27 Capital Punishment

Understanding and justifying capital punishment need to proceed from within a larger framework that can be and often is left implicit. That framework consists of one's views about punishment generally; only within that context can one adequately face the narrower issues peculiar to understanding and justifying the death penalty. If punishment as such could not be justified, then a fortiori neither could the death penalty. If punishment generally serves certain purposes or functions, then presum- ably so does the death penalty. Not so conversely, however. The death penalty might not be justified, but that need not put in doubt the justification of punishment in general (Bedau 1991). In the remarks below, the discussion will proceed on two assumptions. First, the general features defining punishment within a legal system will be taken for granted (Hart 1968; Feinberg 1970). Secondly, the function and purposes of the death penalty will be assumed to be those shared by punishments generally.

A system of punishment is often thought to be justified on the ground that it provides protection for law-abiding persons by helping to prevent crime, and that it does this either by incapacitation or by deterrence (or both). So, too, with the death penalty. Utilitarians and other consequentialists generally support the practice of punishment on one or both of these preventive grounds (Bentham 1830/1838), and the debate over the death penalty has often been focused on whether this form of punishment is especially effective in either of these two ways.

The issue, of course, is an empirical one. Few students of the actual practice of punishment would dispute the claim that some punishments sometimes prevent some persons from committing some crimes (Gibbs 1975). But that generalization is so vague that it sheds no light whatever on the interesting question: is the death penalty a more effective preventive than alternative punishments (typically consisting of what are believed to be less severe punishments, such as long-term imprisonment, and especially life imprisonment without the possibility of parole (LWOP))? What is disputed, in other words, are issues of marginal prevention, and especially whether the evidence offered by sociologists, psychologists, criminologists, and other social scientists settles the dispute one way or the other.

Most modern research on the marginal deterrent effect of the death penalty has been conducted in the USA and falls into two distinct periods. The earlier research (from 1919 to the early 1970s) compared homicide rates in abolition versus death-penalty jurisdictions, in a given jurisdiction before and after an execution, and in a given juris- diction before and after abolition or re-enactment of the death penalty. No change in homicide rates owing to the death penalty was detected in any of this research. The more recent period (1973–97) was inaugurated by investigations purporting to show that each execution during the middle decades of this century'resulted, on average, in 7 or 8 fewer murders’ (Ehrlich 1975: 414). Subsequent reinvestigation and further study, however, have more than cast doubt on the adequacy of those findings (Bailey and Peterson 1997). Various special features of the methodology (multiple regression analysis) employed were widely criticized, as were the adequacy of the aggregate national data on which the methodology relied. The most recent attempt to establish that lawful executions result in a reduction in murder (Layson 1985) has been shown to suffer from much the same defects as the earlier research in this vein (Fox and Radelet 1989). The ideal research project to settle the question whether executions cause a decline in criminal homicides (and a greater decline than with LWOP) has yet to be defined and in any case probably would be impossible to carry out. Meanwhile, professional criminologists are in virtually complete agreement that there is no convincing empirical evidence that the death penalty is a deterrent marginally superior to long-term imprisonment (Radelet and Akers 1996).

Running head-on into collision with research purporting to show a deterrent effect is other research purporting to show that executions have a ‘brutalization’ effect. This provocative claim (perhaps first proposed in a newspaper article by Karl Marx in 1853 (see Marx 1853/1959)) has been supported both by statistical evidence (Bowers 1988; Bowers and Pierce 1980) and by clinical interviews with persons who committed murder because, they said, they were afraid to commit suicide and wanted the state to execute them (Diamond 1975; Solomon 1975; West 1975).

The moral question raised by considerations of deterrence (marginal or other- wise) is whether the threat of punishment and carrying out that threat (provided certain specified conditions are satisfied) are justified. (This is not a problem unique to the death penalty.) From a Kantian point of view, the objection is obvious: attempting to lower the crime rate by deterrence or incapacitation flagrantly violates the categorical imperative, because it uses a person (in this case, the convicted murderer) solely as a means to the ends of others (greater public safety through incapacitation or deterrence). The Kantian defender of the death penalty can reply that, although only retributive considerations justify any punishment, if there are also superior crime reduction effects thanks to the death penalty, those effects are a legitimate bonus and are not part of the intention in choosing to punish murder with death rather than with some lesser penalty.

So far as the issue of incapacitation is concerned, the death penalty obviously has no rival. Not only do dead men tell no tales; dead men commit no crimes. Punishment of any other sort still permits the offender to cause harm, even if such harm is only slight, remote, and infrequent. There are, however, both empirical and moral questions raised by the practice of incapacitative punishments. First, there is no guarantee that using incapacitation as a punishment prevents any crime(s). To close the gap between incapacitation and prevention, we need to know what crimes would have been committed by the offender had he or she not been incapacitated. Little research on this counterfactual condition relevant to the death-penalty controversy has been carried out. The best such research (Marquart and Sorenson 1989) was carried out in the USA. It shows that, as of 1987, out of some 453 murderers on death row in 1972 but not executed because of constitutional infirmities in their sentences, 209 had committed ‘aggravated assaults’ either in the general prison population or while on parole. In addition to these felonies, the former death-row prisoners also committed half a dozen criminal homicides. The remaining ex-death-row murderers (244) either committed no crimes, or their recidivism went undetected, or their crimes were ‘against institutional order’ (escape, riot, strike).

A somewhat different picture emerges from US government statistics, which report that roughly one in eleven of those currently under sentence of death for murder had a prior conviction of criminal homicide (US Bureau of Justice Statistics 2001). Given such data, it is reasonable to conclude that had that tenth (roughly 370) of the current death-row prisoners (3,700 in 2000) been executed after their first conviction of criminal homicide, several hundred innocents would never have been killed (at least, not by those recidivists). But there is no way to identify in advance which convicted killers will recidivate; predictions of future violence are plagued with false positives (Monahan 1978). Whether any of these recidivist killers had been sentenced to LWOP is not reported (if they had been, their victims must have been other inmates or prison staff or visitors). So long as LWOP is an available sentence for first-degree murder, incapacitation by the death penalty is not necessary to prevent recidivist murder by the vast majority of these offenders. As for the policy options, they reduce to three: (1) return to a mandatory death penalty, in order to execute all convicted murderers (and other capital felons, if any), or (2) execute none and try to improve methods of predicting future violence among incarcerated offenders in order to reduce recidivism in prison and after release (if any), or (3) continue (or, as the case may be, resume) sentencing convicted murderers to death and execute some of them, with little or no rational connection between the likelihood a given offender will become a recidivist murderer and the decision of whether to sentence him to death.

The first alternative, like any attempt to effect greater safety for the general public by incapacitating a select few, clearly violates the categorical imperative because it uses these prisoners purely as a means to the ends of others. Non-Kantians might at this point raise a different objection: is such a strategy to achieve perfect incapacitation worth the cost? If such a policy were adopted not on retributive grounds (that is, on the ground that a murderer deserves to die) but on consequentialist grounds (that is, that society is better off running zero risk from murder by recidivist murderers), other questions must be asked. Is society really ready for such a draconian penal policy? Do the crimes prevented constitute enough harm avoided to be worth the price of executing an entire class of offenders (especially when it is reasonable to believe that only a small fraction of the class would otherwise have killed again)?

A perfect criminal justice system—a system that was not arbitrary or discriminatory or given to punishing the innocent, and thus unlike our actual system (Bedau and Radelet 1987; Radelet et al. 1992/1994; Radelet and Bedau 1998)—might arguably claim the right to enforce a mandatory death penalty for convicted murderers. But would it be justified to exercise that right when the evidence shows that homicidal recidivism among convicted murderers is infrequent? Undeniably, there is recidivism among convicted murderers—in death-penalty jurisdictions as well as in abolition jurisdictions. Yet the same evidence shows that recidivism among convicted murderers is infrequent. As a result, a mandatory death penalty for anyone convicted of criminal homicide would result in the execution of thousands of convicted murderers, but without any very large reduction in the number of criminal homicides (or other felonies). Since we have no way of knowing who among the convicted murderers will murder again if not executed, a policy of mandatory execution for murder would involve executing thousands without much evident benefit (apart from deterrence and other considerations, of course). The sober truth is that perfect incapacitation of convicted murderers (via the death penalty) does not guarantee any reduction in criminal homicide (by avoidance of recidivist murder).

Intuitively, making the punishment fit the crime seems a fundamental requirement of justice, and seemingly the surest way to do this is to make the punishment likethe crime—like it in the kind and quality of deprivation it imposes on the guilty offender. This is the strategy of the classic idea of lex talionis: justified punishments are like the crimes for which they are inflicted. Where murder is concerned, such punishments as whipping, maiming, solitary confinement, and other severe deprivations fail this test; intuitively, none of them ‘fits’ murder at all or as well as death does. So, where the crime is murder, we can make the punishment fit the crime most closely by using the penalty of death. On this basis, it is argued, murderers deserve to die—that is, the punishment they deserve is death (Davis 1996; Pojman 1998; Reiman 1998).

This reasoning is open to various objections, epistemological and otherwise.

5.1 The argument is really a form of special pleading. In general, society places little or no weight on making the punishment like the crime in order to make it fit the crime, and for good reasons. Arson, burglary, embezzlement, child abuse, serial or multiple murder, treason, espionage, and tax evasion are among the scores of crimes deserving severe punishment. But it is impossible to make any of them punishable by a punishment that ‘fits’, a punishment like the crime. So on what ground, in the face of such difficulties, can one defend the proposition that nevertheless the murderer must be punished with death, because only that punishment is sufficiently like the crime? Why this exception?

5.2 The argument relies on an unproved premiss. How do we know what punishment the murderer deserves, or indeed whether he deserves any punishment at all? One way to answer this question is to turn to whatever punishment is specified by law for the crime(s) of which the offender has been convicted. We might call this legal desert and argue that an offender deserves whatever punishment the law provides. But this notion of desert, while fully intelligible and readily applied, is entirely unsatisfactory from the moral point of view. It has the obvious objection that the deserved punishment for murder in Michigan (no death penalty) is not the punishment deserved next door in Illinois and Indiana (both death-penalty jurisdictions).

What we need is a concept of moral desert, a concept with general application and sufficient to enable us to answer (at least in theory) two questions: who deserves to be punished, and what punishment does he or she deserve? Abstractly considered, we can answer the first question this way: whoever is guilty of a crime and has no excuse or justification deserves to be punished. But the second question is not so easily answered. No doubt those guilty of the graver crimes deserve the severer punishments; this principle of proportionality has widespread appeal. However, there is no unique way in which to interpret this principle; ‘the worse the crime, the more severe the deserved punishment’ is a principle consistent with an infinite number of alternative punishment schemes (Pincoffs 1977; Bedau 1978), some of which do not involve the death penalty (von Hirsch 1976) even if others do (Davis 1996). As things stand, we are not agreed as to what punishment a given offender—a given murderer, say—morally deserves. The factors that must be taken into account in order to specify what a given murderer morally deserves are unsettled territory; the role of an abused childhood, for example, in mitigating an otherwise ‘deserved’ punishment is highly controversial. Desert sceptics understandably deny there is any rational or unique answer to these questions and for that reason reject desert as a normative principle on which to construct the penalty schedule.

5.3 The argument verges on circularity. Some who assert that murderers deservedeath do so as their way of declaring that society ought to punish murderers with death, or that it is right to do so. If that is what their claim about desert really means, then appealing to the offender's desert ceases to be a reason for the death penalty. 'Murderers ought to be punished with death because they deserve to die’ makes sense whether or not it is true; ‘murderers ought to be punished with death because they ought to’ is too obviously circular to make any sense.

5.4 The argument is inconclusive. Even if it were true that a murderer could be said morally to deserve to be put to death, how is it argued that we (always?) ought to give him what he deserves? Does this not dismiss out of hand any consideration of forgiveness, not to mention other and lesser considerations? It seems to follow from this retributivist position that it is wrong (because unjust) for victims to forgive their victimizers. Of course, where murder is the crime, the victim cannot forgive the murderer (unless, which is highly unlikely, it were done in advance of the crime). By means of what argument do we show that ‘justice’ always necessarily trumps mercy and precludes forgiveness? Or suppose that it were enormously expensive to give an offender the punishment he deserves; ought we, must we, pay that price anyway? Suppose it were enormously expensive even to find out what a given murderer deserves; ought we, must we, pay that price? Public resources are a scarce commodity; on what ground do we argue that giving offenders the punishment they deserve takes high (the highest?) priority in the allocation of public expenditures? ‘Everyone always ought to get the punishment he or she deserves’ does not, on reflection, have thefinalityto it that retributivists would have us believe.

With this general discussion of crime prevention and desert behind us, we are in a position to give a closer look at the arguments for and against capital punishment. Debate over the death penalty is usually constructed out of a complex mixture of factual generalizations, common-sense conjectures, and hypotheses, in conjunction with various normative principles and social goals. Leaving entirely to one side religious and sectarian arguments for and against the death penalty (except for the discussion below in Section 6.4 ), let us consider first some of the typical claims made by those who support the death penalty, in contrast to the claims made by those who oppose it, assuming for the sake of the argument that the death penalty is con- fined to the punishment of murder (even though historically it has been used to punish an immense variety of crimes) and that any considerations arisingfromthe different methods of inflicting the death penalty can be ignored.

Since the mid-eighteenth century in Europe, the initiative in arguing over the death penalty has been taken by those who are opposed to it; complacent acceptance of whatever is the current use of the death penalty has put its defenders in an essentially reactive posture. Let us reverse that procedure here and look first at the arguments favouring the death penalty. (Not all the authors cited for the arguments below are to be credited with originating the argument in question.)

6.1 The death penalty because of its severity and finality is more feared than imprisonment and deters some prospective murderers not deterred by the threat of imprisonment (van den Haag 1986). To put this another way, common sense tells us that, since people fear the death penalty more than they fear a punishment of imprisonment, they will be deterred more by the risk of incurring the death penalty than by the risk of imprisonment (Davis 1996; Pojman 1998).

Comment. This is an empirical proposition, and it immediately raises the question of what evidence there is to support it. (a) There is some anecdotal evidence given by arrested felons in police custody, for example, that they used toy guns, or no guns, rather than real guns, because using the latter might result in a felony murder and thus the risk of the death penalty. Whether such testimony is self-serving (telling the police what the arrestee believed they wanted to hear) or otherwise unreliable is uncertain, (b) Even if the death penalty is more feared than any less severe, humane punishment, it is obvious that thousands do not fear it enough to deter them. Criminal homicide statistics in the USA for the 1990s show that roughly 15,000 killers per year (that is, all those who commit criminal homicide in death- penalty jurisdictions) are not deterred by the threat of the death penalty, (c) It is possible that the death penalty is feared more than long-term imprisonment; even so, it may be that the punishment of life imprisonment is still severe enough to deter all those who can be deterred by any punishment (Conway 1974). (d) The deterrent effect of a punishment is not determined solely by its severity (or its severity relative to an alternative punishment), but also by the certainty and celerity of its imposition. The delays and uncertainty that surround infliction of the death penalty are a direct result of inescapable worries arising from its irrevocable character; these obstacles to maximum deterrence are not shared to the same extent by a punishment of imprisonment. As for improving the deterrent efficacy of the death penalty, that is impossible without ‘hurry-up’ procedures that will sacrifice the often-frail defences available to the accused that due process of law is intended to provide (Amsterdam 1999).

However, let us grant the original claim for the sake of the argument. Two fundamental problems remain. First, is it not plausible to assume that what this heightened fear of death provides to the would-be killer is, first and foremost, an incentive not to get caught? Only if it is also believed there is a high degree of certainty of arrest and conviction will this fear create a greater degree of deterrence. As things actually stand in American society today, a would-be murderer has one chance in three of not being arrested, and if arrested one chance in three of not being convicted of capital murder (US Federal Bureau of Investigation 1998).

Secondly, if fear of the death penalty is such a powerful deterrent and if deterrence is the primary consideration in our choice of punishments, why not threaten murderers with a still more frightening punishment, such as death preceded by torture, or death by means of a thousand cuts, or by burning at the stake? After all, if death is feared more than imprisonment because it is more painful (or a greater deprivation) than prison, then death by torture ought to be feared even more than death by lethal injection. If the only or the dominant consideration is instilling fear in would-be offenders, on what ground do we reject a system of really terrifying punishments? (Surely, not merely on the ground that the US Constitution forbids ‘cruel and unusual punishments’; see the discussion in Section 7.8 below.)

If the reply is that death preceded by torture is not a ‘humane’ punishment, then that invites this rejoinder: to rule out torture on the ground of its inhumanity is to accept tacitly some principle or criterion of humanely tolerable punishments. To do that is to open the possibility that the upper bound to morally permissible punishments might rule out the death penalty as well.

6.2 Let us agree that we do not have convincing evidence to show that the death penalty is a better deterrent than imprisonment. Even so, we ought to choose the death penalty—it is our ‘best bet’ (van den Haag and Conrad 1983; van den Haag 1986; Pojman 1998). Our situation is as follows. Either the death penalty is a better deterrent or it is not (we don't know which). And either we choose to adopt the death penalty or we do not. This yields four possibilities: (1) death is the better deterrent, and we choose death as the punishment for murder; (2) death is the better deterrent, but we reject the death penalty; (3) death is not the better deterrent, but we choose it anyway, and (4) death is not the better deterrent and we choose a lesser punishment. Our task is to choose between the pair of outcomes (1) and (3), or the pair of outcomes (2) and (4). Assume that each outcome has the same a priori probability as the other three. Defenders of the death penalty claim that the rational choice is the pair (1) and (3)—that is, we ought to choose the death penalty because the outcomes are better whether or not the death penalty is a better deterrent.

Why? Because the value to society of the outcomes in the pair (1) and (3) is greater than for the outcomes (2) and (4). After all, innocent lives are worth more than guilty murderers’ lives, and so the losses in outcome (2) are considerably greater than the gains; we must avoid outcome (2) at all costs. (The only possible gain in outcome (2) is that we run no risk of executing a few who are innocent.) The only way to avoid outcome (2) is to choose the pair (1) and (3). In outcome (1), the gains are much greater than the losses (which consist only in the deaths of murderers who deserve death anyway, plus the deaths of any who were wrongly convicted and executed). As for outcome (3), the loss is relatively slight; a few convicted murderers (guilty or innocent) are executed despite the fact that the general public gains no greater protection thanks to these executions. As for outcome (4), the gain is slight—no innocent murder convicts are executed—and the loss is zero. If we combine the gains and losses in the pair of outcomes (2) and (4), the losses clearly exceed the gains. We maximize the prospect of greatest gains and least losses if we choose to bet that the death penalty is a better deterrent, and that means choosing in favour of outcomes (1) and (3).

Comment. This argument, popularized (and perhaps invented) by Ernest van den Haag, has attracted more than its share of attention among philosophers, probably because it is so neat and abstract, appears to acknowledge our ignorance about deterrence, and caters to a common-sense belief that murderers are ‘worth less’ than their victims (Conway 1974; Bayles 1991; Pojman 1998). In several respects it is reminiscent of Pascal's Wager, a philosophical stalking horse for more than three centuries. Nevertheless, the argument has its weaknesses, (a) It is not clear that the argument applies to the real world of discretionary death indictments, plea bar- gains, trials, convictions, sentences, appeals, and executions—including execution of the innocent. And, if the argument does not apply to a world with these features, then it must be discarded as irrelevant, (b) Even if all four possible outcomes have equal a priori probability, the extensive search by social scientists for evidence of a special deterrent effect in the death penalty and their failure to date to discover any such evidence (recall Section 3) suggests that these four possible outcomes do not have the equal empirical probability. Awarding equal probability to the death penalty as a specially effective deterrent really just sidesteps the available empirical evidence. If we grant that the empirical probability favours outcomes (3) and (4), then it is not so clear that rationality requires us to prefer the pair of outcomes (1) and (2). (c) What the death penalty does is to risk the lives of innocent defendants wrongly convicted, without any scientific basis for believing that there is a commensurate gain in extra protection through deterrence. For all we know, everyone who is deterrable (and thousands evidently are not) is deterrable by a long prison sentence, in which case executing any prisoners produces no extra social protection (leaving aside any role for incapacitation to avoid recidivism), (d) If the death penalty brutalizes society, as some would have us believe, then the extent to which that result occurs has to be weighed against the conclusion of the Best Bet argument and the benefits it points to in extra deterrence, (e) Finally, if the death penalty as used in the USA should turn out to be a better marginal deterrent than long-term imprisonment, how can society be entitled to get the benefit of that extra deterrence when it is the product of a system riddled with injustice, maladministration, and error (see Section 7.6)?

6.3 It would be quite reasonable to support the death penalty if an execution of the guilty convict brought the victim back to life. If so, it seems unreasonable not to support it if an execution prevented, say, a hundred innocent persons from being murder victims (Pojman 1998).

Comment. Yes, it would be rational to support the death penalty if executing the murderer brought back to life the murder victim. But, since the death penalty has no such benefits and since there is no convincing evidence that the death penalty is a marginally superior deterrent, the alleged inconsistency can be ignored. What remains, however, just under the surface is the tacit accusation that opponents of the death penalty really do not care about the safety of the general public, much less the plight of the victims and their surviving loved ones. If they did (so the objection goes), they would be willing to embrace executions were it shown with reasonable assurance that executions actually did deter criminals undeterred by any less severe punishment. But embracing the death penalty on grounds of deterrent effectiveness ignores the risk of executing the innocent. (After all, the deterrent effect of a penalty is achieved by punishing the innocent as well as by punishing only the guilty, provided it is generally believed that the convicted defendants really are guilty.) And this leads to the following tu quoque: it is irrational to support the death penalty as a superior deterrent in the absence of convincing evidence to that effect and in the face of documented cases where innocent persons have been arrested, tried, convicted, sentenced to death, and executed.

6.4 Hundreds of thousands abstain from murder because they regard it with horror. One great reason why they regard it with horror is that murderers are hanged (J. F. Stephens, quoted favourably by van den Haag 1986).

Comment. If the idea of regarding murder with ‘horror’ means being horrified at the gross immorality of murder, disgusted and appalled at the thought of being a murderer (with the deserved opprobrium that implies), it is difficult to believe such a reaction is explained by a general awareness that convicted murderers are executed. Being aware that one is liable to punishment if one commits a criminal act does not teach that the act is wrong; what it teaches is that the act is risky. Awareness of the immorality of murder is best explained by awareness of the facts that murder is the killing of another human being without consent of the victim and that it causes the victim the gravest irremediable harm. Anyone can immediately see that murder violates familiar and common-sense moral principles, such as the Golden Rule. Awareness of that violation, not the punishment threatened for it, is what arouses moral ‘horror’ at murder.

6.5 Murderers have forfeited their right not to be killed (Pojman 1998).

Comment. The claim is familiar and looks plausible. No doubt we want a doctrine of forfeiture of rights in order to make punishment a legitimate possibility (lest the deprivations imposed in the name of punishment be themselves violations of the offender's rights). But there are at least two problems, (a) The claim invites us to say as well: rapists forfeit their right not to be raped, muggers forfeit their right not to be mugged, torturers forfeit their right not to be tortured, and so on. Surely, this is a reductio ad absurdum of the original claim, as there is no way with consistency to assert the claim in isolation in order to avoid embracing these ugly parallels. Tacit reliance on lex talionis can be discerned in the background, (b) We have to ask: if the murderer forfeits his right not to be killed, does he not also forfeit a right not to be killed in a long, drawn-out manner, say by crucifixion, particularly if he killed his victim in some such savage and cruel manner? Why are we not entitled to inflict death on the murderer in whatever horrible fashion he chose to inflict on his victim? Why does he not forfeit a right to be put to death promptly, painlessly, and with such dignity as circumstances permit? The very questions only need to be asked in order to see that there are upper bounds to permissible punishments that we ignore or flout at our peril. Why do those bounds not rule out modern, sanitized modes of inflicting the death penalty as well as cruel methods of carrying it out?

6.6 If I violate the rights of others, I therefore lose the same rights. Thus, if I am a murderer, I have no right to live (Primoratz 1989a).

Comment. This remark expresses the idea (without using the word) of forfeiture of rights, by far one of the most influential weapons in the armoury of those who sup- port capital punishment. Undeniably, the general idea of the forfeiture of rights is a feature of any theory of rights worth taking seriously. More controversial, how- ever, is whether any or all rights one possesses can be forfeited. Philosophers at least since John Locke (1632–1704) have insisted that we have certain inalienable natural or human rights; our right to life is usually said to be such a right. A few philosophers have gone further and insisted that we also have certain unforfeitable rights; the best candidate for such a right is whatever right is taken to be constitutive of our status as moral agents (Vlastos 1962; Morris 1981). Do we or do we not, then, forfeit our very status as moral agents by virtue of committing a terrible crime, such as murder? (Remember, only moral agents are capable of immoral conduct. Or are we to believe that, by behaving immorally, one can cease to be a moral agent?) Is it possible to retain our status as a moral agent, despite being a murderer, and yet forfeit our right to life? These questions have no standard answer.

6.7 If the murderer forfeits his right to life by violating the right of another to life, then society is justified in imposing the worst type of punishments on the murderer (Pojman 1998).

Comment. The issue here is not what the murderer deserves; it is rather what we are free to do to him given his forfeiture of rights. Notice that this argument treats forfeiture of the right to life as a sufficient condition of justifiably executing the murderer. To do so is to treat the murderer's forfeiture of his right as the only relevant (or the dominant) moral consideration in deciding what we ought to do to him. Furthermore, according to this argument, we are permitted to inflict cruel ('the worst type of) punishments. No doubt a more charitable interpretation of this argument would have it that, thanks to forfeiture of rights by the murderer, society is justified in inflicting ‘the worst type’ of morally permissible punishments. But on what basis are we to draw the line between morally permissible and morally impermissible punishments? Indeed, on what ground are we to conclude that the death penalty is among the permissible rather than the impermissible punishments? Either way, with or without the more charitable interpretation proposed above, the argument falls short.

6.8 Since the value of human life is not commensurable with other values, there is only one truly equivalent punishment for murder, namely death (Primoratz 1989a).

Comment. Although actuaries employed by insurance companies routinely put a dollar amount on the value of a human life (or limb), the rest of us are unlikely to share their confidence. Doubts on that score to the side, the incommensurabilty of values is not confined to the value of human life. Surely, being unraped, unassaulted, unkidnapped are also ‘not commensurable with other values’. So the incommensurability of the value of human life is not unique. No doubt we can say that the value of not being murdered is greater than the value of not being raped, and greater than the value of not being kidnapped, and so on. But, whatever reason there is to believe that ‘the only truly equivalent punishment for murder’ is death, is equally a reason for believing that the only truly equivalent punishment for rape is—being raped, and so on. Thus we encounter, once again, only a slightly disguised form of the old doctrine of lex talionis.

6.9 Since the murderer cannot plausibly claim a right to life for himself, neither can anyone else do that on his behalf (Primoratz 1989b).

Comment. Let us grant that it is unfair to claim a right for oneself that one is unwilling to grant to others similarly situated. Let us further grant that it is unreasonable to expect someone whose right has been violated to respect the comparable right of the violator. But these concessions about rights do not suffice to tell us what the victim or society ought to do about the violation of the victim's rights. We can reach a decision on this crucial point only by means of some further normative pre- miss, such as this: morality poses no objection to punishing a murderer with death. That proposition, however, is not obviously true, because our rights do not exhaust the relevant moral considerations concerning what we ought to do (Thomson 1990); those other moral considerations remain to be examined.

6.10 Since it is morally right to be angry with criminals and to express that anger publicly, officially, and in an appropriate manner, this may require the worst of them to be executed (Berns 1979).

Comment. Is the world really a better, healthier place, thanks to the expression of anger at violent criminals by their victims or by third parties on behalf of the vic- tims? Ought we to teach our children to cultivate the emotion of anger at wrong- doers and encourage and help them to find ways to express that anger ‘in an appropriate manner’? What is an ‘appropriate’ expression of anger? And what is its proper target? (Think of the old saw, ‘Hate the sin, love the sinner'.) The feeling and expression of resentment—seeing oneself as an undeserving victim of another's immoral conduct and objecting to it—is understandable. So is moral indignation— seeing another as an undeserving victim of someone's immoral conduct and objecting to it. But both resentment and indignation are moral emotions—that is, they are regulated by moral considerations, in contrast to anger and revenge. These latter know no bounds; thus it might be said that they are always inappropriate, even if they are often excusable. After the anger, then what? (Consider the admonition, 'Anger in haste, repent at leisure'.) Or is one supposed to cultivate and sustain anger, relishing the feeling, savouring the excitement, and then act accordingly? Surely, this is a recipe for disaster in both moral and political relations.

6.11 If humans do not possess some kind of intrinsic value—say the image of God—then we have the right to rid ourselves of those who egregiously violate the necessary conditions for civilized living (Pojman 1998).

Comment. No doubt murderers, rapists, kidnappers, muggers, and other persons guilty of crimes against the person ‘egregiously violate the necessary conditions for civilized living’. But—as the story of Cain's punishment for the murder of his brother Abel teaches (Gen. 4: 8–16)—there is more than one way to ‘rid’ ourselves of their presence among us. In most capital punishment jurisdictions (China is a conspicuous exception), convicted murderers are routinely sentenced to prison. Only a small fraction is sentenced to death. Are they the worst among the bad, the most dangerous, the least likely to be incapacitated by prison, the least likely to be deterred by the threat of any punishment less severe than death? The empirical evidence suggests otherwise; at most, some among those sentenced and executed are ‘the worst among the bad', but many of the others clearly are not. (The criteria for their selection as death-row convicts had little or nothing to do with the above considerations.) Basing penal policies on purely secular considerations (as the argument assumes) does not free us from the constraints of reflective morality. Dostoevsky's Ivan Karamazov was wrong in thinking that, if God is dead, every- thing is permitted.

6.12 Persons in the Rawlsian Original Position behind a Veil of Ignorance would choose to live in a society with the death penalty for murder (Cooper and King- Farlow 1989).

Comment. If this reasoning were correct, it would tend to show that the death penalty is a fair or just punishment. But is it correct? Consider the following general facts about contemporary USA (such information must be available if one is to decide on any social policies behind the Veil): at the end of the twentieth century, there were annually (a) about 18,000 victims of criminal homicide, (b) 200–300 convicted murderers sentenced to death, and (c) 100 or so executed. Furthermore, (d) an uncertain percentage of all persons arrested, tried, convicted, sentenced to death, and executed are innocent, (e) there is no empirical evidence that the death penalty is a better deterrent than long-term imprisonment, (/) there is no empirical evidence that prisoners, guards, visitors are more at risk in the prisons of non-death-penalty jurisdictions than in the prisons of death-penalty jurisdictions, and (g) there is no empirical evidence that the police are less at risk in death-penalty jurisdictions than in jurisdictions without the death penalty. There is empirical evidence that (h), if one is non-white or poor, one has a greater likelihood of being arrested, indicted, tried, convicted, and sentenced to death than if one is white and rich, and that (i) capital trial juries tend to make up their minds about the punishment the accused deserves even before the defendant is convicted; they do not understand the judge's instructions on how to decide between a life and a death sentence for the defendant they have just convicted; and even when they do understand those instructions they do not always follow them (Bowers 1995; Bowers et al. 1998). Furthermore, there is (j) a slightly greater likelihood of being a murder victim or a member of a victim's family than being a murderer or a member of a murderer's family, (k) a greater likelihood of being found guilty, sentenced to death, and executed than being innocent but found guilty, sentenced to death, and executed, (/) a greater likelihood of being poor rather than rich and thus at greater risk of being a murder victim and of being a murderer, and (m) a greater likelihood of being white rather than non-white, and to that extent at less risk of being a murder victim or a murderer sentenced to death.

Would a rational, self-interested person averse to running great risks conclude that he or she would be better off in a society with the death penalty for murder (in a discretionary, not mandatory, form) than in a society with no punishment for murder more severe than LWOP? Were one to turn out to be a murderer, it is reasonable to assume that self-interest would dictate that one would prefer prison to death. Were one to turn out to be a murder victim, one might wish the murderer to be punished equivalently, thus favouring the death penalty. ('Might’ because, improbable as it may seem, many survivors of murder victims are on record avowing that they do not want the murderer of their loved one to be put to death.) But, given the nearly equal likelihood of these two possibilities (and the small likelihood of being either a murderer or a murder victim), there is not much to tip the scale for or against the death penalty. These considerations suggest that there is no clear and convincing reason for wanting to live in a society that has the (discretionary) death penalty for murder, because there is no evidence of gain in security from the greater severity of the punishment over LWOP, and because there is evidence that the system is not fail-safe. Therefore, if Rawlsian contractarianism is the correct way to determine whether a social policy is fair, then it is unclear whether the death penalty in contemporary USA passes this test. To the extent similar considerations apply to other Western societies, the same verdict follows.

A somewhat more definite result emerges if we view the task of thinking behind a Veil of Ignorance (as Rawls does) as designed to help us make a choice among principles and only indirectly a choice for or against the death penalty as a policy. In this context, the issue concerns the choice of principles governing state interference with individual liberty, privacy, and autonomy. It seems reasonable to suppose that behind the Veil it would be in the rational self-interest of everyone to choose a principle empowering the state to make minimal coercive interferences and then only in pursuit of paramount social goals. As will be argued below (see Section 8), adoption of such a principle given the relevant facts yields a strong—indeed, the best— argument against the death penalty.

6.13 The death penalty is a symbolic affirmation of the humanity of both victim and murderer (van den Haag 1985b).

Comment. The death penalty does nothing for the murder victim, and it has very diverse effects on the victim's surviving friends and family. So how execution of the murderer ‘symbolically affirms’ the humanity of the victim (something that life in prison presumably fails to do) is unclear. As for the ‘humanity of the murderer’ and its symbolic affirmation in his execution, that seems to be manifest in two ways. First, executing him shows him that he is not superhuman and hence not invulnerable to the kind of harm he inflicted on the victim. But, as that harm was a wrongful harm, it is not immediately clear why inflicting similar harm is not also a wrongful harm even when it is done through the criminal justice system. Secondly, finding the defendant guilty and sentencing him or her to death treats the defendant as a fully responsible moral agent at the time of the crime and at the time of execution. It would presumably be inhumane to execute an insane or otherwise non-responsible offender. However, not all those actually executed qualify as fully responsible moral agents even if they do not qualify as legally insane (consider the cases of Alvin Ford in Florida in 1991 (Miller and Radelet 1993)) and Ricky Ray Rector in Arkansas in 1992 (Frady 1993). The claim in (13) is true, if at all, only in an ideal system of capital punishment; it is quite false as a description of every known actual system.

In any case, this consideration does not exhaust the symbolic significance of the death penalty. For its opponents the death penalty symbolizes ultimate and unlimited power over the individual by an impersonal government that operates ‘the machinery of death’ (Justice Blackmun, dissenting in Collins v. Collins., 1994). Execution is not the only way ‘symbolically to affirm the humanity of victim and murderer'. Why should we believe it is the best way?

As the discussion in Section 6 shows, rebuttals to arguments for the death penalty amount to arguments against it. But not all the reasons for opposing the death penalty emerge in the clearest light if they are limited to the role of rebuttal argumentation. If the abolitionist seizes the initiative, the kinds of reasons that typically emerge include the following, each of which warrants a closer look. (Most of the arguments cited below, being part of the popular discourse on the subject, are not supported by a citation to any source.)

7.1 Governments have no right to use the death penalty.

Comment. This is perhaps the oldest argument against the death penalty, having been used by Cesare Beccaria (1738–94) in his path-breaking monograph, On Crimes and Punishments (1764/1995), the first notable attack on the death penalty. Beccaria argued that no rationally self-interested person would choose to live in a society that uses the death penalty (he might be its victim), and, since society has no right to do anything other than what its members would permit, therefore society (and its agent, government) has no right to adopt the death penalty. This conclusion may indeed be true, but the argument for it is inconclusive because it relies on a highly contested principle of legitimate government—namely, that a government has the right to threaten and inflict harm in punishment only to the extent that a rationally self-interested person would permit it to do so.

There are other problems with this claim, (a) It can be viewed as a theorem from a generally pacifist axiom forbidding all forms of punishment; if it is so viewed, it is unlikely to attract many supporters, (b) Few would deny that one's liberty and property are valuable to the owner, and yet the state has the right to take one's liberty and property as punishment. If so, then why not life as well? Either claim (1) is false, or the state has no right to punish at all, or there is something peculiar— indeed, unique—about taking life as punishment that is absent where taking liberty or property as punishment is concerned, (c) There is some danger of hidden circularity here. If one argues ‘The death penalty is wrong because no one has the right to use it’, that is coherent and possibly true. But if one tries to explain why the government has no right to use this punishment by claiming that it is morally wrong, then one is arguing in a circle, presupposing the very thing to be proved, (d) If the death penalty were a better preventive of crime than any alternative punishment less severe, some would argue that saluspopuli suprema rex and so government does have the right to use the threat of death as a deterrent.

7.2 The death penalty ought to be abolished because it violates the offender's right to life.

Comment. There are two major objections to this claim, (a) It would be a plausible argument if (but only if) one could defend the proposition that the right to life is absolute—that is, there are no moral considerations that could ever outweigh this right. But this seems unlikely. Consider self-defence or intervention as a third party on behalf of someone at risk of death by the lethal aggression of another. Are we to believe that it is always wrong—and, in particular, that no one ever has the right— to avoid being a victim of unjust life-threatening aggression by acting so as to disable the aggressor by taking his life? No one but an absolute pacifist believes this; and it seems highly irrational in any case, (b) Defenders of the death penalty will argue (see above, Sections 6.5–7) that, since murderers forfeit their right to life, only the innocent can find protection of their interests through their right to life. Precisely how the critic of the death penalty is to respond to this objection is unclear.

Nevertheless, the idea of a universal human right to life is of use to the opponent of the death penalty in the following way. It does seem reasonable to argue that in a very general way the burden of proof always falls on those who would take human life under whatever conditions. (To suppose that neither side of the argument has any burden of proof, or that the burden falls on those who would not kill other human beings, is too implausible to be worth discussing.) If so, then it is morally necessary for the advocates of the death penalty to explain why certain human lives ought to be taken as punishment.

7.3 The death penalty ought to be abolished because it ignores the value of human life.

Comment. This claim invites the challenge: what value is there in the life of a convicted murderer? As an empirical fact, given the great variety of persons convicted of murder, and the variations in their education, intelligence, dangerousness, talent, character, abilities, self-control, socialization, and so on, there is no plausible generalization to cover all cases and thus answer the question unequivocally. Empirical evidence amply sustains only this vague generalization: some convicted murderers can live a life of considerable value, to themselves and to others (the famous case in the 1920s of Nathan Leopold (1958) is a stellar and by no means unique example). But there are others, many others, whose lives are of little if any value to society, and of dubious value to themselves—as their suicidal despondency or their maladjustment to prison life indicates. The variable and often indeterminable value in the life of a convicted murderer makes it impossible to use this consideration across the board as a basis for rejecting the death penalty in all cases.

Again, however, opponents of the death penalty can rescue something of use to their argument. It is plausible to take as a baseline that each human life is (or could be) of value both to the person whose life it is and to others in the social environment. This puts the burden of argument on those who would endorse killing some persons on the ground that the disvalue of their lives manifestly outweighs whatever value their lives have. To be sure, judging the value versus the disvalue of a given human life is neither simple nor uncontroversial. Still, we have to countenance the possibility that, as a matter of empirical fact, we cannot reasonably believe the value of the life of every convicted murderer outweighs whatever is of disvalue in that life.

7.4 The death penalty is wrong because it flouts the sanctity of human life.

Comment. Unlike the other claims and arguments discussed in this section, this one is not secular. The sanctity of human life is a religious concept, especially familiar to Jews, Christians, and Muslims because of the biblical doctrine that man is made in the ‘image of God’ (Gen. 9: 6). Secular moral theory cannot use this concept, any more than it can pass judgement on the legitimacy of this religious norm. What can be said, however, is that the logic of the doctrine of the sanctity of human life puts the burden of argument on those biblical monotheists who believe in the death penalty, not on their co-religionists who would invoke this idea to protest the death penalty. In this connection, it is especially interesting to consider the argument of the recent papal encyclical, Evangelium vitae, The Gospel of Life (1995). In this treatise, Pope John Paul II argued that, in the absence of ‘necessity’ to protect human life, there is no justification for a penalty that takes lives, even the lives of murderers. The Pope reminds us of the story of Cain and Abel (Gen. 4: 8–16); God punishes the murderer Cain with a curse, a stigma, and exile—but not death. No other biblical passage relevant to the death penalty involves a decree by God on the punishment of a guilty murderer in the way this passage does.

7.5 The death penalty is an affront to human dignity.

Comment. The concept of human dignity has played a surprisingly neglected role in modern moral philosophy; partly for this reason an appeal to human dignity in public discussion and debate often runs the risk of being merely a rhetorical flourish. What counts as respect for, in contrast to violations of, human dignity is far from clear. In sharp contrast to the role of rights, values, justice, virtues, and their several overlapping and interwoven norms, the concept of dignity is underdeveloped and inadequately integrated into the rest of normative moral theory.

Elsewhere (Bedau 1992), it has been suggested that the claim (7.5) above might be fleshed out as follows. First, it is an affront to the dignity of a person to be forced to undergo catastrophic harm at the hands of another when, before the harm is imposed, the former is entirely at the mercy of the latter, as is always the case with legal punishment. Secondly, it offends the dignity of a person to be punished according to the will of a punisher free to pick and choose arbitrarily among offenders, so that only a few are punished very severely when all deserve the same severe punishment if any do. Thirdly, it offends the dignity of a person to be subjected to a severe punishment when society shows by its actual conduct in sentencing that it no longer regards this punishment as the best or the only legitimate punishment for that crime. Finally, it is an affront to human dignity to impose very severe punishment on an offender when it is known that a less severe punishment will achieve all the purposes it is appropriate to try to achieve by punishing anyone in any manner whatsoever.

If there is an argument (such as the one above) against the death penalty on the ground of its affront to human dignity, it remains to be seen whether such an argument by itself would be sufficient to outweigh, say, an argument for the death penalty based on considerations of deterrence and incapacitation, or on desert.

7.6 The death penalty is wrong because its history shows that it cannot be administered fairly.

Comment. The available evidence strongly confirms the claim, and it is this claim that is probably the most influential of all the arguments against the death penalty for those who oppose it at present. From the decision of the prosecution on whether to seek the death penalty to the decision of the executive on whether to extend clemency, the administration of the death penalty—at least in the USA—has been and remains significantly'deregulated'. A wide variety of independent observers has reached this conclusion (Weisberg 1984; White 1991; Paternoster 1991; Bright 1994, 1995; International Commission of Jurists 1996; American Bar Association 1997; Acker et al. 1998). Few who have studied the matter carefully believe that this complex problem can be remedied by procedural reforms.

However, the implicit claim is that the deregulation characteristic of the death penalty is more pronounced or in some other way worse than the (de)regulation of long-term prison sentences. If there is evidence to support this claim, it is obscure and underdeveloped. Nevertheless, it seems reasonable to grant that, if the death penalty is a more severe sanction than LWOP, then ceteris paribus its mismanagement is worse than whatever mismanagement characterizes administration of the alternative punishment.

But is this deficiency, even if true, a sound basis on which to abolish the death penalty? Critics of the objection in claim (7.6) above are quick to point out that it is addressed entirely to the administration of this form of punishment, and not to the death penalty itself. They will add that every form of punishment meted out by the criminal justice system involves errors and mistakes in its administration; the death penalty is hardly unique in suffering from such shortcomings. They will argue further that the maladministration of the death penalty is not an argument for its abolition. Opponents of the death penalty will reply that it is artificial to distinguish between a flawless death-penalty system (possible only in an ideal world utterly remote from ours) and the actual flawed systems under which we live and have always lived, and in which real persons are put to death by a system that seems to resist significant reforms and improvements. There is no such thing as ‘the death penalty itself; there are only the actual systems under law, warts and all. Any attempt to distinguish the death penalty as such from the death penalty as actually administered under law in a given jurisdiction distracts us from the evaluation of the death penalty in the only forms we actually have it (Black 1981). Friends of the death penalty divide over whether this problem (especially as it involves seemingly irreducible racism) is so grave as to undermine whatever merit there is in the death penalty taken abstractly as a just punishment (Berns 1979; van den Haag 1986).

7.7 Even though murderers do deserve the death penalty, it is desirable for a modern state to refuse to impose such punishments, because such punishments are inconsistent with the civilizing process characteristic of modern states (Reiman 1998).

Comment. This argument, which might be called the Advancement of Civilization Argument, owes its inspiration to the French sociologist Emile Durkheim (1858–1917). His so-called ‘laws of penal evolution’ claim in part that, the more advanced a civilization becomes, the less it practises brutal corporal punishments. Cruel punishments, like torture, cause great pain and require the utter subordination of the punished to the punisher. From this point of view, the death penalty is like torture, a retrograde and counter-civilizing practice. ‘Torture is to be avoided not only because of what it says about what we are willing to do to our fellows, but also because of what it says about us who are willing to do it’ (Reiman 1998: 115). Thus the refusal to carry out lethal punishments even on those who arguably deserve them contributes significantly to this civilizing process.

One advantage of this argument is that it can concede the chief demand of the retributivist—we know what punishment murderers deserve; it is the punishment most like their crime—while arguing that other considerations have a predominant role in determining whether society ought to use this mode of punishment. The result is this: although murderers deserve to die, and thus society has a right to sentence them to death and execute them, society ought not to do so (and certainly has no duty to do so), because the system we use to determine who ought to be executed is itself fundamentally unjust. The death-penalty system in the USA is fundamentally flawed, so that the justice of the death penalty taken in the abstract is undermined by the injustice of its actual administration. (This final step in the Advancement of Civilization Argument amounts to recycling the empirical considerations central to the argument in Section 7.6).

Abolitionists who are also desert sceptics need not reject this argument, because its main features remain intact whether or not one endorses the retributivist features it embraces. They are independent of any advancement of civilization effects that forswearing the death penalty allegedly produces. On the other hand, there is some danger of circularity in this argument. Using abandonment of cruel practices like torture as a criterion of a civilized society guarantees that the death penalty cannot survive in a civilized society, provided that the analogy to torture is accepted. But some will surely reject the analogy, just as others will grant that civility is incompatible with barbaric punitive practices but will deny that the death penalty is necessarily barbaric: what is so barbaric (they will reply) about a substantially painless execution by lethal injection?

7.8 The death penalty in the USA is wrong because it violates constitutional protections.

Comment. If this claim is meant to be an accurate statement of the status of the death penalty at the beginning of the twenty-first century, as seen by the Supreme Court in its role as the ultimate legal interpreter of the Constitution and the Bill of Rights, then it is false. Beginning with its decision in Furman v. Georgia (1972), the court has whittled away at the permissible scope of death penalties. But the court also ruled by a majority of 7 to 2 in Gregg, v. Georgia (1976) that the death penalty perse is not in violation of the eighth amendment prohibition of'cruel and unusual punishments'. The court has also implicitly rejected any suggestion that the death penalty inherently violates some other constitutional provision, such as ‘due process of law’ (fifth amendment), ‘equal protection of the laws’ (fourteenth amendment), or unenumerated rights of the person (ninth amendment). It is, of course, possible to argue (as some have) that the court is wrong, and that it has misinterpreted these provisions of the Constitution (Black 1981; Bedau 1985, 1992, 1996).

From the moral point of view, however, these constitutional considerations really are beside the point. Even if the US Constitution were interpreted by some future Supreme Court to rule out the death penalty, one would still have to face the question whether such interpretations were based on sound moral theory. ‘Ought we to abolish the death penalty?’ cannot be answered with any finality merely by a decision of the Supreme Court to the effect that, contrary to Gregg and related cases, the death penalty really is inherently inconsistent with the Constitution and the Bill of Rights.

7.9 The death penalty is wrong because it violates international standards of permissible and humane punishment.

Comment. The death penalty in the USA and in several foreign countries, as administered, is clearly in violation of international human-rights standards. Those standards prohibit execution of anyone under 18, whereas several US jurisdictions permit juveniles under 18 but over 16 to be executed (National Coalition to Abolish the Death Penalty 1997). They also prohibit execution of the mentally disabled. US law makes no exception for women, whereas international human-rights law for- bids their execution. The US Government has ratified the International Covenant on Civil and Political Rights with explicit reservations on these two issues, reservations that have been challenged by other signatory nations (Schabas 1997). In 1999, the UN Human Rights Commission voted for a worldwide moratorium on executions; the USA was one of eleven nations voting against this resolution.

However, as with the constitutional objections to the death penalty discussed above, objections based on international human-rights law are of interest from the moral point of view only to the extent that the human-rights laws in question are persuasive and can be incorporated into a sound normative moral theory (Nickel 1987). As with legal norms generally, international human-rights norms are not ultimate but are at best only penultimate considerations.

7.10 The death penalty ought to be abolished because conditions on death row are morally intolerable.

Comment. There are two versions of this argument. One stresses the fact that conditions on the death rows of death-penalty prisons in many nations leave much to be desired. These conditions have a harmful and enduring effect on most of those who have to undergo them, especially when death-row prisoners in the USA may spend a decade or more before their cases are finally resolved. The other argument simply points to the long duration of life under a death sentence for many prisoners, and claims that, no matter how decent death-row conditions are, the long delay in reaching a final disposition (execution or some form of relief) is itself a cruel and inhumane treatment. Friends of the death penalty will deny that these conditions are beyond remedy, and will insist that the remedy need not lie in abolition of the death penalty. Is it not more plausible to argue, they will say, that, if the conditions on death row are truly inhumane and intolerable, then they ought to be remedied as swiftly and completely as possible—and that their remedy is entirely a separate issue from abolishing the death penalty? Abolitionists using this argument must defend the proposition that these conditions by the very nature of the case cannot be adequately remedied, and that the only remedy is not only to dismantle death row but to abolish the death penalty itself. But is that true? Surely, it is not unreasonable to reply that, quite apart from abolishing the death penalty, prisons ought to abolish wretched and indecent conditions of incarceration, period.

7.11 The death penalty is too expensive to support.

Comment. Executions are indeed much cheaper than long-term imprisonment, if all one counts in the cost is the pro-rated salary of the prison personnel as they monitor each death-row prisoner and prepare for and carry out a death sentence, plus whatever material costs are involved (food and security while on death row, a dose of lethal gas, lethal injection, a dozen rifle bullets, electricity, or the hangman's rope) and other pro-rated costs. A much better way to think about the cost of the death penalty is to calculate the costs of a criminal justice system in which everymurder indictment raises the question of whether the accused is to be tried as a first-degree murderer and thus be made vulnerable to a death sentence. This requires tracking the typical costs of murder trials and subsequent appeals in which the death penalty is sought versus the comparable costs incurred in murder trials and appeals in jurisdictions without the death penalty. Research by several different investigators that takes these considerations into account reveals that a typical modern death penalty system in the USA is far more expensive than an alternative system of LWOP (Dieter 1994). Thus the claim advanced in (11) is true, so far as cur- rent calculations permit.

If, however, justice or other moral considerations showed that a death penalty system really is required, then deciding between its abolition and retention in favour of the less expensive system would represent a refusal to finance a requirement of justice. The only way in which the greater costs of a death-penalty system constitute a relevant criticism of that system is if the death penalty can also be criticized on moral grounds.

7.12 The risk of executing the innocent, however small, is too large a risk to run.

Comment. Calculating the risk of wrongful execution is very difficult. During the twentieth century in the USA, that risk may have been quite small: out of over 7,000 executions, only a few hundred have been carefully examined, and of these 0.3 per cent (= 24 cases) seem highly probable to have involved an execution of the innocent (Bedau and Radelet 1987). How should we tell whether this risk is too large to accept? Are abolitionists in danger of exaggerating the risk of erroneous executions? Perhaps. Imperfect though the system is, for every person believed to be innocent but executed in recent years, seven or eight innocent prisoners under sentence of death were vindicated in time to be released; some of these defendants narrowly escaped wrongful execution (Radelet et al. 1992). Were the death penalty known to be a superior deter- rent to imprisonment, one might argue that risking the lawful deaths of a few inno- cent prisoners (but of course not known to be innocent) is worth the added protection for hundreds of innocent citizens (recall the argument in Section 6). But the evidence on deterrence prevents that argument (see above, Section 3).

Some defenders of the death penalty (van den Haag 1986) concede that the death penalty may occasionally fall upon the innocent, but they argue that this is not a reason to abolish the death penalty, any more than it is a reason to prohibit automobiles and trucks from the highways when we know that statistical lives will be lost in traffic accidents. This objection, however, overlooks two important points. (a) Highway traffic provides many incontrovertible social benefits, whereas it is arguable whether the death penalty provides any (or any that outweigh its costs, economic and otherwise), (b) The death penalty is an intentionally lethal system, whereas the use of high-speed vehicles, highway design, and traffic regulations involves no such intention at all. Since highway deaths are accidental, not intentional, the provocative comparison is irrelevant.

Whatever argument one regards as the best argument for or against the death penalty is bound to reflect one's beliefs about the best argument for a system of punishment generally. Accordingly, it may be most useful to end this discussion with an examination of what may be the best argument currently available in favour of abolition, an argument that best merges empirical generalizations and norms, practical as well as abstract considerations.

The seven steps of this argument have been elaborated elsewhere (Bedau 1999) and are of rather different character. Premiss (1) states a fundamental liberal principle of state intervention at least as old as John Stuart Mill's essay On Liberty (1859/1975). Premiss (2) states a goal any society must pursue if it hopes to endure. Premiss (3) is an empirical proposition generally accepted and warranted not only by common sense but by reflection on the conditions of social order. Premiss (4) is an empirical proposition supported by evidence from the behaviour of death-row prisoners (who rarely attempt suicide and rarely dismiss their lawyers in order to ‘volunteer’ for execution). Premiss (5), also an empirical generalization, is based on experience with abolition of the death penalty in many societies, including several states in the USA. Conclusions (6) and (7) follow accordingly. The argument overall is entirely forward looking and allots no role to retribution or desert in the general justification of punishment (and a fortiori none in justifying the death penalty), although the argument can accommodate these ideas in deciding who ought to be punished (namely, all and only the guilty who lack a credible excuse or justification).

This argument is not invulnerable to criticism. Premiss (5) and thus the conclusion in step (6) will of course be rejected by those who believe in the deterrent superiority of the death penalty when compared with LWOP or other forms of long-term imprisonment. But, this criticism aside, the basic objection to this argument by defenders of the death penalty will not focus on contesting any of the other steps in the argument; they have no reason to quarrel with premisses (1), (2), or (3). Nor do they have reason to quarrel with step (4); defenders of the death penalty must believe this empirical claim, or else their support of the death penalty involves preferring what they believe to be the less severe punishment. As for step (5), some will accept and others will contest this premiss. Conclusions (6) and (7) are unavoidable given the prior steps. Where does this leave the defenders of the death penalty?

The focus of their objections will be on what this argument entirely omits— namely, any reference to the unique (or, less extravagantly, the relatively superior) fit between the penalty of death and the crime of murder, and the feelings of out- rage and indignation provoked by crimes against the person, especially by murder. Thus, the inference to the conclusion in (6) can be blunted by asserting and defending further premisses (FP) such as these:

Opponents of the death penalty probably cannot accept (FPi); and, if they reject this premiss, it does not matter whether they accept or reject (FP2). What they cannot do is accept both these premisses and still oppose the death penalty (unless they were to defend some such implausible view as that murder does not impose on the victim as great a loss or deprivation as the death penalty imposes on the offender). They must then either reject (FP3) or come up with a reason why this true premiss is nonetheless not dispositive, because countervailing considerations prevail. They might reach that conclusion if the following were also true:

Were some such empirical generalization true, one might plausibly argue that it cancels (or at least puts into doubt) the importance of (FP3). If the discussion of this section is correct, then even the best argument against the death penalty is not beyond challenge. Deciding which side of the dispute has the better of the argument will require further reflection on the moral and political norms and empirical generalizations employed in the various arguments for and against abolition, restoration, retention, or revision of the death penalty.