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.