The Ultimate Penalty . . . and a Just One: The Basics of Capital Punishment
by ERNEST VAN DEN HAAG
National Review, June 11, 2001, volume LIII, no. 11
The case of Timothy McVeigh reminds us that the endless
dispute about the death penalty is mainly religious in origin, even if many of the
arguments employed are secular. The religious belief is that only God can legitimately end
a human life; no crime can justify the death penalty for anyone, regardless of how great
and certain his guilt is, or how powerful a deterrent his execution would be. Theologians
disagree on the death penalty-it is warranted by Biblical passages and was traditionally
favored by churches-but it is currently opposed by a majority of religious leaders.
The secular objections to the death penalty hold that its rational purposes, such as
deterrence, should be achieved by alternative means, since we can never be entirely
certain that all those convicted of capital crimes are actually guilty. The possibility-in
the long run, the likelihood-that some convicts are not guilty is currently the most
persuasive objection to capital punishment. Why execute anyone? Why not avoid the risk of
miscarriages of justice by abolishing capital punishment altogether? Simply because there
are no fully satisfactory alternatives. Life imprisonment is not necessarily lifelong;
life imprisonment without parole still allows governors to pardon prisoners. The finality
of death is both the weakness and the strength of capital punishment. We are not ready to
do without it, yet hesitate to use it: There are many convicts on death row, but only a
few are actually executed. Between 1973 and 1995, 5,760 death sentences were imposed; as
of 1995, only 313 had been executed, and only some 400 have been executed since. Gary
Graham, executed in June 2000, spent 19 years on death row exhausting his appeals, which
were reviewed by more than 30 different judges. His case is far from exceptional.
Abolitionists often argue as though no one would die were it not for capital punishment.
Yet we are not spared death in any case; a death sentence may shorten the life span,
but-unlike imprisonment-it does not introduce an avoidable event, but merely hastens an
unavoidable one.
Even if-without executions-society would be fully and permanently protected from murder,
many people would feel that the survival of murderers is morally unjust, that the death
penalty for murder is deserved, that it is a categorical imperative as Immanuel Kant
thought. There is no way of proving or disproving such a moral idea, but there is little
question that it is widely shared.
The issue of deterrence is raised by the abolitionists, who often point out that the
number of homicides does not decrease as the frequency of executions increases; from this
they conclude that executions do not deter crime. But deterrence depends on the
credibility of the threat of execution, and this credibility does not depend on the number
of executions. To be sure, a threat never carried out will become incredible; to deter, it
must be carried out often enough to remain credible. This does not mean it has to be
carried out in all cases; but the threat of execution is currently so minuscule, compared
with the homicide rate, as to be altogether ineffective.
It is often argued that criminals do not calculate, and that threats are therefore
ineffective. Undoubtedly that is the case for some of them, but it is unlikely that all
criminals are so different from the rest of the population that they do not respond to
threats at all. If there are no executions over a long period, the deterrent effect of
capital punishment may well be reduced to zero; but as long as the threat of execution is
not entirely empty, there will be some deterrent effect. How great a deterrent it is will
depend on such factors as the certainty of the punishment and the time that elapses
between death sentences and executions; currently the deterrent effect is undermined by
the uncertainty, infrequency, and delays involved in execution. (Indeed, a calculating
criminal might look at the extreme rarity of the death penalty and thereby be encouraged
in his murderous course.)
The existence of capital punishment is a disincentive, as threats of punishment always
are. But the evidence is insufficient to prove that capital punishment deters murder more
than do other punishments. Even if it did, however, capital punishment would be shown to
be useful, but not morally justified. Deterring the crimes, not yet committed, of others
does not morally justify execution of any convict (except to utilitarians, who think
usefulness is a moral justification). If deserved, capital punishment should be imposed.
If not, it should not be. Deterrence, however useful, cannot morally justify any
punishment.
Some of the most popular objections to capital punishment do not actually deal with the
punishment itself, but with its distribution. The issues that are raised are not
unimportant, but they do not belong in a discussion of the legitimacy of capital
punishment itself. Racial discrimination, for example, would disappear as an issue if the
population were racially homogenous. Analogously, the argument that wealthy defendants can
avail themselves of legal defenses not available to the poor depends on an unequal
distribution of wealth; this argument is relevant to a discussion of social inequality,
but is extraneous to an attempt to determine the rightness of the death penalty.
Although we have made great progress, we cannot ignore the remaining inequalities in the
criminal-justice system. But there is no good reason to confuse such inequalities with an
inherent inequity in the administration of justice. There is nothing in the nature of
capital punishment that demands an unfair administration.
Issues of deterrence are peripheral to the moral argument at stake here, and the race and
wealth issues are more peripheral still. The core of the matter is this: Murderers
volunteer for the risk of capital punishment, and the punishment they volunteered to risk
should be imposed if, in the view of the courts, they are guilty and deserve it.