The death penalty is, as we say, “the ultimate penalty.”   Both its friends and foes alike acknowledge this.

Traditionally, the debate over capital punishment has involved the notions of deterrence and retribution.   

Those proponents of capital punishment who are of a utilitarian bent argue that the ultimate penalty is necessary in order to deter others from committing capital offenses.  Their rivals, on the other hand, contend that the death penalty, at least in practice, has failed to fulfill this function. 

But by accepting the utilitarian premise that actions are right or wrong depending on their consequences, the death penalty’s opponents have walked into a trap.  If the death penalty can be shown to deter, they implicitly concede, then it would be permissible.  Yet while the current administration of capital punishment might make it difficult to substantiate the argument from general deterrence, the argument from specific deterrence encounters no such obstacles.  In other words, the proponent of the death penalty responds, even if it can’t be proven that the death penalty deters prospective offenders, it is certain that it deters the offenders themselves from repeating their offenses.

The utilitarian enemy of the death penalty does indeed have a response waiting in the dock.  Unfortunately for him, though, he can appropriate it only at the expense of abandoning his utilitarianism. 

In the final analysis, he can say, the death penalty is not about deterrence.  As the great philosopher Immanuel Kant famously said, it is never permissible to use people merely as a means to an end.  However, regardless of the circumstances or the issue, this is exactly what a utilitarian sensibility demands. 

This line, though, doesn’t promise to be particularly fruitful for the opponent of the death penalty, for it was Kant’s vehement rejection of utilitarianism that provoked him to support capital punishment.  Retributive justice, Kant asserted, requires that all murderers die. 

Justice is about giving people their just desserts.  In putting murderers to death, Kant argued, we affirm their personhood—their moral standing as “ends,” not “mere means”—by giving them what they deserve.  Even if the death penalty deterred no one, even if with each execution the murder rate increased, justice would still demand the execution of murderers.

There are, of course, other considerations that have been invoked against the death penalty. 

For instance, it may be argued that while ideally Kant is right and murderers do deserve death, in the real world, we should still eliminate capital punishment on the prudential ground that innocents may be mistakenly executed.  Though not without some plausibility, DNA testing and a host of legal safeguards against wrongful conviction conspire to render this argument unconvincing.

It has also been said that the death penalty is “racist” because blacks are executed in disproportionately higher numbers than whites.  Now, this position is ridiculous for a variety of reasons.  At present, we need only consider that, as Ernest van den Haag observed decades ago, the distribution of those being punished (or rewarded) has absolutely no bearing upon the moral worth of the punishment (or reward) itself.

The death penalty is indeed just.  That is to say that Kant is correct: it is just because of its retributive function.

There are, however, two points to Kant’s position that I would like to add.

First, while only those specific individuals should be executed who deserve to be executed, we ought to maintain the death penalty because of the critical social function—the utilitarian function—that it serves.  Whether capital punishment deters prospective offenders from becoming actual offenders is not at issue here. In fact, I am invoking neither the argument from general deterrence nor the argument from specific deterrence.   

Rather, in a society like our own, a society defined by its commitment to the ideal of the rule of law, the ultimate penalty must remain available.  Citizens (as opposed to “subjects”), are constituted by, and related in terms of, the law.  Infractions against the law, then, must be punished—quickly and decisively.

And the most egregious transgressions of the law must be met with the most exacting of penalties.

This brings me to my second point.

Kant’s position—shared by most of its contemporary proponents—that the death penalty should be reserved only for murderers is inadequate.  This reasoning fuels the absurd notion that there should be some physical parity between a crime and its punishment.  Its objectors have certainly read it this way.  If a person who takes a life deserves to have his life taken in return, they reply, then arsonists deserve to have their property burned, torturers deserve to be tortured, rapists deserve to be raped, etc.

Murderers deserve the ultimate penalty, yes, but not because there is some material equivalence between murder and execution.  It is, rather, the moral seriousness, the gravity, of murder that demands the death penalty.  But there are other crimes whose gravity is comparable to that of murder.  To these crimes, death is a fitting response.

For an association like our own, a civil association held together by law, to dispense with the ultimate penalty is for it to take the first step toward suicide.     

Jack Kerwick, Ph.D.