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CHAPTER
E I G H T

Why We Should Put the
Death Penalty to Rest

Stephen Nathanson

My aim in this chapter is to make the strongest case that I can to show that punish-
ing people by death is an unjust and immoral practice. Although we often think of
the death penalty debate as one of those eternal, irresolvable issues, I believe that the
arguments for the death penalty are extremely weak and that the practice of punish-
ing by death is morally indefensible.

I know, of course, that not everyone sees things this way. The laws of 38 of the
50 states of the United States include death as a possible punishment, and public
support in the US for the death penalty over the last 25–30 years has been very strong.
This American consensus, however, is somewhat anomalous. The death penalty has
been abolished in almost every modern, democratic country, and its abolition is now
required of any country wanting to enter the European Union.

Still, in the US, many people strongly support the death penalty. Why is this? While
it could be that death penalty supporters simply want vengeance and don’t care about
morality, I doubt that this is true. I believe that most death penalty supporters are
people of good will who think that the death penalty is right or necessary. While some
political leaders use the death penalty for political gain, most people have no vested
interest in the death penalty. If they are wrong about it, this is the result of honest
mistakes. They either have mistaken factual beliefs or are confused in their moral
thinking. If I can show that the factual and moral beliefs on which death penalty
support depends are mistaken, this should lead them to see that the death penalty
ought to be abolished where it is used and left to rest in peace where it has already
been rejected.

Whether I can do this remains to be seen. One reason for optimism is that the death
penalty debate differs from some other controversial issues. Some controversies are
hard to resolve because people on opposing sides differ in their fundamental values.
In such cases, it is hard to find values that can serve as a basis for reaching agree-
ment. The death penalty debate is not like this. Both death penalty supporters and

Why We Should Put the Death Penalty to Rest 125

opponents generally appeal to the same fundamental values: the pursuit of justice
and respect for human life.

If I can show that a belief in the importance of justice and respect for human life
is inconsistent with support for the death penalty, it would follow that people who
hold these ideals and yet favor the death penalty are actually contradicting their own
values. An argument that would show this would be very strong, both logically and
psychologically. It would be logically strong because contradictory views are neces-
sarily false, and psychologically strong because it appeals only to values that death
penalty supporters themselves accept.

Of course, some people might reject the values of justice and respect for human
life, but there would be a great cost to doing so. First, they would deprive themselves
of some of the common arguments for capital punishment – such as that it is neces-
sary for protecting human life and that it is a just punishment for murder. Indeed,
they would be unable to say why murder is a serious crime since the condemnation
of murder presupposes that human life has an especially high value. Second, reject-
ing these values would undermine their moral credibility. No one would listen to
people who said that they were indifferent to justice and respect for human life
because our society is publicly committed to these values (whether or not it actually
takes the required steps to do achieve them).

We can assume, then, that all who support the death penalty and whose views we
take seriously are committed to the values of justice and respect for human life. My
goal is to show that the death penalty is inconsistent with these values. How can this
be done?

My argument will proceed in two stages. First, a consideration of the death
penalty in theory, followed by, second, an examination of the death penalty in
practice. I will show that the principled bases for the death penalty are extremely
weak. Then, I will show that even if the death penalty could be justified in theory,
the actual practice of executing murderers violates both the values of justice and
respect for human life. Even people who support the death penalty in theory should
oppose it in practice.

The Death Penalty in Theory: Saving Lives and
Doing Justice

The two basic arguments for the death penalty are (1) that it is the best deterrent of
murders and thus saves people’s lives and (2) that it is the punishment that justice
requires for the crime of murder.

The argument from deterrence
According to this argument, the threat of execution is a more powerful deterrent than
lesser punishments and therefore will lead to fewer deaths from homicide. If this is
true, then anyone who values human life will be willing to support executing mur-
derers because this will spare the lives of innocent people. Just as common-sense
morality permits killing in self-defense or defense of others, so it permits the death

Stephen Nathanson126

penalty as a form of social self-defense, saving the lives of people who would other-
wise be victims of murder.

In theory, this is a powerful argument. Anyone who values human life will want
to diminish the number of people murdered, and if the death penalty is uniquely effec-
tive in preventing murders, then it cannot be dismissed as senseless violence or mere
vengeance. Nor could it be said to be the same as murder, for while murders increase
the number of innocent victims, the death penalty (according to this argument) dimin-
ishes the number of innocent victims.

The deterrence argument has been challenged on factual grounds, and the best evi-
dence suggests that the death penalty is not a better deterrent than life imprisonment.1

In general, countries and states that do not use the death penalty have lower homi-
cide rates than countries that do. These are familiar points which I will not stress here
because I want to consider the death penalty “in theory.” I want to challenge the under-
lying moral principle, which is the idea that if a punishment deters more murders and
thus saves more innocent lives, then it is justifiable. While this sounds plausible, it is
false and thus fails to justify the death penalty. I offer two arguments to show this.

First, we can imagine punishments that have greater deterrent value than either
the death penalty or imprisonment and yet would be wrong to inflict. Suppose we
could deter more murders by executing not just the person who commits a murder
but also the family or closest friends of such a person. If the idea behind the deter-
rence argument is that we deter more murders by threatening the most terrible pun-
ishments, then it is plausible to suppose that potential murderers who might be
prepared to risk their own lives might be deterred by the loss of life to others that
they care about – their husbands or wives, their children or parents, their closest
friends. If, as it is often said, the death penalty is supposed to make potential mur-
derers “think twice,” this punishment would be likely to make them think three or
four times. Its logic is the same as the argument used to support the death penalty
over long-term imprisonment: the more terrible the punishment, the more powerful
the deterrent.

Yet, even if this punishment succeeded, it would be an unjust, immoral punish-
ment. It would save some innocent people’s lives by killing other innocent people,
and this is morally unacceptable.

Does this argument show that the death penalty is wrong? No, but it does show
that the deterrence argument is not sufficient to justify it, even in theory. It shows
that a punishment can be the best deterrent and still be morally wrong.

Someone might object to my use of a made-up example that involves a punish-
ment that virtually no one supports. After all, they might say, the death penalty debate
is about the execution of people who are guilty. No one defends the execution of
innocent people to deter murders. But, of course, even in theory, death penalty sup-
porters must acknowledge the risk that some innocent people will be executed and,
even in theory, they must be willing to say that killing some innocent people is an
acceptable price to pay for the saving of a greater number of innocent lives.2 So my
fanciful example shares an important feature with the actual death penalty for mur-
derers: both involve a willingness to kill innocent people.

This is an issue that I will return to when considering the death penalty in fact.
For now, I only want to show that even if the factual assumptions underlying the

Why We Should Put the Death Penalty to Rest 127

deterrence argument were correct, the argument by itself cannot justify the death
penalty. If deterrence were all that mattered, then we would be logically committed
to executing the family and friends of murderers as well as the murderers themselves.
This is scarcely something that people committed to justice and respect for human
life should support.

The argument from justice and desert
Many people support the death penalty for a different reason. They think it is the
only truly just punishment for murder, and they often feel that anything less than
death is morally unacceptable. Why is this?

In explaining this view, many people cite the expression “an eye for an eye.” This
familiar saying is probably the most influential basis for the death penalty. It bene-
fits from both the authority of the Bible and from its surface plausibility as a fair rule
for punishment. The “eye for an eye” principle tells us how to treat those who commit
crimes. It says that if one person harms another, then the perpetrator should suffer
the very same harm as the victim. This is how the “eye for an eye” principle is gen-
erally understood: the punishment should equal the crime.

For those in the know, this principle gains additional credibility from the fact that
it is affirmed by the great philosopher Immanuel Kant in a very famous passage about
punishment. He writes:

What kind and degree of punishment does public legal justice adopt as its principle and
standard? None other than the principle of equality … the principle of not treating one
side more favorably than the other. Accordingly, any undeserved evil that you inflict on
someone else … is one that you do to yourself. If you vilify him, you vilify yourself; if
you steal from him, you steal from yourself; if you kill him, you kill yourself. Only the
Law of retribution (jus talionis) can determine exactly the kind and degree of punish-
ment. (1965: 101)

And, he adds, if a person “has committed murder, he must die. In this case, there is
no substitute that will satisfy the requirements of legal justice” (1965: 102).

There is, no doubt, something appealing about the “eye for an eye” principle and
if it provides a general criterion for determining the appropriate level of punishment
for crimes, the death penalty will be justified because it satisfies the test of doing to
the criminal what the criminal has done to the victim.

In spite of its surface plausibility, it is easy to see that the “eye for an eye” prin-
ciple is defective and cannot provide a solid basis for the death penalty. People are
doubly mistaken about the “eye for an eye” principle. They are mistaken in thinking
that it is correct and mistaken in thinking that they actually accept it as an adequate
guide to punishment. The only reason that people think they believe it is that they
have not really thought about it.

There are three serious problems for “an eye for an eye.” First, it requires unjust
and barbaric punishments in cases where people have acted barbarically. Second, it
conflicts with many of our beliefs about punishment and its justification. Third, in
many cases, it provides no real guidance in determining the appropriate punishments.

Stephen Nathanson128

Suppose that a person murders the entire family of someone that he regards as his
enemy. If we describe his crime as “killing the family of his enemy,” then the “eye
for an eye” principle appears to require that we punish the killer by killing his entire
family. Simply to execute the murderer alone would not satisfy the idea that the pun-
ishment should equal the crime. Yet no one would urge the death of the murderer’s
family as an appropriate punishment since they are innocent and should not suffer
for the crimes of another.

Anyone who rejects this as a just punishment must reject the “eye for an eye” prin-
ciple as well, and because virtually everyone would reject it, that shows that they do
not really accept the “eye for an eye” principle. Even Kant, in spite of his strong affir-
mations of his version of “the eye for an eye” principle, departs from that principle
for reasons very like the ones I have given. In a less famous passage than the one I
quoted above, he asks: “[H]ow can this principle [of the equality of crime and pun-
ishment] be applied to punishments that do not allow reciprocation because they are
either impossible in themselves or would themselves be punishable crimes against
humanity in general?” (1965: 132). Just by asking this question, Kant acknowledges
that the “eye for an eye” principle cannot be applied to all cases and that it some-
times recommends punishments that would be immoral to inflict. He follows his ques-
tion with three examples in which the “eye for an eye” principle would lead to an
immoral punishment, and then he suggests an alternative. He writes: “Rape, pederasty,
and bestiality are examples of the latter. For rape and pederasty, [the proper punish-
ment is] castration … and for bestiality the punishment is expulsion forever from civil
society since the criminal guilty of bestiality is unworthy of remaining in human
society” (1965: 132). Kant believes that raping the rapist, forcing the pederast to have
homosexual sex, or forcing the person guilty of bestiality to have sex with animals
would be “crimes against humanity.” Instead, he proposes castration for the rapist and
exile for the person guilty of sex with animals.

These may or may not be sensible suggestions, but they are clearly not instances
of the “eye for an eye” principle. The lesson here is important. When we actually think
about the implications of the “eye for an eye” principle, we quickly come upon cases
in which it provides us either with defective guidance in the setting of punishments
or with no guidance at all.

These problems are directly relevant to issues about the death penalty for murder.
A common feature of the criminal law is that acts with similar effects are treated
quite differently because of various facts about the crime. Yet the “eye for an
eye” principle focuses on only one aspect of the crime: the harm caused to the victim.
It says that the punishment should match the effect of the crime and from this
it follows that the taking of a victim’s life should be followed by the killing of the
murderer.

Yet there are many different types of action that can result in the death of a victim,
and we tend to think that these different types of actions should not all be punished
in the same way. Consider the following:

• A hired killer lies in wait and shoots the intended victim.
• An argument degenerates into a fight in which one person strikes the other and

kills him.

Why We Should Put the Death Penalty to Rest 129

• A person sets fire to a building, thinking that it is empty; several people in the
building die in the fire.

• A drunken driver kills a pedestrian.

While all of these actions have dire effects, most of us would view the hired killer as
more culpable than the others. His action would generally be classified as first-degree
murder, and in states with the death penalty, he might be sentenced to die.

In none of the other cases is death intended, even though the people involved
engaged in dangerous actions. The second case, depending on the circumstances,
might be classified either as second-degree murder (which is not punishable by death)
or manslaughter, a lesser charge. If the arsonist had taken steps to insure that there
were no victims, he would most likely be charged with manslaughter, while the driver
would be charged with vehicular homicide.

Most people agree that these actions should be dealt with differently. But anyone
who believes this must reject the “eye for an eye” principle, since it requires us to
treat them all in the same way. This supports both of the arguments I have put forward.
First, because not all homicides should be punished in the same way, the “eye for an
eye” principle is wrong. Second, if most people believe that we should treat homi-
cides differently depending on the intentions and the circumstances, then those same
people do not believe the “eye for an eye” principle. They might cite it in an argu-
ment, but they don’t really believe it.

Whatever its customary force and initial plausibility, the “eye for an eye” princi-
ple is far from the last word on the appropriate punishment for particular crimes and
cannot bear the burden of justifying death as a punishment for murder.

The Death Penalty in Practice

So far, I have considered the death penalty in theory. I have tried to show that the
two most common reasons for supporting the death penalty – the “eye for an eye”
principle and the argument from deterrence – are inadequate. Even in theory, the
death penalty lacks a convincing moral justification.

But the death penalty debate is not merely an abstract moral issue. It is about
actual institutions run by actual people in actual societies. Even if my arguments
about the death penalty in theory had failed, there would still be a strong case against
the death penalty in practice. To see this, consider the following: suppose that the
deterrence argument worked in theory and that the “eye for an eye” principle pro-
vided an adequate principle for determining what punishment people deserve. It would
still not follow that the death penalty should be adopted. Why? Because we need to
consider how this punishment works out in practice.

Suppose that the death penalty deters more effectively than other punishments and
suppose that murderers deserve to die. In addition, however, suppose that the legal
institutions of a society that imposes the death penalty are not reliable. As a result,
innocent people are often convicted of murder. Suppose, for example, that half of
those convicted were innocent and that people know about the failings of the system.
In this situation, even though the death penalty is justified in theory, it would be

Stephen Nathanson130

unjustified in practice. Indeed, it would be blatantly inconsistent for the death penalty
to be retained by a society that is committed to the two values I emphasized at the
start. It would not be respectful of human life because it would be killing innocent
human beings, and it would not be consistent with a commitment to justice because
it would be punishing innocent people. Any member of my imagined society who
cares about justice and respect for human life should oppose the death penalty in that
society even if they favor it in theory. To support the death penalty in that society
would show that one had no genuine commitment to these values.

Whether the death penalty is justifiable or not, then, depends only partly on
abstract beliefs about morality and justice. In addition, it depends on facts about a
society and its institutions. Charles Black makes this point very effectively. He writes:

We are not presently confronted, as a political society, with the question whether some-
thing called “the state” has some abstract right to kill “those who deserve to die.” We
are confronted by the single unitary question posed by reality: “Shall we kill those who
are chosen to be killed by our legal process as it stands?” (1981: 166)

It is the practice of capital punishment – administered by real legal systems and real
human beings – that kills people, and, we – as citizens of actual societies – have to
decide if this practice should continue.

When I speak about an inconsistency in the pro-death penalty position, then, I
mean an inconsistency between the values affirmed by death penalty supporters and
the actual practice of capital punishment. My claim is that if death penalty support-
ers consider their own values, they will see that these values are violated by the insti-
tution of capital punishment, both as it exists now and as it is almost certain to exist
for the foreseeable future.

Why the Death Penalty is Inconsistent with the
Value of Justice

In order for the actual death penalty to be consistent with the value of justice, it
would have to be true that people who are punished by death deserve the punish-
ment. Since there is a widespread view that only some of those people who kill others
deserve to die, a just system must be capable of two things: first, it must separate the
guilty from the innocent and, second, it must be able to sort out the worst murder-
ers – those who deserve to die according to the legal criteria of desert – from those
who deserve a lesser punishment. If the system cannot do both of these reliably, then
the results that it generates are unjust.

In fact, we know that the system in the United States is unreliable. We know this
because a large amount of evidence shows that irrelevant features play a large role
in determining the level of punishment that a person receives. In theory, the death
penalty is imposed because of the terribleness of the specific crimes committed. In
practice, actual death sentences are the result of arbitrary, irrelevant factors like race,
socio-economic status, and the quality of legal representation. I will briefly cite some
facts about the influence of the irrelevant factors.

Why We Should Put the Death Penalty to Rest 131

Race
One of the most widely studied influences on sentencing is race. A large body of
research has shown that sentencing in capital cases is very much influenced by both
the race of the offender and the race of the victim.

• Between 1976 and 1996, 83% of the people executed in the United States were
charged with the murder of a white victim (Hood, 1998: 745).

• In the 20 years after Gregg v. Georgia (1976), the Supreme Court case that rein-
stated the death penalty, only 1 percent of executions were imposed on a white
person who had killed a black victim (Hood, 1998: 745).

Socio-economic status
A person’s social and economic status also plays a role in determining the sentence
for the crime of murder. A comprehensive study of the death penalty in Georgia
yielded the following result:

• In Georgia, defendants classified as having low socio-economic status were 2.3
times more likely to receive a death sentence than defendants seen as having
higher status (Baldus et al., 1990).

Quality of legal representation
Socio-economic factors are related to the ability of people to hire competent lawyers.
When people lack money, they must accept court-appointed lawyers who are often
less competent. The same Georgia study showed:

• Defendants with court-appointed attorneys were 2.6 times more likely to receive
a death sentence than defendants who could afford to hire lawyers (Baldus et
al., 1990: 158; Bright, 1997).

An investigation by the Chicago Tribune of 285 capital cases in Illinois concluded
that the state’s death penalty system was pervaded by “bias, error, and incompetence.”
It also cited poor legal representation, finding that 33 people sentenced to death had
lawyers who were later disbarred or suspended (Armstrong and Mills, 2000).

A report by the American Bar Association on the death penalty in the United States
shows this to be a national problem. According to the ABA, court-appointed lawyers
for defendants charged with first-degree murder often have no criminal trial experi-
ence and do not know the special rules and procedures for capital cases. They often
have insufficient funds to cover the cost of preparing and investigating cases and fre-
quently fail to make relevant objections during a trial so that they can be considered
on appeal. In addition, they often fail to introduce mitigating factors during the part
of the trial devoted to determining the sentence (American Bar Association, 1997:
7–9).

Stephen Nathanson132

The ABA report concluded that “in case after case, decisions about who will die
and who will live turn not on the nature of the offense the defendant is charged with
committing but rather on the nature of the legal representation the defendant receives”
(American Bar Association, 1997: 6). This factual conclusion supports the following
moral conclusion. If “decisions about who will die” do not depend on “the nature of
the offense the defendant is charged with committing” but are determined by irrel-
evant factors such as race, social standing, and inadequate legal counsel, then the
death penalty as it exists in our society cannot be relied on to produce just results.

Death penalty supporters claim that they want justice. Sometimes, in explaining
why only some people guilty of homicide should be executed, they add that
capital punishment should be restricted to people whose crimes are most terrible and
whose culpability is greatest. What the evidence shows, however, is that the factors
that determine whether people are executed or not differ from the factors cited in
defense of the death penalty. Even if (in theory) justice would be achieved by
executing the worst murderers, there is no reason to believe that this is what our
system does.

Of course, these injustices would not support the abolition of capital punishment
if the system could be reformed so as to eliminate the influence of these irrelevant
factors. But there is no reason to believe that this can be done. The factors that inter-
fere with the achievement of justice are too pervasive to be rooted out. Moreover,
reforms have already been tried and have failed. In the United States, attempts to free
capital sentencing from the influence of arbitrary factors have been ongoing since
the 1972 case of Furman v. Georgia. Supreme Court Justice Harry Blackmun, who had
supported the constitutionality of the death penalty in Furman and other cases, even-
tually argued that the defects in the system are unfixable. In the 1994 case Callins v.
Collins, Blackmun announced:

For more than 20 years I have endeavored … along with a majority of this Court to
develop procedural and substantive rules that would lend more than the mere appear-
ance of fairness to the death penalty endeavor. … I [now] feel morally and intellectually
obligated to concede that the death penalty experiment has failed. (Callins v. Collins,
1994: 1145)

Anyone who is committed to the value of justice should follow Justice Blackmun’s
lead and reject the death penalty because of the injustices it has yielded in the past
and is likely to yield in the future.

Why the Death Penalty is Inconsistent with Respect for the
Value of Human Life

Having shown why support for the death penalty is inconsistent with a commitment
to the value of justice, I will now show why it is inconsistent with respect for the
value of human life and thus why it should be rejected by anyone who is committed
to honoring that value.

When we examine how the death penalty system actually works, we see that it
generates practices that show a callous disregard for human life. In fact, like the act

Why We Should Put the Death Penalty to Rest 133

of murder itself, the death penalty system embodies a lack of concern about the taking
of human life.

In making this serious charge, I have a number of features of the death penalty
system in mind. Consider the facts that I have cited about the injustice of the death
penalty system. Since the quality of legal representation strongly influences the sen-
tence imposed on a person, a system that tolerates inadequate representation for
people who may be sentenced to death expresses indifference toward the value of
these defendants’ lives. There is no way that assigning incompetent lawyers to people
in this position can be compatible with a commitment to take seriously the value of
each person’s life. Neither is the failure to provide court-appointed lawyers with the
resources to investigate their clients’ cases compatible with a commitment to take
seriously the value of each person’s life. Anyone concerned with the value of human
life would be determined to insure that executions occur only after the most exact-
ing procedures have proved beyond a reasonable doubt that death is the proper pun-
ishment. There is an obvious inconsistency between affirming the value of human life
and tolerating the current level of legal representation for people who face the
possibility of death.

Problems with our system can lead to two kinds of mistaken judgment. The first
is that a person who is guilty of a crime may receive a more severe punishment than
would have been received had he or she been a member of a different race, had a
higher social status, or had been able to hire a better lawyer. The second is that the
poor quality of legal representation may result in innocent people being convicted of
murder and sentenced to die. While there has been a widespread impression that the
legal system in the United States bends over backwards to give defendants every con-
ceivable advantage, the facts are quite otherwise. In fact, for many defendants, the
system is stacked against them, and the results of the process are not reliable indi-
cators of guilt or innocence. Consider the following facts (Armstrong and Mills, 2000)
that set the stage for the moratorium on executions in Illinois:

• Between 1977 and 2000, the state of Illinois executed 12 people for murder and
also released 13 people from death row because they were shown to be com-
pletely innocent.

• In some of the cases of wrongful convictions, police used coercive measures,
including torture, to extract confessions from innocent persons.

• In at least 46 cases, convictions for murder were based on testimony from jail-
house informants; these informants often benefited from their testimony and in
some cases had long records of lies and deceit.

These kinds of occurrence are not limited to Illinois. According to James McCloskey,
while 226 people were executed in the United States between 1973 and 1995, 54
people were released from death row because of innocence. “This means,” McCloskey
comments, “that during the last twenty years, for every five death row inmates exe-
cuted, one has been released and exonerated. That points to a rather cracked system,
one prone to serious and frequent mistakes” (1996: 70).

At the national level, the causes of error resemble those in Illinois. Hugo Bedau
and Michael Radelet identified 350 instances of wrongful convictions in capital cases

Stephen Nathanson134

and found that 82 of them resulted from questionable actions by police officers and
prosecutors (1987: 56–9). This is consistent with a general pattern in the causes of
wrongful convictions. One study of wrongful convictions in general (i.e., not simply
in homicide cases) concluded: “If we had to isolate a single ‘system dynamic’ that
pervades large numbers of these cases [of erroneous convictions], we would proba-
bly describe it as police and prosecutorial overzealousness” (Huff et al., 1996”: 64).
The chance of convicting and executing innocent persons is substantial, and mis-
conduct by officials in the criminal justice system is a frequent source of error.3

While these practices and the resulting convictions of innocent people are dread-
ful in connection with any crimes and punishments, they are especially horrifying in
the case of the death penalty, since they can result in the killing of people for crimes
of which they are entirely innocent. Moreover, the death penalty makes corrections
of errors impossible.4

In reply, death penalty supporters may argue that the fact that innocent people
were exonerated and released shows that the system works. This reply, however, is
inconsistent with the facts. In many cases, people have been spared from death only
by chance or through the intervention of people outside the system. In Illinois, one
person on death row was released through the work of students at Chicago-Kent
College of Law, while three others were exonerated after investigations by journalism
students at Northwestern University. One of these people, Anthony Porter, came within
two days of being executed (Armstrong and Mills, 2000). Such down-to-the-wire cases
that depend on the fortuitous intervention of outsiders are no evidence for the relia-
bility or self-correcting nature of the legal system.

Moreover, when claims of innocence arise, officials are often resistant to them. As
McCloskey notes: “Once wrongly convicted and sentenced to death, the criminal
justice system treats you as a leper. No one wants to touch you. In my view, those in
authority seem to be more interested in finality, expediency, speed, and administra-
tive streamlining than in truth, justice, and fairness” (McCloskey, 1996, p. 70).
McCloskey’s claim about the true interests of those in the system is supported by the
American Bar Association report. It points out that the Supreme Court has ruled that
“there is no constitutional right to counsel [i.e., representation by a lawyer] in post-
conviction proceedings, even in capital cases” (American Bar Association, 1997: 9].
As a result, people who have new evidence or justified procedural claims may lack
the professional assistance that is required to assert claims in a legally credible way.

The lack of interest in correcting mistakes is nowhere more evident than in the
time limits set by states for the submission of new evidence and in the Supreme Court’s
upholding of such limits. In Herrera v. Collins (1993) the Court ruled that new evi-
dence in support of a claim of innocence could be disregarded because it had been
submitted too late to meet the Texas 60-day deadline. In other words, the Court ruled
that a person could be executed even though there was now evidence that he or she
is innocent. Why? Because the evidence came in too late. In defending this shocking
view, the Court majority noted that these deadlines were quite common. It noted:

Texas is one of 17 States that requires a new trial motion based on newly discovered
evidence to be made within 60 days of judgment. … Eighteen jurisdictions have time
limits ranging between 1 and 3 years, with 10 States and the District of Columbia fol-

Why We Should Put the Death Penalty to Rest 135

lowing the 2-year federal time limit. Only 15 States allow a new trial based on newly
discovered evidence to be filed more than 3 years after conviction. … [Only] 9 States
have no time limits. (Herrera v. Collins, 1993: 409–11).

It is hard to see how the Court’s judgment in this case or the state policies that are
cited could be consistent with a commitment to respecting human life. What sort of
commitment to the value of human life is shown by the 60-day deadline that Texas
and 16 other states set for submitting new evidence of innocence? Or by the fact that
only 9 states place no limit on the time period for making sure that people are guilty
before we execute them? What sort of attitude toward human life is exhibited by a
Supreme Court that places respect for deadlines ahead of a concern about the death
of innocent human beings?

It is hard to see how anyone who is committed to the ideal of respect for human
life could approve of such practices. And yet, these practices are completely under-
standable. They reflect the desire of a legal bureaucracy to bring time-consuming
appeals to a halt. They reflect the desire of officials who resist the exposure of errors
because they do not want to be seen as incompetent, misled, or over-zealous. They
reflect the desire of citizens who want lower taxes more than they want to pay for
competent lawyers for people charged with murder. They reflect the fact that it is
easier to respect the value of human life in words than to do so in deeds.

Death penalty supporters ought to acknowledge that even if in their ideal world
the values of justice and human life would be affirmed by executing murderers, in
our actual world the actual practice of capital punishment violates these very same
values. If consistency with the values of justice and respect for human life are the
appropriate criteria for deciding the issue, then people who understand the death
penalty system should oppose the practice of punishing by death. Opposition to the
death penalty is consistent with these values, while support for the death penalty vio-
lates them.

A Final Point

I have tried to show that the death penalty fails in theory and is inconsistent in prac-
tice with the values that death penalty supporters claim to support and I think I have
succeeded in showing this. Nonetheless, I know that many people will not shift their
view the next time they read about a terrible murder or about a particularly vicious
criminal. They will think, “Surely, this person deserves to die. Surely, the death penalty
is justified in this case.” What they overlook is that the death penalty is not about
the treatment of a particular individual. Rather, as has been clear in my discussion,
the death penalty is a system. It is a system that empowers prosecutors to seek death
as a punishment, judges and jurors to sentence people to death, and prison officials
to impose death. To favor the death penalty is not to favor the execution of a par-
ticular person whom you or I believe deserves to die. Rather, it is to authorize many
different people – whose motives and attitudes are unknown to us – to seek and
authorize death as a punishment. These people may well make judgments that you or
I would disagree with and yet when we say we favor the death penalty we are author-

Stephen Nathanson136

izing people to act on these judgments. Moreover, we are authorizing them to do so
in the context of a system that we know to be unfair and unreliable.

Our views about the death penalty, then, are views about an institution, not about
individual murders or murderers. It is quite possible to believe that some murderers
deserve to die and yet to oppose the death penalty because one knows that others
who do not deserve to die will be executed. And we do know this. We know that
death sentences will result from racial prejudice, poor legal representation, and mis-
deeds by police and prosecutors. We know that evidence of innocence will be rejected
by courts because deadlines are missed. We know that the practice of capital pun-
ishment as it actually exists violates the principles of justice and respect for human
life. Anyone who genuinely cares about justice and the value of human life should
conclude that the death penalty should be put to rest.

Notes

1 For a discussion of both common-sense and statistical evidence concerning the deterrence
argument, see Nathanson (2001: ch. 2). For a survey of research on deterrence, see Baily
and Peterson (1997).

2 For one example of the claim that killing innocent people is acceptable, see van den Haag
(1975: 219–21).

3 Official misconduct is not the only source of errors. For an analysis of a variety of sources
of inaccuracy in criminal cases and proposals to increase accuracy, see Givelber (1997).

4 In a decision that was later overturned, Judge Jed Rakoff argued that the death penalty was
unconstitutional because DNA evidence had definitively shown its imposition to be unre-
liable. For his decision, see United States v. Quinones (2002).

References

American Bar Association Report on the Death Penalty (1997). Available at
·http://www.abanet.org/irr/rpt107.htmlÒ.

Armstrong, K. and Mills, S. (2000). “Ryan: until I can be sure – Illinois is first state to suspend
death penalty.” Chicago Tribune (February 1): 1.

Baily, William and Peterson, Ruth (1997). “Murder, capital punishment, and deterrence: a review
of the literature.” In Hugo Adam Bedau (ed.), The Death Penalty in America: Current Con-
troversies (pp. 135–61). Oxford: Oxford University Press.

Baldus, D., Woodworth, G., and Pulaski, C., Jr. (1990). Equal Justice and the Death Penalty.
Boston, MA: Northeastern University Press.

Bedau, Hugo Adam and Radelet, M. (1987). “Miscarriages of justice in potentially capital cases.”
Stanford Law Review, 40: 21–179.

Black, Charles, Jr. (1981). Capital Punishment: The Inevitability of Caprice and Mistake, 2nd
edn. New York: W.W. Norton.

Bright, Stephen (1997). “Counsel for the poor: the death sentence not for the worst crime but
for the worst lawyer,” In Hugo Adam Bedau (ed.), The Death Penalty in America: Current
Controversies (pp. 275–309). Oxford: Oxford University Press.

Callins v. Collins (1994). 510 US 1141.
Furman v. Georgia (1972). 408 US 238.

Why We Should Put the Death Penalty to Rest 137

Givelber, Daniel (1997). “Meaningless acquittals, meaningful convictions: do we reliably acquit
the innocent?” Rutgers Law Review, 49: 1317–96.

Gregg v. Georgia (1976). 428 US 153.
Herrera v. Collins (1993). 506 US 390.
Hood, Roger (1998). “Capital punishment.” In M. Tonry (ed.), The Handbook of Crime and Pun-

ishment (pp. 739–76). New York: Oxford University Press.
Huff, C. Ronald; Rattner, Arye, and Sagarin, Edward (1996). Convicted But Innocent: Wrongful

Convictions and Public Policy. Thousand Oaks, CA: Sage Publications.
Kant, Immanuel (1965 [1785]). The Metaphysical Elements of Justice, trans. John Ladd. New

York: Macmillan.
McCloskey, James (1996). “The death penalty: a personal view.” Criminal Justice Ethics, 15:

70–6.
Nathanson, Stephen (2001). An Eye for an Eye? The Immorality of Punishing by Death, 2nd

edn. Lanham, MD: Rowman & Littlefield.
United States v. Quinones (2002). 196 F. Supp. 2d 416 (SDNY).
Van den Haag, Ernest (1975). Punishing Criminals. New York: Basic Books.

Further reading

ACLU (1987). The Case Against the Death Penalty. Washington, DC: American Civil Liberties
Union. Available at: ·http://www.aclu.org/DeathPenalty/DeathPenalty.cfm?ID=9082&c=17Ò.

Amnesty International (1987). United States of America: The Death Penalty. London: Amnesty
International Publications.

Bedau, Hugo Adam (1987). Death is Different. Boston, MA: Northeastern University Press.
Bedau, Hugo Adam (1999). “Abolishing the death penalty even for the worst murderers.” In

Austin Sarat (ed.), The Killing State (pp. 40–59). New York: Oxford University Press.
Bedau, Hugo Adam, Radelet, M., and Putnam, C. (1992). In Spite of Innocence. Boston, MA:

Northeastern University Press.
Bentele, Ursula (1998). “Back to an international perspective on the death penalty as a cruel

punishment: the case of South Africa.” Tulane Law Review, 73: 251–304.
Berns, Walter (1979). For Capital Punishment. New York: Basic Books.
Bowers, William (1984). Legal Homicide: Death as Punishment in America, 1864–1982. Boston,

MA: Northeastern University Press.
Bowers, William (1993). “Capital punishment and contemporary values: people’s misgivings

and the Court’s misperceptions.” Law & society Review, 27: 165–86.
Davis, Michael (1996). Justice in the Shadow of Death. Lanham, MD: Rowman & Littlefield.
Death Penalty Information Center. Available at ·http://www.deathpenaltyinfo.org/Ò.
McCleskey v. Kemp (1987). 481 US 279.
Nathanson, Stephen (1992). “Is the death penalty what murderers deserve?” In S. Luper (ed.),

The Moral Life, 2nd edn. (pp. 380–9). New York: Harcourt Brace.
Nathanson, Stephen (1997). “How (not) to think about the death penalty.” International Journal

of Applied Philosophy, 11: 7–10.
Nathanson, Stephen (1999). “The death penalty as a peace issue.” In D. Curtin and R. Litke

(eds.), Institutional Violence (pp. 53–9). Amsterdam: Rodopi.
Pojman, Louis and Reiman, J. (1998). The Death Penalty: For and Against. Lanham, MD:

Rowman & Littlefield.
Prejean, Helen (1993). Dead Man Walking: An Eyewitness Account of the Death Penalty in

America. New York: Random House.

Stephen Nathanson138

Sarat, Austin (ed.) (1999). The Killing State. New York: Oxford University Press.
Sorrell, Tom (1987). Moral Theory and Capital Punishment. Oxford: Blackwell.
Steffens, Lloyd (1998). Executing Justice. Cleveland: Pilgrim Press.
Supreme Court of South Africa: The State versus Makwanyane (1995). Anor [1995] ICHRL 34

(6 June). Available at ·http://www.worldlii.org/int/cases/ICHRL/1995/34.htmlÒ.
Van den Haag, Ernest (1978a). “In defense of the death penalty: a legal-practical-moral analy-

sis.” Criminal Law Bulletin, 14: 51–68.
Van den Haag, Ernest (1978b). “The collapse of the case against capital punishment.” National

Review (March 31): 395–407.
Woodson v. North Carolina (1976). 428 U.S. 280.
Zimring, F. and Hawkins, G. (1986). Capital Punishment and the American Agenda. Cambridge:

Cambridge University Press.

CHAPTER
S E V E N

A Defense of the
Death Penalty

Louis P. Pojman

Who so sheddeth man’s blood, by man shall his blood be shed.
Genesis 9: 6

There is an ancient tradition, going back to biblical times but endorsed by the main-
stream of philosophers, from Plato to Thomas Aquinas, from Thomas Hobbes to
Immanuel Kant, Thomas Jefferson, John Stuart Mill, and C. S. Lewis, that a fitting
punishment for murder is the execution of the murderer. One prong of this tradition,
the backward-looking or deontological position, epitomized in Aquinas and Kant,
holds that because human beings, as rational agents, have dignity, one who with
malice aforethought kills a human being, forfeits his or her right to life and deserves
to die. The other, the forward-looking or consequentialist tradition, exemplified by
Jeremy Bentham, Mill, and Ernest van den Haag, holds that punishment ought to
serve as a deterrent, and that capital punishment is an adequate deterrent to prospec-
tive murderers. Abolitionists such as Hugo Adam Bedau (1982, 1980) and Jeffrey
Reiman (1998) deny both prongs of the traditional case for the death penalty. They
hold that long prison sentences are a sufficient retributive response to murder and
that the death penalty probably does not serve as a deterrent. I will argue that both
traditional defenses are sound and together they make a strong case for retaining the
death penalty. That is, I hold a combined theory of punishment: a backward-looking
judgment that the criminal has committed a heinous crime plus a forward-looking
judgment that a harsh punishment will deter would-be murderers are sufficient to
justify the death penalty. I turn first to the retributivist theory in favor of capital pun-
ishment. Then I will examine the deterrence theory. Finally, I will present four of the
major objections to the death penalty along with the retributivist’s response to each
of them.

In Favor of the Death Penalty

Retribution
The small crowd that gathered outside the prison to protest the execution of Steven Judy
softly sang: “We Shall Overcome.” But it didn’t seem quite the same hearing it sung out
of concern for someone who, on finding a woman with a flat tire, raped and murdered
her and drowned her three small children, then said that he hadn’t been “losing any
sleep” over his crimes.

I remember the grocer’s wife. She was a plump, happy woman who enjoyed the long
workday she shared with her husband in their ma-and-pa store. One evening, two young
men came in and showed guns, and the grocer gave them everything in the cash
register.

For no reason, almost as an afterthought, one of the men shot the grocer in the face.
The woman stood only a few feet from her husband when he was turned into a dead,
bloody mess.

She was about 50 when it happened. In a few years her mind was almost gone, and
she looked 80. They might as well have killed her too.

Then there was the woman I got to know after her daughter was killed by a wolf-
pack gang during a motoring trip. The mother called me occasionally, but nothing that
I said could ease her torment. It ended when she took her own life.

A couple of years ago I spent a long evening with the husband, sister and parents of
a fine young woman who had been forced into the trunk of a car in a hospital parking
lot. The degenerate who kidnapped her kept her in the trunk, like an ant in a jar, until
he got tired of the game. Then he killed her.1

Human beings have dignity as self-conscious rational agents who are able to act
morally. One could maintain that it is precisely their moral goodness or innocence
that bestows dignity and a right to life on them. Intentionally taking the life of an
innocent human being is so evil that the perpetrator forfeits his own right to life. He
or she deserves to die.

The retributivist holds three propositions: (1) that all the guilty deserve to be pun-
ished; (2) that only the guilty deserve to be punished; and (3) that the guilty deserve
to be punished in proportion to the severity of their crime. Thomas Jefferson sup-
ported such a system of proportionality of punishment to crime:

Whosoever shall be guilty of rape, polygamy, sodomy with man or woman, shall be pun-
ished, if a man, by castration, if a woman by cutting through the cartilage of her nose
a hole of one half inch in diameter at the least. [And] whosoever shall maim another, or
shall disfigure him . . . shall be maimed, or disfigured in the like sort: or if that cannot
be, for want of some part, then as nearly as may be, in some other part of at least equal
value. (Quoted in van den Haag, 1975: 193)

One need not accept Jefferson’s specific penalties to concur with his central point of
some equivalent harm coming to the criminal.

Criminals such as Steven Judy, Timothy McVeigh, Ted Bundy (who is reported to
have raped and murdered more than 100 women), and the two men who gunned down
the grocer (mentioned in the quotation by Royko, above) have committed capital

Louis P. Pojman108

offenses and deserve nothing less than capital punishment. No doubt malicious acts
like the ones committed by these criminals deserve a worse punishment than death,
but at a minimum, the death penalty seems warranted.

People often confuse retribution with revenge. While moral people will feel outrage
at acts of heinous crimes, such as those described above by Royko, the moral justifi-
cation of punishment is not vengeance, but desert. Vengeance signifies inflicting harm
on the offender out of anger because of what he has done. Retribution is the ration-
ally supported theory that the criminal deserves a punishment fitting to the gravity
of his crime.

The nineteenth-century British philosopher James Fitzjames Stephens thought
vengeance was a justification for punishment, arguing that punishment should be
inflicted “for the sake of ratifying the feeling of hatred – call it revenge, resentment,
or what you will – which the contemplation of such [offensive] conduct excites in
healthily constituted minds” (1967: 152). But retributivism is not based on hatred for
the criminal (though a feeling of vengeance may accompany the punishment).
Retributivism is the theory that the criminal deserves to be punished and deserves to
be punished in proportion to the gravity of his or her crime – whether or not the
victim or anyone else desires it. We may all deeply regret having to carry out the
punishment, but consider it warranted.

On the other hand, people do have a sense of outrage and passion for taking
revenge on criminals for their crimes. Stephens was correct in asserting that “[t]he
criminal law stands to the passion for revenge in much the same relation as marriage
to the sexual appetite” (1863: 80). Failure to punish would no more lessen our sense
of vengeance than the elimination of marriage would lessen our sexual appetite. When
a society fails to punish criminals in a way thought to be proportionate to the gravity
of the crime, the danger arises that the public would take the law into its own hands,
resulting in vigilante justice, lynch mobs, and private acts of retribution. The outcome
is likely to be an anarchistic, insecure state of injustice. As such, legal retribution
stands as a safeguard for an orderly application of punitive desert.

Our natural instinct is for vengeance, but civilization demands that we restrain our
anger and go through a legal process, letting the outcome determine whether, and to
what degree, to punish the accused. Civilization demands that we not take the law
into our own hands, but the laws should also satisfy our deepest instincts when they
are consonant with reason. Our instincts tell us that some crimes, such as McVeigh’s,
Judy’s, and Bundy’s, should be severely punished, but we refrain from personally
carrying out those punishments, committing ourselves to the legal processes. The
death penalty is supported by our gut animal instincts as well as our sense of justice
as desert.

The death penalty reminds us that there are consequences to our actions, and that
we are responsible for what we do, so that dire consequences for immoral actions are
eminently appropriate. The death penalty is such a fitting response to evil.

Deterrence
The second tradition justifying the death penalty is the forward-looking utilitarian
theory of deterrence. This holds that by executing convicted murderers we will deter

A Defense of the Death Penalty 109

would-be murderers from killing innocent people. The evidence for deterrence is
controversial. Some scholars, such as Sellin (1967) and Bedau, argue that the death
penalty is not such a superior deterrent of homicides as long-term imprisonment.
Others, such as Ehrlich (1975), make a case for the death penalty as a significant
deterrent. Granted, the evidence is ambiguous and honest scholars can differ on the
results. However, one often hears abolitionists claiming that the evidence shows that
the death penalty fails to deter homicide. This is too strong a claim. The sociological
evidence doesn’t show either that the death penalty deters or that it fails to deter.
The evidence is simply inconclusive. But a common-sense case can be made for
deterrence.

Imagine that every time someone intentionally killed an innocent person he was
immediately struck down by lightning. When mugger Mike slashed his knife into the
neck of the elderly pensioner, lightning struck, killing Mike. His fellow muggers wit-
nessed the sequence of events. When burglar Bob pulled his pistol out and shot the
bank teller through her breast, a bolt leveled Bob, and his compatriots beheld
the spectacle. Soon men with their guns lying next to them were found all across the
world in proximity to the corpses of their presumed victims. Do you think that the
evidence of cosmic retribution would go unheeded?

We can imagine the murder rate in the USA and everywhere else plummeting. The
close correlation between murder and cosmic retribution would surely serve as a deter-
rent to would-be-murderers. If this thought-experiment is sound, we have a prima
facie argument for the deterrent effect of capital punishment. In its ideal, prompt per-
formance, the death penalty would likely deter most rational, criminally minded
people from committing murder. The question then becomes: how do we institute the
death penalty in a manner that would have the maximal deterrent effect without
violating the rights of the accused?

The accused would have to be brought to trial more quickly, and the appeals process
of those found guilty “beyond reasonable doubt” limited. Having DNA evidence should
make this more feasible than hitherto. Furthermore, public executions of the convicted
murderer would serve as a reminder that crime does not pay. Public executions of
criminals seem an efficient way to communicate the message that if you shed inno-
cent blood, you will pay a high price. Hentoff (2001: 31) advocated that Timothy
McVeigh be executed in public so that the public themselves would take responsibil-
ity for such executions. I agree with Hentoff on the matter of accountability, espe-
cially if such publicity would serve to deter homicide.

Abolitionists sometimes argue that because the statistical evidence in favor of the
deterrent effect of capital punishment is indecisive, we have no basis for concluding
that it is a better deterrent than long prison sentences. If I understand these aboli-
tionists, their argument presents us with an exclusive disjunct. Either we must have
conclusive statistical evidence (i.e., a proof) for the deterrent effect of the death
penalty, or we have no grounds for supposing that the death penalty deters. Many
people accept this argument. Recently, a colleague said to me, “There is no statistical
evidence that the death penalty deters,” as if to dismiss the argument from deterrence
altogether. This confuses the proposition “there is no statistical proof for the deter-
rence-effect” with the proposition “there is statistical proof against the deterrence-
effect.” This is a fallacious inference, for it erroneously supposes that only two

Louis P. Pojman110

opposites are possible. There is a middle position that holds that while we cannot
prove conclusively that the death penalty deters, the weight of evidence supports its
deterrent effect. Furthermore, I think there are too many variables to hold constant
for us to prove via statistics the deterrence hypothesis, and even if the requisite sta-
tistics were available, we could question whether they were cases of mere correlation
versus causation. On the other hand, common-sense or anecdotal evidence may
provide insight into the psychology of human motivation, providing evidence that
fear of the death penalty deters some types of would-be criminals from committing
murder. Granted, people are sometimes deceived about their motivation. But usually
they are not deceived, and, as a rule, we should presume that they know their motives
until we have evidence to the contrary. The general common-sense argument goes
like this:

1 What people (including potential criminals) fear more will have a greater deter-
rent effect on them.

2 People (including potential criminals) fear death more than they do any other
humane punishment.

3 The death penalty is a humane punishment.
4 Therefore, people (including criminals) will be deterred more by the death penalty

than by any other humane punishment.

Since the purpose of this argument is to show that the death penalty very likely deters
more than long-term prison sentences, I am assuming it is humane – that is, accept-
able to the moral sensitivities of the majority in our society. Torture might deter even
more, but it is not considered humane.

Common sense informs us that most people would prefer to remain out of jail, that
the threat of public humiliation is enough to deter some people, that a sentence of
20 years will deter most people more than a sentence of 2 years, and that a life sen-
tence will deter most would-be criminals more than a sentence of 20 years. I think
that we have common-sense evidence that the death penalty is a better deterrent than
long prison sentences. For one thing, as Wilson and Herrnstein (1986) have argued,
a great deal of crime is committed on a cost-benefit schema, wherein the criminal
engages in some form of risk assessment as to his or her chances of getting caught
and punished in some manner. If he or she estimates the punishment to be mild, the
crime becomes inversely attractive, and vice versa. The fact that those who are con-
demned to death generally do everything in their power to get their sentences post-
poned or reduced to long-term prison sentences, in the way lifers do not, shows that
they fear death more than life in prison.

The point is this: imprisonment constitutes one evil, the loss of freedom, but the
death penalty imposes a more severe loss, that of life itself. If you lock me up, I may
work for a parole or pardon. I may learn to live stoically with diminished freedom,
and I can plan for the day when my freedom has been restored. But if I believe that
my crime may lead to death, or loss of freedom followed by death, then I have more
to fear than mere imprisonment. I am faced with a great evil plus an even greater
evil. I fear death more than imprisonment because it alone takes from me all future
possibility.

A Defense of the Death Penalty 111

I am not claiming that the fear of legal punishment is all that keeps us from crim-
inal behavior. Moral character, good habit, fear of being shamed, peer pressure, fear
of authority, or the fear of divine retribution may have a greater influence on some
people. However, many people will be deterred from crime, including murder, by the
threat of severe punishment. The abolitionist points out that many would-be mur-
derers simply do not believe they will be caught. Perhaps this is true for some. While
the fantastic egoist has delusions of getting away with his crime, many would-be
criminals are not so bold or delusionary.

Former Prosecuting Attorney for the State of Florida, Richard Gernstein, has set
forth the common sense case for deterrence. First of all, he claims, the death penalty
certainly deters the murderer from any further murders, including those he or she
might commit within the prison where he is confined. Secondly, statistics cannot tell
us how many potential criminals have refrained from taking another’s life through
fear of the death penalty. He quotes Judge Hyman Barshay of New York: “The death
penalty is a warning, just like a lighthouse throwing its beams out to sea. We hear
about shipwrecks, but we do not hear about the ships the lighthouse guides safely on
their way. We do not have proof of the number of ships its saves, but we do not tear
the lighthouse down” (Gernstein, 1960: 253).

Some of the common-sense evidence is anecdotal, as the following quotation
shows. British Member of Parliament Arthur Lewis explains how he was converted
from an abolitionist to a supporter of the death penalty:

One reason that has stuck in my mind, and which has proved [deterrence] to me beyond
question, is that there was once a professional burglar in [my] constituency who con-
sistently boasted of the fact that he had spent about one-third of his life in prison. . . .
He said to me “I am a professional burglar. Before we go out on a job we plan it down
to every detail. Before we go into the boozer to have a drink we say ‘Don’t forget, no
shooters’ – shooters being guns.” He adds: “We did our job and didn’t have shooters
because at that time there was capital punishment. Our wives, girlfriends and our mums
said, ‘Whatever you do, do not carry a shooter because if you are caught you might be
topped [executed].’ If you do away with capital punishment they will all be carrying
shooters.” (British Parliamentary Debates, 1982)

It is difficult to know how widespread this reasoning is. My own experience cor-
roborates this testimony. Growing up in the infamous Cicero, Illinois, home of Al
Capone and the Mafia, I had friends, including a brother, who drifted into crime,
mainly burglary and larceny. It was common knowledge that one stopped short of
killing in the act of robbery. A prison sentence could be dealt with – especially with
a good lawyer – but being convicted of murder, which at that time included a
reasonable chance of being electrocuted, was an altogether different matter. No
doubt exists in my mind that the threat of the electric chair saved the lives of some
of those who were robbed in my town. No doubt some crimes are committed in
the heat of passion or by the temporally (or permanently) insane, but many are
committed through a process of risk assessment. Burglars, kidnappers, traitors, and
vindictive people will sometimes be restrained by the threat of death. We simply
don’t know how much capital punishment deters, but this sort of common-sense,

Louis P. Pojman112

anecdotal evidence must be taken into account in assessing the institution of capital
punishment.

John Stuart Mill admitted that capital punishment does not inspire terror in hard-
ened criminals, but it may well make an impression on prospective murderers:

As for what is called the failure of the death punishment, who is able to be judge of
that? We partly know who those are whom it has not deterred; but who is there who
knows whom it has deterred, or how many human beings it has saved who would have
lived to be murderers if that awful association had not been thrown round the idea of
murder from their earliest infancy. (1986: 97–104)

Mill’s points are well taken: first, not everyone will be deterred by the death penalty, but
some will; second, the potential criminal need not consciously calculate a cost-benefit
analysis regarding his crime to be deterred by the threat. The idea of the threat may have
become a subconscious datum “from their earliest infancy.” The repeated announcement
and regular exercise of capital punishment may have deep causal influence.

Gernstein quotes the British Royal Commission on Capital Punishment (1949–53),
which is one of the most thorough studies on the subject and which concluded that
there was evidence that the death penalty has some deterrent effect on normal human
beings. Some of its evidence in favor of the deterrence effect includes:

1 Criminals who have committed an offense punishable by life imprisonment, when
faced with capture, refrained from killing their captor though by killing, escape
seemed probable. When asked why they refrained from the homicide, quick responses
indicated a willingness to serve life sentence, but not risk the death penalty.

2 Criminals about to commit certain offenses refrained from carrying deadly
weapons. Upon apprehension, answers to questions concerning absence of such
weapons indicated a desire to avoid more serious punishment by carrying a
deadly weapon, and also to avoid use of the weapon which could result in impo-
sition of the death penalty.

3 Victims have been removed [by criminals] from a capital-punishment State to a
non-capital-punishment State to allow the murderer opportunity for homicide
without threat to his own life. This in itself demonstrates that the death penalty
is considered by some would-be-killers. (Gernstein, 1960: 253)

Gernstein then quotes former District Attorney of New York, Frank S. Hogan, rep-
resenting himself and his associates:

We are satisfied from our experience that the deterrent effect is both real and substan-
tial . . . for example, from time to time accomplices in felony murder state with appar-
ent truthfulness that in the planning of the felony they strongly urged the killer not to
resort to violence. From the context of these utterances, it is apparent that they were led
to these warnings to the killer by fear of the death penalty that they realized might follow
the taking of life. Moreover, victims of hold-ups have occasionally reported that one of
the robbers expressed a desire to kill them and was dissuaded from so doing by a con-
federate. Once again, we think it not unreasonable to suggest that fear of the death
penalty played a role in some of these intercessions.

A Defense of the Death Penalty 113

On a number of occasions, defendants being questioned in connection with homicide
have shown a striking terror of the death penalty. While these persons have in fact per-
petrated homicide, we think that their terror of the death penalty must be symptomatic
of the attitude of many others of their type, as a result of which many lives have been
spared. (Gernstein, 1960: 253–4)

It seems likely that the death penalty does not deter as much as it could do, because
of its inconsistent and rare use. For example, in 1949, out of an estimated 23,370
cases of murder, non-negligent manslaughter, and rape, there were only 119 execu-
tions carried out in the United States. In 1953, out of 27,000 murder cases, only 62
executions for those crimes took place. Few executions were carried out in the 1960s
and none at all from 1967 to 1977. Gernstein points out that at that rate a criminal’s
chances of escaping execution are better than 100 to 1 (1960: 254). Actually, since
Gernstein’s report, the figures have become even more weighted against the chances
of the death penalty. In 1993, there were 24,526 cases of murder and non-negligent
manslaughter and only 56 executions, while in 1994 there were 23,305 cases of
murder and non-negligent manslaughter and only 31 executions – a ratio of more
than 750 to 1 in favor of the criminal. The average length of stay for a prisoner
executed in 1994 was ten years and two months. If potential murderers perceived the
death penalty as a highly probable outcome of murder, would they not be more reluc-
tant to kill? Gernstein notes:

The commissioner of Police of London, England, in his evidence before the Royal Com-
mission on Capital Punishment, told of a gang of armed robbers who continued opera-
tions after one of their members was sentenced to death and his sentence commuted to
penal servitude, but the same gang disbanded and disappeared when, on a later occa-
sion, two others were convicted of murder and hanged. (1960: 254)

Gernstein sums up his data:

Surely it is a common-sense argument, based on what is known of human nature, that
the death penalty has a deterrent effect particularly for certain kinds of murderers.
Furthermore, as the Royal Commission opined, the death penalty helps to educate the
conscience of the whole community, and it arouses among many people a quasi-
religious sense of awe. In the mind of the public there remains a strong association
between murder and the penalty of death. Certainly one of the factors which restrains
some people from murder is fear of punishment and surely, since people fear death more
than anything else, the death penalty is the most effective deterrent. (1960: 254)

A retentionist is someone who advocates retaining the death penalty as a mode of
punishment for some crimes. Given the retributivist argument for the death penalty
based on desert, the retentionist does not have to prove that the death penalty deters
better than long-prison sentences, but if the death penalty is deemed at least as effec-
tive as its major alternative, it would be justified. If evidence existed that life impris-
onment were a more effective deterrent, the retentionist might be hard-pressed to
defend it on retributivist lines alone. My view is that the desert argument plus the
common-sense evidence – being bolstered by the following argument, the Best Bet
Argument – strongly supports retention of the death penalty.

Louis P. Pojman114

Ernest van den Haag (1968) set forth what he calls the Best Bet Argument. He
argues that even though we don’t know for certain whether the death penalty
deters or prevents other murders, we should bet that it does. Indeed, due to our
ignorance, any social policy we take is a gamble. Not to choose capital punishment
for first-degree murder is as much a bet that capital punishment doesn’t deter as
choosing the policy is a bet that it does. There is a significant difference in the betting,
however, in that to bet against capital punishment is to bet against the innocent
and for the murderer, while to bet for it is to bet against the murderer and for the
innocent.

The point is this: we are accountable for what we let happen, as well as for what
we actually do. If I fail to bring up my children properly, so that they are a menace
to society, I am to some extent responsible for their bad behavior. I could have caused
it to be somewhat better. If I have good evidence that a bomb will blow up the build-
ing you are working in and fail to notify you (assuming I can), I am partly respon-
sible for your death, if and when the bomb explodes. So we are responsible for what
we omit doing, as well as for what we do. Purposefully to refrain from a lesser evil
which we know will allow a greater evil to occur is to be at least partially responsi-
ble for the greater evil. This responsibility for our omissions underlies van den Haag’s
argument, to which we now return.

Suppose that we choose a policy of capital punishment for capital crimes. In this
case we are betting that the death of some murderers will be more than compensated
for by the lives of some innocents not being murdered (either by these murderers or
by others who would have murdered). If we are right, we have saved the lives of the
innocent. If we are wrong, we have, unfortunately, sacrificed the lives of some mur-
derers. But say we choose not to have a social policy of capital punishment. If capital
punishment doesn’t work as a deterrent, we’ve come out ahead, but if it does work,
then we’ve missed an opportunity to save innocent lives. If we value the saving of
innocent lives more highly than we do the loss of the guilty, then to bet on a policy
of capital punishment turns out to be rational. Since the innocent have a greater right
to life than the guilty, it is our moral duty to adopt a policy that has a chance of pro-
tecting them from potential murderers.

It is noteworthy that prominent abolitionists, such as Charles Black, Hugo Adam
Bedau, Ramsey Clark, and Henry Schwartzchild, have admitted to Ernest van den Haag
that even if every execution were to deter 100 murders, they would oppose it, from
which van den Haag concludes: “to these abolitionist leaders, the life of every mur-
derer is more valuable than the lives of a hundred prospective victims, for these abo-
litionists would spare the murderer, even if doing so will cost a hundred future victims
their lives.” Black and Bedau said they would favor abolishing the death penalty even
if they knew that doing so would increase the homicide rate by 1,000 percent.2 This
response of abolitionists is puzzling, since one of Bedau’s arguments against the death
penalty is that it doesn’t bring back the dead: “We cannot do anything for the dead
victims of crime. (How many of those who oppose the death penalty would continue
to do so if, mirabile dictu, executing the murderer might bring the victim back to
life?)” (Bedau, 1989: 190). Apparently, he would support the death penalty if it brought
a dead victim back to life, but not if it prevented 100 innocent victims from being
murdered.

A Defense of the Death Penalty 115

If the Best Bet Argument is sound, or if the death penalty does deter would-be
murderers, as common sense suggests, then we should support some uses of the death
penalty. It should be used for those who commit first-degree murder, for whom no
mitigating factors are present, and especially for those who murder police officers,
prison guards, and political leaders. Many states rightly favor it for those who murder
while committing another crime, e.g., burglary or rape. It should also be used for
treason and terrorist bombings. It should also be considered for egregious white-collar
crimes such as for bank managers who embezzle the savings of the public. The Savings
& Loan scandals of the 1980s and the corporate scandals of 2002, involving wealthy
bank officials and CEOs engaging in fraudulent business behavior, ruined the lives of
many people, while providing the perpetrators with golden parachutes. This gross vio-
lation of the public trust may well warrant the electric chair.

Objections to the Death Penalty

Finally, let us examine four of the major objections to death penalty, as well as the
retentionist’s responses to those objections.

Objection 1
Capital punishment is a morally unacceptable thirst for revenge. As former British
Prime Minister Edward Heath put it:

The real point that is emphasized to me by many constituents is that even if the death
penalty is not a deterrent, murderers deserve to die. This is the question of revenge.
Again, this will be a matter of moral judgment for each of us. I do not believe in revenge.
If I were to become the victim of terrorists, I would not wish them to be hanged or killed
in any other way for revenge. All that would do is deepen the bitterness that already
tragically exists in the conflicts we experience in society, particularly in Northern Ireland.
(British Parliamentary Debates, 1982)

Response Retributivism, as I argued above, is not the same thing as revenge,
although the two attitudes are often intermixed in practice. Revenge is a personal
response to a perpetrator for an injury. Retribution is an impartial and impersonal
response to an offender for an offense done against someone. You cannot desire
revenge for the harm of someone to whom you are indifferent. Revenge always
involves personal concern for the victim. Retribution is not personal but is based on
objective factors: the criminal has deliberately harmed an innocent party and so
deserves to be punished, whether I wish it or not. I would agree that I or my son or
daughter deserves to be punished for our crimes, but I don’t wish any vengeance on
myself or my son or daughter.

Furthermore, while revenge often leads us to exact more suffering from the offender
than the offense warrants, retribution stipulates that the offender be punished in pro-
portion to the gravity of the offense. In this sense, the lex talionis that we find in the
Old Testament is actually a progressive rule, where retribution replaces revenge as the

Louis P. Pojman116

mode of punishment. It says that there are limits to what one may do to the offender.
Revenge demands a life for an eye or a tooth, but Moses provides a rule that exacts
a penalty equal to the harm done by the offender.

Objection 2
Perhaps the murderer does deserve to die, but by what authority does the state execute
him or her? Both the Old and New Testament say, “ ‘Vengeance is mine, I will repay,’
says the Lord” (Deut. 32: 35 and Romans 12: 19). You need special authority to justify
taking the life of a human being.

Response The objector fails to note that the New Testament passage continues with a
support of the right of the state to execute criminals in the name of God: “Let every
person be subjected to the governing authorities. For there is no authority except from
God, and those that exist have been instituted by God. Therefore he who resists what
God has appointed, and those who resist will incur judgment. . . . If you do wrong, be
afraid, for [the authority] does not bear the sword in vain; he is the servant of God to
execute his wrath on the wrongdoer” (Romans 13: 1–4). So, according to the Bible, the
authority to punish, which presumably includes the death penalty, comes from God.

But we need not appeal to a religious justification for capital punishment. We can
cite the state’s role in dispensing justice. Just as the state has the authority (and duty)
to act justly in allocating scarce resources, in meeting the minimal needs of its (deserv-
ing) citizens, in defending its citizens from violence and crime, and in not waging
unjust wars, so too it has the authority, flowing from its mission to promote justice
and the good of its people, to punish the criminal. If the criminal, as one who has
forfeited a right to life, deserves to be executed, especially if it will likely deter would-
be murderers, the state has a duty to execute those convicted of first-degree murder.

Objection 3
Miscarriages of justice occur. Capital punishment is to be rejected because of human
fallibility in convicting innocent parties and sentencing them to death. In a survey
done in 1985, Bedau and Radelet found that 25 of the 7,000 persons executed in the
United States between 1900 and 1985 were innocent of capital crimes (quoted in van
den Haag, 1986: 1664). While some compensation is available to those unjustly
imprisoned, the death sentence is irrevocable. We can’t compensate the dead. As John
Maxton, a British Member of Parliament puts it, “If we allow one innocent person to
be executed, morally we are committing the same, or, in some ways, a worse crime
than the person who committed the murder” (British Parliamentary Debates, 1982).

Response Mr Maxton is incorrect in saying that mistaken judicial execution is
morally the same or worse than murder, for a deliberate intention to kill the inno-
cent occurs in a murder, whereas no such intention occurs in wrongful capital
punishment.

Sometimes this objection is framed as follows. It is better to let ten criminals go
free than to execute one innocent person. If this dictum is a call for safeguards, then

A Defense of the Death Penalty 117

it is well taken; but somewhere there seems to be a limit on the tolerance of society
towards capital offenses. Would these abolitionists argue that it is better that 50 or
100 or 1,000 murderers go free than that one guilty person be executed? Society has
a right to protect itself from capital offenses even if this means taking a tiny chance
of executing an innocent person. If the basic activity or process is justified, then it is
regrettable, but morally acceptable, that some mistakes are made. Fire trucks occa-
sionally kill innocent pedestrians while racing to fires, but we accept these losses as
justified by the greater good of the activity of using fire trucks. We judge the use of
automobiles to be acceptable, even though such use causes an average of 50,000
traffic fatalities each year. We accept the morality of a defensive war even though it
will result in our troops accidentally or mistakenly killing innocent people.

The fact that we can err in applying the death penalty should give us pause and
cause us to build a better appeals process into the judicial system. Such a process is
already in place in the American and British legal systems. That occasional error may
be made, regrettable though this is, is not a sufficient reason for us to refuse to use
the death penalty, if on balance it serves a just and useful function.

Furthermore, aboliltionists are simply misguided in thinking that prison sentences
are a satisfactory alternative here. It’s not clear that we can always or typically com-
pensate innocent parties who waste away in prison. Jacques Barzun has argued that
a prison sentence can be worse than death and carries all the problems that the death
penalty does regarding the impossibility of compensation.

In the preface of his useful volume of cases, Hanged in Error, Mr Leslie Hale refers to
the tardy recognition of a minor miscarriage of justice – one year in jail: “The prisoner
emerged to find that his wife had died and that his children and his aged parents had
been removed to the workhouse. By the time a small payment had been assessed as ‘com-
pensation’ the victim was incurably insane.” So far we are as indignant with the law as
Mr Hale. But what comes next? He cites the famous Evans case, in which it is very prob-
able that the wrong man was hanged, and he exclaims: “While such mistakes are possi-
ble, should society impose an irrevocable sentence?” Does Mr. Hale really ask us to believe
that the sentence passed on the first man, whose wife died and who went insane, was
in any sense revocable? Would not any man rather be Evans dead than that other wretch
“emerging” with his small compensation and his reason for living gone? (Barzun, 162:
188–9)

The abolitionist is incorrect in arguing that death is different from long-term prison
sentences because it is irrevocable. Imprisonment also takes good things away from
us that may never be returned. We cannot restore to the inmate the freedom or oppor-
tunities he or she has lost. Suppose an innocent 25-year-old man is given a life sen-
tence for murder and 30 years later the error is discovered and he is set free. Suppose
he values 3 years of freedom to every one year of life. That is, he would rather live
10 years as a free man than 30 as a prisoner. Given this man’s values, the criminal
justice system has taken the equivalent of 10 years of life from him. If he lives until
he is 65, he has, as far as his estimation is concerned, lost 10 years, so that he may
be said to have lived only 55 years.

The numbers in this example are arbitrary, but the basic point is sound. Most of
us would prefer a shorter life of higher quality to a longer one of low quality. Death

Louis P. Pojman118

prevents all subsequent quality, but imprisonment also irrevocably harms one by
diminishing the quality of life of the prisoner.

Objection 4
The death penalty is unjust because it discriminates against the poor and minorities,
particularly African Americans, over against rich people and whites. Former Supreme
Court Justice William Douglas wrote that “a law which reaches that [discriminatory]
result in practice has no more sanctity than a law that in terms provides the same”
(Furman v. Georgia, 1972). Stephen Nathanson argues that, “in many cases, whether
one is treated justly or not depends not only on what one deserves but on how other
people are treated” (2001: 62). He offers the example of unequal justice in a plagia-
rism case: “I tell the students in my class that anyone who plagiarizes will fail the
course. Three students plagiarize papers, but I give only one a failing grade. The other
two, in describing their motivation, win my sympathy, and I give them passing grades”
(2001: 62, 60). Arguing that this is patently unjust, he likens this case to the impo-
sition of the death penalty and concludes that it too is unjust.

Response First of all, it is not true that a law that is applied in a discriminatory
manner is unjust. Unequal justice is no less justice, however uneven its application.
The discriminatory application, not the law itself, is unjust. A just law is still just even
if it is not applied consistently. For example, a friend of mine once got two speeding
tickets during a 100-mile trip (having borrowed my car). He complained to the police
officer who gave him the second ticket that many drivers were driving faster than he
was at the time. They had escaped detection, he argued, so it wasn’t fair for him to
get two tickets on one trip. The officer acknowledged the imperfections of the system
but, justifiably, had no qualms about giving him the second ticket. Unequal justice is
still justice, however regrettable. So Justice Douglas is wrong in asserting that dis-
criminatory results invalidate the law itself. Discriminatory practices should be
reformed, and in many cases they can be. But imperfect practices in themselves do
not entail that the laws engendering these practices are themselves are unjust.

With regard to Nathanson’s analogy with the plagiarism case, two things should
be said against it. First, if the teacher is convinced that the motivational factors are
mitigating factors, then he or she may be justified in passing two of the plagiarizing
students. Suppose that the one student did no work whatsoever, showed no interest
(Nathanson’s motivation factor) in learning, and exhibited no remorse in cheating,
whereas the other two spent long hours seriously studying the material and, upon
apprehension, showed genuine remorse for their misdeeds. To be sure, they yielded to
temptation at certain – though limited – sections of their long papers, but the vast
majority of their papers represented their own diligent work. Suppose, as well, that
all three had C averages at this point. The teacher gives the unremorseful, gross pla-
giarizer an F, but relents and gives the other two a D. Her actions parallel the judge’s
use of mitigating circumstances and cannot be construed as arbitrary, let alone unjust.

The second problem with Nathanson’s analogy is that it would have disastrous con-
sequences for all law and benevolent practices alike. If we concluded that we should
abolish a rule or practice unless we treat everyone exactly by the same rules all the

A Defense of the Death Penalty 119

time, we would have to abolish, for example, traffic laws and laws against impris-
onment for rape, theft, and even murder. Carried to its logical limits, we would also
have to refrain from saving drowning victims if a number of people were drowning
but we could only save a few of them. Imperfect justice is the best that we humans
can attain. We should reform our practices as much as possible to eradicate unjust
discrimination wherever we can, but if we are not allowed to have a law without
perfect application, we will be forced to have no laws at all.

Nathanson acknowledges this latter response, but argues that the case of death is
different. “Because of its finality and extreme severity of the death penalty, we need
to be more scrupulous in applying it as punishment than is necessary with any other
punishment” (2001: 67). The retentionist agrees that the death penalty is a severe pun-
ishment and that we need to be scrupulous in applying it. The difference between the
abolitionist and the retentionist seems to lie in whether we are wise and committed
enough as a nation to reform our institutions so that they approximate fairness.
Apparently Nathanson is pessimistic here, whereas I have faith in our ability to learn
from our mistakes and reform our systems. If we can’t reform our legal system, what
hope is there for us?3

More specifically, the charge that a higher percentage of blacks than whites are
executed was once true, but is no longer so. Many states have made significant
changes in sentencing procedures, with the result that, currently, whites convicted of
first-degree murder are sentenced to death at a higher rate than blacks.4

One must be careful in reading too much into these statistics. While great dispar-
ities in statistics should cause us to examine our judicial procedures, they do not in
themselves prove injustice. For example, more males than females are convicted of
violent crimes (almost 90 percent of those convicted of violent crimes are males – a
virtually universal statistic), but this is not strong evidence that the law is unfair, for
there are biological/psychological explanations for the disparity in convictions. Males
are on average and by nature more aggressive (usually linked to testosterone) than
females; simply having a Y chromosome predisposes them to greater violence.
Nevertheless, we hold male criminals responsible for their violence and expect them
to control themselves. Likewise, there may be good explanations why people of one
ethnic group commit more crimes than those of other groups, explanations that do
not impugn the processes of the judicial system, nor absolve rational people of their
moral responsibility.

As I write this, Governor Ryan of Illinois has just commuted the sentences of more
than 167 death-row inmates. Abolitionists throughout the world celebrated this as a
great victory. But they should have second thoughts. By summarily commuting the
sentences of all of the condemned men, the Governor has undermined the stability
and integrity of the law as a viable institution in his state, overturning years of work
by the police, prosecutors, judges, and juries, and has turned his back on the right of
the victims’ families to see justice done. Apparently, some of those convicted were
done so on insufficient evidence. If so, their sentences should have been commuted
and the prisoners compensated. But such decisions should be taken on a case-by-case
basis. Some of the convicts on death row were hardened unrepentant criminals, guilty
of heinous crimes. If capital punishment is justified, its application should be con-
fined to such clear cases in which the guilt of the criminal is “beyond reasonable

Louis P. Pojman120

doubt.” But to overthrow the whole system because of a few possible miscarriages of
justice is as unwarranted as it is a loss of faith in our system of criminal justice. No
one would abolish the use of fire engines and ambulances because occasionally they
kill innocent pedestrians while carrying out their mission.

The complaint is often made by abolitionists that only the poor get death sentences
for murder. If their trials are fair, then they deserve the death penalty, but rich mur-
derers may be equally deserving. At the moment, only first-degree murder and treason
are crimes deemed worthy of the death penalty. Perhaps our notion of treason should
be expanded to include those who betray the trust of the public, corporation execu-
tives who have the trust of ordinary people, but who, through selfish and dishonest
practices, ruin their lives. My proposal is to broaden, not narrow, the scope of capital
punishment, to include businessmen and women who unfairly and severely harm the
public. As I have mentioned above, the executives in the recent corporation scandals
who bailed out with millions of dollars while they destroyed the pension plans of
thousands of employees may deserve severe punishment and, if convicted, they should
receive what they deserve. My guess is that the threat of the death sentence would
have a deterrent effect in such cases. Whether it is feasible to apply the death penalty
to horrendous white-collar crimes is debatable. But there is something to be said in
its favor; it would certainly remove the impression that only the poor get executed.

Conclusion

While the abolitionist movement is gaining strength – due in part to the dedicated
eloquence of opponents to the death penalty such as Hugo Adam Bedau, Stephen
Nathanson, and Jeffrey Reiman – a cogent case can be made for retaining the death
penalty for serious crimes. The case primarily rests on a notion of justice as desert,
but is strengthened by utilitarian arguments involving deterrence. It is not because
retentionists disvalue life that we defend the use of the death penalty. Rather, it is
because we value human life as highly as we do that we support its continued use.
The combined argument based on both backward-looking and forward-looking con-
siderations justify use of the death penalty.

The abolitionist points out the problems in applying the death penalty. We can
concede that there are problems and that reform is constantly needed, but since the
death penalty is justified in principle, we should seek to improve its application rather
than abolish a just institution.5 If civilized society can reduce racism and sexism and
send people to the moon, surely it can reduce the injustices connected with the crim-
inal justice system. We ought not to throw out the baby with the dirty bath water.

Notes

1 Mike Royko, quoted in Moore (1995: 98–9).
2 Cited in Ernest van den Haag, “The Death Penalty Once More,” unpublished manuscript. In

“A Response to Bedau” (van den Haag, 1977: 798, n.5), van den Haag states that both Black
and Bedau said that they would be in favor of abolishing the death penalty even if “they

A Defense of the Death Penalty 121

knew that its abolition (and replacement by life imprisonment) would increase the homi-
cide rate by 10%, 20%, 50%, 100%, or 1000%. Both gentlemen continued to answer affir-
matively.” Bedau confirmed this in a letter to me (July 28, 1996).

3 An example might be the abolition of large numbers of institutions for the mentally ill in
New York which began in the 1960s, sought by reformers because of documented abuses
related to both inadequate treatment and due regard for patients’ rights. It was argued that
prevailing conditions could not be reformed, but large-scale release of long-institutional-
ized persons without adequate planning for their follow-up led to new problems, including
visibly increased homelessness. In hindsight, many believe that more work should have been
done to reform the institutions. Sometimes it is the lesser of two evils to keep an imperfect
institution than to abolish it for an unknown effect.

4 The Department of Justice’s Bureau of Justice Statistics Bulletin for 1994 reports that
between 1977 and 1994, 2,336 (5%) of those arrested for murder were white, 1,838 (40%)
were black, and 316 (7%) were Hispanic. Of the 257 who were executed, 140 (54%) were
white, 98 (38%) were black, 17 (7%) were Hispanic, and 2 (1%) were other races. In 1994,
31 prisoners – 20 white men and 11 black men – were executed, although whites made up
only 7,532 (41%) and blacks 9,906 (56%) of those arrested for murder. Of those sentenced
to death in 1994, 158 were white men, 133 were black men, 25 were Hispanic men, 2 were
Native American men, 2 were white women, and 3 were black women. Of those sentenced,
relatively more blacks (72%) than whites (65%) or Hispanics (60%) had prior felony records.
Overall, the criminal justice system does not seem to favor white criminals over black,
though it does seem to favor rich defendants over poor ones.

5 I have discussed these problems in Pojman (1998).

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Further reading

Davis, Michael (1981). “Death, deterrence, and the method of common sense.” Social Theory
and Practice, 7: 145–78.

A Defense of the Death Penalty 123