The state of Arkansas executed murderers fairly regularly in April partly because the Supreme Court has consistently denied applications for stay of execution. Some of us believe the state is doing justice by giving murderers what they deserve. The just punishment for some crimes, we think, is death, and insofar as any criminal justice system ought to bring about justice, the state has the moral authority to execute some offenders.
Others believe the institution of capital punishment is gravely unjust. The latter group—the abolitionists—have marshalled many arguments against capital punishment over the last few decades, arguments that have been increasingly effective both in the courts and at the state-level. (Nineteen states have now abolished capital punishment.) None of these arguments are remotely convincing on reflection, but are superficially alluring sans reflection. Let me explain why.
Start with Racial Bias
It is often asserted that capital punishment should be abolished because of racial bias: black men are executed at disproportionate rates in relation to their share of the population. The claim, then, is that if a kind of punishment is unfairly applied, then it oughtn’t be applied at all.
It’s easy to see why this argument tempts many. According to it, the institution is racist, and isn’t it just obvious that racist institutions ought to be abolished? That is, after all, what we did to the institution of slavery, and rightly so.
Despite its intuitive appeal, there are many problems with this argument. Here’s a relatively minor one: That some group is disproportionately punished for some crime in relation to their share of the population does not, by itself, imply injustice.
Consider that the overwhelming majority of violent criminals are men, although there are more women than men in the general population. Is this fact, by itself, evidence of institutional sexism? Obviously not. It’s a reflection of the fact that men offend at much higher rates than women.
But let’s set this wrinkle to the side. There are at least two more problems with this argument. First, it would count equally well as an argument for abolishing virtually all punishments, since they too are biased in precisely the same way. Is the fact that black men are disproportionately imprisoned for life a good reason to abolish life imprisonment? I don’t think so.
Second, if anything follows from the reality of racial bias it’s that more white murderers should be executed, not that nobody should be executed. If the abolitionist claims the death penalty should be abolished until it can be fairly applied, then the first problem arises again: this applies to virtually any punishment whatever. Consequently, even if we set aside the question of whether there is residual racial bias once we account for group differences in rates of offending, this argument is a bad one. Abolitionists should jettison it from their arsenal.
What about the Risk of Executing Innocent People?
A better abolitionist argument is as follows. There’s a significant risk that innocent people will be executed if capital punishment isn’t abolished. After all, many people have been wrongly convicted of other crimes, so murder probably is no exception. Moreover, the execution of an innocent person is obviously a grave injustice. It is then alleged that this risk is unacceptably high and, consequently, capital punishment ought to be abolished.
Problems abound here as well. One obvious problem with appealing to the risk of innocent death as a reason for abolition is that it implies outright pacifism. In the real world, any just war will inevitably and invariably cause the deaths of innocents, either because they are the foreseen but unintended casualties of necessary and proportionate attacks, or else because there are likely to be a few wicked people in any army. Despite the even greater risk of innocent death in the context of war, very few of us believe in abolishing the armed forces. The principle that any activity that might or even regularly results in innocents dying ought to be abolished is, therefore, false.
A more important problem, however, is similar to one we’ve already encountered: all punishment, including life imprisonment, carries the risk of significantly harming innocent people. I am aware of no plausible principle that implies it’s impermissible to swiftly kill murderers on account of the risk to innocents but that doesn’t also imply that it’s impermissible to imprison murderers for life, despite the fact that many more innocents will inevitably suffer this torturous punishment.
Indeed, abolitionists often assert that life imprisonment is a harsher sentence than death: “I’d rather die than rot in prison for life,” they assure us. Of course, this is usually a rhetorical ploy, but it supports the present point nicely: If capital punishment ought to be abolished because some innocents will die, then other punishments that are at least as severe and that are likely to harm many more innocents must also be abolished. But very few people, abolitionists included, would be willing to accept abolitionism about life imprisonment.
But You Can’t Reverse Execution
At this point, abolitionists often bring up the unremarkable observation that executions are irreversible. This is unremarkable because any punishment is irreversible, for time itself is irreversible. No prisoner can get back the time that was taken from him, even if he’s released before he dies. An innocent man who rots in a prison for his entire life before dying cannot have his punishment reversed. He can’t even be compensated.
Since significantly more people are imprisoned in this way than are executed, many more innocents are wrongly harmed from imprisonment than from capital punishment. The mere fact that a punishment, once completed, is irreversible and carries a significant risk of harming innocents is, therefore, no reason to abolish it.
I’ve presented an entirely negative case: many of the common arguments for abolitionism are weak. Let me say, then, the positive reason I believe it would be a serious mistake to abolish capital punishment.
Why do we punish people? The example of elderly Nazi war criminals, such as Adolf Eichmann, will help us to answer this question. Why did we punish them? It can’t be because they were a threat to society, for they posed no threat in their old age. It can’t be deterrence, for deterrence can’t be the sole basis for a just punishment. After all, it would be unjust to give a guilty man a punishment he doesn’t deserve only because it will deter others.
Similarly, the answer can’t be rehabilitation, since we needn’t punish or imprison people to rehabilitate them. To that end, requiring that they take lessons in morality to see the error in their ways would probably be more effective than letting them suffer in a prison cell.
The reason we punish such people is because they deserve to be punished for the evil they have done. That’s why it was right to punish Eichmann in some form or other years after his crime. Justice, then, involves giving each his or her due. Some people deserve to die for brutally and intentionally murdering innocents. If that’s right, then far from being unjust, capital punishment is a requirement of justice itself. If the purpose of having a criminal justice system is to bring about justice, then the state may and even should kill those who deserve to die.