(Copyright 1986 Harvard Law Review Association)
THE ULTIMATE PUNISHMENT: A DEFENSE
Ernest van den Haag
John M. Olin Professor of Jurisprudence and Public Policy,
In an average year about 20,000 homicides occur in the United States. Fewer
than 300 convicted murderers are sentenced to death. But because no more than
thirty murderers have been executed in any recent year, most convicts sentenced
to death are likely to die of old age (1). Nonetheless, the death penalty
looms large in discussions: it raises important moral questions independent of
the number of executions (2).
The death penalty is our harshest punishment (3). It is irrevocable: it ends
the existence of those punished, instead of temporarily imprisoning them.
Further, although not intended to cause physical pain, execution is the only
corporal punishment still applied to adults (4). These singular
characteristics contribute to the perennial, impassioned controversy about
Consideration of the justice, morality, or usefulness, of capital
punishment is often conflated with objections to its alleged discriminatory or
capricious distribution among the guilty. Wrongly so. If capital punishment
is immoral in se, no distribution cannot affect the quality of what is
distributed, be it punishments or rewards. Discriminatory or capricious
distribution thus could not justify abolition of the death penalty. Further,
maldistribution inheres no more in capital punishment than in any other
Maldistribution between the guilty and the innocent is, by definition, unjust.
But the injustice does not lie in the nature of the punishment. Because of the
finality of the death penalty, the most grievous maldistribution occurs when it
is imposed upon the innocent. However, the frequent allegations of
discrimination and capriciousness refer to maldistribution among the guilty and
not to the punishment of the innocent (5).
Maldistribution of any punishment among those who deserves it is irrelevant to
its justice or morality. Even if poor or black convicts guilty of capital
offenses suffer capital punishment, and other convicts equally guilty of the
same crimes do not, a more equal distribution, however desirable, would merely
be more equal. It would not be more just to the convicts under sentence of
Punishments are imposed on person, not on racial or economic groups. Guilt is
personal. The only relevant question is: does the person to be executed
deserve the punishment? Whether or not others who deserved the same
punishment, whatever their economic or racial group, have avoided execution is
irrelevant. If they have, the guilt if the executed convicts would not be
diminished, nor would their punishment be less deserved. To put the issue
starkly, if the death penalty were imposed on guilty blacks, but not on guilty
whites, or, if it were imposed by a lottery among the guilty, this irrationally
discriminatory or capricious distribution would neither make the penalty
unjust, nor cause anyone to be unjustly punished, despite the undue impunity
bestowed on others (6).
Equality, in short, seems morally less important than justice. And justice is
independent of distributional inequalities. The ideal of equal justice demands
that justice be equally distributed, not that it be replace by equality.
Justice requires that as many of the guilty as possible be punished, regardless
of whether others have avoided punishment. To let these others escape the
deserved punishment does not do justice to them, or to society. But it is not
unjust to those who could not escape.
These moral considerations are not meant to deny that irrational
discrimination, or capriciousness, would be inconsistent with constitutional
requirements. But I am satisfied that the Supreme Court has in fact provided
for adherence to the constitutional requirement of equality as much as is
possible. Some inequality is indeed unavoidable as a practical matter in any
system (7). But, ultra posse nemo obligatur. (Nobody is bound beyond
Recent data reveal little direct racial discrimination in the sentencing of
those arrested and convicted of murder. (9) The abrogation of the death penalty
for rape has eliminated a major source of racial discrimination. Concededly,
some discrimination based on the race of murder victims may exist; yet, this
discrimination affects criminal murder victimizers in an unexpected way.
Murderers of whites are thought more likely to be executed than murderers of
blacks. Black victims, then, are less fully vindicated than white ones.
However, because most black murderers kill blacks, black murderers are spared
the death penalty more often than are white murderers. They fare better than
most white murderers (10). The motivation behind unequal distribution of the
death penalty may well have been to discriminate against blacks, but the result
has favored them. Maldistribution is thus a straw man for empirical as well as
II. MISCARRIAGES OF JUSTICE
In a recent survey Professors Hugo Adam Bedau and Michael Radelet found
that 7000 persons were executed in the United States between 1900 and 1985 and
that 35 were innocent of capital crimes (11). Among the innocents they list
Sacco and Vanzetti as well as Ethel and Julius Rosenberg. Although their data
may be questionable, I do not doubt that, over a long enough period,
miscarriages of justice will occur even in capital cases.
Despite precautions, nearly all human activities, such as trucking, lighting,
or construction, cost the lives of some innocent bystanders. We do not give up
these activities, because the advantages, moral or material, outweigh the
unintended losses (12). Analogously, for those who think the death penalty
just, miscarriages of justice are offset by the moral benefits and the
usefulness of doing justice. For those who think death penalty unjust even
when it does not miscarry, miscarriages can hardly be decisive.
Despite much recent work, there has been no conclusive statistical
demonstration that the death penalty is a better deterrent than are alternative
punishments (13). However, deterrence is less than decisive for either side.
Most abolitionists acknowledge that they would continue to favor abolition even
if the death penalty were shown to deter more murders than alternatives could
deter (14). Abolitionists appear to value the life of a convicted murderer or,
at least, his non-execution, more highly than they value the lives of the
innocent victims who might be spared by deterring prospective murderers.
Deterrence is not altogether decisive for me either. I would favor retention
of the death penalty as retribution even if it were shown that the threat of
execution could not deter prospective murderers not already deterred by the
threat of imprisonment (15). Still, I believe the death penalty, because of
its finality, is more feared than imprisonment, and deters some prospective
murderers not deterred by the thought of imprisonment. Sparing the lives of
even a few prospective victims by deterring their murderers is more important
than preserving the lives of convicted murderers because o the possibility, or
even the probability, tht executing them would not deter others. Whereas the
live of the victims who might be saved are valuable, that of the murderer has
only negative value, because of his crime. Surely the criminal law is meant to
protect the lives of potential victims in preference to those of actual
Murder rates are determined by many factors; neither the severity nor the
probability of the threatened sanction is always decisive. However, for the
long run, I share the view of Sir James Fitzjames Stephen: "Some men,
probably, abstain from murder because they fear that if they committed murder
they would be hanged. Hundreds of thousands abstain from it because they
regard it with horror. One great reason why they regard it with horror is that
murderers are hanged (16)" Penal sanctions are useful in the long run for the
formation of the internal restraints so necessary to control crime. The
severity and finality of the death penalty is appropriate to the seriousness
and the finality of murder (17).
IV. INCIDENTAL ISSUES: COST, RELATIVE
Many nondecisive issues are associated with capital punishment. Some
believe that the monetary cost of appealing a capital sentence is excessive
(18). Yet most comparisons of the cost of life imprisonment with the cost of
life imprisonment with the cost of execution, apart from their dubious
relevance, are flawed at least by the implied assumption that life prisoners
will generate no judicial costs during their imprisonment. At any rate, the
actual monetary costs are trumped by the importance of doing justice.
Others insist that a person sentenced to death suffers more than his victim
suffered, and that this (excess) suffering is undue according to the lex
talionis (rule of retaliation) (19). We cannot know whether the murderer
on death row suffers more than his victim suffered; however, unlike the
murderer, the victim deserved none of the suffering inflicted. Further, the
limitations of the lex talionis were meant to restrain private
vengeance, not the social retribution that has taken its place. Punishment--
regardless of the motivation-- is not intended to revenge, offset, or
compensate for the victim's suffering, or to measured by it. Punishment is to
vindicate the law and the social order undermined by the crime. This is why a
kidnapper's penal confinement is not limited to the period for which he
imprisoned his victim; nor is a burglar's confinement meant merely to offset
the suffering or the harm he caused his victim; nor is it meant only to offset
the advantage he gained (20).
Another argument heard at least since Beccaria (21) is that, by killing a
murderer, we encourage, endorse, or legitimize unlawful killing Yet, although
all punishments are meant to be unpleasant, it is seldom argued that they
legitimize the unlawful imposition of identical unpleasantness. Imprisonment
is not thought to legitimize kidnapping; neither are fines thought to
legitimize robbery. The difference between murder and execution, or between
kidnapping and imprisonment, is that the first is unlawful and undeserved, the
second a lawful and deserved punishment for an unlawful act. The physical
similarities of the punishment to the crime are irrelevant. The relevant
difference is not physical, but social (22).
V. JUSTICE, EXCESS, DEGRADATION
We threaten punishments in order to deter crime. We impose them not
only to make the threats credible but also as retribution (justice) for the
crimes that were not deterred. Threats and punishments are necessary to deter
and deterrence is a sufficient practical justification for them. Retribution
is an independent moral justification (23). Although penalties can be unwise,
repulsive, or inappropriate, and those punished can be pitiable, in a sense the
infliction of legal punishment on a guilty person cannot be unjust. By
committing the crime, the criminal volunteered to assume the risk of receiving
a legal punishment that he could have avoided by not committing the crime. The
punishment he suffers is the punishment he voluntarily risked suffering and,
therefore, it is no more unjust to him than any other event for which one
knowingly volunteer to assume the risk. Thus, the death penalty cannot be
unjust to the guilty criminal (24).
There remain, however, two moral objections. The penalty may be regarded as
always excessive as retribution and always morally degrading. To regard the
death penalty as always excessive, one must believe that no crime-- no matter
how heinous-- could possibly justify capital punishment. Such a belief can be
neither corroborated nor refuted; it is an article of faith.
Alternatively, or concurrently, one may believe that everybody, the murderer
no less than the victim, has an imprescriptible (natural?) right to life. The
law therefore should not deprive anyone of life. I share Jeremy Bentham's view
that any such "natural and imprescriptible rights" are "nonsense upon stilts."
Justice Brennan has insisted that the death penalty is "uncivilized,"
"inhuman," inconsistent with "human dignity" and with "the sanctity of life,"
(26) that it "treats members of the human race as nonhumans, as objects to be
toyed with and discarded," (27) that it is "uniquely degrading to human
dignity"(28) and "by its very nature, [involves] a denial of the executed
person's humanity." (29) Justice Brennan does not say why he thinks execution
"uncivilized." Hitherto most civilizations have had the death penalty,
although it has been discarded in Western Europe, where it is currently
unfashionable probably because of its abuse by totalitarian regimes.
By "degrading," Justice Brennan seems to mean that execution degrades the
executed convicts. Yet philosophers, such as Immanuel Kant and G.F.W. Hegel,
have insisted that, when deserved, execution, far from degrading the executed
convict, affirms his humanity by affirming his rationality and his
responsibility for his actions. They thought that execution, when deserved, is
required for the sake of the convict's dignity. (Does not life imprisonment
violate human dignity more than execution, by keeping alive a prisoner deprived
of all autonomy?)(30).
Common sense indicates that it cannot be death-- our common fate-- that is
inhuman. Therefore, Justice Brennan must mean that death degrades when it
comes not as a natural or accidental event, but as a deliberate social
imposition. The murderer learns through his punishment 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. This degradation is self-inflicted.
By murdering, the murderer has so dehumanized himself that he cannot remain
among the living. The social recognition of his self-degradation is the
punitive essence of execution. To believe, as Justice Brennan appears to, that
the degradation is inflicted by the execution reverses the direction of
Execution of those who have committed heinous murders may deter only one
murder per year. If it does, it seems quite warranted. Its is also the only
fitting retribution for murder I can think of.
The authors of these Commentaries have not seen drafts of each other's pieces.
The commentary format is not meant to be a debate, but rather is meant to
present different perspectives on current issues of public importance.
1 Death row as a semipermanent residence is cruel, because convicts are denied
the normal amenities of prison life. Thus, unless death row residents are
integrated into the prison population, the continuing accumulation of convicts
on death row should lead us to accelerate either the rate of executions or the
rate of commutations. I find little objection to integration.
2 The debate about the insanity defense is important for analogous reasons.
3 Some writers, for example, Cesare Bonesana, Marchese di Beccaria, have
thought that life imprisonment is more severe. See C. Beccaria, Dei
Delitti e Delle Pene 62-70 (1764). More recently, Jacques Barzun, has
expressed this view. See Barzun, In Favor of Capital
Punishment, in The Death Penalty in America 154 (H. Bedau ed. 1964).
However, the overwhelming majority of both abolitionists and of convicts under
death sentence prefer life imprisonment to execution.
4 For a discussion of the sources of opposition to corporal punishment, see E.
van den Haag, Punishing Criminals 196-206 (1975).
5 See infra pp. 1664-65.
6 Justice Douglas, concurring in Furman v. Georgia, 408 U.S. 238 (1972), wrote
that "a law which ... reaches that [discriminatory] result in practice has no
more sanctity that a law which in terms provides the same." Id. at 256
(Douglas, J., concurring). Indeed, a law legislating this result "in terms"
would be inconsistent with the "equal protection of the laws" provided by
result could be changed by changing the distributional practice. Thus, Justice
Douglas notwithstanding, a discriminatory result does not make the death
penalty unconstitutional, unless the penalty ineluctable must produce that
result to an unconstitutional degree.
7 The equal of equality, unlike the ideal retributive justice (which can be
approximated separately in each instance), is clearly unattainable unless all
guilty persons are apprehended, and thereafter tried, convicted and sentenced
by the same court, at the same time. Unequal justice is the best we can do; it
is still better than the injustice, equal or unequal, which occurs if, for the
sake of equality, we deliberately allow some who could be punished to escape.
8 Equality, even without justice, may remain a strong psychological, and
therefore political, demand. Yet Charles Black, by proving the
inevitability of "caprice" (inequality), undermines his own
constitutional argument, because it seems unlikely that the Constitution's
fifth and fourteenth amendments were meant to authorize the death penalty only
under unattainable conditions. See C. Black, Capital Punishment: The
Inevitability of Caprice and Mistake (1974).
9 See Bureau of Justice Statistics, U.S. Dep't of Justice, Bulletin
No. NCJ-98,399, Capital Punishment, 1984, at 9 (1985); Johnson The
Executioner's Bias Nat'l Rev., Nov. 15, 1985, at 44.
10 It barely need be said the any discrimination against (for example,
black murderers of whites) must also be discrimination for (for
example, black murderers of black).
11 Bedau & Radelet, Miscarriages of Justice in Potentially Capital
Cases (1st draft, Oct. 1985) (on file at Harvard Law School Library).
12 An excessive number of trucking accidents or of miscarriages of justice
could offset the benefits gained by trucking or the practice of doing justice.
We are, however, far from this situation.
13 For a sample of conflicting views on the subject, see Baldus & Cole,
A Comparison of the Work of Thorsten Sellin and Isaac Ehrlich on the
Deterrent Effect of Capital Punishment, 85 Yale L.J. 170 (1975); Bowers
& Pierce, Deterrence or Brutalization: What Is the Effect of
Executions? 26 Crime & Delinq. 453 (1980); Bowers & Pierce The
Illusion of Deterrence in Isaac Ehrlich's Research on Capital Punishment ,
85 Yale L.J. 187 (1975); Ehrlich, Fear of Deterrence: A Critical Evaluation
of the "Report of the Panel on Research on Deterrent and Incapacitate
Effects", 6 J Legal stud. 293 (1977); Ehrlich, The Deterrent Effect of
Capital Punishment: A Question of Life and Death, 65 Am. Econ. Rev. 397,
415-16 (1975); Ehrlich & Gibbons, On the Measurement of the Deterrent
Effect of Capital Punishment and the Theory of Deterrence, 6 J. Legal
Stud. 35 (1977).
14 For most abolitionists, the discrimination argument, see supra pp.
1662-64, is similarly nondecisive: they would favor abolition even if there
could be no racial discrimination.
15 If executions were shown to increase the murder rate in the long run, I
would favor abolition. Sparing the innocent victims who would be spared, ex
hypothesi, by the nonexecution of murderess would be more important to me
that the execution, however just, of murderers. But although there is a lively
discussion of the subject, not serious evidence exists to support the
hypothesis that executions produce a higher murder rate. Cf. Phllips,
the deterrent Effect of Capital Punishment: New Evidence on an Old
Controversy, 86 Am. J. Soc. 139 (1980) (arguing that murder rates drop
immediately after executions of criminals).
16 H. Gross, A Theory of Criminal Justice 489 (1979) (attributing this passage
to Sir James Fitzjames Stephen).
17 Weems v. United States, 217 U.S. 349 (1910) suggest that penalties be
proportionate to the seriousness of the crime - a common theme in criminal law.
Murder, therefore, demands more that life imprisonment. In modern times, our
sensibility requires that the range of punishments be narrower than the range
of crime - but not so narrow as to exclude the death penalty.
18 Cf. Kaplan Administering Capital Punishment, 36 U. Fla. L.
Rev. 177,178, 190-91 (1984) (noting the high cost of appealing a capital
19 For an example of this view, See A. Camus, Reflections on the Guillotine
24-30 (1959). On the limitations allegedly imposed by the lex talionis,
see Reiman Justice, Civilization and the Death Penalty: Answering van den
Haag, 14 Phil. & Pub. Aff. 115, 119-34 (1985).
20 Thus restitution (a civil liability) cannot satisfy the punitive purpose of
penal sanctions, whether the purpose be retributive or deterrent.
21 See supra note 3.
22 Some abolitionist challenge: if the death penalty is just and severs as a
deterrent, why not televise executions? The answer is simple. The death even
of a murderer, however will-deserved, should not serve as public entertainment.
It so served in earlier centuries. But in this respect our sensibility has
changed for the better, I believe. Further, television unavoidable would
trivialize executions, wedged in, as they would be, between game shows,
situation comedies and the like. Finally, because televised executions would
focus on the physical aspects of the punishment, rather than the nature of the
crime and the suffering of the victim, a televised execution would be present
the murdered as the victim of the state. Far from communicating the moral
significance of the execution, television would shift that focus to the
pitiable fear of the murderer. We no longer place in cases those sentenced to
imprisonment to expose them to public view. Why should we so expose those
sentenced to execution?
23 See van den Haag, Punishment as a Device for Controlling the
Crime Rate, 33 Rutgers L, Rev. 706, 719 (1981) (explaining why the desire
for retribution, although independent, would have to be satisfied even if
deterrence were the only purpose of punishment.)
24 An explicit threat of punitive action is necessary to the justification of
any legal punishment : nulla poena sine lege (no punishment without
[preexisting] law). To be sufficiently justified, the threat must in turn have
a rational and legitimate purpose. "Your money or your life" does not qualify;
nor does the threat of an unjust law; nor, finally, does a threat that is
altogether disproportionate to the importance of its purpose. In short,
preannouncement legitimizes the threatened punishment only if the threat is
warranted. But this leaves a very wide range of justified threats.
Furthermore, the punished person is aware of the penalty for his actions and
thus volunteers to take the risk even of an unjust punishment. His victim,
however, actions and thus volunteer to risk anything. The questions whether
any self-inflicted injury - such as legal punishment - ever can be unjust to a
person who knowingly risked it is a matter that requires more analysis than
25 2 The Works of Jeremy Bentham 105 (J. Bowring ed. 1973). However, I would
be more polite about prescriptible natural rights, which Bentham described as
"simple nonsense." Id. (It does not matter whether natural rights are
called "moral" or "human" rights as they currently are by most writers.)
26 The Death Penalty in America 256-63 (H. Bedau ed., 3d ed. 1982) (quoting
Furman v. Georgia, 408 U.S. 238, 286, 305 (1972) (Brennan, J., concurring).
27 Id. at 272-73; see also Gregg v. Georgia, 428 U.S. 153 230
(1976) (1976) (Brennan, J., dissenting).
28 Furman v. Georgia, 408 U.S. 238, 291 (1972) (Brennan, J., concurring).
29 Id. at 290.
30 See Barzun, supra note 3, passim.
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