Capital Punishment Is Not Inherently Wrong
Robert A. Foreman, Professor Emeritus
Department of Philosophy, CSUS
In this paper, I shall argue that the use of the death penalty is not always morally
wrong. This opening statement will lead those who are familiar with or who have done work
in moral philosophy or applied ethics to form a fairly clear expectation about the nature of the
discussion to follow. But let me offer a few clarifying remarks for those of you who may not
be so familiar with these fields of enquiry.
Press coverage of executions, such as that of Tookie Williams, has helped to crystallize
people's attitudes, not only about the specific executions, but about the use of the death
penalty as a practice.
After the executions, we have been reminded, once again, of the
terrible finality of a death, the absoluteness of the end of the protestations and desires. Those
who have not experienced the loss of someone they knew may have been especially strongly
affected by the feeling of loss and horror that can attend any person's death. So feelings, of
shock, perhaps, or revulsion or outrage, may run high in these times. Such feelings will only
be magnified by one's witnessing the spectacle of those prison gate hangers-on who cheer at
the news that the execution has finally occurred--who party into the night as if in celebration
of a long longed for World Series championship.
It is not my purpose to oppose the shock, revulsion or outrage that some people feel
about executions nor to endorse the feelings of relief or even exaltation that others may
experience. Rather, we must recognize that there is a most important difference between
having such feelings of revulsion or gladness, on the one hand, and believing that some act or
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practice is morally wrong, or justified, on the other. An act, or practice, is not immoral unless,
simply, it is of a kind which is, as such, immoral, or else there are morally relevant reasons
that can be brought to bear to support such a conclusion. In the latter case, the belief that an
act is immoral is nothing like a simple feeling or intuition. It is a judgment which requires
critical examination, and ought to be rejected if critical examination shows that the judgment
lacks foundation.
With this background observation, then, let me say that my thesis is that whatever
one's personal feelings about the use of capital punishment, whether of shock and revulsion or
relief or exaltation, there is no tenable case for the view that the use of the death penalty, if
used for the crime of first degree or premeditated murder, is a moral evil.
The thesis that I shall argue has some practical significance which ought to be noted.
Justice Thurgood Marshall argued that the death penalty is inherently unconstitutional because
it is contrary to prevailing moral standards. To show this, he argued that both the utilitarian
and the retributive defenses of the death penalty err and that if the public were fully informed
about these points, they would find the death penalty morally unacceptable. It is precisely this
kind of objection to the death penalty that I wish to address in this paper. So if my case is
correct, then one implication would be that a leading argument for the unconstitutionality of the
death penalty is in error.
However, I shall not address primarily the question of the constitutionality of the death
penalty. I shall not try to decide on the question, for example, whether the death penalty has
been prejudicially employed. This question must be decided on the basis of empirical studies.
But later I will discuss whether, if this is so, this provides sufficient reason to conclude that
the use of the death penalty is or would be morally wrong.
1. Burden of proof.
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Capital punishment is frequently defended on grounds of its utility in protecting society
from the crimes for which it is used. It is thought (1) to prevent repetition of the crimes for
which it is used by those who are convicted and executed and (2) to prevent first time
offenses by deterring some who would not be deterred by a lesser penalty.
Additionally, and perhaps at least as important--more so in the minds of some
defenders of the death penalty, it is held to be a fitting or proper punishment for some crimes,
quite apart from the question of the utility of the punishment. Indeed, the death penalty is
often said to be the only suitably severe punishment for some crimes. Either the principle of
Lex Talionis or the principle of proportionality is cited as a measure of just retribution--the idea
being that a lesser penalty may not be strong enough to provide punishment commensurate
with the wrong intentionally done by the criminal.
Both lines of thought are attacked by opponents of the death penalty. It is argued that
there is insufficient empirical evidence to support the utilitarian defense of the death penalty.
The argument is that statistical studies do not show that there is a correlation between the use
of the death penalty and the rates of crimes for which it is used. This argument, in its most
defensible form, shows only that the available evidence fails to establish that the death penalty
prevents crimes. It does not prove that the death penalty does not prevent crimes. I shall
develop this point more fully below.
Here I will note only that it is very important to
distinguish between two similar sounding but very different claims: (1) statistics do not show
that there is a correlation between use of the death penalty and lower murder rates; and (2)
statistics show that there is no correlation between these two. Studies do not show that there
is a correlation. It does not follow that there is no correlation. The means of measurement
are too crude to support such a conclusion. Both Justice Marshall and Stephen Adam Bedau,
a well known critic of the death penalty, have confused these two different things. And this
confusion has often figured prominently in the public debate on the utility of the death penalty.
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The retributionist support for the death penalty is faulted, on the other hand, by arguing
that Lex Talionis is not consistently applied, and that few would actually think it would be just
to carry it out consistently. If these claims are correct, this shows, at best, that Lex Talionis is
not the accepted standard of just retribution.
But it is argued, further, that no morally
acceptable standard is in fact proposed by defenders of the death penalty, or that no morally
relevant reason is advanced in favor of adopting retribution as a goal of punishment.
Both kinds of attack on the use of the death penalty are weak in that they fail to show
that capital punishment is morally indefensible. But it is widely thought that these lines of
attack are sufficiently strong, nevertheless, because the burden of proof lies on the side of
those who would support capital punishment. The argument is that since the death penalty
entails killing and since killing is to be presumed wrong unless there is at least a strong
morally relevant case favoring it, capital punishment is shown to be morally unjustified simply
by showing that the case favoring it is weak or incomplete. Both lines of attack described
above would be adequate for their purposes if this view of the burden of proof is correct.
2. A problem with this view of the Burden of Proof.
I shall not dispute the view that in general the burden of proof lies on the side of those
who would inflict a known harm on another person. But I think that there is reason to fault a
simple or straightforward application of this idea to the institution of punishment. Punishment
is inflicted for acts which are thought to be harmful and morally wrong. In any case, let us
restrict discussion to its use against only such acts.
A principal aim of punishment for
wrongful acts is to try to prevent such acts by threatening would be wrongdoers with harm.
But if this is our aim, then we must address the question "How much harm may we inflict with
moral justification?"
A purely utilitarian standard might suggest that we can inflict any degree of harm
whatever, as long as the good we accomplish is in fact greater than the harm we do. On
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strictly utilitarian grounds, therefore, we could conceivably justify inflicting the death penalty for
drunk driving. All that would be required would be strong evidence that such a penalty would
actually lead to so great a reduction in the incidence of fatal accidents that the lives saved
would outnumber the lives taken by the use of the death penalty for DWI.
Two comments must be made about this line of thought, however. (1) We could
probably not prove, or be in a position to know with reasonable assurance that the good
accomplished by such a punishment for such a crime would in fact be as great as that
hypothesized here.
(2) Even if we did know this, it might well be thought morally
objectionable to inflict so severe a punishment as death for an act such as drunk driving,
especially in cases where no fatalities resulted from the DWI. This is surely because DWI is
not seen as a case of deliberately and knowingly killing another person, even if it does in fact
result in another's dying. It is for that reason that the death penalty for such an act seems
prima facie harsh and out of proportion in severity to the crime of DWI. A punishment does
not seem prima facie out of proportion in this way if the harm which is knowingly and
intentionally done by the act is commensurate with the harm inflicted by the penalty.
In the case of punishments for harmful acts, where there is no doubt that the general
practice of forbidding and punishing such acts is itself justified, it seems doubtful that we can
ever be certain that the harm that the punishment will prevent is greater, in sum, than the sum
of the harms done to all those who are punished. Thus if we are to use punishment as part
of a utilitarian agenda, we shall have to adopt some other standard than the balance of the
sums of the harms known to be prevented versus the sum of the harms to be inflicted if we
are to be able to set some reasonable and acceptable limit of punishment.
The principle of proportionality presents itself as an appropriate and just one to use
here. It holds that we may not inflict against the wrongdoer, as his punishment, a harm which
is patently greater in severity than that harm which he intentionally does in committing the act
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for which he is to be punished. But if we are justified in practicing punishment in the first
place, then we may invoke the principle of proportionality this way: A punishment is just
(that is, not unjust) if it does not patently exceed, in the severity, the harm it inflicts—i.e. the
kind of deliberately inflicted harm for which it is the punishment.
This means that in the case of punishment, we may be justified in inflicting a harm
against someone without knowing that the sum of the harms we inflict is offset by the sum of
the harms we prevent. But how can this be defended? It is defensible because we are
aiming, in the case of punishment, to give people incentive not to do a wrong against others.
It is a wrong that, we believe, they should avoid doing even without the threat of punishment.
That is, we aim not merely to prevent a social harm, but to prevent a wrongful act, an act we
believe that everyone who commits it has ample reason to know is wrong. Furthermore, we
impose, as a limit, the condition that a proportional punishment is to be used only if those who
commit the crime do know that what they do is as harmful as it is and is a wrong. Indeed, if
someone can be shown not to have done a wrong to another knowingly or deliberately, we will
accordingly limit the harm inflicted as punishment.
So we shall inflict the proportionate
punishment only in those cases where the harm was done deliberately and with full knowledge
that it was wrong to do it, or knowledge, in any event, that the act was of a kind which is
generally considered wrong and has been made illegal with this (the harm to be inflicted) as
its punishment.
Is such a practice morally justified? The question is, on what grounds could it be
thought not to be justified? (1) It is a practice engaged in to try to prevent a wrongful harm
being done by some persons against others. (2) It observes as a limit that the harm done in
punishment shall not exceed the harm knowingly and deliberately done, and done with the
knowledge that it was considered wrong and had been made illegal. In short, the punishment
does to its recipient, no more harm than that person was knowingly and freely willing to do to
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another. Finally, the punishment thus inflicted is done in the reasonable expectation that at
least some crimes of the kind for which the punishment is inflicted may be prevented insofar
as the threat of the punishment may deter the would be offender.
Is this unjust to the criminal? On what grounds could it be held to be unjust? It is
argued that it may not be necessary to effect proportional punishment in order to lower the
rate of the crime in question. That is true. It may not be necessary. But we can reasonably
suppose that some crimes are prevented only in this way. Would not the mere possibility that
they would be prevented warrant the use of the punishment? I think so, in view of the
wrongness of the act in the first place, and of the justice in trying to prevent it.
An answer (objection) to this last remark may be (1) "But we do not know that any
such crimes will be prevented--and so we are harming someone on the mere chance that it
may prevent another harm." Yes. What is the moral error in doing so? If we know that we
do not prevent one single crime by inflicting our punishment, then we know that we do not
have a "deterrence" justification for the use of the punishment. But we most assuredly do not
know this, and we can reasonably think that some crimes may be deterred only by the threat
of proportional punishment.
A second objection may be (2) "To insist on proportional punishment is to inflict
punishment merely as retaliation, a form of revenge, and this surely has no moral
justification."
But this gets the matter all wrong. We set up proportionality as a limit. We
say that we shall not punish for a crime to a degree that exceeds the harm deliberately done
by the kind of crime in question and that it would be wrong and unjust to punish to a greater
degree than this (except perhaps in cases where we know that the sum of the harms in
punishment is exceeded by the sum of the harms prevented by the punishment's being used-in such cases, we might believe that we would be justified in punishing to a degree that
exceeds the limit of proportionality). But the reason we punish is that we hope to prevent at
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least some wrongful acts by threatening a like harm in return. This is not revenge and it is
not simple retaliation.
3. The case for proportionality, as described.
If we do not punish, then we do not do everything that we can that might prevent
wrongdoing. It is conceivable, of course, that we might come to know that the threat of
proportional punishment never deters anyone. It seems to me that we shall never know any
such thing. We certainly do not know this about the use of the death penalty now. But let us
suppose that we do come to know this. Well, in that case, we can then say that proportional
punishment is known to have no utility whatever in preventing wrongdoing. Those who still
favor it would presumably think that proportional punishment is a good in itself. I am not
strongly inclined to think this way. But I do not clearly see that proportionality is not a morally
desirable goal all by itself, either.
Nevertheless, in that case, I do agree that appeal to the principle of proportionality to
support harming someone would be morally suspect unless it could be clearly shown that it is
morally desirable to use it as a goal in itself. In short, at this point I would be prepared to
grant that the burden of proof does lie on the side of the one who wants to inflict a
proportional punishment on "purely retributionist grounds."
But surely I need not try to convinced you that in the world as we know it, the will to
use punishment following the principle of proportional punishment need not at all be thought of
as a "purely retributionist" inclination. For the world as we know it is such that there is, and
(as far as I can foresee) always will be, some reason to think that by threatening proportional
punishment, we may very well deter at least some persons from committing the wrongful acts
for which the punishment is inflicted.
The principle of proportionality is essentially a statement of the limit to what can be
thought to be just punishment in cases where we do not know how effective a proposed
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punishment may be in deterring a wrongful act. A punishment which does not exceed this
limit is therefore not unjust. To insist that a punishment would be wrong unless its use could
be proven to produce consequences which in sum outweighed the harms it inflicted would in
fact create an impossible burden for any form of punishment whatever.
4.
Biased Use of the Death Penalty.
I have not addressed one major argument against the use of the death penalty: the
contention that it is unjust to use it in a way that discriminates against people by race,
ethnicity, gender, or other such grounds. It is contended that statistical studies show that the
death penalty is used disproportionately against certain groups, e.g., poor black males, or
other minorities. I can not assess the correctness of these claims. But I do want to raise
some question concerning whether this represents grounds for holding the use of the death
penalty to be wrong.
If the charges are correct, then surely they do indicate that a moral wrong is
perpetrated. But is this grounds for arguing that the use of the death penalty is wrong? The
simplest direction I could go here would be to argue that this constitutes no reason to hold the
death penalty as such to be wrong. Supreme Court Justice Thurgood Marshall and others
have maintained that the death penalty is inherently wrong, and such a view would not be
supported on such grounds as this one. But I think the question needs to be addressed, too,
whether its use in our society is wrong, if it is granted that in our society the death penalty will
likely be used with some prejudice.
This certainly raises a serious question about the use of the death penalty, but it must
be noted that it raises the same question for the use of any punishment for any crime. It
seems clear to me that prejudicial administration of either punishments or rewards, including
the goods of life and the rights accorded any resident of this country, is a serious wrong which
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we have a moral duty to try to prevent. But I can not clearly see why this should be thought a
reason to think that it is morally wrong to use the death penalty, unless we should also by
extension hold that it is wrong to punish or protect anyone.
Most assuredly, we have the moral duty to see that punishments and protections are
equally administered to all equally deserving residents of the country. But does a special case
exist concerning the death penalty, such that errors here are more heinous than errors
elsewhere, such that while we can still support the continued use of other punishments and
rewards, though knowing that they are sometimes inequitably administered, it would be
immoral for us to continue to use the death penalty with this knowledge. I find no clear case
for this conclusion. Bothersome as it is to think that there may be injustices in the use of the
death penalty, I can find no clear reason to say that it would be immoral to use it while not
immoral to use lesser punishments such as life imprisonment, or even shorter terms.
The case might be different if statistical studies could clearly show that the death
penalty is commonly or frequently used against, say, innocent persons of color. But my
understanding of the statistical arguments is that they are thought by some to show that
whites are less likely than minorities to be given the harshest punishments the law allows for
the crimes of which they are accused. I do not think that any statistical study could show a
correlation between race and wrongful convictions. [Note: to do so, it would have to first
establish that the convictions studies were wrongful.]
This could only be based on
subsequent reversals. If there were a statistically high correlation between reversals and the
race of the persons wrongfully convicted, would that show bias in the original conviction or in
the reversal? But the more serious problem for the idea of such a study is the relative rarity
of reversals, which means that samples would be too small to draw meaningful conclusions.]
The question of prejudicial use, while it does clearly raise a serious moral problem
about the way capital punishment is used, seems as clearly to raise a general moral problem
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about the administration of justice in this country, and no special case which would show that
it would be wrong to use the death penalty, but not equally wrong to use, say, life
imprisonment.
I am aware that some hold that there is a special case against the use of the death
penalty because unlike other penalties, its wrongful use can not be corrected nor compensated
if discovered later. But this seems to me to be based on an overly optimistic belief as to the
likelihood of discoveries of errors in punishment. In any case, it depends on the question of
wrongful convictions, and not on the question of prejudicial use of the death penalty. It is
surely undesirable that a punishment might be inflicted on an innocent person. But I do not
see how one could seriously maintain that the possibility of this kind of error raises an
especially important reason not to use the death penalty, while allowing other penalties, which
must surely entail at least as great a likelihood of error.
I am not being deliberately obtuse, here. One might contend that the death penalty is
especially injurious and, for that reason, it, but not less severe punishments, should not be
used because of the risk of erroneous convictions. I am not certain what lies behind such a
view. I can discover no clear grounds on which to decide that, say, life in prison is not so
bad that it would not be immoral to risk error there, while it would be immoral to risk error in
the use of the death penalty.
temperament.
Perhaps this is just a matter of difference in individual
We are seeking some ground on which we might draw a line between an
immoral risking of erroneous convictions and a not immoral risking of such errors. People who
hold the death penalty to be immoral but who do not hold other punishments, such as long
term imprisonment to be immoral, may have some clear standard by which to make such
decisions. I do not find one. Perhaps they believe that being executed is patently worse than
being imprisoned for life. I do not believe this.
Nevertheless, if there is a promising argument against the use of the death penalty, it
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seems to me that it must most likely come from this direction. If so, then unless one can
develop a criterion for deciding when it is morally OK to risk an erroneous punishment, I think
that it is surely as good a reason against almost any other punishment, as well. For what it
suggests is that we should not use any punishment where there is risk of erroneous
punishment unless we can ascertain that the benefits of using it outweigh the harms which will
befall people wrongly convicted and punished. I can think of no punishment now used for the
crime of murder that would survive a strict imposition of this standard.
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