Homework Edit

Please see the professors’ comments highlighted in yellow. Quote from only the provided readings. Need it to return tomorrow afternoon. 5-6 pages.
Punishment and Death Penalty
Since colonial times, more than 14 thousand people have been executed legally. There have been numerous public outrages and legal challenges leading to a decrease in the number of capital punishments. The number was reduced in 1930 (only 150 people were being executed annually). By 1967, the numbers became fewer. But still, there have been the executions of 52 convicts in 2009, 20 in 2016, 23 in 2017, and 25 in 2018 (Girelli, 2019). The death of a convict might seem harsh to some. There seems to be no credible evidence proving the theory that the death penalty prevents the occurrence of crimes more effectively. So, is this punishment constructive? Is state run execution for certain convicted criminals morally justifiable?
Retentionists. Retribution, Deterrence, and prevention
It might make more sense to try to cover the retentionist arguments first, making sure to cover retribution, deterrence and prevention separately (since they are all different arguments)
In a nutshell, retentionists maintain that capital punishment meets the idea of justice through retribution. Retribution is the idea that the offender is held responsible for their wrongdoing and receives punishment equivalent to the severity of the crime committed. In the case of murder, the only morally reasonable punishment would be the death penalty, in the theory of “a life for a life”. Retentionist argue that only capital punishment can provide the sort of justice required, because those who have lost loved ones in terrible crimes have the right to have those offenders held accountable. Earnest Van Den Haag favored in retribution. He states that “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. you need to explain the logic of retribution—tie in van den Haag’s line of argument here and why anything short of death for certain crimes flouts justice)
Retributivists Earnest Van Den Haag argues that Capital Punishment can save lives. According to him “the sanction of capital punishment is needed to deter crime.” If people are afraid of the death penalty, they might refrain from committing heinous crime.
To effectively prevent crime, it is necessary to have a high rate of executions and a justice system that works fairly, quickly, and consistently.
Kant supports the idea of capital punishment. He believed in retributivism in regard to capital punishment. He argued that social consequences are entirely irrelevant. The basis of the link between the death penalty and crime is “the Law of Retribution.” It does have a relation to “the principle of equality.” He believed that the only justifiable punishment for murder would be the life of the offender.
Abolitionist are opposed to the notion of death capital punishment and argue that is unjustifiable and inhumane. They argue that it violates human’s rights by denying ones right to life. Due to scientific studies, there is no evidence that the death penalty serves as a deterrence from future crime being committed or being more effective than rehabilitation. They advocate for rehabilitation oppose to retribution. (delve into rehabilitation and why some see it as a better approach, along with some powerful real life examples of such rehabilitation—but also possible problems with it)
Van Den Haag argues that the “abolition of the death penalty would promise prospective murders that we will never do to them what they will do to their victims. Such a promise seems unwise as well as immoral.”
According to Bedau, the analogy between self-defense and the death penalty is problematic. He argues that self-defense(explain why). And he argues for the abolition of capital punishment (dig further into Bedau’s arguments against capital punishment) (Bedau, n.d., pp. 378-382).
In the views of utilitarianism, death as the punishment is justified if the extent of the punishment for murder is best promoted for the pleasure, happiness, and health of the society. As the approach is consequentialist. It is recognized as the punishment for the consequences of both societies, and the offender, which holds that the total good that comes from this punishment exceeds the total evil. They would argue that that capital punishment …. (okay but you need to address whether a utilitarian would judge capital punishment in 2022 as leading to the greatest amount of happiness for the greatest number—presumably only if it saves more lives, acts as a good deterrent, etc.) On the other hand, neo-Aristotelian virtue ethics (with the basis of Aristotle’s ethical theory) argues against capital punishment. Although, there is a presence of the punishment in the justice treatment within his lectures, he believes that it should not be there, while, as mentioned above, Mill holds that it’s morally permissible.
Conclusion and Discussion
From my point of view, the death penalty is unjustifiable. It is inhumane, ineffective, and irrevocable. (explain further why you think this) But sometimes, the punishment does fit the crime. (give a concrete example) In my opinion I think thereis far more suffering in spending life in prison as opposed to being put out of your misery by lethal injection. (but if this is the case, then why does almost everyone on death row go through the appeals process?) Often times the offender facing the death penalty states they would prefer to die rather than to live. (really? If so then we would not see so many using the appeals process—you need to come up with some sort of evidence for the claim you make) The cases presented in the “Capital punishment can save lives” show that some criminals do not deserve to live (Van Den Haag, 1968). It is the ultimate level of punishment when a jury or judge grants death by the electric chair or lethal injection. The death penalty is just the reinstatement of the law for those who commit malicious murder and rape. The death penalty must be reinstated for murder with intent to kill and for all attacks. (for all attacks???) They no longer have the right to live, and justice (what justice)is too soft and inefficient to punish them. (Supermax prisons are a rough place to be housed in– check out articles about them)But even if the death penalty fits better into an authoritarian regime , at the same time capital punishments offers only a purely external control. The population only has an external motivation to not kill through the threat of execution. This leads to less efficiency (cognitively, affectively, mentally behaves, and on performance in general) than self-determined, more internal motivations, and nourished by three innate psychological needs: competence, belonging and autonomy. (cite where you are taking this from)The death penalty has a restricted influence on the potential criminals thatjudge of the risks of being arrested and sentenced to death. (explain further) Some argue against the inhumane act, while others support that the heinous convicts deserve the needle. However, the ethical issues will remain. In my view, the decision to take a life in exchange for another does not serve justice..
It is important to delve into why some think that capital punishment is inhumane (i.e sometimes lethal injections have been botched -see 2014 in particular on this score—-and some think it violates the 8th amendment—dig into this, along with new evidence that lethal injections are not painless but likely quite painful). Regarding prevention, dig into whether most killers kill again either within prison or after release/escape (along with how Bedau offers a rebuttal to the retentionists on this score—and look up Supermax prisons—so far no prisoner has ever escaped). It is important to explain why some see capital punishment as a deterrent (along with why it is so contentious—i.e. since capital punishment is not served either swiftly or certainly, it is not an effective deterrent; most murders are not even solved in the first place etc.) Regarding retribution, why do we not apply it to other types of crimes (i.e we don’t burn arsonists etc.) Your own position reads unclearly. You say that you are opposed but most of what you write in the final section seems to support it rather than criticize it. So make your position more clearly (if you are opposed to it as inhumane, explain whyyou think it is inhumane etc.)

Reading 2.3
“Capital Punishment Saves Lives” by Ernest van den Haag
Page 1
Capital Punishment Saves Innocent Lives
Excerpted from “Chapter 5: Justice, Deterrence and the Death Penalty,” by Ernest van den Haag, Ernest van den Haag was a
John M. Olin Professor of jurisprudence and public policy at Fordham University in New York City. He died in March 2002.

The sanction of capital punishment is needed to deter
murder. Life sentences have less of a deterrent effect on
murder than capital punishment because incarcerated
murderers can escape, be released on furlough, or kill
other prisoners or prison staff. Furthermore, arguments
that capital punishment is counterproductive in the fight
against crime are flawed. For instance, executions do not
decrease the public’s sensitivity to the immorality of
murder and result in the increase of homicide or violent
crime. Also, capital punishment is advantageous in 10
murder prosecutions—it can be used to persuade
accomplices to testify against murderers or elicit guilty
pleas from murderers in exchange for a life sentence.
Because it effectively saves the lives of innocent people,
capital punishment must be enforced.
Suum cuique tribue (to give to everyone what he
deserves) is to do justice. What is deserved? In penal
justice this depends on the gravity of the crime and the
culpability of the criminal, both hard to determine. There 20
is no objective measure of the cardinal gravity of a crime;
or of the cardinal severity of a punishment; nor, finally,
do we have an objective indication of what punishment is
deserved per se by each degree of gravity.
However, ordinal ranking is possible. Crimes of
a similar kind can be arrayed according to comparative
gravity; and punishments according to comparative
severity. Although ultimately it depends on subjective
evaluations too, ordinal ranking is helpful, e.g., by telling
us that murder with torture, or with premeditation, (or 30
multiple murder), is more grove (and deserves more
punishment) than murder without—even if we cannot
determine how much more. We can conjecture also that
manslaughter deserves more punishment than assault, or
theft, and menacing less. But we cannot determine how
much more or less, nor whether execution is more
severe than life in prison (most convicts think so).
Lex talionis
Physical punishments, such as mutilations, are
more readily coordinated with the crimes they punish.
Thus, the ancient lex talionis1 required fewer decisions
on the comparative gravity of harms and punishments.
But the lex talionis is irrelevant to criminal justice. It
treated crimes as torts, which entitled victims to
retaliation or compensation according to the harm
inflicted, whereas we consider crimes mainly as harms to
society, which entitle it (and only it) to retribution.
Retribution, as deserved by the crime, is the paramount 50
moral purpose of punishment. It is an end in itself, a
categorical imperative. Doing justice by retribution is an
expressive, rather than an instrumental act, retrospective
by definition. The very notion of “punishment” is
Still, retributive punishment may yield
legitimate, instrumental, non-moral (though not
immoral) benefits. Being instrumental, these
benefits are prospective. Thus, incapacitation of
the convict by imprisonment, while it lasts, 60
obviously protects society. Rehabilitation
(sometimes called specific deterrence) may help
to protect society by discouraging crimes by the
released convict. Deterrence, finally, restrains
others than the convict from doing in the future
what he did in the past. It is the most important
instrumental benefit of punishment.
Although a desirable effect consistent
with it, deterrence is not part of the moral aim
of justice. Deterrence can be justified, however, 70
as an important instrumental purpose of
punishment, if not as an independent one. It
would be unjust to punish any person, guilty or
innocent, merely to deter others. However, the
deterrent effect of just (deserved) punishment,
intended or not, is morally justifiable, since the
convict volunteered for risking the punishment
which has deterrent effects. He is not punished
merely to deter others, which would be
inconsistent with justice, even if he is guilty. 80
However, if his deserved punishment deters
others, it helps to repay for the harm the crime
did to the social order—to pay his “debt to
Many abolitionists insist that the death
penalty is no more deterrent than life in prison.
This empirical question is, in principle,
answerable by experiments, which, however, are
seldom practical, feasible, or conclusive. But the
justice of a punishment, such as the death 90
penalty, as distinguished from deterrent effects,
cannot be proved or disproved by any
Deterrence is the only purpose of the
threats of the criminal law. Punishment of those
who were not deterred carries out these
threats and 1) retributes, and 2) keeps the
promise of the law (a threat is a negative
promise and promises must be kept—pacta sunt
servanda). So much for the moral purposes of 100
There are two non-moral
(instrumental) purposes of punishment as well:
1) Legal threats of punishment would become
incredible and lose their deterrent effectiveness
if not carried out by actual punishment; and 2)
the conditional threat of punishment addressed
to prospective criminals is also a positive

Reading 2.3
“Capital Punishment Saves Lives” by Ernest van den Haag
Page 2
promise to the law abiding, which may help to keep them
law abiding. If threats were not carried out against those
not deterred by them, the law abiding, who took the
threats seriously and formed the habit of abiding by the
law, would have been fooled. At least some of them may
have foregone crimes in part because they believed that
they would be punished if they committed them. If those
who were not deterred are not punished, the legal
threats which helped restrain the law abiding would be
revealed as bluffs. Criminals would have gained an 10
advantage by breaking the law, while the law abiding
would have been placed at a disadvantage by trusting the
law. The social order which depends on the formation of
law abiding habits would be undermined.
The most grave of crimes
Traditionally murder has been thought the most
grave of crimes, deserving the most severe punishment.
Other crimes, such as theft, or even rape, leave the 20
victim capable of recovering. Murder does not. It is final.
So is the death penalty, which, therefore, traditionally has
been thought fitting.
Can any crime be horrible enough to forfeit the
life of the criminal? Can death ever be a deserved
punishment? Some abolitionists do not think so. Others
even believe, for unintelligible reasons, that no society
has a moral right to impose the death penalty. I am
confident that the following excerpt may help answer this
question. (Res ipsa loquitur [the thing speaks for itself].) 30
… The appellant, after telling [seventeen-year-
old] Donna Marie Dixon how pretty she was, raised his
fist and hit her across the face. When she stood up, he
grabbed her by her blouse, ripping it off. He then
proceeded to remove her bra and tied her hands behind
her back with a nylon stocking. Timothy McCorquodale
then removed his belt, which was fastened with a rather
large buckle, and repeatedly struck Donna across the
back with the buckle end of the belt. He then took off all 40
her clothing and then bound her mouth with tape and a
washcloth. Leroy then kicked Donna and she fell to the
floor. McCorquodale took his cigarette and burned the
victim on the breasts, the thigh, and the navel. He then
bit one of Donna’s nipples and she began to bleed. He
asked for a razorblade and then sliced the other nipple.
He then called for a box of salt and poured it into the
wounds he had made on her breasts. At this point Linda
[McCorquodale’s girlfriend], who was eight months
pregnant, became ill and went into the bedroom and 50
closed the door. McCorquodale then lit a candle and
proceeded to drip hot wax over Donna’s body. He held
the candle about ½ inch from Donna’s vagina and
dripped the hot wax into this part of her body. He then
used a pair of surgical scissors to cut around the victim’s
While bleeding from her nose and
vagina, Leroy forced the victim to perform oral
sex on him while McCorquodale had 60
intercourse with her. Then Leroy had
intercourse with the victim while McCorquodale
forced his penis into the victim’s mouth.
McCorquodale then found a hard plastic bottle
which was about 5 inches in height and placed
an antiseptic solution within it, forcing this
bottle into Donna’s vagina and squirted the
solution into her. The victim was then permitted
to go to the bathroom to “get cleaned up.”
While she was in the bathroom, McCorquodale 70
secured a piece of nylon rope and told Bonnie
and her roommate that he was going “to kill the
girl.” He hid in a closet across the hall from the
bathroom and when Donna came out of the
bathroom he wrapped the nylon cord around
her neck. Donna screamed, “My God, you’re
killing me.” As McCorquodale tried to strangle
her, the cord cut into his hands and Donna fell
to the floor. He fell on top of her and began to
strangle her with his bare hands. He removed 80
his hands and the victim began to have
convulsions. He again strangled her and then
pulled her head up and forward to break her
neck. He covered her lifeless body with a sheet
and departed the apartment to search for a
means of transporting her body from the scene.
By this time, it was approximately 6:00 a.m. on
the morning of January 17, 1974.
McCorquodale soon returned to the 90
apartment and asked Bonnie for her trunk and
Leroy and McCorquodale tried to place Donna’s
body in the trunk. Finding that the body was too
large for the trunk McCorquodale proceeded to
break Donna’s arms and legs by holding them
upright while he stomped on them with his foot.
Donna’s body was then placed in the trunk and
the trunk was placed in the closet behind the
curtains. McCorquodale and Leroy then went to
sleep on the couch in the living room for the 100
greater portion of the day, leaving the
apartment sometime during the afternoon.
Because a strong odor began to
emanate from the body, and her efforts to mask
the smell with deodorant spray had been
unsuccessful, Linda called Bonnie to request that
McCorquodale remove the trunk from the
apartment. Shortly after 8:00 p.m.
McCorquodale arrived at the apartment with a 110
person named Larry. As they attempted to
move the trunk from the closet, blood began

Reading 2.3
“Capital Punishment Saves Lives” by Ernest van den Haag
Page 3
spilling from the trunk onto the living room floor.
McCorquodale placed a towel under the trunk to absorb
the blood as they carried the trunk to Larry’s car. When
McCorquodale and Larry returned to the apartment they
told Linda that the body had been dumped out of the
trunk into a road and that the trunk was placed under
some boxes in a “Dempsey Dumpster.” Donna’s body
was found about half a mile off Highway No. 42 in
Clayton County, Georgia. [McCorquodale was convicted
of murder, and executed on September 21, 1987.] 10
The sanctity of life
Former Supreme Court Justice William Brennan
thought the death penalty inconsistent with “the sanctity
of life.” His unargued notion may derive from the ancient
homo homini res sacra (man is a sacred object to man).
But the Romans, who coined the phrase, believed the
sanctity of life best safeguarded by executing murderers
who had not respected it. Brennan may also have based 20
his view on the Constitution. However, it does not grant
an imprescriptible right to life which murderers would be
as entitled to as their victims. He also held that execution
is a “denial of the executed person’s humanity.” Yet,
philosophers, such as Immanuel Kant and G.W.F. Hegel,
thought that punishments, including the death penalty,
recognize and asseverate the humanity of the convict,
even though he himself may have repudiated it by his
We protect ourselves from ferocious beasts, 30
but we do not punish them, because, unlike criminals,
they cannot tell right from wrong or restrain themselves
accordingly. Animals therefore are not, but criminals are
responsible for their actions because they are human.
Their punishment acknowledges rather than denies their
responsibility and, thereby, their humanity. Brennan
finally asserts that “the deliberate extinguishment of
human life by the state is uniquely degrading to human
dignity.” He does not tell whether the criminal or the
executioner is degraded, nor wherein the degradation 40
lies, or whether any crime could degrade humanity and
call for a degrading punishment.
Capital punishment, a deliberate expulsion from
human society, is meant to add deserved moral ignominy
to death. This irks some abolitionists, who feel that
nobody should be blamed for whatever he does. But
murder deserves blame. Death may well be less
punishment than what some criminals deserve. Even
torture may be. But, although they may deserve it, we no
longer torture criminals. Unlike death, torture is 50
avoidable. It is now repulsive to most people, and no
longer thought entertaining, as it was in the past.
However much deserved, the death penalty
should not be imposed if, by not threatening it, we can
save innocent lives. If (unlike the Supreme Court) we
believe that rape deserves capital punishment, we
nevertheless should not impose it because the
threat would be an incentive to the rapist to
murder his victim and make apprehension and
conviction less likely without increasing the 60
severity of his punishment if convicted. Indeed,
capital punishment should be threatened rarely,
because it would give threatened criminals—e.g.
burglars—an incentive to kill victims, witnesses
and arresting officers. However, the importance
of trying to deter a first murder by the threat of
capital punishment outweighs the usefulness of
not encouraging additional murders by not
threatening capital punishment for the first.
Therefore, the threat of capital punishment for 70
murder is not counter-productive, whereas it
might be for most other crimes.
Nature has sentenced us all to death.
Execution hastens, but does not create the
unavoidable end of human life. What makes
execution different is that it brands the
executed as morally unworthy to belong to
human society. The phrase “death is different,”
darkly intoned by abolitionists, is impressive and
rings true, although it applies to execution more 80
than to death. What follows from it? More
capital punishment, or less? Or just caution in
inflicting it?
Retributive justice
The paramount moral purpose of
punishment is retributive justice. But there are
important non-moral purposes as well, such as
protection of life and property. They are 90
achieved mainly by deterrence. It seems obvious
that more severe and certain punishments deter
more than less severe and certain ones. Yet,
abolitionists contend that the death penalty is
no more deterrent than life in prison, or,
alternatively, that the additional deterrence is
redundant. As mentioned, this empirical
question could be decided by experiment. We
could threaten capital punishment for murders
committed on Mondays, Wednesdays, and 100
Fridays (MWF) and life imprisonment on the
other days. If fewer murders are committed on
MWF, the death penalty would be likely to be
more deterrent than life in prison. However, the
MWF murders do not deserve more
punishment than the others. It would be morally
capricious to impose the death penalty just on
MWF murderers. We will have to rely on
observation and statistical analysis, rather than
experiment, to establish degrees of deterrence. 110
Preponderantly, though not conclusively, the
data tend to show the death penalty to be the

Reading 2.3
“Capital Punishment Saves Lives” by Ernest van den Haag
Page 4
most deterrent punishment available. Possibly, people
fear the death penalty irrationally, despite low probability
(executions are rare), just as they are irrationally
attracted to lotteries with high prizes despite the low
probability of winning.
Apart from less deterrence, life imprisonment,
the alternative to capital punishment, also protects
society less than capital punishment does. The convict
may escape, he may be granted a furlough, or his
sentence may be commuted by governors who, 10
unavoidably, retain the right to pardon. Not least, the
lifer may endanger guards and fellow prisoners, since
without the death penalty there is no further punishment
to deter him.
To proponents of capital punishment,
deterrence, though important, is not decisive. Justice is.
Still, most believe that the threat of execution does deter
more than life imprisonment. In contrast, abolitionists
believe that capital punishment not only is morally
unjustifiable, but also has no more deterrent effect than 20
life imprisonment. However, they would continue to
advocate abolition, even if the death penalty were shown
to deter more than life imprisonment. In effect,
abolitionists appear to believe that the non-execution of
murderers is morally more important than saving the
innocent lives execution would save if it deters more
than imprisonment. Asked whether they would execute
murderers if each execution were to deter ten murders,
thereby saving ten innocent lives, all abolitionists I have
questioned answer in the negative. 30
The vulgar argument that holds execution to be
wrong, because it does to the murderer what he did to
his victim, neglects to note that many punishments do to
the criminal what he did to his victim. In the past this was
thought to be the essence of justice. The difference
between a crime and a punishment is social, not physical.
There is no need for physical dissimilarity. A crime is an
unlawful act, legal punishment is a lawful act. Taking a
person from his family and confining him against his will
in a small cell may be an unlawful kidnaping, or a lawful 40
arrest. The difference is not physical. Neither is the
difference between murder and execution, or being fined
and being robbed.
There is no evidence for brutalization caused by
the death penalty. The idea that legal killing will lead to
imitation by illegal killing, or to any increase in violent
crime, is unsubstantiated. And proponents do not explain
why legal imprisonment does not lead to kidnapings, or
why violent crime in Singapore and Saudi Arabia, both
renowned for executions and physical punishments, is so 50
The brutalization argument might be somewhat
more valid against televising executions, although there
are more salient arguments against televising. The
executions would be sandwiched between sitcoms,
sports, advertisements, contests and popular songs. The
effect would be not so much to brutalize as to
trivialize executions. Until two hundred years
ago they served as popular entertainment.
Tempora mutantur et nos mutamur in illis—we 60
should not go back to using punishments as
entertainment. Moreover, TV could show how
the murderer is deprived of his life, but not
what he did to his victim. The uninformed
would be unduly stirred to pity for the criminal
rather than the victim….
We have more than 20,000 homicides
annually, but only about 300 death sentences
(and less than 50 executions). At this rate most
of the about 3,000 murderers now on death 70
row are far more likely to die of old age than by
execution. On the average convicts spend more
than eight years appealing their convictions. This
seems a long time. Many appeals are repetitious
as well as frivolous. Despite elaborate
precautions, nothing short of abolishing
punishment can avoid miscarriages altogether.
The salient question about the death penalty is
not: Could innocents be executed by mistake?
(The answer is yes—courts are fallible) but: 80
Does the death penalty save more innocent lives
than it takes? Is there a net gain or loss?
Many desirable social practices cannot
avoid killing innocents by accident. For instance,
ambulances save many lives, but also run over
some pedestrians. We do not abolish
ambulances, because they save more innocents
than they kill. So does the death penalty, if it
deters some murders, as is likely, and if the
miscarriages are few, as is likely too. It seems 90
safer then, to rely on executions, which through
deterrence, may save innocent lives, than it
would be not to execute and risk not saving an
indefinite number of innocents who could have
been saved. If we execute a convicted murderer
and his execution does not produce additional
deterrence, his execution, though just, would
not have been useful. But if his execution deters
prospective murderers, not executing him
would sacrifice innocent people who would have 100
been spared had he been executed….
The “root” of criminality
Perhaps college education helps explain
opposition to the death penalty. Students are
taught, accurately, that the great majority of
criminals, including murderers, were mistreated
and abused as children. Students infer,
incorrectly, that mistreatment is the cause, or 110
“root,” of criminality. Unfortunately, they are
not taught that the majority of mistreated and

Reading 2.3
“Capital Punishment Saves Lives” by Ernest van den Haag
Page 5
abused children do not become criminals, let alone
murderers. Mistreatment and abuse are neither
necessary nor sufficient causes of murder. To be sure,
poverty, lack of education, childhood abuse, and, more
important perhaps, the absence of a law-abiding family,
may dispose to crime more than affluence and suburban
living. But the former circumstances do not make it
impossible to avoid crime. The responsibility for it
remains with the individual who volunteers for crime.
The threat of punishment is meant precisely to 10
deter persons who, for whatever reason, are disposed to
crime. The legal threat is not needed for others. The so
called causes of crime are, at best, explanations, but
neither justifications nor excuses, let alone exculpations.
Causes are exculpatory only if they compel crime and
thus eliminate responsibility. It is reasonable to assume
that there are some exceptional factors in the
background of murderers, since murder is an exceptional
action. Such factors may help explain criminal acts. They
cannot exculpate. 20
Anatole France2 sarcastically remarked “the law
in its majestic equality prohibits rich and poor alike to
steal bread or to sleep under bridges,” implying that the
rich are hardly tempted to commit the crimes that may
be nearly, but not quite, irresistible to the poor. No one
any longer arrests the homeless who sleep under bridges,
nor a hungry person who steals bread. Still, the law is
meant to prohibit stealing by those tempted by their
circumstances as well as by those who are not. For the
latter the prohibition is academic, for the former 30
burdensome. Is this unjust, as Anatole France suggests?
Hardly. Although its prohibitions apply to everyone, the
criminal law necessarily burdens mainly those who by
their circumstances are tempted to do what it prohibits.
They are the ones that need to be deterred. There
would be no need for criminal laws if no one were
tempted to break them. And, surely, the most
disadvantaged groups are most tempted to engage in
unlawful acts, since they have the fewest legitimate
resources to fulfill their desires. The prohibition of 40
stealing imposes a greater burden on the poor than on
the rich. But the greater temptation does not justify
yielding to it.
Education tends to influence most those who
get most of it, the professional classes. In modern times
education may induce students to regard nothing as final
and to feel that no decision ever should be. Since
showing that the earth is not flat science has undermined
many certainties and sewn many doubts. Thus the
uneasiness about certainty among the educated. Death is 50
and remains final. However, inflicting death as a final
punishment which cuts off the future and any possibility
of change seems psychologically in conflict with the spirit
of the times imbued as it is by doubtfulness. Death is
certain and we cannot abolish it. However, we can
abolish the death penalty. The spirit which prevails
among the educated elite pushes us to do so.
The finality of the death penalty makes us
uncomfortable. Never mind that the death
penalty does not create death but merely 60
hastens it. People like to ignore death—which
the penalty makes hard to do. Moreover,
extreme moral blame attaches to capital
punishment—and we like even our courts and
judges to be nonjudgmental. It follows that, if
present trends continue, the death penalty is
likely to become more rare. Yet, history does
not allow any trend to continue forever.
Prediction is chancy. Still it seems likely
currently that the death penalty will continue in 70
America, Asia and Africa but is unlikely to be
reinstituted in most of Europe where it has been
Many criminologists believe deterrence
requires that prospective criminals calculate the
advantages of crime and compare them with the
disadvantages, including punishment. Criminals
usually do not do that. Nor does deterrence
theory require that they calculate. To be sure,
criminals volunteer for the risk of punishment 80
because they expect a net advantage from
crime. But they calculate no more than law
abiding persons calculate to remain law abiding.
Society offers disincentives to law breakers and
incentives to law abiding persons. These
incentives and disincentives powerfully
contribute to the formation of law abiding or
law breaking habits. But few people calculate.
Law abiding people habitually ignore criminal
opportunities. Law breakers habitually discount 90
the risk of punishment. Neither calculates. Both
follow habits largely produced by the incentives
and disincentives society offers, which have
different effects on different individuals in
different circumstances. Once these habits are
ingrained they are followed almost
independently of new incentives and
disincentives. The major impact of criminal
justice is on habit formation, not on habits
already formed. Most of our behavior arises 100
from habits which are seldom explicitly
calculated. One must be careful, then, not to
confuse the rational reconstruction of one’s
behavior with the processes that actually lead to
Sundry arguments for abolition
Turn now to sundry arguments for
abolition, some more popular than valid. The 110
French writer Albert Camus insists that “a man
is undone by waiting for capital punishment well

Reading 2.3
“Capital Punishment Saves Lives” by Ernest van den Haag
Page 6
before he dies. Two deaths are inflicted on him, the first
being worse than the second, whereas he killed but
once.” (Would it follow that, had he murdered two
persons, capital punishment would have been just?) The
mistake Camus makes is in his belief, shared by many
abolitionists, that the pain inflicted on the murderer
should not exceed that of his victim. This limit derives
from the limit the lex talionis set for retaliation or
compensation. But the lex talionis regarded as torts acts
we consider crimes. Camus’ reasoning might govern tort 10
rules for compensation. But criminal law must not be
confused with tort law. Punishment for a crime is neither
compensation nor retaliation, but retribution, as
threatened by law, for the harm inflicted on the social
order. Retribution need not be limited to, or be equal to
the suffering of crime victims.
A somewhat frivolous argument alleges that life
imprisonment without parole would cost less than
execution. The argument is of doubtful relevance and
accuracy. If one correctly calculates the cost of life 20
imprisonment for murderers, who must be held in
expensive high security prisons, it seems no less than the
cost of execution. (Most murderers are young and likely
to spend a long time in prison.) On the other hand, the
cost of execution has been greatly inflated by the very
persons who complain about it. They insist on lengthy
procedures which add far more to cost than to justice.
Frivolous appeals could be reduced with considerable
savings. The cost of execution is currently estimated at
about $2.5 million. If one assumes a cost of $30,000-30
40,000 for a year in high security prison and adds the
cost of legal appeals (lifers keep their attorneys busy) and
further assumes an average of forty years in prison, the
cost is about the same whether we execute or
incarcerate for life. But, as mentioned, the cost of
execution is far higher than required by justice.
Some technical advantages of the death penalty
should not be overlooked. By threatening it, prosecutors
may persuade accomplices to testify against murderers,
or persuade the murderers themselves to plead guilty in 40
exchange for a life sentence. Also, in a hostage situation
police can promise the criminal that the prosecution will
not ask for the death penalty if he releases his hostages.
Without the death penalty the criminal can threaten to
kill his victims, while police can only threaten
Religious objections to the death penalty reflect
the Zeitgeist more than theology. In his Summa
Theologica philosopher and theologist Thomas Aquinas
writes: “a man shall be sentenced to death for crimes of 50
irreparable harm.” In his Summa Contra Gentiles Thomas
points out that “[murderers] may be justly executed….
[T]hey also have, at the critical point of death, the
opportunity to be converted to God through
repentance.” (They did not give this opportunity to their
Trendy abolitionists often conflate two
different virtues, justice and charity. They must
be distinguished. Justice tries to mete out what
is deserved. Charity impels us to love and help 60
regardless of desert. Religion enjoins
compassion and forgiveness, even of murderers,
but does not suggest that justice should be
replaced by compassion. Scripture presents God
as legislator and judge who imparts Justitia
Misericordiae Dulcore Temperata: Justice
tempered by mercy, but not replaced by it.
Abolition of the death penalty would
promise prospective murderers that we will
never do to them what they will do to their 70
victims. Such a promise seems unwise as well as

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