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What is it that morally justifies legal punishment (i.e. state sanctioned punishment of criminals)? There are at least four main possible responses as far as the death penalty is concerned.

First, God commands (‘lex talionis’?) that murderers must die. Although this idea is explored briefly in what follows, it depends on the notion that God exists to begin with (which God?). Since Plato showed that even if some God does exist, morality can’t depend on any authority (even a divine one) this possibility won’t be pursued here. However it should briefly be mentioned that governments in other countries (and terrorist groups) enforce religiously motivated capital punishment. For example Saudi Arabia, an ally of the USA, sanctions the religiously motivated beheading of people for actions that would not be deemed as crimes in civilized countries.

The second option is a retributivist one, of which there is an absolute and proportional variety. On each view, the moral justification for punishment has nothing to do with punishment having any deterrence value. Punishment is just a matter of retribution, i.e of giving the offender what they morally deserve.

The third option is similar to one of the retributivist views mentioned above in its absolutism. On a pacifist kind of view, the death penalty is absolutely wrong (regardless of any good consequences for society in terms of deterrence).

The fourth option puts deterrence first. It claims that legal punishment (in particular the death penalty) is morally justified only if it deters people in society from committing similar crimes (e.g. murder). This is a consequentialist view about the ethics of punishment.

The Retributive Theory of Punishment

According to the Retributive Theory of punishment, legal punishment *in general* is justified in so far as it exacts retribution for the offense committed. On this view, the only justification of punishment is that someone who commits a crime deserves to be punished - the justification for punishing someone is entirely independent of any benefit to society that might arise from that punishment.

One consequence of this is that in the particular context of *capital* punishment, the justification of the death penalty as a social policy has nothing to do with its possible deterrence value. According to retributivism, it is no part of the justification of capital punishment that each execution may deter other potential murderers from committing homicide, thus producing the beneficial consequence of preventing innocent life from being destroyed.

Philosopher Immanuel Kant (not a consequentialist!) was in favor of the death penalty, for retributivist sorts of reasons. According to Kant, the ‘penal law’ (law regarding legal punishment) is (in his terminology) a categorical imperative. Kant suggests that if murderers are not given the death penalty, then the society in question (in failing to administer justice) is implicated in the act of the murderer. However, Kant also thinks that only those who are guilty should be punished, and they should never get more punishment than they deserve. These two points mark an important difference between the retributive theory (on any version) and the typical consequentialist justification of punishment, since the latter view could require that innocent people are put to death, as long as that would bring about the best consequences, either for oneself (e.g. as a politician to pander to a racially prejudiced base) or for society overall (e.g. to quell mass unrest).

Kant's distinction between categorical and hypothetical imperatives has a bearing on his ideas about the death penalty. Whereas hypothetical imperatives are conditional upon having certain goals, categorical imperatives are *unconditional*. Moral statements in general are categorical imperatives, not hypothetical ones, claims Kant. In the present context, this implies that certain things are required by justice, which are not conditional upon anything else (e.g. social benefit). Kant thought that someone who commits murder ought to die, just because that is what the murderer deserves; the death penalty is *just desert* for murder.

Giving people what they deserve is an intrinsic good, on Kant’s view (i.e. it is good for its own sake, not because it serves as a means to anything else). Accordingly, the death penalty is justified purely on that basis, independently of any utilitarian considerations about the benefits for society in terms of deterrence (or ethical egoist considerations about the benefits for oneself as a politician or President). Even if the execution were to be administered in absolute secrecy, such that no one (apart perhaps from the executioner and a few others) ever found out about it, it would still be morally required. Furthermore, according to Kant, the death penalty affirms the murderer’s humanity, since it affirms his rationality, autonomy, and *responsibility for his actions*.

The typical retributivist stance regarding the death penalty is as follows. Since one has to be alive in order to experience any value at all, there is no punishment equivalent to the murderous destruction of human life except destruction of the life of the murderer. Any other retribution, no matter how severe, would still be less than proportionate to the crime of murder. No matter how harsh the conditions of confinement which a murderer is forced to endure, according to the retributivist, it will still be possible for that murderer to realize some value out of life since he or she is still alive; however, the same cannot be said for the murderer’s victim. Whereas with other offenses, a fine or prison sentence will be sufficient retribution, the only punishment that *fits the crime* of murder is the death penalty, according to retributivism. The death penalty is thus uniquely severe, because only the death of a murderer can be proportionate to the value that has been lost by the victim.

Some objections to the death penalty:

Capital punishment violates an absolute right to life

According to this objection, some rights are *inalienable*: in particular, the right to life is an absolute fundamental right, which cannot be forfeited, and which ought to be respected no matter what. Even if someone commits murder, according to the objection being considered, this does not give anyone else the right to end the life of that person.

Reply: It isn’t plausible to think that the plea that everyone has an absolute right to life is to be taken seriously, if it comes from the mouth of a murderer, since that murderer denied that very same right to someone else. And if so, we shouldn’t think anyone else could make that same point on behalf of the murderer.

Counter-reply: We can agree that a murderer’s plea that everyone has an absolute right to life may seem hypocritical to say the least. However, although one can be hypocritical in one’s application of a principle, this does not show that the principle itself is wrong. Although the murderer is hypocritical in claiming that everyone has an absolute right to life, the hypocrisy he displays in denying that right to someone else (in the act of homicide) does not in itself show that the idea that everyone has an absolute right to life is false. And if so, the reply to the initial objection seems inconclusive at best. On the Lockean interpretation of a right espoused by Jefferson in the Declaration of Independence (and mirrored in the Bill of Rights), even murderers have the right to life (and the right to vote, as Bernie has argued, see e.g. https://stoningroll.com/index.php/election-2020/84-cnn-on-bernie-s-view-about-felons-voting )

The laws that sanction the death penalty are inconsistent.

Another common objection to the idea that the death penalty is morally justified concerns the claim notion that capital punishment involves ‘judicial murder’, or murder by the state. Some opponents of capital punishment claim that a criminal law system which includes the death penalty, but prohibits murder, is itself contradictory. One may think it is absurd that the laws that punish homicide by capital punishment (allegedly) sanction murder themselves. How can it be right for the state to enact laws which prohibit murder, whilst at the same time condoning judicial murder? Is this not self-contradictory?

Reply: One might respond that for there to be a genuine contradiction here, we have to mean ‘unjustified killing’ by each instance of the term ‘murder’ in the above objection. It seems plausible, though, that this is not the case – when the state sanctions the death penalty in particular cases, this is not unjustified killing, rather, it is entirely justified (at least as far as retributivism is concerned).

Two related objections to retributivism, concerning the notion of ‘proportionality’

First of all, one might point out the rather obvious fact that any two human beings (where the term ‘human being’ does not necessarily imply ‘personhood’) will be different in many respects (e.g. in terms of age, health, physical and mental ability, etc.) If a murderer is old, relative to his or her victim, one might argue that this will mean that in facing the death penalty, the murderer loses something of lesser value than his victim lost. The younger victim would have had many more years of life to look forward to, compared to the older murderer. So the victim loses something more valuable in losing his life than the murderer does, in facing the death penalty.

It may initially be replied, though, that the fact that such differences exist between any two human beings, does not necessarily mean that one life is more valuable than another. Rather, one might hold that all human life is *equally valuable*, merely because it is human life that is at issue (but then, what makes killing human animals worse than raising non-human animals to kill them in the meat-industry, which in turn contributes to global warming which is killing the planet?)

Secondly, one might claim that the fact that there is a *time-delay* between being sentenced to death and facing the death penalty introduces a disproportionality between the victim’s situation and that of his murderer. Whereas murder victims usually face their death with no prior warning, this is not true of murderers facing the death penalty. For usually, once the death sentence has been passed, a convicted murderer will have to wait perhaps months (or perhaps even years) before they actually face execution. This will involve the convict’s experiencing constant mental anguish whilst awaiting his or her fate, whereas the murderer’s victim (usually) does not experience this sort of psychological suffering. This introduces a disproportionality between the crime of murder and the associated punishment. However, according to the objection under present consideration, given that according to the retributivist view, the punishment must be (at least) proportionate to the crime, the retributivist theory of justification of punishment fails.

The retributivist will probably respond to this sort of objection by claiming that it is not a forceful objection against the *institution* of the death penalty, as such. Rather, it is just an objection to the way the death penalty is enforced in contemporary society. Rather than making convicted murderers wait for a protracted period before executing them, the response will be that we should execute them more speedily, in order to redress the disproportionality mentioned above.

Equality (Egalitarian) versus Proportional Retributivism

According to equality retributivism, the principle ‘Lex Talionis’ (law of the talon, or ‘an eye for an eye’) is interpreted quite literally. On this view, whatever offense is committed, the same thing must be done to the offender. In the context of the offense of murder, this would mean that the murderer must be killed, just as he killed someone else.

In order for this ‘eye for an eye’ conception of the justification of punishment to be generally workable, however, it would need to be plausible for a *wide range* of crimes (not just one or two), and provide acceptable answers regarding the amount of punishment that ought to be given in each case.

However, the principle, interpreted literally, just does not seem plausible. Applied strictly, it would require that we torture torturers, burn arsonists, etc. i.e. it would involve *barbaric and inhuman treatment* of criminals.

Secondly, the principle does not give any answer as to how some crimes should be punished. What should we do with spies, embezzlers, airline hijackers, litterers, kidnappers, etc.? The principle gives no answer.

The principle, interpreted literally, seems more like a slogan used by those who advocate the death penalty, rather than a properly worked out theory of the justification of punishment.

Instead of this literal interpretation of the ‘eye for an eye’ principle, we might ,just claim that punishment should produce an amount of suffering in the criminal which is *equal* to the amount of suffering suffered by the victim. So on this interpretation, we are not required to hi-jack hi-jackers, spy on spies etc. We just have to reproduce in the criminal the amount of suffering that he or she have caused by their crime.

However, this reply seems weak, since we would still be required to treat barbaric criminals barbarically (any punishment that produces an equal amount of suffering in the criminal would itself be barbaric). Further, many crimes are ‘victimless’. Some involve no suffering at all.

Proportional Retributivism

According to this version of retributivism, instead of demanding *equal* punishment for a crime, we would make the weaker claim that punishment must be *proportionate* to the crime. On this view, there will be a scale of crimes and punishments, ranging from very trivial offenses such as parking violations, and correspondingly trivial punishments such as minor fines, to the worst crime of all – murder, and the most severe punishment on the scale. This version doesn’t require that we treat those guilty of barbaric crimes barbarically – rather, they are to be punished in a way that is proportionate to their crime. Secondly, unlike equality retributivism, this version provides a general way of treating all crimes; on this view, it is up to us to decide what sort of punishment is suitably severe for each sort of crime.

However, the problem for this version of retributivism is that it does not *require* that the punishment for murder should be the death penalty. Rather, on this view, the crime of murder should be punished by the most severe punishment on the scale, whatever we decide that should be. This version of retributivism does not actually yield any advice about what particular punishment is to be provided for any particular crime – all it says is that the punishment ought to be *proportionate* to the crime. So whereas the equality version of retributivism *did* require that murderers ought to face the death penalty (upon application of the ‘eye for an eye’ principle), the proportional version does not. So both equality and proportional retributivism face problems.

Some non-retributivist perspectives on capital punishment

Suppose every act of executing a convicted murderer deterred a dozen potential murderers. Whereas a utilitarian would probably regard this as a reason for advocating the death penalty, the pacifist would still be absolutely opposed to it. The utilitarian would reason as follows: if the death penalty deters murderers, more people would then be alive, perhaps leading at least reasonably happy lives, so there would be more happiness in the world than there otherwise would have been. However, on the pacifist view, killing is absolutely wrong, regardless of any good consequences that might result.

One feature of pacifist opposition to the death penalty is that considerations regarding positive utility, in terms of social benefit (deterrence value) are not relevant to such opposition. We would still be opposed to the death penalty, as pacifists, even if we were reasonably certain that without it, more lives would be lost than if we had sanctioned it. (Such pacifism is thus ‘absolutist’, just as retributivism is absolutist, in the sense that neither position regards the possible deterrence value of the death penalty as having any bearing on the question of whether capital punishment is justified or not.)

In this pacifist sort of situation, we would seem to be committed to the view that failing to prevent death from occurring is not as bad, morally speaking, as actively putting someone to death in execution. As Ernest Van Den Haag claims, in this scenario, we would be placing more value on the *non-execution of convicted murderers*, than on the lives of innocent people who become murder victims.

Ernest Van Den Haag’s ‘best bet’ argument

It was assumed above that capital punishment is indeed an effective deterrent. However, it is by no means clear that this is actually the case: what should we say about the justifiability of capital punishment given this fact, and given that we are not retributivists (who would hold that deterrence value is irrelevant to the justification of capital punishment anyway?)

Given that we are uncertain about whether capital punishment deters in a uniquely effective way, either decision about it (to retain it or to abolish it) will involve gambling with the lives of human beings, claims Van Den Haag. We risk either needlessly executing convicted murderers (if the death penalty is not a uniquely effective deterrent, and we retain it), or letting innocent people become murder victims (if the death penalty is a uniquely effective deterrent, but we abolish it). Of course, the death penalty may be an effective deterrent, and in retaining it we’d be saving innocent people from becoming murder victims, and we’d also be preventing potential murderers from becoming actual ones, so they would benefit too – but the point is that we don’t know this, given the present assumptions.

According to the ‘best bet’ argument, it is better to gamble with the lives of convicted murderers, and risk the possibility that the death penalty is not a uniquely effective deterrent, than to gamble with the lives of innocent potential murder victims (who *may* not have become murder victims if the death penalty is an effective deterrent) and risk the possibility that the death penalty *is* a uniquely effective deterrent. If we are wrong in holding that the death penalty is uniquely effective, in retaining it, convicted murderers will die needlessly, for their deaths will have no deterrence value. However, according to the argument, this is a ‘better bet’ than the alternative in which we are wrong to hold that the death penalty is not uniquely effective (and we abolish it). In that circumstance, innocent people will become murder victims, who would otherwise have lived due to the deterrence value of the death penalty on potential murderers. As philosopher Jonathan Glover has noted, this view presupposes the attitude that murder is worse than the execution of a convicted murderer.

However, it is worth pointing out that even if we agree with this attitude, the best-bet argument may still seem problematic. For instance, as Glover points out, we are not choosing between the chance of a murderer dying and the chance of a victim dying. In retaining the death penalty, we are opting for the *certainty* of a murderer dying which we hope will give us a *chance* of a potential victim being saved. This means that we need to have *more* justification for thinking that deterrence is uniquely effective than not, in order for the gamble of retaining the death penalty to be a chance worth taking. For example, this course of action would look like a ‘good-bet’ if we agree with the attitude expressed above that an execution is substantially preferable to a murder, and *either* the statistical evidence *or* intuitive arguments made the effectiveness of capital punishment as a deterrent look reasonable likely. But if we have no reason for thinking that execution is a uniquely effective deterrent, then we would be putting people to *certain* death in the mere hope that innocent people who would have become murder victims will thereby avoid being murdered. (Remember, we are not adopting a retributivist view of the justification of punishment at the moment).

Since we are supposing that the statistical evidence is inconclusive, the burden of justification for the best-bet argument relies on the idea that intuitive arguments in favor of the death penalty are very powerful. However, this does not seem to be the case. And if so, the best bet argument does not seem plausible.

For example, one such intuitive argument for the unique effectiveness of the death penalty is that arguably, most convicted murderers would prefer life imprisonment to execution. Even if this is generally true, (it is perhaps not always the case) it does not follow that the death penalty is *more effective* as a deterrent than life imprisonment – and if not, the death penalty is not justified on the grounds that it is *uniquely* effective as a deterrent. Capital punishment may be ‘overkill’ as far as deterrence is concerned – i.e. more than is required to achieve the desired result. At least, it seems to be an open question whether the death penalty is a more effective deterrent than life imprisonment; and accordingly, the best bet argument is on shaky ground if it must rely for its plausibility on this sort of intuitive argument in favor of the death penalty.

Jonathan Glover – ‘Causing Death and Saving Lives’, Chapter 18

Ernest Van Den Haag: ‘Refuting Reiman and Nathanson’