The secular objections to the death penalty hold that its rational purposes, such as deterrence, should be achieved by alternative means, since we can never be entirely certain that all those convicted of capital crimes are actually guilty. The possibility--in the long run, the likelihood--that some convicts are not guilty is currently the most persuasive objection to capital punishment.

No Satisfactory Alternatives

Why execute anyone? Why not avoid the risk of miscarriages of justice by abolishing capital punishment altogether? Simply because there are no fully satisfactory alternatives. Life imprisonment is not necessarily lifelong; life imprisonment without parole still allows governors to pardon prisoners. The finality of death is both the weakness and the strength of capital punishment. We are not ready to do without it, yet hesitate to use it: There are many convicts on death row, but only a few are actually executed. Between 1973 and 1995, 5,760 death sentences were imposed; as of 1995, only 313 had been executed, and only some 400 have been executed since. Gary Graham, executed in June 2000, spent 19 years on death row exhausting his appeals, which were reviewed by more than 30 different judges. His case is far from exceptional.

Abolitionists often argue as though no one would die were it not for capital punishment. Yet we are not spared death in any case; a death sentence may shorten the life span, but--unlike imprisonment--it does not introduce an avoidable event, but merely hastens an unavoidable one.

Even if--without executions--society would be fully and permanently protected from murder, many people would feel that the survival of murderers is morally unjust, that the death penalty for murder is deserved, that it is a categorical imperative as [philosopher] Immanuel Kant thought. There is no way of proving or disproving such a moral idea, but there is little question that it is widely shared.

The Issue of Deterrence

The issue of deterrence is raised by the abolitionists, who often point out that the number of homicides does not decrease as the frequency of executions increases; from this they conclude that executions do not deter crime. But deterrence depends on the credibility of the threat of execution, and this credibility does not depend on the number of executions. To be sure, a threat never carried out will become incredible; to deter, it must be carried out often enough to remain credible. This does not mean it has to be carried out in all cases; but the threat of execution is currently so minuscule, compared with the homicide rate, as to be altogether ineffective.

It is often argued that criminals do not calculate, and that threats are therefore ineffective. Undoubtedly that is the case for some of them, but it is unlikely that all criminals are so different from the rest of the population that they do not respond to threats at all. If there are no executions over a long period, the deterrent effect of capital punishment may well be reduced to zero; but as long as the threat of execution is not entirely empty, there will be some deterrent effect. How great a deterrent it is will depend on such factors as the certainty of the punishment and the time that elapses between death sentences and executions; currently the deterrent effect is undermined by the uncertainty, infrequency, and delays involved in execution. (Indeed, a calculating criminal might look at the extreme rarity of the death penalty and thereby be encouraged in his murderous course.)

The existence of capital punishment is a disincentive, as threats of punishment always are. But the evidence is insufficient to prove that capital punishment deters murder more than do other punishments. Even if it did, however, capital punishment would be shown to be useful, but not morally justified. Deterring the crimes, not yet committed, of others does not morally justify execution of any convict (except to utilitarians, who think usefulness is a moral justification). If deserved, capital punishment should be imposed. If not, it should not be. Deterrence, however useful, cannot morally justify any punishment.

Inequities Do Not Justify Abolition

Some of the most popular objections to capital punishment do not actually deal with the punishment itself, but with its distribution. The issues that are raised are not unimportant, but they do not belong in a discussion of the legitimacy of capital punishment itself. Racial discrimination, for example, would disappear as an issue if the population were racially homogenous. Analogously, the argument that wealthy defendants can avail themselves of legal defenses not available to the poor depends on an unequal distribution of wealth; this argument is relevant to a discussion of social inequality, but is extraneous to an attempt to determine the rightness of the death penalty.

Although we have made great progress, we cannot ignore the remaining inequalities in the criminal-justice system. But there is no good reason to confuse such inequalities with an inherent inequity in the administration of justice. There is nothing in the nature of capital punishment that demands an unfair administration.

Issues of deterrence are peripheral to the moral argument at stake here, and the race and wealth issues are more peripheral still. The core of the matter is this: Murderers volunteer for the risk of capital punishment, and the punishment they volunteered to risk should be imposed if, in the view of the courts, they are guilty and deserve it.

Footnotes

FURTHER READINGS

Books

• James R. Acker, Robert M. Bohm, and Charles S. Lanier, eds. America's Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction, 2nd ed. Durham, NC: Carolina Academic Press, 2003.
• Laura Argys and Naci Mocan. Who Shall Live and Who Shall Die?: An Analysis of Prisoners on Death Row in the United States. Cambridge, MA: National Bureau of Economic Research, 2003.
• Stuart Banner. The Death Penalty: An American History. Cambridge, MA: Harvard University Press, 2002.
• Hugo Adam Bedau and Paul G. Cassell, eds. Debating the Death Penalty: Should America Have Capital Punishment?: The Experts on Both Sides Make Their Best Case. New York: Oxford University Press, 2004.
• Walter Berns. For Capital Punishment. Lanham, MD: University Press of America, 2000.
• Antoinette Bosco. Choosing Mercy: A Mother of Murder Victims Pleads to End the Death Penalty. Maryknoll, NY: Orbis Books, 2001.
• James E. Coleman Jr., ed. The ABA's Proposed Moratorium on the Death Penalty. Durham, NC: Duke University School of Law, 1998.
• L. Kay Gillespie. Executions and the Execution Process: Questions and Answers. Boston: Allyn and Bacon, 2002.
• Mike Gray. The Death Game: Capital Punishment and the Luck of the Draw. Monroe, ME: Common Courage Press, 2003.
• Harry Henderson. Capital Punishment. New York: Facts On File, 2000.
• Jesse L. Jackson Sr., Jesse L. Jackson Jr., and Bruce Shapiro. Legal Lynching: The Death Penalty and America's Future. New York: New Press, 2001.
• Robert Jay Lifton and Greg Mitchell. Who Owns Death? Capital Punishment, the American Conscience, and the End of Executions. New York: Morrow, 2000.
• Ann Chih Lin, ed. Capital Punishment. Washington, DC: CQ Press, 2002.
• Dan Malone and Howard Swindle. America's Condemned: Death Row Inmates in Their Own Words. Kansas City, MO: Andrews McMeel, 1999.
• Naci H. Mocan and R. Kaj Gittings. Pardons, Executions, and Homicide. Cambridge, MA: National Bureau of Economic Research, 2001.
• Lane Nelson and Burk Foster, eds. Death Watch: A Death Penalty Anthology. Upper Saddle River, NJ: Prentice Hall, 2001.
• Louis P. Pojman and Jeffrey Reiman. The Death Penalty: For and Against. Lanham, MD: Rowman & Littlefield, 1998.
• Austin Sarat. When the State Kills: Capital Punishment and the American Condition. Princeton, NJ: Princeton University Press, 2001.
• Ivan Solotaroff. The Last Face You'll Ever See: The Private Life of the American Death Penalty. New York: Harper-Collins, 2001.
• Tom Streissguth. The Death Penalty: Debating Capital Punishment. Berkeley Heights, NJ: Enslow, 2002.
• Scott Turow. Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. New York: Farrar, Straus, and Giroux, 2003.
• Ted R. Weiland. Capital Punishment: Deterrent or Catalyst. Eugene, OR: Far Horizons Press, 2000.

Periodicals

• John L. Allen Jr. "U.S. Allies See Death Penalty as Fascist Relic," National Catholic Reporter, January 19, 2001.
• Bruce Anderson. "A Hanging Matter," Spectator, November 22, 2003.
• George M. Anderson. "Healing the Wounds of Murder: Among the Victims Are Family Members of Both the Murdered and the Murderer," America, July 30, 2002.
• Peter L. Berger. "Beyond the 'Humanly Tolerable,'" National Review, July 17, 2000.
• Alan Berlow. "The Broken Machinery of Death," American Prospect, July 30, 2001.
• John D. Bessler. "America's Death Penalty: Just Another Form of Violence," Phi Kappa Phi Forum, Winter 2002.
• Philip Brasfield. "The End of Innocence," Other Side, December 2000.
• Antony J. Blinken. "Listen to the People: Capital Punishment Is More Popular in Europe than Its Politicians Admit," Time International, May 21, 2001.
• Carl M. Cannon. "The Problem with the Chair--A Conservative Case Against Capital Punishment," National Review, June 19, 2000.
• Catherine Cowan. "States Revisit the Death Penalty," State Government News, May 2001.
• John Dart. "Executing Justice," Christian Century, February 13, 2002.
• Gregg Easterbrook. "The Myth of Fingerprints: DNA and the End of Innocence," New Republic, July 31, 2000.
• Don Feder. "It's Hard to Pardon the Excuses Given by Death-Penalty Opponents," Insight on the News, July 16, 2001.
• Samuel Francis. "Processions of the Damned," Chronicles, September 2000.
• Linda Greenhouse. "Citing 'National Consensus,' Justices Bar Death Penalty for Retarded Defendants," New York Times, June 21, 2002.
• Jonathan I. Groner. "Lethal Injection: A Stain on the Face of Medicine," British Medical Journal, November 2, 2002.
• Cragg Hines. "There Should Be No Deadline for Justice," Houston Chronicle, October 2, 2003.
• Jeffrey L. Johnson and Colleen F. Johnson. "Poverty and the Death Penalty," Journal of Economic Issues, June 2001.
• Frank Keating. "Why I Support Capital Punishment," Human Events, May 19, 2000.
• Alice Kim. "Death Penalty Exposed," International Socialist Review, March/April 2003.
• Eugene H. Methvin. "Death Penalty Is Fairer than Ever," Wall Street Journal, May 10, 2000.
• Deborah Potter. "Witnessing the Final Act," American Journalism Review, July 2001.
• Sally Satel. "It's Crazy to Execute the Insane," Wall Street Journal, March 14, 2002.
• Bruce Shapiro. "Rethinking the Death Penalty: Politicians and Courts Are Taking Their Cues from the Growing Public Opposition," Nation, July 22, 2002.
• Kathy Swedlow. "Forced Medication of Legally Incompetent Prisoners: A Primer," Human Rights, Spring 2003.
• William Tucker. "The Chair Deters," National Review, July 17, 2000.
• William Tucker. "Why the Death Penalty Works," American Spectator, October 1, 2000.
• James Q. Wilson. "What Death Penalty Errors?" New York Times, July 10, 2000.
• Lewis Yablonsky. "A Road into Minds of Murderers," Los Angeles Times, January 14, 2003.
• Gabino Zavala and Michael Kennedy. "Death Penalty Diminishes Us as a Society," Los Angeles Times, October 27, 2000.