Narrow Debate About the Death Penalty

Posted in: Criminal Procedure

Earlier this month, the federal government resumed executing prisoners on death row, a practice that had ceased for seventeen years. Proponents and opponents of the death penalty have likewise resumed arguing over the morality of killing people as a punishment for their crimes. None of these arguments are new, but they merit our attention because of what they share, on both sides of the issue. We shall see that even though the two groups might passionately disagree on the moral legitimacy of executing murderers, they do apparently agree on how one might go about assessing that legitimacy. Their seemingly uncontroversial shared assumption focuses exclusively on one type of moral concern to the exclusion of others.


People who oppose the death penalty today will frequently cite studies that conclude the penalty does not deter crime. If we compare states that have the death penalty with states that do not, we fail to find a lower homicide rate in the former than in the later. Indeed, the correlation sometimes goes the other way, perhaps because states with a higher crime rate are more likely to install the death penalty than low-crime states or maybe because the sort of culture that leads voters to support the death penalty is also responsible for the violence that the death penalty aims to punish. Other studies compare one place over time, when many states had the death penalty (for example, before Furman v. Georgia) and then didn’t have the death penalty (post Furman, pre Greg v. Georgia) or vice versa (comparing pre and post Greg). Though one can criticize this or the other aspect of a study, there does appear to be an impressive amount of evidence suggesting that we gain little in the way of deterrence from killing (a subset of those) people convicted of murder.

Defenders of capital punishment have sometimes responded that if deterrence fails, it may be because all of the procedural protections that criminal defendants enjoy blunt the deterrent effects of the punishment. By the time a murderer is actually executed, many years might have passed, and no one but the victim’s surviving family continues to associate the condemned with the crime he committed as a young man. It is fair to say that in order for punishment to be most effective as a deterrent, it ought to follow the crime with speed and certainty. Due to the appellate process and habeas corpus proceedings, however, the punishment under our current system is neither swift nor certain.

The lengthy terms that people endure on death row prior to execution were one of the targets of a dissenting opinion by Justice Stephen Breyer in Glossip v. Gross, maintaining that the very length of time served on death row and the suffering that results may themselves constitute cruel and unusual punishments under the Eighth Amendment. Justice Clarence Thomas said of such arguments, in his concurrence in the denial of review in Thompson v. McNeil, that “It is incongruous to arm capital defendants with an arsenal of ‘constitutional’ claims with which they may delay their executions, and simultaneously to complain when executions are invariably delayed.”

Whether the delay does or does not reduce or eliminate the deterrent effect of the death penalty, one cannot make a deterrence argument for having the penalty if it does not deter under existing conditions. Even if the “ideal” death penalty would work, in other words, a genuine argument must contend with the actual one.

Victims’ Families

Rather than dwell on deterrence, death penalty defenders might make the strong argument that if execution of the murder would give some sense of justice or closure to the families of victims, then it is worthwhile to have the death penalty. Even if the statistical nature of deterrence is hard to get one’s head around, most people capable of empathy would want to comfort the families of murder victims. If we can increase their wellbeing by killing the person who wrecked their lives, then perhaps we should do that for them. This sort of thinking animates the practice of victim impact statements during capital sentencing hearings, a practice approved by the U.S. Supreme Court in Payne v. Tennesee as constitutionally valid. Part of what makes a murder a murder (rather than an attempted murder) is the moral luck that distinguishes terrible outcomes from simply bad outcomes. The more pain delivered by the convict, the worse his behavior and the more appropriate the death penalty.

Although the death penalty opponents who focus on the lack of deterrence see things very differently from the death penalty proponents who focus on alleviating the suffering of victims’ families, the two groups seem to share an underlying philosophy, and that philosophy is consequentialist. Deterrence in particular is a consequentialist value; it says that the death penalty is legitimate because its consequences are a reduction in crime (or it is illegitimate because its consequences are not less crime).

To understand the consequentialism of deterrence arguments, consider the possibility that executing completely innocent people might reduce the murder rate. After all, the public might not know that the person dying is innocent of any wrongdoing. They might see scores of people executed and think “I’d better not commit a crime. They seem to be finding perpetrators really quickly and executing them immediately. I don’t want them to even think I did something wrong.”

Would we regard as acceptable the execution of innocent so long as it succeeded in deterring more crime? Nearly everyone would say no. The reason is that consequences are not all there is to the morality of a course of conduct. There is also the justice and injustice of doing particular things to particular people. If the individual going to his death has done nothing wrong, then no matter how much safety his execution nets, it remains a grave wrong. The philosophical approach under which we consider justice and injustice independent of outcome is deontological. We owe it to an innocent man to refrain from executing him, even if execution will deter crime, just as we owe it to an individual not to harvest all of his organs for sick people, even if this one person could thereby save five or six others.

Family members of a murder victim could also experience an increase in wellbeing as a result of the execution of an innocent. So long as the family doesn’t know what led the police to the particular suspect, the family will assume that the person is guilty. Indeed, whenever suspects make claims of innocence, many people assume that the suspects are lying and that the police have apprehended the right person. Once again, the benefit that society can derive from the execution of a murder convict does not necessarily depend on the convict’s guilt. Indeed, we know from the political battles over something as basic as the existence of COVID-19 that for many people, the belief comes first and the critical analysis of the evidence second, if at all. People can feel good even if there is nothing true or authentic about the thing they feel good about.


In analyzing morality, theorists like Immanuel Kant take the position that determining what is right involves something quite different from adding up positive and negative consequences. Kant and others believed that conduct ought to conform to a rule about doing the right thing. Among the rules that Kant announced was that in our dealings, we must never treat another person as a means but only as an end in himself or herself. Because of this rule, Kant believed that lying was always immoral, no matter what the consequences of telling the truth might be. For the same reason, he believed that suicide was wrong. Both of these acts, lying and killing oneself, treat the other person or oneself as a means to accomplish some other end, some beneficial consequence, whether it be saving a person’s life or ending one’s own suffering.

One can disagree with Kant’s application of his “only as an end” test and still find a version of the rule compelling. One might, for example, regard some lies as intended to avoid tragedies and therefore as justified, despite the fact that they treat the listener as a means. And many of us would hesitate to judge the morality of suicide, given that those who end their lives are generally in excruciating emotional and psychological anguish and are accordingly entitled not to our judgment but to our compassion and regret for having failed to alleviate their suffering. Still, there is something attractive about a rule that tells us, absent a compelling contrary interest in avoiding dire consequences, to treat others as ends in themselves rather than manipulating others to accomplish our own ends. Under this principle, of course, we almost certainly could not execute an innocent person even if doing so resulted in measurable deterrence and made the victim’s relatives feel much better. Such would be using the person being executed as a means and not as an end in himself.

Did Kant, then, oppose the death penalty because it treats the condemned as a means? No. Quite the contrary. Kant believed it is incumbent upon us to see to it that we execute the murderer as a matter of justice. Having taken a life, the murderer deserves to have his life taken. Failing to execute the killer leaves an injustice unrequited and even does a disservice to the condemned himself. Thus “an eye for an eye” becomes a fundamental moral principle that may not be violated. For Kant, whether the death penalty “works” or not is entirely irrelevant, as is the impact on the families of the victims of holding versus not holding an execution. All that Kant wants to know is whether we have a murderer before us. If so, we must take a life for a life. Lex talionis.

How might an opponent of capital punishment respond to someone making a deontological argument of the sort that Kant made in favor of the death penalty? I would think it might be simple. A deontologist could oppose the death penalty on the ground that every individual has the right to live, and nothing that he or she does can forfeit that right. Sometimes circumstances are such that other interests defeat the right. It is accordingly not absolute, and such instances of imminent threat as self-defense or a just war allow people to take others’ lives. But absent an extreme situation, killing is wrong. And the fact that killing A might make B feel better or might teach C not to commit murder does not qualify as something that could override the right to life.


If you are arguing that we should not execute people, you will wisely make a variety of arguments. There is therefore a place for the claim that the death penalty does not deter, even if you think it would be wrong no matter how much of a deterrent it was. And there is a place for people on the other side to point out that an execution can be cathartic and provide closure for relatives who continue to grieve for the person whom the murderer took from them. Some will find such arguments compelling, and your goal is to win. But as you make such arguments, consider the difference between them and the sort that focus on what the individual who stands before the sentencing body deserves. Whether that is death or whether it is a life uninterrupted by retribution, it is a question that falls within the moral tradition that has birthed and may someday succeed in abolishing the penalty that ends the life of the condemned.

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