For a discussion of capital punishment, with no thinker is there a better place to begin than Ernest van den Haag. It is with justice that the latter’s seminal analysis of this topic is a staple of textbooks in college ethics courses nationwide: the author addresses the thicket of issues that are at stake in the debate over “the ultimate” penalty.

The Argument from the Mal-distribution of Capital Punishment

Van den Haag is a proponent of capital punishment. Yet he doesn’t just argue for his position; he seeks to meet the objections that are typically raised against it.  And the first such objection to which he speaks is what we may call the argument from the distribution of the death penalty.

The death penalty, opponents contend, should be abolished because of the capricious or arbitrary manner in which it is administered. According to this line of reasoning, that, say, black and poor murderers are put to death more frequently than are white and wealthy murderers, or that one and the same crime may or may not be a capital offense depending on the location in which it is committed, prove that the death penalty is unequally applied and, hence, unjust.

Van den Haag charges the advocates of this view of confusing two fundamentally distinct considerations, what we may summarily identify as the considerations of equality and justice. He remarks: “If capital punishment is immoral in se, no distribution among the guilty could make it moral.  If capital punishment is moral, no distribution would make it immoral.  Improper distribution cannot affect the quality of what is distributed, be it punishments or rewards.”

In other words, whether there is an “equal” share of this or that is morally irrelevant to the goodness or badness, rightness or wrongness—i.e. the “justice”—of the thing in question. Regarding the death penalty, the point is this: while it may be more desirable that, say, everyone who deserves it receives it, those who are deservedly executed suffer no injustice. The only morally relevant question is whether the person in question deserves to be put to death.

Think about it: Suppose that students Jones and Smith are equally deserving of an “A.” That only Jones received this grade surely would go no distance toward establishing that an injustice had been done to him. Jones, after all, got what he deserved.

Similarly, van den Haag reasons, as long as a person deserves to be executed, this is all that counts from the standpoint of justice. It matters not that others who should have been executed failed to get their just desserts.

In short, “equality,” van den Haag concludes, “seems morally less important than justice.” He adds that “justice is independent of distributional inequalities.”

Response

While it seems true enough that the character of a thing is not determined by its distribution, it also seems true enough that incorrigible and severe distributional inequalities could warrant rejection of an activity.

Take, for instance, a campaign finance law that’s designed to prevent the wealthy from exerting a disproportionately large influence in politics. Yet this same law, (ostensibly) designed to rectify one inequality—inequality between the wealthy and non-wealthy donors—gives rise to another inequality, the inequality between incumbents—those who are guilty of “hording” their offices—and challengers.  Assuming for the moment that there should be a limit to what citizens can legally contribute to the coffers of their candidates of choice, prudence, if not justice, may still dictate the abolition of this law.

In like vein, a sufficiently intractable distributional inequality vis-à-vis the death penalty, while failing singularly to establish its injustice, might still, nevertheless, call for its abolition.

 

Argument from Miscarriages of Justice

Opponents of capital punishment claim that it should be abolished because innocents can be and have been executed.  The premise, though, van den Haag replies, does not support the conclusion.

For one, there are all sorts of activities—trucking, lighting, and construction, are examples that he supplies—that result in loss of innocent life, and yet we preserve these activities because we recognize (or at least believe) that their moral and material advantages outweigh their costs. We could reduce the number of people killed in car accidents each year to zero if we abolished cars.  That we have not eliminated automobiles means that we are willing to pay the cost in the loss of innocent lives for the benefits we will reap from driving.

In the case of capital punishment, the risk that innocents will be executed is the cost we are willing to pay for “the moral benefits and the usefulness of doing justice.”

A second consideration that van den Haag invokes is this: If the death penalty is unjust in itself, as opponents of capital punishment usually hold, then whether it ever miscarries is utterly beside the point.

 

Response

Van den Haag’s last remark is unanswerable: if a person thinks that the death penalty is unjust irrespectively of whether the person being executed is guilty or not, then it is immaterial if that person is innocent.  In fact, capital punishment itself would be the miscarriage of justice.

However, as I suggested before, van den Haag seems to imply that all opposition to the death penalty is motivated by a belief in its injustice. This, though, is not necessarily the case: one can desire the abolition of capital punishment while conceding that murderers do indeed deserve death.

To put it another way, what’s morally desirable and what’s legally desirable aren’t necessarily one and the same.

For instance, while one can hold that some kind of punishment is indeed befitting adulterers, and maybe even hold that, ideally, the government should be authorized to administer this punishment, one may nonetheless oppose vehemently actual laws aimed at punishing adulterers.  That is, if there was a law against adultery, I could demand its abolition even while conceding that the punishment is appropriate to the crime.

To paraphrase no less a figure than Thomas Aquinas, a society that set for itself the goal of criminalizing all evils would give rise to evils greater than those it was determined to extirpate.

Van den Haag also analogizes the death penalty with other hazardous activities that we nevertheless permit. Are these, though, genuinely strong analogies? In the context of, say, trucking, people lose their lives, it is true, but these deaths are wholly unintentional. No one would think to say otherwise.  In the context of capital punishment, however, it is nothing more or less than the death of the condemned person that is intended. And it is intended, not in the heat of the moment or in self-defensive, but in the most carefully calculated of ways.

Might not this distinction be of at least some moral relevance? At any rate, it is entitled to at least a bit more attention than what van den Haag pays to it.

Argument from Deterrence

Critics of capital punishment typically assert that there is no proof that it is adeterrent to murder.  Van den Haag acknowledges this inconclusiveness while noting that this works both ways, making it impossible for proponents and opponents of the death penalty to avoid essentially gambling on their respective views: partisans of both sorts will have to make a trade-off in light of this uncertainty.

And what is at stake? According to van den Haag, the choice to support or oppose the death penalty for reasons pertaining to deterrence boils down to the choice to value either the lives of murderers or those of their potential victims.

In van den Haag’s estimation, opponents “appear to value the life of a convicted murderer or, at least, his non-execution, more highly than they value the lives of innocent victims who might be spared by deterring prospective murderers.” Even if there is only the possibility that innocent lives will be spared a murderous death courtesy of the execution of a convicted murderer, the latter (all things being equal) would have been worth it.  “Surely,” van den Haag writes, “the criminal law is meant to protect the lives of potential victims in preference to those of actual murderers.”

In any event, although statistically the evidence for the deterrent effect of capital punishment is inconclusive, van den Haag thinks that, intuitively, the promise of death tends to deter more so than does the promise of life imprisonment.  Upon quoting James Fitzjames Stephen, he asserts that our shared intuition that murder is the most egregious of crimes is at least in part the product of the fact that murder has generally been punished more severely than has any other crime.

Response

The mere possibility that some innocent lives will be spared may not be a morally compelling reason for capital punishment—the act, mind you, of deliberately killing someone who is powerless to fight back.  Some could argue that the potential moral benefits in such a situation simply don’t outweigh the costs.

Costs

The execution of a convict is more expensive than is the penalty of life imprisonment, it is often said. Van den Haag is not convinced by this claim for two reasons.

First, such studies as are often cited to substantiate it are “flawed” for implying “that life prisoners will generate no judicial costs during their imprisonment.”

Secondly, monetary expenses can only be of secondary importance when compared to the moral imperative of meting out justice.

Response

In point of fact, while we’d like to think otherwise, none of us, in our daily lives, ascribe categorical priority to justice. When “doing justice” becomes prohibitively costly, we don’t “do it.” If it was the case that executing convicted murderers were an outrageously expensive exercise, if, in other words, it became infeasible to continue this activity, then it would be imprudent (and maybe even impossible) to do so. Changes of some kind would need to be made.

The point is that van den Haag appears here to be resorting moralistic rhetoric when he implies that if the conflict boils down to a contest between “money” and “justice,” the latter must always prevail.

Relative Suffering

Others contend that capital punishment violates the principle of “lex talionis” which demands that a punishment be proportionate to the crime: the executed murderer, from this perspective, suffers more than his victim.

Van den Haag answers that whether the murderer suffers more than his victim is anyone’s guess. Ultimately, however, this is irrelevant, for the murderer deserves his suffering; his victim most assuredly did not.

Moreover, this argument from the principle of “lex talionis” reflects a fundamental misunderstanding of the character and purpose of this principle. The latter is a principle of retribution, i.e. a social principle, meant to usurp the role that private or personal revenge had historically played.  Retribution has nothing to do with vengeance against an assailant or compensation for a victim.  Rather, its function is to “vindicate the law and the social order undermined by the crime.”

Brutalization

Opponents of the death penalty charge that through its practice, we collectively legitimize murder.

If this is true, van den Haag replies, this would mean that through imprisonment, we legitimize kidnapping, and through fines, we legitimize robbery. Of course, no one would think to make these assertions, for it is widely recognized that material equivalence is not synonymous with moral equivalence.  As van den Haag puts it: “The relevant difference [between murder and execution, kidnapping and imprisonment] is not physical, but social.”

Murder and kidnapping are “unlawful and undeserved,” while executions and imprisonment are “lawful and deserved punishment[s] for…unlawful act[s].”

Response

Executions are legal (in some places), it is true, but whether they should be legal is what’s in question.  Similarly, whether they are deserved is also questionable.

Justice

Punishment, considered as an institutional or societal practice, exists for the sake of deterring crime. But we punish only those individuals who deserve to be punished.

Punishment, then, is, or at least should be, retributive.

When we consider punishment from the standpoint of its retributive character, van den Haag claims, there is “a sense” in which “the infliction of legal punishment on a guilty person cannot unjust.” In committing a crime, the criminal voluntarily assumes the risk of punishment in the event that he is apprehended and convicted of his crime.

There is a sense, then, in which the criminal can be said to have chosen his punishment.

Thus, van den Haag concludes, “the death penalty cannot be unjust to the guilty criminal.”

Response

Van den Haag equivocates on the word “justice.” That a penalty happens to be affixed to a crime does not mean that it ought to be so.  For example, in the antebellum South, slaves who attempted escaping to the North risked suffering harsh penalties in the event that their plans failed.  However, if such laws were immoral, if they never should have been laws to begin with, then, morally speaking, it most certainly was unjust to treat slaves as criminals for trying to secure their own freedom.

Those critics of capital punishment whom van den Haag addresses regard it as just as legal, and just as immoral, as punishments that were once meted out to slaves who tried but failed to secure their liberty.

Excess

To those who object that capital punishment is always excessive, regardless of the crime or crimes to which it is a response, van den Haag replies that since this position can neither be confirmed nor refuted, it is an “article of faith.”

Alternatively, objectors allege that everyone has a “natural right” to life that the death penalty violates.

On this score, Van den Haag, however, agrees with the 18^th century philosophy Jeremy Bentham.  The latter referred to “natural rights” as “nonsense on stilts.”

 

 

Response

If, as van den Haag says, the notion that the death penalty is intrinsically excessive is just an “article of faith” that, as such, can’t be reasoned with, then can the same thing be said for his idea that the death penalty is (at least almost) always just for the crime of murder?

For that matter, doesn’t life generally, and morality specifically, demand an exercise of faith, faith that our thoughts resemble reality, that we can have knowledge, that there really is a difference between virtue and vice, rightness and wrongness, good and evil?

Finally, even if an idea can be said to be the function of faith, why assume that this automatically immunizes it against reason? After all, some—many—of the most brilliant thinkers have been people of faith who have insisted that genuine faith is reasonable faith.

Degradation

Some, like former Supreme Court Justice William Brennan, argue that capital punishment undermines “human dignity” and “the sanctity of life” by treating “‘members of the human race as nonhumans, as objects to be toyed with and discarded [.]”

Van den Haag replies in two ways:

First, such bright minds and fine ethicists as Kant and Hegel have insisted that, far from degrading the person of the executed, the death penalty actually affirms his personhood by honoring his choices, his standing as a rational agent who, in a real sense, chose his punishment.  As a side note, van den Haag remarks that life imprisonment is more degrading of a person’s dignity insofar as the person is forced to endure an existence deprived of all autonomy.

Secondly, he thinks that, in one crucial respect—and the only respect that really counts—the state of the executed criminal is indeed degraded.  Yet the degradation is self-inflicted.  The execution teaches the murderer “that his fellow men have found him unworthy of living; that because he has murdered, he is being expelled from the community of the living.”

The execution, that is, doesn’t cause the degradation of the murderer.  It is the effect of the degradation that he inflicted upon himself.