Abstract
In death penalty debates, advocates on both sides have advanced a staggering number of arguments to defend their positions. Many of those arguments fail to support retaining or abolishing the death penalty, and often this is due to advocates pursuing a line of reasoning where the conclusion, even if correctly established, will not ultimately prove decisive. Many of these issues are also interconnected and shouldn’t be treated separately. The goal of this paper is to provide some clarity about which specific issues really determine whether the institution of capital punishment is morally permissible. The issues can be broadly grouped into three categories: substantive; procedural (comparative); and procedural (noncomparative). Substantive debates regard the inherent moral status of the death penalty, while procedural debates regard how the death penalty is applied in practice, with two types of injustice that can result. Substantive issues have the potential to be the most decisive, for if the death penalty is inherently immoral there’s no need to even raise procedural questions. However, it appears difficult for either side to make a clearly compelling argument on substantive grounds. In regards to the procedural arguments, the concerns of noncomparative justice lead to stronger arguments than the comparative concerns, for the irrevocable nature of the death penalty can play a role in the former but not the later. Overall, abolitionists have a clear advantage in this debate, as they only have to make their case on one of these fronts, while supporters must defend themselves on all three fronts.
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Notes
For reasons that will be covered later on, settling the substantive issue of what punishments are actually consistent with a respect for persons is too large in scope to cover in this paper. One aspect not discussed here is how the recognition of social causes of crime should affect our views on what individuals deserve.
While it might initially appear to be a weakness that the abolitionist has to take on this assumption in procedural debates, it actually represents a strengthen in their position that they can grant this claim and still mount an effective argument against the moral permissibility of the death penalty (or so I will argue).
Immanuel Kant is one who famously supported this ancient principle of punishment: see Kant (1999).
In addition, there are some crimes for which it seems impossible to give an equivalent punishment, like for multiple-murder.
Kant (1999, p. 132).
See Nathanson (2001) for further arguments against lex talionis.
Yost (2010) has an extended discussion of two reasons that might defeat this presumption, one grounded in the right to life and the other in human dignity. Yost argues that neither reason defeats the presumption in favor of executing murderers on Kantian grounds.
This point is raised by Roberts-Cady (2010, pp. 187–191).
As mentioned earlier, procedural issues concern the actual processes by which the death penalty is administered, and the results of those processes. Comparative justice concerns issues of fairness—whether you’re being treated justly depends in part on how others in a similar situation are being treated. Thus, the concern specifically with arbitrariness is that people in similar situations are not being treated similarly (and for reasons that are not justifiable—such as discrimination).
See Nathanson (1985, p. 150) for supporting evidence.
Irrevocability is specifically a procedural concern, since it matters when we are considering people who may have been punished unjustly. It will be argued in the following pages that it can only play a significant role in discussions of non-comparative justice.
See Yost (2011, pp. 332–336) for a discussion, and refutation, of the idea that an executed person can be compensated after death in a manner that would meet the standards for a revocable punishment.
For an extended discussion of this point, see Lenta and Farland (2008, pp. 283–286).
One particularly disturbing case is Ron Mock, discussed by Bright (2005), who was a court-appointed lawyer for capital cases in Texas in the 1980s. He rarely contested cases, challenged witnesses, presented witnesses for his defendant, or even conducted investigations. So many of his clients ended up on death row, that there came to be a section of prisoners known as the ‘Mock Wing’ of death row.
Or at least for the purposes of this paper it’s being treated as an open question.
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Stichter, M. The Structure of Death Penalty Arguments. Res Publica 20, 129–143 (2014). https://doi.org/10.1007/s11158-014-9242-1
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DOI: https://doi.org/10.1007/s11158-014-9242-1