might be in the real world is probably impossible to do, simply because there are too many variables in play to determine whether one factor affecting decision making in potential situations where someone might kill someone else like the presence or absence of the death penalty might make a significant difference. Falling back on common assumptions about what should happen is not basis for a policy that is supposed to be based on empirical facts.

However things play out in terms of the real consequences of executing people for certain crimes, this is how a utilitarian might argue. As we have seen when we examined utilitarianism earlier, everything here depends on our ability to determine what the consequences of our actions actually are and this seems especially difficult to do for capital punishment since we are not here only talking about individual cases but of typical results of certain types of actions – executing versus not executing convicted murderers. It is always difficult in such debates to separate the genuinely supported empirical facts of the matter from common sense understanding of what we might think really should happen in these cases. But the burden of proof for utilitarians must lie on the factual side of things since their fundamental claim is that a certain policy really does have certain effects. If one argues this way, the facts on which one’s argument is based should at least themselves be clear. As far as I can tell the facts about the real results of the death penalty are just not clear – and cherry picking the available information is not a legitimate way to avoid this uncomfortable situation.

Retributivist Arguments

Well then what about the other basic approach to the justification of punishment, the retributivist appeal to what people deserve? How might it address the question of the death penalty? As we have seen in our discussions of retributivism, in spite of the intuitive appeal of simple retributivism, as captured in the slogan, “an eye for an eye, a tooth for a tooth,” we’ll need to show why death might be a warranted punishment for certain crimes and we will need a principled way of doing this rather than just appealing to some felt sense of what is right. After all if people’s lives are in the balance we cannot just rely on our subjective sense of right and wrong but need something that might actually guide policy in a way consistent with broader social ideals of fairness that are central to life in a democratic society.

We have already seen the weakness of social contract theory when it comes to showing why it is that we are justified in punishing people in general and the same points apply in the case of the death penalty as well. Even if it may seem that it is possible and maybe even desirable to understand rights as the kinds of protections that might be forfeited in certain circumstances doing so leaves rights vulnerable to the arbitrary exercise of power. Who is it that would get to decide in what circumstances someone would forfeit their rights? Wouldn’t this make rights dependent on something a little too shaky?

**On the other hand,_** it does seem to me that a case in favor of the death penalty might be more successfully made by appealing to Kant’s account of retributive justice – some people, by their actions, do things that seem to warrant death since they are based on a complete and utter disrespect for human life. For Kant the death penalty would absolutely not be something to be used for the sake of social control, deterrence, or any other supposed good that might come of it. Instead it could only be acceptable as a response to something that has happened in the past and even in this case would really just be a matter of completing something already started by someone else. We have already seen how this argument works in Kant’s more general defense of punishment – if you, by your actions, indicate that you attach little value to human life and concerns, it seems only fair to you to treat you by the very same standards. To treat you otherwise would be to second-guess your free and deliberate decisions and assume that you did not in fact intend freely to cause others harm and disrespect them.

This argument clearly also applies to the case of truly awful crimes that seem to some people to warrant the death penalty. Take the case of one of the most serious possible crimes – perpetration of genocide. Genocide involves not just the deliberate killing on an individual for selfish reasons, but the attempt to destroy an entire people based on some ultimately arbitrary distinction between people based on ethnicity, religion, race, nationality, etc. Perpetrators of genocide deliberately decide that a particular group is absolutely lacking in value and take often elaborate and systematic steps to “eliminate” them with utter contempt for their victims. On Kant’s line of reasoning it seems like the death penalty would in fact be warranted and even required in such cases. How else could we possibly respond to someone who has freely decided to treat others with complete disrespect.

And yet we may wonder whether we should endorse this approach in the end. It seems troubling to say the least to accept that perpetrators of genocide can possibly decide to do what they do with the kind of deliberate clarity of thought that Kant’s argument requires. Certainly there must be some form of madness at work that could have led to the coldly “rational” killing machines of the Nazi death camps. The alternative almost seems unthinkable, that a substantial number of people could really freely have decided that their victims were unworthy of any respect whatsoever. And if they were coerced in some subtle or not so subtle ways, but desperation, collective insanity, the seductions of power, why should we treat them as autonomous beings worthy of our respect and not as dangerous threats to our safety? Yes that might strike some people as another reason why they should be executed, as an act of collective self-defense. But that simply returns us to the question of whether execution really should be considered to be a legitimate part of our societal self-defenses. Well, why shouldn’t it be? This is clearly a pressing question since at this point in time the majority of countries around the world have decided that it shouldn’t be. In the next section we will see why not.

The Death Penalty in Theory and in Practice

Let us suppose for the sake of argument that the death penalty is moral defensible in some cases. In cases like those we have talked about such as genocide it certainly seems like it might be the morally warranted response. And yet in many countries, even those who have struggled to come to terms with the aftermath of genocide and other forms of political oppression and violence, the death penalty has been eliminated altogether or its use has been severely limited. Why might this be the case? It seems to me that there are two basic reasons for this. The first has do with the recognition of human fallibility, and the second with a distrust of political power.

There is no such thing as a perfect criminal justice system. Not only are the people making decisions, investigating crimes, arresting suspects, carrying out trials and so on all fallible, but in many cases evidence is hard to come by and hard to protect from being tainted with false clues. In addition, criminal justie systems are all embedded in societies that often have long histories of inter-group conflict that can lead to hidden or not so hidden biases and any stage of criminal proceedings.

  1. “Ernest van Den Haag/Legal Scholar,” accessed January 26, 2020, https://www.pbs.org/wgbh/pages/frontline/angel/procon/haagarticle.html.↩︎