Ethics in Practice

Punishment

for murderers. To abolish the death penalty for convicted murderers would be a bad bet. We unnecessarily put the innocent at risk.

Even if we only value the utility of an innocent life slightly more than that of the murderers, it is still rational to execute convicted murderers. As van den Haag writes, "Though we have no proof of the positive deterrence of the penalty, we also have no proof of zero or negative effectiveness. I believe we have no right to risk additional future victims of murder for the sake of sparing convicted murderers; on the contrary, our moral obligation is to risk the possible ineffectiveness of executions.,,3

Objections to Capital Punishment

Let us examine three major objections to capital punishment, as well as the retentionist's responses to those objections.

1 Objection: Capital punishment is a morally unacceptable thirst for revenge. As former British Prime Minister Edward Heath put it:

The real point which is emphasized to me by many constituents is that even if the death penalty is not a deterrent, murderers deserve to die. This is the question of revenge. Again, this will be a matter of moral judgment for each of us. I do not believe in revenge. If I were to become the victim of terrorists, I would not wish them to be hanged or killed in any other way for revenge. All that would do is deepen the bitterness which already tragically exists in the conflicts we experience in society, particularly in Northern Ireland. 4

Response: Retributivism is not the same thing as revenge, although the two attitudes are often intermixed in practice. Revenge is a personal response to a perpetrator for an injury. Retribution is an impartial and impersonal response to an offender for an offense done against someone. You cannot desire revenge for the harm of someone to whom you are indifferent. Revenge always involves personal concern for the victim. Retribution is not per-

sonal but based on objective factors: the criminal has deliberately harmed an innocent party and so deserves to be punished, whether I wish it or not. I would agree that I or my son or daughter deserves to be punished for our crimes, but I don't wish any vengeance on myself or my son or daughter.

Furthermore, while revenge often leads us to exact more suffering from the offender than the offense warrants, retribution stipulates that the offender be punished in proportion to the gravity of the offense. In this sense, the lex talionis which we find in the Old Testament is actually a progressive rule, where retribution replaces revenge as the mode of punishment. It says that there are limits to what one may do to the offender. Revenge demands a life for an eye or a tooth, but Moses provides a rule that exacts a penalty equal to the harm done by the offender.

2 Objection: Miscarriages of justice occur. Capital punishment is to be rejected because of human fallibility in convicting innocent parties and sentencing them to death. In a survey done in 1985 Hugo Adam Bedau and Michael Radelet found that of the 7,000 persons executed in the United States between 1900 and 1985, 25 were innocent of capital crimes. 5 While some compensation is available to those unjustly imprisoned, the death sentence is irrevocable. We can't compensate the dead. As John Maxton, a member of the British Parliament puts it, "If we allow one innocent person to be executed, morally we are committing the same, or, in some ways, a worse crime than the person who committed the murder.,,6

Response: Mr. Maxton is incorrect in saying that mistaken judicial execution is morally the same or worse than murder, for a deliberate intention to kill the innocent occurs in a murder, whereas no such intention occurs in wrongful capital punishment.

Sometimes this objection is framed this way: It is better to let ten criminals go free than to execute one innocent person. If this dictum is a call for safeguards, then it is well taken; but somewhere there seems to be a limit on the tolerance of society towards capital offenses. Would these abolitionists argue that it is better that 50 or 100 or 1,000 murderers go free than that one guilty person be executed? Society has

a right to protect itself from capital offenses even if this means taking a finite chance of executing an innocent person. If the basic activity or process is justified, then it is regrettable, but morally acceptable, that some mistakes are made. Fire trucks occasionally kill innocent pedestrians while racing to fires, but we accept these losses as justified by the greater good of the activity of using fire trucks. We judge the use of automobiles to be acceptable even though such use causes an average of 50,000 traffic fatalities each year. We accept the morality of a defensive war even though it will result in our troops accidentally or mistakenly killing innocent people.

The fact that we can err in applying the death penalty should give us pause and cause us to build an appeals process into the judicial system. Such a process is already in the American and British legal systems. That occasional error may be made, regrettable though this is, is not a sufficient reason for us to refuse to use the death penalty, if on balance it serves a just and useful function.

Furthermore, aboliltionists are simply misguided in thinking that prison sentences are a satisfactory alternative here. It's not clear that we can always or typically compensate innocent parties who waste away in prison. Jacques Barzun has argued that a prison sentence can be worse than death and carries all the problems that the death penalty does regarding the impossibility of compensation:

In the preface of his useful volume of cases, Hanged in Error, Mr. Leslie Hale refers to the tardy recognition of a minor miscarriage of justice - one year in jail: "The prisoner emerged to find that his wife had died and that his children and his aged parents had been removed to the workhouse. By the time a small payment had been assessed as 'compensation' the victim was incurably insane." So far we are as indignant with the law as Mr. Hale. But what comes next? He cites the famous Evans case, in which it is very probable that the wrong man was hanged, and he exclaims: "While such mistakes are possible, should society impose an irrevocable sentence?" Does Mr. Hale really ask us to be-

In Defense of the Death Penalty

lieve that the sentence passed on the first man, whose wife died and who went insane, was in any sense revocable? Would not any man rather be Evans dead than that other wretch "emerging" with his small compensation and his reason for living gone?7

The abolitionist is incorrect in arguing that death is different than long-term prison sentences because it is irrevocable. Imprisonment also take good things away from us that may never be returned. We cannot restore to the inmate the freedom or opportunities he or she lost. Suppose an innocent 25-year-old man is given a life sentence for murder. Thirty years later the mistake is discovered and he is set free. Suppose he values three years of freedom to everyone year of life. That is, he would rather live ten years as a free man than thirty as a prisoner. Given this man's values, the criminal justice system has taken the equivalent of ten years of life from him. If he lives until he is 65, he has, as far as his estimation is concerned, lost ten years, so that he may be said to have lived only 55 years.8

The numbers in this example are arbitrary, but the basic point is sound. Most of us would prefer a shorter life of higher quality to a longer one of low quality. Death prevents all subsequent quality, but imprisonment also irrevocably harms one in diminishing the quality of life of the prisoner.

3 Objection: The death penalty is unjust because it discriminates against the poor and minorities, particularly, African Americans, over against rich people and whites. Former Supreme Court Justice William Douglas wrote that "a law which reaches that [discriminatory1 result in practice has no more sanctity than a law which in terms provides the same.,,9 Stephen Nathanson argues that "in many cases, whether one is treated justly or not depends not only on what one deserves but on how other people are treated.,,10 He offers the example of unequal justice in a plagiarism case.

"I tell the students in my class that anyone who plagiarizes will fail the course. Three students plagiarize papers, but I give only one a failing grade. The other two, in describing their motivation, win my sympathy, and I give them

Punishment

passing grades." Arguing that this is patently unjust, he likens this case to the imposition of the death penalty and concludes that it too is unjust.

Response: First of all, it is not true that a law that is applied in a discriminatory manner is unjust. Unequal justice is no less justice, however, uneven its application. The discriminatory application, not the law itself, is unjust. A just law is still just even if it is not applied consistently. For example, a friend of mine once got two speeding tickets during a 100-mile trip (having borrowed my car). He complained to the police officer who gave him his second ticket that many drivers were driving faster than he was at the time. They had escaped detection, he argued, so it wasn't fair for him to get two tickets on one trip. The officer acknowledged the imperfections of the system but, justifiably, had no qualms about giving him the second ticket. Unequal justice is still justice, however regrettable. So Justice Douglas is wrong in asserting that discriminatory results invalidate the law itself. Discriminatory practices should be reformed, and in many cases they can be. But imperfect practices in themselves do not entail that the laws engendering these practices are themselves are unjust.

With regard to Nathanson's analogy with the plagiarism case, two things should be said against it. First, if the teacher is convinced that the motivational factors are mitigating factors, then he or she may be justified in passing two of the plagiarizing students. Suppose that the one student did no work whatsoever, showed no interest (Nathanson's motivation factor) in learning, and exhibited no remorse in cheating, whereas the other two spent long hours seriously studying the material and, upon apprehension, showed genuine remorse for their misdeeds. To be sure, they yielded to temptation at certain - though limited - sections of their long papers, but the vast majority of their papers represented their own diligent work. Suppose, as well, that all three had C averages at this point. The teacher gives the unremorseful, gross plagiarizer an F but relents and gives the other two D's. Her actions parallel the judge's use of mitigating circumstances and cannot be construed as arbitrary, let alone unjust.

The second problem with Nathanson's analogy is that it would lead to disastrous consequences for all law and benevolent practices alike. If we concluded that we should abolish a rule or practice, unless we treated everyone exactly by the same rules all the time, we would have to abolish, for example, traffic laws and laws against imprisonment for rape, theft, and even murder. Carried to its logical limits, we would also have to refrain from saving drowning victims if a number of people were drowning but we could only save a few of them. Imperfect justice is the best that we humans can attain. We should reform our practices as much as possible to eradicate unjust discrimination wherever we can, but if we are not allowed to have a law without perfect application, we will be forced to have no laws at all.

Nathanson acknowledges this latter response but argues that the case of death is different. "Because of its finality and extreme severity of the death penalty, we need to be more scrupulous in applying it as punishment than is necessary with any other punishment.,,11 The retentionist agrees that the death penalty is a severe punishment and that we need to be scrupulous in applying it. The difference between the abolitionist and the retentionist seems to lie in whether we are wise and committed enough as a nation to reform our institutions so that they approximate fairness. Apparently, Nathanson is pessimistic here, whereas I have faith in our ability to learn from our mistakes and reform our systems. If we can't reform our legal system, what hope is there for us?

More specifically, the charge that a higher percentage of blacks than whites are executed was once true but is no longer so. Many states have made significant changes in sentencing procedures, with the result that currently whites convicted of first-degree murder are sentenced to death at a higher rate than blacks. 12

One must be careful in reading too much into these statistics. While great disparities in statistics should cause us to examine our judicial procedures, they do not in themselves prove injustice. For example, more males than females are convicted of violent crimes (almost 90 percent of those convicted of violent crimes are males - a virtually universal statistic), but this

is not strong evidence that the law is unfair, for there are psychological explanations for the disparity in convictions. Males are on average and by nature more aggressive (usually tied to testosterone) than females. Likewise, there may be good explanations why people of one ethnic group commit more crimes than those of other groups, explanations which do not impugn the processes of the judicial system.

Conclusion

Both abolitionists and retentionists agree that punishment for crime is intended to deter (1) the criminal and (2) potential criminals from future crimes. We could deter people from crimes by framing and punishing the innocent, but that would violate justice. The innocent don't deserve to be punished, but the guilty do. So we ground punishment on retributive foundations. The strong (Kantian) version of retributivism holds that the guilty must be punished equivalently or, if that's not possible, in proportion to the gravity of their offense. It is a moral absolute. The moderate retributivist holds that the guilty ought to be punished in a manner proportionate to the gravity of the crime, but the punishment may be mitigated or even overridden for other moral reasons. The weakest version of retributivism holds that guilt is only a necessary (but not a sufficient) condition for punishment, and that it does not necessitate proportionality. In each of these retributivist theories capital punishment remains an option. When we add utilitarian reasons to the retributivist position, the case for capital punishment becomes even stronger. Common sense tells us that the death penalty deters potential murderers. If by executing murderers who deserve the death penalty we can prevent future murders, we should do so. Finally, I have dealt with three prominent objections to the death penalty: (1) that it is a form of revenge; (2) that it sometimes executes innocent people; and (3) that it discriminates against minorities. I have argued that these objections can be met.

Many good people would still object to my arguments, intending that they show a lack of

In Defense of the Death Penalty

regard for human life. But I think that the fact is just the opposite - that capital punishment respects the worth of the victim - is bluntly articulated by the newspaper columnist, Mike Royko:

When I think of the thousands of inhabitants of Death Rows in the hundreds of prisons in this country, I don't react the way the kindly souls do - with revulsion that the state would take these lives. My reaction is: What's taking us so long? Let's get that electrical current flowing. Drop the pellets now!

Whenever I argue this with friends who have opposite views, they say that I don't have enough regard for that most marvelous of miracles - human life.

Just the opposite: It's because I have so much regard for human life that I favor capital punishment. Murder is the most terrible crime there is. Anything less than the death penalty is an insult to the victim and society. It says, in effect, that we don't value the victim's life enough to punish the killer fully.

It's just because the victim's life is sacred that I favor the death penalty as fitting punishment for first degree murder. I too regret the use of capital punishment and am in favor of its elimination. I would vote in favor of the abolition of capital punishment today but on one condition - that those contemplating murder would set an example for me. Otherwise, it is better that the murderer should perish than their innocent victims should be cut down by their knife or bullets.

Notes

A more complete set of notes and references is found in my jointly authored book (with Jeffrey Reiman),

The Death Penalty: For and Against (Rowman & Littlefield, 1999).

1Michael Davis has a excellent discussion of "humane punishment" in "Death, Deterrence, and the Method of Common Sense" in Social Theory and Practice (Summer 1981).

2Ernst van den Haag, "On Deterrence and the Death Penalty," Ethics 78 (July 1968).

3Ibid.

Punishment

4British Parliamentary Debates, 1982, quoted in Sorrell, Moral Theory and Anomoly Oxford: Blackwell, 1999, 43.

5Hugo Adam Bedau and Michael Radelet, Miscarriages o/Justice in Potential Capital Cases (I st draft October 1985, on file at Harvard Law School Library), quoted in E. van den Haag "The Ultimate Punishment: A Defense" Harvard Law Review, vol. 99, no. 7 (May 1986): 1664.

6Ibid., 47.

7Jacques Barzun, "In Favor of Capital Punishment" The American Scholar, vol 31, no. 2,

Spring 1962.

8I have been influenced by similar arguments by Michael Levin (unpublished manuscript) and Michael Davis, "Is the Death Penalty Irrevocable?" Social Theory and Practice, vol 10:2

(Summer 1984).

9Justice William Douglas in Furman v Georgia

408 U.S. 238 (1972).

10Stephen Nathanson, An Eye for an Eye? Totowa, NJ: Rowman & Littlefield, 1987,62.

11Ibid., 67.

12The Department of Justice's Bureau 0/ Justice Statistics Bulletin for 1994 reports that between 1977 and 19942,336 (51%) of those arrested for

murder were white, 1838 (40%) were black, 316 (7%) were Hispanic. Of the 257 who were executed, 140 (54%) were white, 98 (38%) were black, 17 (7%) were Hispanic and 2 (I %) were other races. In 1994, 31 prisoners, 20 white men and II black men, were executed although whites made up only 7,532 (41%) and blacks 9,906 (56%) of those arrested for murder. Of those sentenced to death in 1994, 158 were white men, 133 were black men, 25 were Hispanic men, 2 were Native American men, 2 were white women, and 3 were black women. Of those sentenced, relatively more blacks (72%) than whites (65%) or Hispanics (60%), had prior felony records. Overall the criminal justice system does not seem to favor white criminals over black, though it does seem to favor rich defendants over poor ones. Furthermore, one sometimes gets the impression that whites kill blacks more than vice versa, but actually the reverse is true. In 1997 Federal arrest records show that approximately 1,100 whites were killed by blacks, and 480 blacks were killed by whites, indicating that blacks are about 15 times more likely to kill a white than a white to kill a black.

Jeffrey Reiman

My position about the death penalty as punishment for murder can be summed up in the following four propositions:

though the death penalty is a just punishment for some murderers, it is not unjust to punish murderers less harshly (down to a certain limit);

2though the death penalty would be justified if needed to deter future murders, we have no good reason to believe that it is needed to deter future murders; and

3in refraining from imposing the death penalty, the state, by its vivid and impressive example, contributes to reducing our tolerance for cruelty and thereby fosters the advance of human civilization as we understand it.

Taken together, these three propositions imply that we do no injustice to actual or potential murder victims, and we do some considerable good, in refraining from executing murderers. This conclusion will be reinforced by another argument, this one for the proposition:

4though the death penalty is in principle a just penalty for murder, it is unjust in practice in America because it is applied in arbitrary and discriminatory ways, and this is likely to continue into the foreseeable future.

This fourth propositIOn conjoined with the prior three imply the overall conclusion that it is good in principle to avoid the death penal~y and bad in practice to impose it. In what follows, I shall state briefly the arguments for each of these propositions. 1 For ease of identification, I shall number the first paragraph in which the argument for each proposition begins.

1 Before showing that the death penalty is just punishment for some murders, it is useful to dispose of a number of popular but weak arguments against the death penalty. One such popular argument contends that, if murder is wrong, then the death penalty is wrong as well. But this argument proves too much! It would work against all punishments since all are wrong if done by a regular citizen under normal circumstances. (If I imprison you in a little jail in my basement, I am guilty of kidnaping; if I am caught and convicted, the state will lock me up in jail and will not have committed the same wrong that I did.) The point here is that what is wrong about murder is not merely that it is killing per se, but the killing of a legally innocent person by a nonauthorized individualand this doesn't apply to executions that are the outcome of conviction and sentencing at a fair trial.

Another argument that some people think is decisive against capital punishment points to the irrevocability of the punishment. The idea

Punishment

here is that innocents are sometimes wrongly convicted and if they receive the death penalty there is no way to correct the wrong done to them. While there is some force to this claim, its force is at best a relative matter. To be sure, if someone is executed and later found to have been innocent, there is no way to give him back the life that has been taken. But, if someone is sentenced to life in prison and is found to have been innocent, she can be set free and perhaps given money to make up for the years spent in prison - but those years cannot be given back. On the other hand, the innocent person who has been executed can at least be compensated in the form of money to his family and he can have his named cleared. So, it's not that the death penalty is irrevocable and other punishments are revocable; rather, all punishments are irrevocable though the death penalty is, so to speak, relatively more irrevocable than the rest. In any event, this only makes a difference in cases of mistaken conviction of the innocent, and the evidence is that such mistakes - particularly in capital cases - are quite rare. 2 And, further, since we accept the death of innocents elsewhere, on the highways, as a cost of progress, as a necessary accompaniment of military operations, and so on, it is not plausible to think that the execution of a small number of innocent persons is so terrible as to outweigh all other considerations, especially when every effort is made to make sure that it does not occur.

Finally, it is sometimes argued that if we use the death penalty as a means to deter future murderers, we kill someone to protect others (from different people than the one we have executed), and thus we violate the Kantian prohibition against using individuals as means to the welfare of others. But the Kantian prohibition is not against using others as means, it is against using others as mere means (that is, in total disregard of their own desires and goals). Though you use the busdriver as a means to your getting home, you don't use him as a mere means because the job pays him a living and thus promotes his desires and goals as it does yours. Now, if what deters criminals is the existence of an effective system of deterrence, then criminals punished as part of that system are not used as mere means since their desires

and goals are also served, inasmuch as they have also benefited from deterrence of other criminals. Even criminals don't want to be crime victims. Further, if there is a right to threaten punishment in selfdefense, then a society has the right to threaten punishment to defend its members, and there is no more violation of the Kantian maxim in imposing such punishment then there is in carrying out any threat to defend oneself against unjust attack. 3

One way to see that the death penalty is a just punishment for at least some murders (the coldblooded, premeditated ones) is to reflect on the lex talionis, an eye for an eye, a tooth for a tooth, and all that. Some regard this as a primitive rule, but it has I think an undeniable element of justice. And many who think that the death penalty is just punishment for murder are responding to this element. To see what the element is consider how similar the lex talionis is to the Golden Rule. The Golden Rule tells us to do unto others what we would have others do unto us, and the lex talionis counsels that we do to others what they have done to us. Both of these reflect a belief in the equality of all human beings. Treating others as you would have them treat you means treating others as equal to you, because it implies that you count their suffering to be as great a calamity as your own suffering, that you count your right to impose suffering on them as no greater than their right to impose suffering on you, and so on. The Golden Rule would not make sense if it were applied to two people, one of whom was thought to be inherently more valuable than the other. Imposing a harm on the more valuable one would be worse than imposing the same harm on the less valuable one - and neither could judge her actions by what she would have the other do to her. Since lex talionis says that you are rightly

. paid back for the harm you have caused another with a similar harm, it implies that the value of what of you have done to another is the same as the value of having it done to you - which, again, would not be the case, if one of you were thought inherently more valuable than the other. Consequently, treating people according to the lex talionis (like treating them according to the Golden Rule) affirms the equality of all concerned - and this supports the idea that punishing according to lex talionis is just.

Furthermore, on the Kantian assumption that a rational individual implicitly endorses the universal form of the intention that guides his action, a rational individual who kills another implicitly endorses the idea that he may be killed, and thus, he authorizes his own execution thereby absolving his executioner of injustice. What's more, much as above we saw that acting on lex talionis affirms the equality of criminal and victim, this Kantian-inspired argument suggests that acting on lex talionis affirms the rationality of criminal and victim. The victim's rationality is affirmed because the criminal only authorizes his own killing ifhe has intended to kill another rational being like himself - then, he implicitly endorses the universal version of that intention, thereby authorizing his own killing. A person who intentionally kills an animal does not implicitly endorse his own being killed; only someone who kills someone like himself authorizes his own killing. In this way, the Kantian argument also invokes the equality of criminal and victim.

On the basis of arguments like this, I maintain that the idea that people deserve having done to them roughly what they have done (or attempted to do) to others affirms both the equality and rationality of human beings and for that reason is just. Kant has said: "no one has ever heard of anyone condemned to death on account of murder who complained that he was getting too much [punishment] and therefore was being treated unjustly; everyone would laugh in his face if he were to make such a statement.,,4 If Kant is right, then even murderers recognize the inherent justice of the death penalty.

However, while the justice of the lex talionis implies the justice of executing some murderers, it does not imply that punishing less harshly is automatically unjust. We can see this by noting that the justice of the lex talionis implies also the justice of torturing torturers and raping rapists. I am certain and I assume my reader is as well that we need not impose these latter punishments to do justice (even if there were no other way of equaling the harm done or attempted by the criminal). Otherwise the price of doing justice would be matching the cruelty of the worst criminals, and that would effectively price just-

Against the Death Penalty

ice out of the moral market. It follows that justice can be served with lesser punishments. Now, I think that there are two ways that punishing less harshly than the lex talionis could be unjust: it could be unjust to the actual victim of murder or to the future victims of potential murderers. It would be unjust to the actual victim if the punishment we mete out instead ofexecution were so slight that it trivialized the harm that the murderer did. This would make a sham out of implicit affirmation of equality that underlies the justice ofthe lex talionis. However, life imprisonment, or even a lengthy prison sentence - say, twenty years or more without parole - is a very grave punishment and not one that trivializes the harm done by the murderer. Punishment would be unjust to future victims if it is so mild that it fails to be a reasonable deterrent to potential murderers. Thus, refraining from executing murderers could be wrong if executions were needed to deter future murderers. In the following section, I shall say why there is no reason to think that this is so.

2 I grant that, if the death penalty were needed to deter future murderers, that would be a strong reason in favor of using the death penalty, since otherwise we would be sacrificing the future victims of potential murderers whom we could have deterred. And I think that this is a real injustice to those future victims, since the we in question is the state. Because the state claims a monopoly on the use of force, it owes its citizens protection, and thus does them injustice when it fails to provide the level of protection it reasonably could provide. However, there is no reason to believe that we need the death penalty to deter future murderers. The evidence we have strongly supports the idea that we get the same level of deterrence from life imprisonment, and even from substantial prison terms, such as twenty years without parole.

Before 1975, the most important work on the comparative deterrent impact of the capital punishment versus life in prison was that of Thorsten Sellin. He compared the homicide

Punishment

than in similar states with it. In 1975, Isaac Ehrlich, a University of Chicago econometrician, reported the results of a statistical study which he claimed proved that, in the period from 1933 to 1969, each execution deterred as many as eight murders. This finding was, however, widely challenged. Ehrlich found a deterrent impact of executions in the period from 1933 to 1969, which includes the period of 1963 to 1969, a time when hardly any executions were carried out and crime rates rose for reasons that are arguably independent of the existence or nonexistence of capital punishment. When the 1963-9 period is excluded, no significant deterrent effect shows. This is a very serious problem since the period from 1933 through to the end of the 1930s was one in which executions were carried out at the highest rate in American history - before or after. That no deterrent effect turns up when the study is limited to 1933 to 1962 almost seems evidence against the deterrent effect of the death penalty!

Consequently, in 1978, after Ehrlich's study, the editors of a National Academy of Sciences' study of the impact of punishment wrote: "In summary, the flaws in the earlier analyses (i.e., Sellin's and others) and the sensitivity of the more recent analyses to minor variation in model specification and the serious temporal instability of the results lead the panel to conclude that the available studies provide no useful evidence on the deterrent effect of capital punishment.,,5 Note that, while the deterrence research commented upon here generally compares the deterrent impact of capital punishment with that of life imprisonment, the failure to prove that capital punishment deters murder more than does incarceration goes beyond life in prison. A substantial proportion of people serving life sentences are released on parole before the end of their sentences. Since this is public knowledge, we should conclude from these studies that we have no evidence that capital punishment deters murder more effectively than prison sentences that are less than life, though still substantial, such as twenty years.

Another version of the argument for the greater deterrence impact of capital punishment compared to lesser punishments is called the

argument from common sense. It holds that, whatever the social science studies do or don't show, it is only common sense that people will be more deterred by what they fear more, and since people fear death more than life in prison, they will be deterred more by execution than by a life sentence. This argument for the death penalty, however, assumes without argument or evidence that deterrence increases continuously and endlessly with the fearfulness of threatened punishment rather than leveling out at some threshold beyond which increases in fearfulness produce no additional increment of deterrence. That being tortured for a year is worse than being tortured for six months doesn't imply that a year's torture will deter you from actions that a half-year's torture would not deter - since a half-year's torture may be bad enough to deter you from all the actions that you can be deterred from doing. Likewise, though the death penalty may be worse than life in prison, that doesn't imply that the death penalty will deter acts that a life sentence won't because a life sentence may be bad enough to do all the deterring that can be done - and that is precisely what the social science studies seem to show. And, as I suggested above, what applies here to life sentences applies as well to substantial prison sentences.

I take it then that there is no reason to believe that we save more innocent lives with the death penalty than with less harsh penalties such as life in prison or some lengthy sentence, such as twenty years without parole. But then we do no injustice to the future victims of potential murderers by refraining from the death penalty. And, in conjunction with the argument of the previous section, it follows that we do no injustice to actual or potential murder victims if we refrain from executing murderers and sentence them instead to life in prison or to some substantial sentence, say, twenty or more years in prison without parole. But it remains to be seen what good will be served by doing the latter instead of executing.

3 Here I want to suggest that, in refraining from imposing the death penalty, the state, by its vivid and impressive example, contributes to reducing our tolerance for cruelty and thereby

fosters the advance of human civilization as we understand it. To see this, note first that it has long been acknowledged that the state, and particularly the criminal justice system, plays an educational role in society as a model of morally accepted conduct and an indicator of the line between morally permissible and impermissible actions. Now, consider the general repugnance that is attached to the use of torture - even as punishment for criminals who have tortured their victims. It seems to me that, by refraining from torturing even those who deserve it, our state plays a role in promoting that repugnance. That we will not torture even those who have earned it by their crimes conveys a message about the awfulness of torture, namely, that it is something that civilized people will not do even to give evil people their just deserts. Thus it seems to me that in this case the state advances the cause of human civilization by contributing to a reduction in people's tolerance for cruelty. I think that the modern state is uniquely positioned to do this sort of thing because of its size (representing millions, even hundreds of millions of citizens) and its visibility (starting with the printing press that accompanied the birth of modern nations, increasing with radio, television and the other media of instantaneous communication). And because the state can do this, it should. Consequently, I contend that if the state were to put execution in the same category as torture, it would contribute yet further to reducing our tolerance for cruelty and to advancing the cause of human civilization. And because it can do this, it should.

To make this argument plausible, however, I must show that execution is horrible enough to warrant its inclusion alongside torture. I think that execution is horrible in a way similar to (though not identical with) the way in which torture is horrible. Torture is horrible because of two of its features, which also characterize execution: intense pain and the spectacle of one person being completely subject to the power of another. 6 This latter is separate from the issue of pain, since it is something that offends people about unpainful things, such as slavery (even voluntarily entered) and prostitution (even voluntarily chosen as an occupation). Execution

Against the Death Penalty

shares this separate feature. It enacts the total subjugation of one person to his fellows, whether the individual to be executed is strapped into an electric chair or bound like a laboratory animal on a hospital gurney awaiting lethal injection.

Moreover, execution, even by physically painless means, is characterized by a special and intense psychological pain that distinguishes it from the loss of life that awaits us all. This is because execution involves the most psychologically painful features of death. We normally regard death from human causes as worse than death from natural causes, since a humanly caused shortening of life lacks the consolation of unavoidability. And we normally regard death whose coming is foreseen by its victim as worse than sudden death because a foreseen death adds to the loss oflife the terrible consciousness of that impending loss. An execution combines the worst of both: Its coming is foreseen, in that its date is normally already set, and it lacks the consolation of unavoidability, in that it depends on the will of one's fellow human beings not on natural forces beyond human control. It was on just such grounds that Albert Camus regarded the death penalty as itself a kind of torture: "As a general rule, a man is undone by waiting for capital punishment well before he dies. Two deaths are inflicted on him, the first being worse than the second, whereas he killed but once. Compared to such torture, the penalty of retaliation [the lex talionis] seems like a civilized law.,,7

Consequently, if a civilizing message is conveyed about torture when the state refrains from torturing, I believe we can and should try to convey a similar message about killing by having the state refrain from killing even those who have earned killing by their evil deeds. Moreover, if I am right about this, then it implies further that refraining from executing murderers will have the effect of deterring murder in the long run and thereby make our society safer. This much then shows that it would be good in principle to refrain from imposing capital punishment. I want now to show why it would be good in practice as well.

4 However just in principle the death penalty may be, it is applied unjustly in practice in