Abstract
One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life. Notably, this right-to-life argument emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm. Can capital punishment be necessary in this sense—and thus justified defensive killing? If so, the right-to-life argument would have to admit certain exceptions where executions are justified. Drawing on work by Hugo Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world. A state’s obligations to its prisoners include the obligation to use nonlethal incapacitation (ONI), which applies as long as prisoners pose no imminent threat. ONI precludes executions for reasons of future dangerousness. By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground.
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Notes
Some may suggest gladiator contests, where the condemned could defend themselves, as a counterexample. Being sentenced to such combat was not a true death sentence, though. There were distinctions in ancient Rome between gladii poena (certain death by sword), summum supplicium (certain death by more cruel methods like being thrown to the beasts), and ludi damnatio (condemnation to gladiatorial games). The last penalty forced individuals into combat where death was possible but not assured (see Bauman 1996: 14, 122). Furthermore, my description of capital punishment remains apt for present practices since gladiator combat is rightly seen as morally repugnant and not a realistic sentencing option today.
Bedau does not explicitly say that executing murderers is the only way to revive their victims, but context implies it. He writes: “taking life deliberately is not justified so long as there is any feasible alternative” (Bedau 1993: 179).
Before Bedau, Justice Richard Maughan of the Utah Supreme Court expressed a similar idea: “Were there some way to restore the bereaved and wounded survivors, and the victims, to what was once theirs; there could then be justification for the capital sanction. Sadly, such is not available to us” (State v. Pierre 1977: 1359). This remark is mentioned by Barry (2017: 540).
E.g., Thomas Creech who killed a fellow inmate after receiving life sentences for murder in Idaho (Boone 2020).
E.g., Clarence Ray Allen who while serving a life sentence for murder in California conspired with a recently released inmate to murder witnesses from his previous case (Egelko and Finz 2006).
E.g., Jeffrey Landrigan who escaped from an Oklahoma prison where he was serving a sentence for murder and went on to commit another murder in Arizona (Schwartz 2010).
These critics include those who grant retribution as a valid rationale for punishment but still reject it as a justification for the death penalty (see Brooks 2004).
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I am grateful for helpful feedback on this article from Désirée Lim, Kevin Barry, and Erin Hanses.
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Jones, B. Death Penalty Abolition, the Right to Life, and Necessity. Hum Rights Rev 24, 77–95 (2023). https://doi.org/10.1007/s12142-022-00677-x
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DOI: https://doi.org/10.1007/s12142-022-00677-x