In March, Virginia became the first state in the South to abolish capital punishment. Previously, more people had been executed in Virginia than in almost any other state since the Supreme Court reinstated the death penalty in 1973. (Texas holds the record.)
Many death penalty abolitionists now feel a sense of hope that the writing is on the wall for the barbaric practice everywhere else. Robert Dunham, head of the Death Penalty Information Center, said that there is “a sense of inevitability” that the punishment will disappear. “Maybe not this year, and maybe not next year, but there is a sense that it is going to happen.”
I hope he’s right. But after the recent headline-grabbing spike in the violent crime rate, there’s a chance that this horrific practice might hang on for longer than we’d like to think. Defenders of the death penalty will argue that it’s an effective deterrent, or that even if it isn’t, it’s important that murderers “get what they deserve.”
Every death penalty abolitionist should know how to refute these arguments.
Deterrence and the Lighthouse Argument
All legal punishments involve harming people, whether it means taking away their life or “only” their liberty. You don’t need a good reason not to do that to someone. You need a very good reason to do it.
Traditionally, the two main ways that legal punishments of any kind have been justified are “utilitarian” and “retributivist.” To defend a punishment on utilitarian grounds is to say that it’s justified because it leads to good results like preventing repeat offenses, deterring others, or rehabilitating criminals. Retributivist justifications rely on the idea that criminals deserve to be punished.
The actually existing US prison system does a very bad job of rehabilitating people. In fact, as many critics of mass incarceration have pointed out, in practice it’s more like a system for manufacturing a permanent criminal class. And the death penalty, for obvious reasons, can’t serve the rehabilitative purpose either. So out of the three main utilitarian justifications for punishment, that leaves prevention and deterrence.
It’s true enough that men and women who have been executed can’t commit more crimes, but neither can men and women who have been removed from society. You don’t need the death penalty for prevention (nor do you need the United States’ obscenely unjust carceral system). That leaves deterrence.
At this point, the absence of any significant body of statistical evidence that the death penalty is an effective deterrent is so widely acknowledged that even apologists for capital punishment usually acknowledge the point. Those who don’t desperately cling to a few outlier studies purporting to show such an effect or resort to arguing that it might be a deterrent and that this is a good enough reason to keep the practice around.
Some moral philosophers, for instance, have attempted to justify the death penalty by likening it to a lighthouse: we only know about ships that crash — we don’t know how many shipwrecks a lighthouse prevented.
To see why this is nonsensical, imagine that all the lighthouses on the West Coast were ripped down while all the lighthouses on the East Coast were left standing. Pretty soon, you would indeed have compelling statistical evidence about how effective lighthouses were in preventing shipwrecks. This is the very situation we’re now in as we compare the rates of homicide in death penalty states with those that have already abolished it. And the rates aren’t any higher.
Retribution and The Princess Bride
When the utilitarian arguments for the death penalty fall flat, its defenders frequently resort to good old-fashioned retributivism. Murderers should be executed, as conservative writer David French argued a few years ago in the National Review, “not because it’s a deterrent” but “because, properly carried out, it’s the only punishment that fits the crime.”
That qualification about being “properly carried out” is worth highlighting because, although French doesn’t draw this conclusion, there’s an obvious case for abolishing the death penalty in the United States that doesn’t rely on thinking (as I do) that the death penalty is universally wrong. French concedes that “bone-deep, evil racism” has led to the death penalty being abused “in the past.” But statistics published after French’s piece came out in 2018 show that deep racial disparities continue to plague the institution.
Not only are black people far more likely than white people to be sentenced to death, but convicted murderers of any race are far more likely to be sentenced to death if their victims are white. Combine that with the many cases of innocent people who have been put to death and cleared when it was too late, and we have a powerful reason to believe that the US criminal justice system in particular can’t be trusted with this power. By analogy, even if you believed that it’s fine for some people to keep guns in their houses, if your grandfather was a paranoid racist who has repeatedly shot at the mailman, you certainly shouldn’t let him keep a gun in his house.
But let’s pretend for the sake of argument that, even in a society as distorted by economic inequality and the legacy of racial apartheid as this one, it would be realistic to hope that the death penalty will be “properly carried out” sometime soon. Does it make sense to say that, when it comes to the worst offenses, death is “the only punishment that fits the crime”?
First, what precisely does this mean? Presumably not that murderers should be killed, following the “eye for an eye” principle, because it’s what they’ve done to others. I’m sure French doesn’t believe that rapists should be sentenced to be raped or that anyone who really did gouge out another person’s eye should have their own eye gouged out by agents of the state.
Putting aside “eye for an eye” literalism, some death penalty supporters think there’s a simple principle of proportionality whereby the worst crimes should be met with the worst punishment. This sounds plausible on its face — no one thinks that rapists and shoplifters should be punished equally severely.
The problem is that every system of punishments has to “max out” somewhere. If one convicted murderer carried out a hit for the mafia with a simple shooting and another tortured his victims for days before killing them, whether they both get the death penalty or they both get life in prison, they’ve received the same punishment even though one crime was worse than the other. The debate about abolishing the death penalty isn’t a debate about whether worse crimes should be met with worse punishments. It’s about where the system of punishments should max out.
Think, if you will, about the scene at the end of the 1987 film The Princess Bride where the hero Westley challenges the wicked Prince Humperdinck to a duel. The Prince asks if they’ll be fighting “to the death.” Westley replies that they’ll fight “to the pain.” The Prince replies that he doesn’t know what this means, and Wesley explains.
Westley: To the pain means the first thing you will lose will be your feet below the ankles. Then your hands at the wrists. Next your nose.
Prince Humperdinck: And then my tongue I suppose, I killed you too quickly the last time. A mistake I don’t mean to duplicate tonight.
Westley: I wasn’t finished. The next thing you will lose will be your left eye followed by your right.
Prince Humperdinck: And then my ears, I understand let’s get on with it.
Westley: Wrong! Your ears you keep and I’ll tell you why. So that every shriek of every child at seeing your hideousness will be yours to cherish. Every babe that weeps at your approach, every woman who cries out, “Dear God! What is that thing,” will echo in your perfect ears. That is what to the pain means.
Presumably David French, like everyone else, would object to the legal system sentencing anyone to this sort of elaborate mutilation as a punishment for even the worst crimes. We all agree that there are lines that it would be barbaric to cross when punishing any crime. We disagree about where that line should be drawn.
The Case Against the Death Penalty
So what are the best justifications for getting rid of the death penalty?
One is that the death penalty is binary and final. If someone is sentenced to twenty years in prison and new evidence clears their name ten years later, the rest of their sentence can be negated and they can get the remaining ten years back. The death penalty is all or nothing, and once someone has been electrocuted or injected with poison or shot to death by a firing squad, there’s no going back. Since all human justice systems are fallible, this will always be a reason to end the death penalty.
An even deeper reason is that the state institution should be given the power of life and death over its residents. By analogy, think about taxation. As a democratic socialist, I certainly believe in redistributing resources from the rich to the poor. But to borrow an example from the late philosopher G. A. Cohen, if future scientific advances made it easy to cure blindness by transplanting working eyeballs to the eye sockets of the blind, I’d still be against forcibly redistributing one eyeball from someone with two eyes so that both they and a blind person could see out of one eye. You don’t have an inalienable right to keep every penny in your bank account, but you do have some rights that can’t be violated even to bring about very good consequences.
Depriving a convicted murderer of his liberty might be necessary to keep everyone else safe (though it doesn’t justify placing him in the brutal conditions of the US prison system). Killing a convicted murder in immediate self-defense in a back alley or in some desperate hypothetical where it was impossible to capture him might be similarly justified. But coldly and calculatedly killing him after he’s been captured and cordoned off could no more be justified than carrying out the “to the pain” scenario from The Princess Bride.
It’s telling that so many of the other countries where the death penalty is still practiced are monarchies or dictatorships. A state that asserts a right to take the life of someone who no longer threatens the lives of others is asserting something like ownership over its subjects. That’s an abomination that no democratic society should tolerate.