CHAPTER 4

The Death Penalty

Fred Simmons and Bob Moore were on their way from Florida to Georgia when they stopped to pick up two hitchhikers, Tony Gregg and Floyd Allen. At a rest stop outside of Atlanta, Gregg told Allen that he was going to rob Simmons and Moore. As Simmons and Moore were returning to the car, Gregg pulled a gun and fired three shots at them. The two men fell into a ditch. Gregg then got out of the car and shot them both point-blank in the head.

Gregg was found guilty of armed robbery and two counts of murder and given the death penalty. Gregg appealed his sentence. The death penalty had been ruled unconstitutional in 1972 by the U.S. Supreme Court in Furman v. Georgia on the grounds that it had been arbitrarily administered. In response, the state of Georgia had overhauled its death penalty laws to make them less arbitrary. In 1976 the U.S. Supreme Court in Gregg v. Georgia ruled that Georgia’s revised statutes were constitutional, thus overturning the 1972 ruling that had banned the death penalty.

HISTORY OF THE DEATH PENALTY

The death penalty, also known as capital punishment, is the infliction of death by the state as punishment for a crime. In the Middle Ages, the purpose of punishment was as much to save the criminal’s soul as to protect society from harm. Torture instruments, isolation, hard labor, horrendous living conditions, the gallows, and burning at the stake were used to terrorize criminals to the point that they would repent their evil ways and cry out for God’s mercy.

During the nineteenth century, public executions were abolished in most of Europe and North America. Rather than abolish the death penalty, however, societies moved executions behind the walls of an impersonal penal system. It wasn’t until the mid-twentieth century that there was a worldwide movement to abolish the death penalty.

THE DEATH PENALTY TODAY

During the 1980s and 1990s, many countries abolished the death penalty. As of 2017, more than two-thirds of all countries had abolished the death penalty in law or in practice, including all of western Europe, Canada, Australia, and most Central American, South American, and African countries. The United States is the only Western democracy that still uses the death penalty. Both the United Nations and the European Union support abolition of the death penalty. The150use of the death penalty has been declining worldwide, with 1,032 executions officially recorded in 2016. The overwhelming majority of these executions took place in five countries—China, Iran, Saudi Arabia, Iraq, and Pakistan. The United States came in seventh.¹

Although the death penalty is permitted in most Islamic countries, the Koran’s law of retributive justice or lex talionis—”an eye for an eye and a tooth for a tooth”—has been softened to permit the payment of “blood money.” The imposition of the Islamic penal code and the death penalty on both Muslims and non-Muslims has become a controversial issue in Malaysia and other Asian countries that have both Islamic and non-Islamic populations.

Unlike Islamic law, Jewish law interprets the Old Testament law of retributive justice to prohibit capital punishment. According to the Jewish Mishnah, it is murder for the courts to execute a person.

Many Christian churches likewise regard capital punishment as being inconsistent with the sanctity of human life. Capital punishment is illegal in almost all Protestant and Catholic countries, with the exception of the United States. The Roman Catholic papal encyclical Evangelium Vitae expressly forbids capital punishment. Although the U.S. bishops have issued statements opposing the death penalty, many U.S. Catholics still support capital punishment.

Prior to the 1970s, there was not much public support for the death penalty in the United States. In a 1971 Roper poll, Americans overwhelmingly responded that society has a duty to reform criminals and give them a second chance.² The death penalty was ruled unconstitutional by the U.S. Supreme Court in the 1972 Furman v. Georgia case. The Court ruled that the unlimited discretion given to judges and juries to impose the death penalty led to its capricious and arbitrary use.

Between 1967 and 1977, there were no executions in the United States. The escalating violent crime rate in the 1970s led to increasing public support for the death penalty for murder. The media’s extensive coverage of the most brutal and horrific cases, and the onslaught of violent crime on television and in movies, intensified people’s fear of and anger over violent crime and their demand for harsher punishment.

In 1976 the U.S. Supreme Court in Gregg v. Georgia reversed the earlier ruling, saying that Georgia’s new “guided discretion” laws had removed the arbitrariness of sentencing from the death penalty. All but fifteen states reinstated the death penalty. A decline in violent crime beginning in the late 1990s convinced many Americans that strict punishment, including capital punishment, was the solution to the nation’s crime rate.

The number of executions in the United States more than tripled between 1994 and 1999, when ninety-eight people were executed.³ The year 2002, when there were seventy-one executions, saw the first decrease since 1976 in the number of executions and the number of prisoners under sentence of death.⁴ Only twenty-three executions were carried out in 2017, down from fifty-two in 2009. The number of prisoners on death row is also decreasing.⁵ These rates can be expected to continue declining because of DNA evidence and legislation restricting imposition of the death penalty.

The United States has the highest incarceration rate in the world, with 1 out of every 110 adults in this country in prison.⁶ This is five times the rate of any other Western nation. Of the over 2 million people in prison in the United States in 2017, about 2,700 are on death row.⁷ Blacks are disproportionately represented both on death row and in the prison population. (See Chapter 8, Case Study 7: Drugs, Socio-Economic Class, and Race.)

Support for the death penalty for a person convicted of murder began rising in the 1980s and peaked in 1994 at 80 percent. A 2018 Quininpiac University poll reported that support had dropped to 58 percent, the lowest level since 1978. And, if given the option of life imprisonment151without parole, support for the death penalty drops to 37 percent. Support for the death penalty among young people is about the same as that found in the general public. Men and white people are more likely than women and black people to favor the death penalty.⁸

Despite continuing support for capital punishment, the vast majority of murderers do not receive the death penalty. Of the approximately 18,000 homicides that occur in an average year in the United States, fewer than 50 convicted murderers are sentenced to death.⁹ Of those sentenced to death, the great majority are poor and have to rely on public defenders.¹⁰ While blacks make up only 12 percent of the U.S. population, they represent more than 35 percent of death row inmates. According to Amnesty International, however, the greatest predictive factor in giving the death penalty is not the race of the criminal, but the race of the victim. In addition, although blacks and whites are victims of murder in almost equal numbers, about three-quarters of death penalties involved white victims.

THE DEATH PENALTY: JUVENILE AND MENTALLY RETARDED OFFENDERS

In one of the worst school shootings in history, Eric Harris and Dylan Klebold in 1999 opened fire on their classmates at Columbine High School in Littleton, Colorado. Thirteen people were killed and twenty-one others wounded before the two boys finally turned the guns on themselves, ending both the rampage and their own lives. Since the Columbine shootings, there have been at least twenty-five fatal shooting sprees at elementary, middle, and high schools in the United States. Twenty-six people were killed at Sandy Hook in 2012 and another seventeen in a Parkland, Florida, high school shooting in 2017. It is believed that some of the shooters, all teens and young men, were inspired by the Columbine massacre.

In addition to the racial and socioeconomic disparities in the application of the death penalty, violent crime among juveniles has raised the moral issue of whether people under eighteen should be put to death. Should children who kill be subjected to the same penalties as adults? A total of 226 death sentences for juveniles have been imposed since 1973. Twenty-two juvenile offenders were executed in the United States between 1976 and April 2005, when the U.S. Supreme Court in Roper v. Simmons ruled that the execution of juvenile offenders violates the Eighth Amendment to the Constitution.

In 2003 in Atkins v. Virginia, the Supreme Court ruled that executing people who are mentally retarded (an IQ of 70 or lower) violates the Eighth Amendment of the U.S. Constitution, which prohibits “cruel and unusual punishments.” This decision affected an estimated 5 to 10 percent of people who were on death row.¹¹

THE MEDICALIZATION OF EXECUTIONS

The gas chamber, firing squads, and hanging have all been used in the United States and continue to be used in some other countries. Lethal injection, however, is by far the most common method of execution in the United States.

The adoption of lethal injection in 2000 as the standard method of execution has led to what some call “medicalized execution.” Although it is claimed that lethal injection is more152humane than earlier methods of execution, the use of medical knowledge to kill people has created a conflict between medical professionals and penal officials. (See Case Study 4: Inside a Texas Death Chamber.) In 1980 the American Medical Association (AMA) adopted a resolution that states, “A physician, as a member of a profession dedicated to the preservation of life … should not be a participant in a legally authorized execution.”

Despite consensus on the part of every national and international physicians’ organization that physician participation in an execution violates medical ethics and the Hippocratic oath, which enjoins physicians to do everything in their power to relieve suffering and prevent death, most states require the presence of a physician in the death chamber. To protect physicians from censure by their colleagues, some prisons keep the identity of participating physicians secret, even paying them in cash in order to thwart attempts to identify them.

DNA TESTING

Although support among the medical community for physician participation in executions is low, it is likely with the increased use of DNA testing in capital cases that more and more physicians will be called upon to testify in court. This role for physicians is more in line with the Hippocratic oath. Since 1973, more than 160 death row prisoners, many of whom had spent more than ten years in prison, have been released because of new evidence showing that they were innocent of the crime. At least twenty of these prisoners were exonerated on the basis of DNA testing.¹²

Although DNA samples from the crime scene are not available in most cases, nor is DNA testing infallible in determining guilt and innocence, a study using random sampling of prisoners where DNA evidence was available concluded that between 7 and 10 percent of convicted death row prisoners are innocent.¹³

The U.S. Supreme Court in Skinner v. Switzer (2011) ruled that a defendant has a constitutional right to DNA testing in murder trials.

THE PHILOSOPHERS ON THE DEATH PENALTY

Capital punishment became an issue during the Enlightenment period, with its increasing emphasis on individual rights and the inherent dignity of the individual. According to natural rights ethicist John Locke, the right to life is the primary human right. This right, however, can be forfeited if we violate another person’s right to life. Locke writes in his Second Treatise of Government:

Every Man hath a right to punish the Offender, and be Executioner of the Law of Nature…. Thus it is, that every Man in the State of Nature, has a Power to kill a Murderer, both to deter others from doing the like injury, which no Reparation can compensate … and also to secure Men from the attempts of a Criminal, who having renounced Reason…. hath by the unjust Violence and Slaughter he hath committed upon one, declared War against all Mankind, and therefore may be destroyed as a Lyon or a Tyger, one of those wild Savage Beasts, with whom Men can have no Society nor Security: And upon this is grounded the great Law of Nature, Who so sheddeth Man’s Blood, by Man shall his Blood be shed.¹⁴

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The right to punish, including the right to administer the death penalty, is transferred to the state when people enter a social contract. Governments assume the prerogative to punish wrongdoers in order to prevent society from degrading into a state of disorder and anarchy, or what Locke refers to as a “state of nature.” For more on the social contract, see the reading from John Locke at the end of Chapter 1.

The main objection to capital punishment came from social reformers such as Karl Marx and utilitarian Jeremy Bentham. Bentham opposed punishment in general because it subtracts from the total happiness of the community. He wrote. “All punishment is evil.” The deliberate infliction of suffering on a person who has committed an evil, such as murder, he argued, merely adds more evil and suffering to the world. Punishment, therefore, can be justified only if it is the only way to remove an even greater evil.¹⁵

Not all utilitarians oppose the death penalty. John Stuart Mill believed that the benefits of capital punishment outweighed the harms. In an 1868 speech delivered in the British House of Commons, Mill called the death penalty appropriate for brutal crimes, arguing that it has a deterrent effect.¹⁶ Hugo Adam Bedau examines the deterrent argument in his reading at the end of this chapter.

Immanuel Kant rejected consequentialist arguments for capital punishment. A murderer must die, he argued, not because of any social benefits but because this is the only way to satisfy the requirement of retributive justice. Kant writes:

The penal law is a categorical imperative; and woe to him who creeps through the serpent-windings of utilitarianism to discover some advantage that may discharge him from the justice of punishment, or even from the due measure of it…. For if justice and righteousness perish, human life would no longer have any value in the world …

But what is the mode and measure of punishment which public justice takes as its principle and standard? It is just the principle of equality, by which the pointer of the scale of justice is made to incline no more to the one side than the other. It may be rendered by saying that the undeserved evil which any one commits on another, is to be regarded as perpetrated on himself. “… If you strike another, you strike yourself; if you kill another, you kill yourself.” This is the right of retaliation (jus talionis) … whoever has committed murder must die.¹⁷

Kant maintained that not only does the state have a right to punish; wrongdoers also have a right to be punished. Punishment, including the death penalty, affirms the criminals’ dignity by acknowledging that they are responsible for their actions. Denying people the right to punishment is to deny that they are rational beings capable of responsibility for their own decisions. Others, including the “American Civil Liberties Union (ACLU),” argue that there are other types of punishment that can meet these moral requirements.

Marx rejected the Kantian justification of capital punishment based on retributive justice. He argued that an abstract theory, like the theory of retributive justice, is unable to take into account the unfair relations among different groups of people, especially in a capitalist society. Helen Prejean addresses this issue in the reading “Would Jesus Pull the Switch?” at the end of this chapter.

Both Buddhist and Confucian philosophers oppose the death penalty. Buddhists oppose capital punishment because it violates the principle of ahimsa, or “no harm.” Confucius believed that crime is a symptom of a disordered state. It is the rulers, rather than individual citizens, who have the most power to advance virtue in society and individuals. Because it is easiest for people154to be virtuous when they are living in a just and well-ordered society, a state where there is a problem with crime needs to work on developing social policy that is more conducive to individual virtue and social harmony.

Contemporary philosophers are divided over capital punishment. Van den Haag and Christopher Morris support it. Bedau, Reiman, and Prejean, on the other hand, call for abolition of the death penalty.

THE MORAL ISSUES

Deterrence

Muhlhausen, in his reading “How the Death Penalty Saves Lives” at the end of this chapter, argues that the threat of death is an effective deterrent. Deterrence is based on the assumption that the more severe the punishment for an action, the less likely people are to engage in it. If fear of punishment is removed, ordinarily law-abiding citizens may become violent and lawless.

Abolitionists of the death penalty point out that studies have not found any connection between the use of capital punishment and the rate of violent crime. Indeed, in Canada, the homicide rate peaked in 1975, the year before the abolition of the death penalty, and continued to decline for the next ten years.¹⁸ In the United States, by contrast, of the twenty-five states with the highest murder rate, twenty had the death penalty. The majority of states without the death penalty have low murder rates, including New York State, which abolished the death penalty in 2003.¹⁹ Because capital punishment has not been shown to have a deterrent effect, abolitionists argue, we are not saving innocent lives, but rather adding to the loss of human life.

Incapacitation

Whereas deterrence has the goal of keeping others from committing similar crimes, incapacitation is aimed at the specific person who was convicted of the crime. The death penalty, it is argued, is the only way to ensure that a murderer will never kill again. Just as people have the right to use lethal force to protect themselves, so too does the government have the right to use the death penalty to protect society from dangerous criminals.

Opponents of capital punishment, such as Prejean and Bedau, maintain that life imprisonment, including the use of restraints and the isolation of those who pose a threat to guards and fellow inmates, is sufficient to incapacitate a would-be repeat murderer. Self-defense justifies the killing of a wrongdoer only during the commission of a violent crime. Several states now have life imprisonment without the possibility of parole as an alternative to the death penalty.

Retributive Justice

Many supporters of the death penalty, including Kant, Locke, and Muhlhausen, argue that it doesn’t matter whether capital punishment is a deterrent. Retributive justice alone justifies the death penalty. Retribution is not the same as revenge. Revenge is based on a personal desire for retaliation; retribution, on the other hand, is the impersonal carrying out of punishment to “cancel out” an evil act. A person who commits a crime creates a debt that must be paid to society.

One of the underlying principles of retributive justice is proportionality. Retributive justice requires that the severity of the punishment be proportionate to the crime, what Kant called the155“equality of crime and punishment.” The only appropriate payment for murder is death. As long as the debt remains unpaid, there is a sort of imbalance in the community or universe—a state of injustice exists until the debt is paid. Kant argues that rather than denying the criminal’s worth and dignity, retributive justice assumes moral worth and dignity by acknowledging that the criminal is a rational person who can be held morally responsible for his or her actions.

Some philosophers, including Bentham, question whether there is a moral duty of retribution. How can one act of violence cancel out another? Bedau argues that the principle of retributive justice does not require an exact fit between the crime and the punishment. We do not rape rapists or burn the homes of arsonists; the deliberate killing of a murderer is also an inappropriate punishment. Instead, the appropriate moral response to wrongdoing is to demand that wrongdoers provide restitution to their victims. The goals of restitution are incompatible with capital punishment, because death removes all possibility of victim compensation.

Many opponents of capital punishment, including both Prejean and Bedau, question Kant’s assumption that retributive justice is required on the grounds that murder is based on a rational decision. Evidence indicates that, rather than being a rational decision, the great majority of murders are carried out impulsively, in the heat of passion, with little deliberation over the possible consequences. If murder is not based on a rational decision, murderers cannot be held morally responsible for their actions. Hence, the requirement of retributive justice that the murderer have a particular state of mind, when applied in practice, rules out capital punishment in most if not all cases. (See Case Study 3: “Born Killers”: Capital Punishment and the Genetic Lottery.)

Human Dignity and the Sanctity of Human Life

Some opponents of capital punishment, including Prejean and the Buddhists, claim that all deliberate taking of human life is wrong. The use of the death penalty diminishes the value of human life and lowers us to the level of the criminal. Prejean rejects the retributivist argument, arguing instead that it is degrading and inconsistent with respect for the dignity of persons. Because humans have intrinsic moral value, it is wrong to deprive them of their lives.

Human Rights and Moral Standing

Both the United Nations and Amnesty International oppose the death penalty on the grounds that it violates human rights. The human-rights argument has also been used to support capital punishment. Locke, for example, maintains that humans have certain fundamental rights, such as the right to life; those who violate other people’s right to life by murdering them in turn forfeit their own right to life. Because they have forfeited this right, capital punishment cannot be said to violate it.

Prejean questions the logic of this argument, which is known as reciprocity retributivism, concluding that it does not take into account unfairness in society. Rather than setting wrongs right, capital punishment can further perpetuate an unfair status quo that denies certain groups of people full rights.

Distributive Justice and the Principle of Equality

There is concern that capital punishment is unfairly distributed. In the United States, blacks are six times more likely than whites to end up on death row. Poorer defendants are also more likely to get the death penalty, because they cannot afford good defense lawyers.²⁰

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Some opponents of capital punishment argue that it is an extension of the slavery mentality, whereby the death penalty was frequently used on slaves who committed crimes against whites. They point out that all of the states that executed eight or more prisoners in the years since the Supreme Court declared capital punishment to be constitutional were Confederacy states.

In a study of why white Americans support the death penalty more than black Americans, researchers found that in some areas of the United States racial prejudice against blacks is the strongest predictor of support for the death penalty.²¹ Furthermore, although all sixteen states that formed the Confederacy have the death penalty, outside of the former slave-owning states most have either abolished it or do not use it even though it is still on the books.

Former professor of jurisprudence, Ernest van den Haag (1914–2002) maintains the distribution-of-justice argument is irrelevant to capital punishment. The principle of equality requires not the abolition of the death penalty, but that all those guilty of murder—whether white or black—receive it. Even if the death penalty is applied in a discriminatory manner, this does not mean that capital punishment itself is wrong; it means that too many murderers who deserve the death penalty are getting off.²²

Utilitarian (Consequentialist) Arguments

Because pain is essential to punishment, utilitarians maintain that punishment is permissible only if it leads to an overall decrease in pain and an increase in pleasure for society. Studies have not shown this to be the case, however.

Capital punishment, as we noted earlier, has not been proven to have a deterrent effect. In addition, the death penalty can be expensive. Because of the lengthy appeal process and the time prisoners spend on death row, the average cost associated with a death penalty case can amount to several million dollars—up to three times higher than for life imprisonment.²³ Most of these costs are incurred prior to and during trials, as trials for capital offenses are costly and time-consuming. In California, which has the death penalty but has not carried out an execution since 2006, the state spends more on the prison system than it does on higher education. It is estimated that the state could save a billion dollars over the next five years by replacing capital punishment with life imprisonment. The death penalty system is estimated to have cost taxpayers about $138 million in 2008 alone.²⁴

Capital punishment has also been denounced as cruel and inhumane. Amnesty International writes: “International law states that torture or cruel, inhuman, or degrading punishments can never be justified. The cruelty of the death penalty is self-evident.” In some cases, such as in the execution of Stanley “Tookie” Williams in California in 2005 and that of Angel Nieves Diaz in Florida in December 2006, lethal injection can take more than half an hour to kill a person, due to difficulty in administering the needle or to insufficient doses of lethal chemicals, causing the prisoner pain and suffering. Witnesses in the Diaz execution said that “the whole process appeared to be torture.”²⁵ In her article, Prejean vividly describes the cruelty of the death penalty, both during the execution and during the long wait before it.

The suffering of the criminal awaiting execution also has to be considered in a utilitarian calculus. The average time spent on death row before execution in the United States is ten years. French writer Albert Camus (1913–1960) once wrote that the moral contradiction inherent in a punishment that imitates the violence that it claims to abhor is only made worse by the premeditated nature of capital punishment.

According to social contract theory, governments are formed to protect themselves against danger. One of the primary purposes of capital punishment is to protect society against157dangerous people. Some opponents of the death penalty, however, argue that it actually reduces public safety by draining public resources that could be used for crime prevention and drug treatment.

The death penalty has repercussions that reach far beyond the death chamber. The ripple effect reaches out to the family and friends of both the murder victim and the condemned person, as well as to society in general. Does capital punishment ease the grief of the murder victim’s family? What is the effect of participating in an execution on medical professionals, who are sworn to save lives? Does violent punishment reinforce or legitimate violence in society in general?

Finality and the Risk of Errors

In 2003 New York City Mayor Michael Bloomberg expressed his opposition to the death penalty because of the number of innocent people who are executed. The death penalty also removes the possibility of restitution and repentance, as happened in the case of Karla Faye Tucker. (See Case Study 1: Karla Faye Tucker: The Repentant Murderer.)

In addition to incorrect verdicts revealed by DNA testing, errors can occur because of flaws in the legal procedure. A Columbia University Law School study found that between 1973 and 1995 more than two-thirds of death sentences had been overturned in the appeal process because of “procedural flaws or unsound evidence.”²⁶ The report concluded that the American capital punishment system is “fraught with error” mainly due to three factors: incompetent defense lawyers, flawed instructions to jurors, and procedural misconduct such as suppressed evidence.

Some people dismiss these mistakes as part of the cost of doing justice. They point out that nearly all activities, such as construction work or even driving a car, carry risks and can cost the lives of innocent bystanders. However, we don’t give up these activities. Bedau and Prejean, on the other hand, believe that the risk of executing innocent people is morally unacceptable, especially when there is an alternative such as life imprisonment without the possibility of parole.

Care Ethics

Prejean claims that one reason people favor the death penalty is that we don’t identify with the condemned persons; we don’t see them as humans like us. Before we can discuss the morality of capital punishment, we first have to see those who are condemned from a care perspective rather than a pure justice perspective.

SUMMARY OF READINGS ON THE DEATH PENALTY

The United States Supreme Court, “Gregg v. Georgia” (1976). Court ruled that the death sentence for murder does not violate the U.S. Constitution.

Bedau, “Capital Punishment.” Capital punishment is inconsistent with the principle of respect for human dignity.

Prejean, “Would Jesus Pull the Switch?” Capital punishment is brutal and a violation of human intrinsic value.

Muhlhausen, “How the Death Penalty Saves Lives.” Some crimes are so heinous that they may require the death penalty.

Schmitz, “The Death Penalty Is Just and Merciful.” The death penalty is more humane than its alternatives.

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Adopting Jesus Christ as her role model, Prejean maintains that we ought to love and care for people despite what they may have done. We should return compassion and good for evil, rather than evil for evil as the retributivists claim.

Why Punish?

Most people assume that punishment is the appropriate moral response to wrongdoing. However, does justice require punishment as the retributive justice theorists claim? Or is the punishment paradigm actually counterproductive and harmful to society?

One of the greatest frustrations of our criminal justice system is that criminals often come out in worse shape than when they went in. One study found that prisoners and guards interacted primarily at the lowest level of moral development—avoiding coercion and punishment. Within each group, however, they interacted primarily at Kohlberg’s stage two of moral development—mutual benefit. The researchers concluded that prison life tends to mold prisoners into a morality lower than their “private best” outside the prison environment. In other words, the punishment paradigm, rather than making society safer, may actually be harming society by turning out more-hardened criminals.²⁷

CONCLUSION

Capital punishment raises the issue of the moral value and dignity of humans who, apparently, are at the most despicable end of the spectrum, and who have little or no respect for the dignity of those whom they brutally massacre. The debate over the death penalty also leads to a reexamination of the punishment paradigm that underlies capital punishment. Even if the death penalty can be morally justified in theory, it does not necessarily follow that it should be used in practice. Creating a just public policy regarding capital punishment requires balancing moral theory with the realities of human nature and society.

JUSTICE POTTER STEWART, Majority Opinion

JUSTICE THURGOOD MARSHALL, Dissenting Opinion

GREGG v. GEORGIA (U.S. Supreme Court, 428 U.S. 153, 1976)

Troy Gregg was charged with two counts of armed robbery and two counts of murder. The jury found him guilty on all counts and returned a sentence of death. The imposition of the death penalty was challenged by the petitioner as “cruel and unusual” punishment. The case eventually went to the U.S. Supreme Court, which upheld the use of the death penalty as constitutional,159thus overturning Furman v. Georgia (1972), which ruled that the death penalty was unconstitutional as administered. In the following reading, Justice Potter Stewart presents the majority opinion, while Justice Thurgood Marshall presents a dissenting opinion.

Critical Reading Questions

1. According to Stewart, who represents the Majority opinion, does the Eighth Amendment allow or forbid capital punishment?

2. On what grounds does Stewart regard capital punishment as a proportional punishment for murder?

3. How does Stewart respond to the charge in the Furman ruling that capital punishment violates standards of decency?

4. How does Steward respond to the charge that capital punishment has been imposed arbitrarily or capriciously in the past?

5. On what grounds does Marshall, who represents the dissenting opinion, argue that the death penalty is unconstitutional?

6. On what grounds does Marshall deny the claim that the principle of retribution justifies the death penalty?

7. What evidence does Marshall present to refute the claim that the death penalty serves as a deterrent?

JUSTICE POTTER STEWART, Majority Opinion Summary

1. The punishment of death for the crime of murder does not, under all circumstances, violate the Eighth and Fourteenth Amendments.

a. The Eighth Amendment, which has been interpreted in a flexible and dynamic manner to accord with evolving standards of decency, forbids the use of punishment that is “excessive” either because it involves the unnecessary and wanton infliction of pain or because it is grossly disproportionate to the severity of the crime.

b. Though a legislature may not impose excessive punishment, it is not required to select the least severe penalty possible, and a heavy burden rests upon those attacking its judgment.

c. The existence of capital punishment was accepted by the Framers of the Constitution, and for nearly two centuries this Court has recognized that capital punishment for the crime of murder is not invalid per se.

d. Legislative measures adopted by the people’s chosen representatives weigh heavily in ascertaining contemporary standards of decency; and the argument that such standards require that the Eighth Amendment be construed as prohibiting the death penalty has been undercut by the fact that in the four years since Furman, supra, was decided, Congress and at least 35 States have enacted new statutes providing for the death penalty.

e. Retribution and the possibility of deterrence of capital crimes by prospective offenders are not impermissible considerations for a legislature to weigh in determining whether the death penalty should be imposed, and it cannot be said that Georgia’s legislative judgment that such a penalty is necessary in some cases is clearly wrong.

f. Capital punishment for the crime of murder cannot be viewed as invariably disproportionate to the severity of that crime.

2. The concerns expressed in Furman that the death penalty not be imposed arbitrarily or capriciously can be met by a carefully drafted statute that ensures that the sentencing authority160is given adequate information and guidance, concerns best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of that information.

3. The Georgia statutory system under which petitioner was sentenced to death is constitutional. The new procedures on their face satisfy the concerns of Furman, since before the death penalty can be imposed there must be specific jury findings as to the circumstances of the crime or the character of the defendant, and the State Supreme Court thereafter reviews the comparability of each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. Petitioner’s contentions that the changes in Georgia’s sentencing procedures have not removed the elements of arbitrariness and capriciousness condemned by Furman are without merit.

a. The opportunities under the Georgia scheme for affording an individual defendant mercy - whether through the prosecutor’s unfettered authority to select those whom he wishes to prosecute for capital offenses and to plea bargain with them; the jury’s option to convict a defendant of a lesser included offense; or the fact that the Governor or pardoning authority may commute a death sentence - do not render the Georgia statute unconstitutional.

b. Petitioner’s arguments that certain statutory aggravating circumstances are too broad or vague.

JUSTICE THURGOOD MARSHALL, Dissenting Opinion Excerpts

In Furman v. Georgia, I set forth at some length my views on the basic issue presented to the Court in these cases. The death penalty, I concluded, is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. That continues to be my view…

In Furman I concluded that the death penalty is constitutionally invalid for two reasons. First, the death penalty is excessive…. [S]econd, the American people, fully informed as to the purposes of the death penalty and its liabilities, would in my view reject it as morally unacceptable….

In Furman, I observed that the American people are largely unaware of the information critical to a judgment on the morality of the death penalty, and concluded that if they were better informed they would consider it shocking, unjust, and unacceptable…. Even assuming, however, that the post-Furman enactment of statutes authorizing the death penalty renders the prediction of the views of an informed citizenry an uncertain basis for a constitutional decision, the enactment of those statutes has no bearing whatsoever on the conclusion that the death penalty is unconstitutional because it is excessive. An excessive penalty is invalid under the Cruel and Unusual Punishments Clause “even though popular sentiment may favor” The inquiry here, then, is simply whether the death penalty is necessary to accomplish the legitimate legislative purposes in punishment, or whether a less severe penalty - life imprisonment - would do as well. The two purposes that sustain the death penalty as nonexcessive in the Court’s view are general deterrence and retribution. The state of knowledge at that point, after literally centuries of debate, was summarized as follows by a United Nations Committee: “It is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence, that the data which now exist show no correlation between the existence of capital punishment and lower rates of capital crime.”

The available evidence, I concluded in Furman, was convincing that “capital punishment is not necessary as a deterrent to crime in our society.”…

The other principal purpose said to be served by the death penalty is retribution…. It is this notion that I find to be the most disturbing aspect of today’s unfortunate decisions.

The concept of retribution is a multifaceted one, and any discussion of its role in the criminal law must be undertaken with caution. On one level, it can be said that the notion of retribution or reprobation is the basis of our insistence that only those who have broken the law be punished, and in this sense the notion is quite161obviously central to a just system of criminal sanctions. But our recognition that retribution plays a crucial role in determining who may be punished by no means requires approval of retribution as a general justification for punishment. It is the question whether retribution can provide a moral justification for punishment—in particular, capital punishment—that we must consider…. It simply defies belief to suggest that the death penalty is necessary to prevent the American people from taking the law into their own hands.

In a related vein, it may be suggested that the expression of moral outrage through the imposition of the death penalty serves to reinforce basic moral values—that it marks some crimes as particularly offensive and therefore to be avoided.

The foregoing contentions—that society’s expression of moral outrage through the imposition of the death penalty pre-empts the citizenry from taking the law into its own hands and reinforces moral values—are not retributive in the purest sense. They are essentially utilitarian in that they portray the death penalty as valuable because of its beneficial results. These justifications for the death penalty are inadequate because the penalty is, quite clearly I think, not necessary to the accomplishment of those results.

There remains for consideration, however, what might be termed the purely retributive justification for the death penalty—that the death penalty is appropriate, not because of its beneficial effect on society, but because the taking of the murderer’s life is itself morally good … Some of the language of the opinion of [the majority opinion] appears positively to embrace this notion of retribution for its own sake as a justification for capital punishment….

But the implication of the statements appears to me to be quite different—namely, that society’s judgment that the murderer “deserves” death must be respected not simply because the preservation of order requires it, but because it is appropriate that society make the judgment and carry it out. It is this latter notion, in particular, that I consider to be fundamentally at odds with the Eighth Amendment. The mere fact that the community demands the murderer’s life in return for the evil he has done cannot sustain the death penalty, … “the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society.” To be sustained under the Eighth Amendment, the death penalty must “compor[t] with the basic concept of human dignity at the core of the Amendment,” the objective in imposing it must be “[consistent] with our respect for the dignity of [other] men.” Under these standards, the taking of life “because the wrongdoer deserves it” surely must fall, for such a punishment has as its very basis the total denial of the wrongdoer’s dignity and worth.

The death penalty, unnecessary to promote the goal of deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth Amendments. I respectfully dissent from the Court’s judgment upholding the sentences of death imposed upon the petitioners in these cases.

Discussion Questions

1. The Majority opinion in calling for the reinstatement of capital punishment argues that “the instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law.” Do you agree, given the United States is the only Western democracy that uses capital punishment? Support your answer.

2. Is capital punishment consistent with respect for human dignity? Critically evaluate how both the Majority and the Dissenting opinions respond to this question.

3. Although the U.S. Supreme Court in Gregg v. Georgia considers capital punishment constitutional, many states do not. Does your state permit capital punishment? If so, on what grounds do they support it? If not, on what grounds do they reject it? Critically evaluate the justification(s) used by your state.

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HUGO ADAM BEDAU

Capital Punishment

Hugo Adam Bedau is a former professor of philosophy at Tufts University and a well-known opponent of capital punishment. In the following selection, Bedau examines the death penalty in light of important relevant moral values, such as the sanctity of life and the right to life. Bedau also questions the morality of punishment.

Critical Reading Questions

1. What, according to Bedau, is one of the most important moral values?

2. What is the relationship between the sanctity of human life and the right to life? Why, according to Bedau, is the death penalty inconsistent with these two values?

3. Why does Bedau reject Locke’s argument that the right to life is forfeited by murderers?

4. On what grounds does Bedau reject Kant’s claim that retributive justice requires capital punishment for murder?

5. According to Kant, in what state of mind must a murderer be to be held morally responsible for his or her actions? Why does Bedau reject Kant’s reasoning on this point?

6. On what grounds does Bedau reject utilitarian arguments for capital punishment?

7. What are the nature and purpose of punishment, according to Bedau?

8. Why does Bedau conclude that the death penalty violates the dignity of persons?

9. On what grounds does Bedau reject the social defense argument for the death penalty?

10.On what grounds does Bedau reject consequentialist arguments, such as deterrence, incapacitation, and crime prevention, for the death penalty?

11.On what grounds does Bedau argue that retributive justice does not require the death penalty for murder?

12.According to Bedau, why does capital punishment demean society as well as the criminal being executed?

INTRODUCTION

When we confront the task of evaluating punishments from the moral point of view, a host of questions immediately arises: Who should be punished? What offenses and harms should be made liable to punishment? What is involved in making the punishment fit the crime? Are some punishments too cruel or barbaric to be tolerated no matter how effective they may be in preventing crime? Are some criminals so depraved or dangerous that no punishment is too severe for them? What moral principles should govern our thinking about crime and punishment?

Bedau, Hugo Adam, “Capital Punishment,” in Matters of Life and Death, ed. by Tom Regan. New York: McGraw-Hill, 1993, 160–192.

To give reasonable answers to such questions, we need to appeal to a wide variety of empirical facts. We will want to know, for example, what would happen to the crime rate if no one were punished at all, or if all offenders were punished more leniently or more severely than is now usual. We would want to know whether the system of criminal justice operates with adequate efficiency and fairness when it metes out punishment, or whether the severest punishments tend to fall mainly on some social, racial, or economic classes. But we will want to settle other things besides these matters of fact. Social values, moral ideals, ethical principles are also involved, and we will want to know which values and which ideals they are and how to evaluate them as well.163Central among these ethical considerations are the value, worth, and dignity of persons—the victims of crime, the offenders, and the rest of society. How, exactly, does our belief in the value of human life, the worth of each person, our common humanity and our common dignity, bear on the nature and methods of punishment as seen from the moral point of view?

… From an historical perspective, one of the most important relevant ethical values is the idea of the sanctity of human life. …

So far as the death penalty is concerned, it might seem that once it is granted that human life is sacred or that everyone has an equal right to life, the death penalty is morally indefensible. Such a punishment seems obviously inconsistent with such ideals as human worth and value. The opposite, however, is true if we let history be our guide. Chief among the traditional defenders of capital punishment have been religious and secular thinkers who sincerely believed in these ideals. In fact, these thinkers usually invoked the sanctity of human life and the right to life as part of their defense and justification of death for murderers and other criminals. To see how such a seemingly paradoxical doctrine can be maintained, as well as to begin our examination of the major issues involved in the moral evaluation of the death penalty, we must scrutinize the traditional doctrine of the right to life.

I. THE RIGHT TO LIFE AND CAPITAL PUNISHMENT

The Doctrine of Natural Rights

The general idea shared by many philosophers, beginning in the seventeenth century, was that each person by nature—that is, apart from the laws of the state and simply by virtue of being born a human being—had the right to live. It followed from this that it was a violation of this right to murder another person, and that it was the responsibility of government to protect human rights, prohibit murder, and try to arrest, convict, and punish anyone guilty of this crime. Thus, the right to life can be thought of, first, as underlying the prohibition against murder common to the criminal law of all countries….

The right to life seems to pose a problem for a policy of capital punishment. Even if a person has committed murder (so the argument runs) and has therewith intentionally violated another’s right to life, the criminal still has his or her own right to life. Would it not be a violation of the murderer’s right for him or her to be put to death as punishment? If so, must not capital punishment be morally wrong? …

Forfeiting the Right to Life

Locke argued that although a person’s right to life is natural and inalienable, it can be “forfeited” and is forfeited whenever one person violates that right in another. [W. D. Ross] has put the point clearly: “The offender, by violating the life, liberty, or property of another, has lost his own right to have his life, liberty, or property respected….”¹ The idea is a familiar one, although there are troubling and unanswered questions: To whom is it forfeited? Can this right, once forfeited, ever be restored? …

Difficulties with Locke’s Theory

There are various objections to the classic theory of the right to life, two of which deserve to be mentioned here. First, underlying Locke’s doctrine of natural rights and wholly independent of it are two important assumptions. One is that punishment under law is necessary for social defense. (By “social defense” is meant the prevention of crime, by means of deterrence and incapacitation, as well as by the reduction of incentives and opportunities for the commission of crimes. Thus, prisons, police forces, controlling the sale of firearms, locks on doors, and threats of punishment can all be regarded as methods of social defense.) The other is that justice requires retribution— criminals deserve to be punished, and the punishment must fit the crime. Such beliefs lead to the conclusion that the punishment for murder and other crimes should be death, and they force Locke to make some accommodation in his theory of natural rights. The device he hit upon, as we have just seen, and one that generations of later thinkers have also adopted, is to declare that the right to life could be forfeited under certain conditions.

Against Locke’s doctrine several objections deserve to be considered. First of all, there are other alternatives…. [S]uppose it is argued that although164punishments typically constitute harms or deprivations to the person who undergoes them, the quality and extent of the deprivations [are] an open question. What is necessary is that the deprivation be imposed on the offender regardless of his or her preferences and choice. On this view, while it would be necessary for the offender to forfeit some rights in order to be punished, it would not be necessary to forfeit the right to life. Yet another possibility is to regard the right to life as an absolute right, one that it is always wrong to violate. Whether any of these alternatives can be better supported than the doctrine of forfeiture need not be resolved here. They do show that forfeiture of rights as Locke presents it is not the only way to permit punishment under a theory of natural rights.

Another difficulty with Locke’s doctrine is that it seems to collapse two distinct issues into one. It is one thing to appeal to forfeiting rights in order to permit society to punish the guilty offender in the first place. It is quite another to appeal to forfeiture of rights in order to decide which among the available punishments is the appropriate one…. There is no intrinsic feature of any natural right, including the right to life, that makes it subject to loss through forfeiture. The only basis for supposing that any right is forfeited rather than grossly violated by society when it punishes an offender by death is that just retribution and social defense together require the death penalty for offenders guilty of a crime of this sort. If this requirement turns out to be false, unsubstantiated, or doubtful, then the claim that a criminal’s right to life has been forfeited turns out to be equally false, unsubstantiated, or doubtful….

Even if it is concluded that a murderer or violent criminal does forfeit the natural right to life, it does not follow that a murderer must be put to death…. This is often overlooked by those who insist that the death penalty is justified because murderers forfeit their lives. Forfeiting one’s right to life is not identical with forfeiting one’s life….

Finally, we should note that Locke’s doctrine of forfeiture makes his theory of natural rights vulnerable to utilitarian reasoning, and with devastating effect. The chief attraction of the idea of natural rights is that it provides each of us with moral armor (our rights) to protect us against burdens and deprivations that might be imposed on the ground that they are in the interests of the many or good for society in the long run….

The Dignity of Persons

Although Kant by no means repudiated the doctrine of natural rights, he elevated to primary importance a different idea, the supreme worth or dignity of each person. The most famous single passage in which this doctrine and Kant’s views on the punishment of murder are brought together runs as follows:

If … he has committed a murder, he must die. In this case, there is no substitute that will satisfy the requirements of legal justice. There is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is no equality between the crime and the retribution unless the criminal is judicially condemned and put to death. But the death of the criminal must be kept entirely free of any maltreatment that would make an abomination of the humanity residing in the person suffering it.² …

For Kant, that idea of the dignity of man enters explicitly only to rule out any aggravations and brutality accompanying the sentence of death and its execution. For Kant, the dignity of man underlies the whole idea of society of free and rational persons choosing to submit themselves to a common rule of law that includes the punishment of crimes. Accordingly, in punishment, “a human being can never be manipulated merely as a means to the purposes of someone else…. His innate personality protects him against such treatment….”³ Kant’s appeal to the dignity of man requires him to rule out any role for social defense in the justification of capital punishment.

As the above passage also shows, underlying Kant’s belief in the appropriateness of punishing murder with death is a principle of just retribution. This is reminiscent of Locke’s view…. The chief difference between Kant and Locke is that Locke thinks it is proper to take into account not only just retribution but also social defense to determine proper punishments, whereas Kant unequivocally rules out the latter. What Kant has done is to present us with two moral ideas—the dignity or worth of each person as a rational creature, and the principle of retribution—that he regards as inextricably tied together. The latter principle he explained in the following way:

What kind and what degree of punishment does public legal justice adopt as its principle and standard? None165other than the principle of equality … , that is, the principle of not treating one side more favorably than the other. Accordingly, any undeserved evil that you inflict on someone else among the people is one that you do to yourself. Only the Law of retribution … can determine exactly the kind and degree of punishment.⁴ …

Kant, as is obvious from his remarks, thought that retribution required the death penalty for murder. He is not alone in holding this view; it has widespread appeal even today….

Difficulties with Kant’s Theory

In the course of presenting Kant’s views, we have al-ready identified three respects in which his theory is vulnerable. One is that, like Locke’s, it assumes that just retribution requires capital punishment for murder, an assumption that may be unnecessary and in any case is not proved. Another difficulty is that, unlike Locke’s theory, Kant’s seems to make no room whatever for the role of social defense in the justification of punishment….

Finally, the third objection follows from the fact that Kant’s theory is so obviously abstract and unempirical from beginning to end. If we really take seriously the idea of the dignity of the human person, then it may be that we will be led in case after case of actual crime to reject Kant’s reasoning on the ground that it is inapplicable in light of the actual facts of the case. Kant’s theory tells us what to do only with ideally rational killers; what we need is a theory that tells us how to cope with the actual persons who kill, and how to do that in a way that acknowledges our common humanity with both the victim and the offender, as well as the injustices to which all social systems are prone and the wisdom of self-restraint in the exercise of violence, especially when undertaken deliberately and in the name of justice.

Utilitarianism and the Death Penalty

… Just as Kant disregarded considerations of consequences in evaluating the morality of capital punishment, so utilitarians disregard any appeals to natural rights or the dignity of the human person…. The utilitarian, therefore, regards the death penalty as justified by the degree to which it advances the general welfare. Accordingly, its justification proceeds in the following manner: (1) Consider the practice of the death penalty and all its present and future consequences—for the executed offenders, for the victims of crime, their friends and families, and the rest of society. (2) Consider each of the alternative modes of punishment that might be imposed and the consequences of each were it to be employed. (3) Decide in favor of the death penalty rather than any alternative only if, in light of all of the facts, its practice would have the greatest net balance of benefit over burden for everyone affected by it.

Two things are noteworthy about such a pattern of reasoning. First, everything depends on the facts, and diverse issues of fact are always in question. Moreover, these facts are not likely to remain constant in a given society decade after decade, much less from one society to another. The result is that it may be very difficult to reach agreement on all of them, as the unending debate over the deterrent efficacy of executions attests. When that happens, reasonable utilitarians will have to agree to disagree with each other over whether the death penalty should be retained, modified, or abolished for this or that crime. We have, in fact, a perfect illustration of precisely such a disagreement between the two most influential classic utilitarian philosophers. Jeremy Bentham (1748–1832) strongly opposed the death penalty throughout his life and in one of his last essays argued forcefully for its complete abolition in England and France. His student, John Stuart Mill (1806–1873), however, when he was a member of Parliament in the 1860s, argued with comparable firmness against abolition of the death penalty for murder….

A second point of interest is that the general welfare is an extremely abstract, remote, and elusive end-state to serve as the good to be aimed at in choosing among alternative penal policies. Utilitarians have devoted much energy to trying to give shape and content to this idea….

II. THE MORALITY OF PUNISHMENT

As a first step toward providing a fresh setting for the rest of our discussion, it is useful to have a general sketch before us of why it is rational for society to have a system of166punishment at all, quite apart from whether the death penalty is used as one of the modes of punishment. We are not likely to assess the morality of capital punishment correctly unless we understand the morality of punishment in general….

The Right to Punish

Society is organized by reference to common norms that forbid anyone and everyone to engage in certain sorts of harmful conduct. When someone deliberately, willfully, and knowingly violates such rules, and therewith harms the innocent, the offender has violated the rights of others and immediately becomes liable to a punitive response. Since the norms were originally designed to provide protection to every person, and since (so we also assume) the culprit knew in advance that his or her conduct was prohibited because it would be injurious to others, and since he or she freely and knowingly chose nevertheless to violate the norm, society cannot simply ignore the violation and continue to treat the offender as if no wrong had been done. It must attempt to bring the offender to judgment….

Punishment, therefore, serves the complex function of reinforcing individual compliance with a set of social norms deemed necessary to protect the rights of all the members of society. Once it has been determined that one of these norms has been deliberately violated, then there is no alternative but to set in motion the system of criminal justice that culminates in the punishment of the guilty offender.

Such a system is essentially retributive in at least two respects. Crime must be punished, and the punishment must fit the crime. The theory relied upon here certainly acknowledges the first of these contentions. Punishment by its nature pays back an offender who has inflicted suffering and indignity on an innocent victim by inflicting suffering and indignity on the offender. Justice, more than any other consideration (social defense, reform of the offender), dictates that all crimes be liable to punishment, and that a reasonable portion of social resources (public expenditures) be allocated to the arrest, conviction, and punishment of offenders….

Modes of Punishment

What sorts of punishments are available to society to inflict on offenders? What are the sorts of things any person could be deprived of that would count as punishment? Obviously, one could have one’s money or property confiscated, or be deprived of the right to future earnings or an inheritance. But because so much crime against property and against the person is committed by the poor and untalented, by persons with no property and no prospects of any, and because the stolen property is so often disposed of prior to the offender’s arrest, it is often pointless to levy punishments in the form of fines or confiscations….

For reasons such as these society has long preferred to take other things of intrinsic value from persons in the name of punishment—notably their freedom and their bodily integrity. Everybody, rich and poor, young and old, male and female, has life and limb and some degree of liberty to lose….

III. THE SEVERITY AND INDIGNITY OF THE DEATH PENALTY

Is Capital Punishment an Untimely and Undignified Death?

Some defenders of capital punishment have complained that opposition to the death penalty entails an overestimation of the value of human life; it tends to ignore that we will all die eventually. All that capital punishment does, according to this objection, is to schedule a person’s death at a definite time and place, by a definite mode, and for a definite reason. This raises a new question for us, namely, how the idea of the value, worth, dignity, or sanctity of human life can be made consistent with human mortality.

Even though death is a fact of life, emphasizing the worth of human life is a way of giving sense to the familiar notions of “untimely” death and of an “undignified” death. These terms are admittedly vague and have application in a wide variety of settings, but they also have a place where crime and punishment are concerned. Other things being equal, if a death is brought about by one person killing another, as in murder, then it is an untimely death. If a death is brought about in a way that causes terror during the dying or disfigurement of the body, then it is an undignified death. This, of course, is exactly what murder and capital punishment both typically do….

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Why Death Is More Severe Than Imprisonment

… Roughly, of two punishments, one is more severe than the other depending on its duration and on its interference with things a person so punished might otherwise do. Death is interminable, whereas it is always possible to revoke or interrupt a life sentence. Death also makes compensation impossible, whereas it is possible to compensate a prisoner in some way for wrongful confinement even if it is not possible to give back any of the liberty that was taken away. Of most importance, death permits of no concurrent experiences or activities, whereas even a life-term prisoner can read a book, watch television, perhaps even write a book or repair a television set, and experience various social relations with other people. Death eliminates the presupposition of all experience and activity: life itself. For these reasons, the death penalty is unquestionably the more severe punishment, no matter how painless and dignified the mode of execution might be….

The Indignity of Corporal Punishments

In addition to the severity of the death penalty, the killing of persons as punishment shares certain important features with other modes of corporal punishment—maiming, flogging, branding— once widely practiced in our society but now abandoned. All these other methods of corporal punishment have been abandoned in part because they are now seen to violate the dignity of the person being punished….

Why has death as a punishment escaped the nearly universal condemnation visited on all these other punishments with which it is historically and naturally associated? In part, it may be owing to a failure of imagination. Whereas we all know or can easily and vividly imagine the pain and humiliation involved in other corporal punishments, executions today are carried out away from public view, they are quickly over, and the person punished by death is no longer in our midst as a constant reminder. Other factors come into play, too. One is the belief that in some cases there is truly no alternative, because if the criminal were not killed there would be too much risk that he or she would repeat the crime. If so, then neither retribution nor deterrence, but rather incapacitation turns out to be the last line of defense….

IV. CAPITAL PUNISHMENT AND SOCIAL DEFENSE

The Analogy with Self-Defense

Capital punishment, it is sometimes said, is to the body politic what self-defense is to the individual. If the latter is not morally wrong, how can the former be? To assess the strength of this analogy, we need first to inspect the morality of self-defense.

Except for absolute pacifists, who believe it is morally wrong to use violence even to defend themselves or others from undeserved aggression, most of us believe that it is not morally wrong and may even be our moral duty to use violence to prevent aggression directed against either ourselves or innocent third parties. The law has long granted persons the right to defend themselves against the unjust aggressions of others, even to the extent of using lethal force to kill an assailant….

The foregoing account assumes that the person acting in self-defense is innocent of any provocation of the assailant. It also assumes that there is no alternative to victimization except resistance. In actual life, there may be a third alternative: escape, or removing oneself from the scene of the imminent aggression. Hence, the law imposes on us the “duty to retreat.” … The rule is this: Use of deadly force is justified only to prevent loss of life in immediate jeopardy where a lesser use of force cannot reasonably be expected to save the life that is threatened….

The rationale for self-defense as set out above illustrates two moral principles of great importance to our discussion. One is that if a life is to be risked, then it is better that it be the life of someone who is guilty (in this context, the initial assailant) rather than the life of someone who is not (the innocent potential victim)…. [F]airness dictates that the guilty aggressor ought to be the one to run the risk.

The other principle is that taking life deliberately is not justified so long as there is any feasible alternative. One does not expect miracles, of course, but in theory, if shooting a burglar through the foot will stop the burglar and enable one to call the police for help, there is no reason to shoot to kill. Likewise, if the burglar is unarmed, there is no reason to shoot at all…. In these ways the law shows a tacit regard for the life even of168a felon and discourages the use of unnecessary violence even by the innocent….

Deterrence, Incapacitation, and Crime Prevention

The analogy with self-defense leads naturally to the empirical and the conceptual questions surrounding the death penalty as a method of crime prevention. Notice first that crimes can be prevented without recourse to punishment; we do that when we take weapons from offenders, protect targets by bolts and alarms, and educate the public to be less vulnerable to victimization. As for punishment, it prevents crimes by incapacitation and by deterrence. … Executing a murderer prevents crimes by means of incapacitation to the extent that the murderer would have committed further crimes if not executed. Incapacitating a murderer will not have any preventative benefits, however, unless the murderer would otherwise have committed some further crimes. (In fact relatively few murderers turn out to be homicidal recidivists.) Nor is killing persons the only way to incapacitate them; isolation and restraints will suffice. Executing a murderer prevents crimes by means of deterrence to the extent that others are frightened into not committing any capital crimes by the knowledge that convicted offenders are executed. Thus, successful deterrence is prevention by a psychologically effective threat; incapacitation, if it prevents crimes at all, does so by physically disabling the offender.

The Death Penalty and Incapacitation

Capital punishment is unusual among penalties because its incapacitative effects limit its deterrent effects. The death penalty can never deter an executed person from further crimes. At most, it incapacitates the executed person from committing them…. But incapacitation is not identical with prevention. Prevention by means of incapacitation occurs only if the executed criminal would have committed other crimes if he or she had not been executed and had been punished only in some less incapacitative way (e.g., by imprisonment)….

This is the nub of the problem. There is no way to know in advance which if any of the incarcerated or released murderers will kill again. It is useful in this connection to remember that the only way to guarantee that no horrible crimes ever occur is to execute everyone who might conceivably commit such a crime. Similarly, the only way to guarantee that no convicted murderer ever commits another murder is to execute them all. No modern society has ever done this, and for two hundred years Western societies have been moving steadily in the opposite direction….

The Death Penalty and Deterrence

… For half a century, social scientists have studied the questions whether the death penalty is a deterrent and whether it is a better deterrent than the alternative of imprisonment. Their verdict, while not unanimous, is nearly so. Whatever may be true about the deterrence of lesser crimes by other penalties, the deterrence achieved by the death penalty for murder is not measurably any greater than the deterrence achieved by long-term imprisonment….

If the death penalty and long-term imprisonment are equally effective (or ineffective) as deterrents to murder, then the argument for the death penalty on grounds of deterrence is seriously weakened. One of the moral principles identified earlier now comes into play: Unless there is a good reason for choosing a more rather than a less severe punishment for a crime, the less severe penalty is to be preferred. This principle obviously commends itself to anyone who values human life and who concedes that, all other things being equal, less pain and suffering is always better than more….

V. CAPITAL PUNISHMENT AND RETRIBUTIVE JUSTICE

No discussion of the morality of punishment would be complete without taking into account the two leading principles of retributive justice relevant to the capital punishment controversy. One is the principle that crimes ought to be punished. The other is the principle that the severity of a punishment ought to be proportional to the gravity of the offense. These are moral principles of recognized weight. Leaving aside all questions of social defense, how strong a case for capital punishment can be made on their basis? How reliable and persuasive are these principles themselves?

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Crime Must Be Punished

… Fortunately, this principle need not be in dispute between proponents and opponents of the death penalty. Even defenders of the death penalty must admit that putting a convicted murderer in prison for years is a punishment of that criminal. The principle that crime must be punished is neutral to our controversy, because both sides acknowledge it.

The other principle of retributive justice is the one that seems to be decisive. Under lex talionis, it must always have seemed that murderers ought to be put to death…. The strategy for opponents of the death penalty is to argue either that (1) this principle is not really a principle of justice after all, or that (2) to the extent it is, it does not require death for murderers, or that (3) in any case it is not the only principle of punitive justice. As we shall see, all these objections have merit….

Is Death Sufficiently Retributive?

Those who advocate capital punishment for murder on retributive grounds must face the objection that, on their own principles, the death penalty in some cases is morally inadequate. How could death in the electric chair or the gas chamber or before a firing squad or by lethal injection suffice as just retribution, given the savage, brutal, wanton character of so many murders? How can retributive justice be served by anything less than equally savage methods of execution? …

… Where the quality of the crime sets the limits of just methods of punishment, as it will if we attempt to give exact and literal implementation to lex talionis, society will find itself descending to the cruelties and savagery that criminals employ. What is worse, society would be deliberately authorizing such acts, in the cool light of reason, and not (as is usually true of vicious criminals) impulsively or in hatred and anger or with an insane or unbalanced mind. Moral constraints, in short, prohibit us from trying to make executions perfectly retributive. Once we grant that such constraints are proper, it is unreasonable to insist that the principle of “a life for a life” nevertheless by itself justifies the execution of murderers….

As the French writer Albert Camus once remarked:

For there to be an equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.⁵

Differential Severity Does Not Require Executions

What, then, emerges from our examination of retributive justice and the death penalty? If retributive justice is thought to consist in lex talionis, all one can say is that this principle has never exercised more than a crude and indirect effect on the actual punishments meted out by society….

But retributive justice need not be identified with lex talionis. One may reject that principle as too crude and still embrace the retributive principle that the severity of punishments should be graded according to the gravity of the offense. Even though one need not claim that life imprisonment (or any kind of punishment other than death) “fits” the crime of murder, one can claim that this punishment is the proper one for murder. To do this, the schedule of punishments accepted by society must be arranged so that this mode of imprisonment is the most severe penalty used. Opponents of the death penalty can embrace this principle of retributive justice, even though they must reject a literal lex talionis.

Equal Justice and Capital Punishment

During the past generation, the strongest practical objection to the death penalty has been the inequity with which it has been applied…. All the sociological evidence points to the conclusion that the death penalty is the poor man’s justice; hence the slogan, “Those without the capital get punishment.” The death penalty is also racially sensitive….

Let us suppose that the factual basis for such a criticism is sound. What follows for the morality of capital punishment? Many defenders of the death penalty have been quick to point out that since there is nothing intrinsic about the crime of murder or rape dictating that only the poor or only racial-minority males will commit it, and since there is nothing overtly racist about the statutes that authorize the death penalty for murder or rape, capital punishment itself is hardly at fault if in practice it falls with unfair impact on the poor and the black…. At worst such results stem from defects in the system of administering criminal justice….

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We can look at these statistics in another way to illustrate the same point…. Persons are sentenced to death and executed not because they have been found to be uncontrollably violent or hopelessly poor risks for safe confinement and release. Instead, they are executed because at trial they had a poor defense (inexperienced or overworked counsel); they had no funds to bring sympathetic witnesses to court; they are transients or strangers in the community where they are tried; the prosecuting attorney wanted the publicity that goes with “sending a killer to the chair”; there were no funds for an appeal or for a transcript of the trial record; they are members of a despised racial or political minority. In short, the actual study of why particular persons have been sentenced to death and executed does not show any careful winnowing of the worst from the bad. It shows that those executed were usually the unlucky victims of prejudice and discrimination, the losers in an arbitrary lottery that could just as well have spared them, the victims of the disadvantages that almost always go with poverty. A system like this does not enhance human life; it cheapens and degrades it….

VI. CONCLUSION

Our discussion of the death penalty from the moral point of view shows that there is no one moral principle that has paramount validity and that decisively favors one side of the controversy. Rather, we have seen how it is possible to argue either for or against the death penalty, and in each case to be appealing to moral principles that derive from the worth, value, or dignity of human life….

My own view of the controversy is that, given the moral principles identified in the course of our discussion (including the overriding value of human life), and given all the facts about capital punishment, the balance of reasons favors abolition of the death penalty. The alternative to capital punishment that I favor, as things currently stand, is long-term imprisonment. Such a punishment is retributive and can be made more or less severe to reflect the gravity of the crime. It gives adequate (though hardly perfect) protection to the public. It is free of the worst defect to which the death penalty is liable: execution of the innocent. It tacitly acknowledges that there is no way for a criminal, alive or dead, to make complete amends for murder or other grave crimes against the person. Last but not least, long-term imprisonment has symbolic significance. The death penalty, more than any other kind of killing, is done by officials in the name of society and on its behalf. Each of us, therefore, has a hand in such killings. Unless they are absolutely necessary they cannot be justified. Thus, abolishing the death penalty represents extending the hand of life even to those who by their crimes have “forfeited” any right to live. A penal policy limiting the severity of punishment to long-term incarceration acknowledges that we must abandon the folly and pretense of attempting to secure perfect justice in an imperfect world….

NOTES

1. W. D. Ross, The Right and the Good. Oxford: Clarendon Press, 1930, pp. 60–61.

2. Immanuel Kant, The Metaphysical Elements of Justice (1797), Indianapolis, Ind.: Bobbs-Merrill (1965), translated by John Ladd, p. 102.

3. Ibid., p. 100.

4. Ibid., p. 101.

5. Albert Camus, Resistance, Rebellion, and Death. New York: Knopf, 1961, p. 199.

Discussion Questions

1. Analyze Bedau’s claim that the forfeiture-of-rights argument is problematic because it can be used to justify the death penalty for almost any crime. Use the execution of Socrates to illustrate your answer.

2. Bedau claims that Kant’s criteria for determining a murderer’s “state of mind” at the time of the crime are too ambiguous to be useful. Make up a list of criteria that might be used in determining if a murderer should be held morally blameworthy. Make a list of criteria that might be used in determining if a murderer should get the death penalty. Are the two lists the same? Discuss why or why not.

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3. What if a society were dissolved, not by common agreement, but because of a natural disaster or a civil war that led to the collapse of the government and, with it, the penal system? Discuss whether Bedau would permit the death penalty in situations in which there is no other effective means of incapacitating dangerous criminals.

HELEN PREJEAN

Would Jesus Pull the Switch?

Helen Prejean is a member of the Sisters of St. Joseph of Medaille in Louisiana. Through her work with inner-city residents in New Orleans, she became involved in ministry to death row inmates at the Louisiana State Prison in Angola. Prejean takes a natural ethics approach to the question “Would Jesus Pull the Switch?” She concludes that Jesus would not, nor would God condone such an action.

Critical Reading Questions

1. Why did Prejean get involved with death row inmates?

2. What do the Bible and Jesus say about the death penalty?

3. On what grounds does Prejean reject the concept of a God who metes out hurt for hurt and torture for torture?

4. According to Prejean, what is the connection between capital punishment and racism?

5. According to Prejean, why is the death penalty essentially torture?

6. What do the UN Universal Declaration on Human Rights and Pope John Paul II in “The Gospel of Life” each say about torture and the death penalty?

7. On what grounds does Prejean reject the argument that the government has a right to kill?

8. Why does the United States still have the death penalty, and how does Prejean view the future of the death penalty in this county?

I was scared out of my mind. I went into the women’s room because it was the only private place in the death house, and I put my head against the tile wall and grabbed the crucifix around my neck. I said, “Oh, Jesus God, help me. Don’t let him fall apart. If he falls apart, I fall apart.”

Prejean, Sister Helen, “Would Jesus Pull the Switch?” Salt of the Earth, March/April 1997. Used with permission of Sister Helen Prejean.

I had never watched anybody be killed in front of my eyes. I was supposed to be Patrick Sonnier’s spiritual advisor.

I was in over my head.

All I had agreed to in the beginning was to be a pen pal to this man on Louisiana’s death row. Sure, I said, I could write letters. But the man was all alone, he had no one to visit him.

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It was like a current in a river, and I got sucked in. The next thing I knew I was saying, “OK, sure, I’ll come visit you.”…

But I had no idea that at the end, on the evening of the execution, everybody has to leave the death house at 5:45 p.m., everybody but the spiritual advisor. The spiritual advisor stays to the end and witnesses the execution….

People ask me all the time, “What are you, a nun, doing getting involved with these murderers?” You know how people have these stereotypical ideas about nuns: nuns teach; nuns nurse the sick.

I tell people to go back to the gospel. Look at who Jesus hung out with: lepers, prostitutes, thieves—the throwaways of his day. If we call ourselves Jesus’ disciples, we too have to keep ministering to the marginated, the throwaways, the lepers of today. And there are no more marginated, thrown-away, and leprous people in our society than death-row inmates.

There’s a lot of what I call “biblical quarterbacking” going on in death-penalty debates: people toss in quotes from the Bible to back up what they’ve already decided anyway. People want to not only practice vengeance but also have God agree with them. The same thing happened in this country in the slavery debates and in the debates over women’s suffrage.

Religion is tricky business. Quote that Bible. God said torture. God said kill. God said get even.

Even the Pauline injunction “Vengeance is mine, says the Lord, I will repay” (Rom. 12:19) can be interpreted as a command and a promise—the command to restrain individual impulses toward revenge in exchange for the assurance that God will be only too pleased to handle the grievance in spades.

That God wants to “get even” like the rest of us does not seem to be in question.

One intractable problem, however, is that divine vengeance (barring natural disasters, so-called acts of God) can only be interpreted and exacted by human beings, very human beings.

I can’t accept that.

Jesus Christ, whose way of life I try to follow, refused to meet hate with hate and violence with violence. I pray for the strength to be like him.

I cannot believe in the God who metes out hurt for hurt, pain for pain, torture for torture. Nor do I believe that God invests human representatives with such power to torture and kill. The paths of history are stained with the blood of those who have fallen victim to “God’s Avengers.” Kings, popes, military generals, and heads of state have killed, claiming God’s authority and God’s blessing. I do not believe in such a God….

But here’s the real reason why I got involved with death-row inmates: I got involved with poor people. It took me a while to wake up to the call of the social gospel of Jesus. For years and years when I came to the passages where Jesus identified with poor and marginated people I did some fast-footed mental editing of the scriptures: poor meant “spiritually poor.”

When I read in Matthew 25, “I was hungry and you gave me to eat,” I would say, “Oh there’s a lot of ways of being hungry.” “I was in prison, and you came to visit me,”—”Oh, there’s a lot of ways we live in prison, you know.” …

But later that year I finally got it. I began to realize that my spiritual life had been too ethereal, too disconnected. To follow Jesus and to be close to Jesus meant that I needed to seek out the company of poor and struggling people.

So in June 1981 I drove a little brown truck into St. Thomas, a black, inner-city housing project in New Orleans, and began to live there with four other sisters.

Growing up a Southern white girl right on the cusp of the upper class, I had only known black people as my servants. Now it was my turn to serve them.

It didn’t take long to see that for poor people, especially poor black people, there was a greased track to prison and death row. As one Mama in St. Thomas put it: “Our boys leave here in a police car or a hearse.”

It didn’t take long to see how racism worked. When people were killed in St. Thomas and you looked for an account of their deaths in the newspaper, you’d find it buried on some back page as a three-line item. When other people were killed, it was front-page news….

I began to understand that some life is valued and some life is not.

One day a friend of mine from the Prison Coalition Office casually asked me if I’d be a pen pal to someone on death row in Louisiana.

I said, “Sure.” But I had no idea that this answer would be my passport to a strange and bizarre country….

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I wrote Patrick about life at Hope House in St. Thomas, and he told me about life in a 6-by-8-foot cell, where he and 44 other men were confined 23 hours a day….

Patrick was on death row four years before they killed him.

I made a bad mistake. When I found out about Patrick Sonnier’s crime—that he had killed two teenage kids—I didn’t go to see the victims’ families. I stayed away because I wasn’t sure how to deal with such raw, unadulterated pain. I was a coward. I only met them at Patrick’s pardon-board hearing. They were there to demand Patrick’s execution. I was there to ask the board to show him mercy. It was not a good time to meet.

Here were two sets of parents whose children had been ripped from them. I felt terrible. I was powerless to assuage their grief. It would take me a long time to learn how to help victims’ families, a long time before I would sit at their support-group meetings and hear their unspeakable stories of loss and grief and rage and guilt….

I don’t see capital punishment as a peripheral issue about some criminals at the edge of society that people want to execute. I see the death penalty connected to the three deepest wounds of our society: racism, poverty, and violence.

In this country, first the hangman’s noose, then the electric chair, and now the lethal-injection gurney have been almost exclusively reserved for those who kill white people.

The rhetoric says that the death penalty will be reserved only for the most heinous crimes, but when you look at how it is applied, you see that in fact there is a great selectivity in the process. When the victim of a violent crime has some kind of status, there is a public outrage, and especially when the victim has been murdered, death—the ultimate punishment—is sought.

But when people of color are killed in the inner city, when homeless people are killed, when the “nobodies” are killed, district attorneys do not seek to avenge their deaths. Black, Hispanic, or poor families who have a loved one murdered not only don’t expect the district attorney’s office to pursue the death penalty—which, of course, is both costly and time-consuming—but are surprised when the case is prosecuted at all….

In regard to this first and deepest of America’s wounds, racism, we’d have to change the whole soil of this country for the criminal-justice system not to be administered in a racially biased manner.

The second wound is poverty. Who pays the ultimate penalty for crimes? The poor. Who gets the death penalty? The poor. After all the rhetoric that goes on in legislative assemblies, in the end, when the net is cast out, it is the poor who are selected to die in this country.

And why do poor people get the death penalty? It has everything to do with the kind of defense they get.

When I agreed to write to Patrick Sonnier, I didn’t know much about him except that if he was on death row in Louisiana he had to be poor. And that holds true for virtually all of the more than 3,000 people who now inhabit death-row cells in our country.

Money gets you good defense. That’s why you’ll never see an O. J. Simpson on death row. As the saying goes: “Capital punishment means them without the capital get the punishment.”

I had to learn all this myself. My father was a lawyer. I used to think, “Well, they may not get perfect defense, but at least they get adequate defense.”

I tell you it is so shocking to find out what kind of defense people on death row actually have had.

The man I have been going to see on death row now for over six years is a young black man who was convicted for the killing of a white woman in a small community in Many, Louisiana. He had an all-white jury, and he was tried, convicted, and sentenced to death in just one week. Dobie Williams has now been on death row for 10 years, and I believe he’s innocent. But it is almost impossible for us to get a new trial for him. Why? Because if his attorney did not raise any objections at his trial, we cannot bring them up in appeals.

Finally, the third wound is our penchant for trying to solve our problems with violence. When you witness an execution and watch the toll this process also takes on some of those who are charged with the actual execution—the 12 guards on the strap-down team and the warden—you recognize that part of the moral dilemma of the death penalty is also: who deserves to kill this man?

On my journey with murder victims’ families, I have seen some of them go for vengeance. I have seen families watch executions in the electric chair and still be for vengeance. I have also witnessed the disintegration of families because some parents got so fixated on vengeance that they couldn’t love their other children any more or move on with life….

Patrick had tried to protect me from watching him die. He told me he’d be OK. I didn’t have to come with174him into the execution chamber. “The electric chair is not a pretty sight, it could scare you,” he told me, trying to be brave.

But I said, “No, no, Pat, if they kill you, I’ll be there.” …

Being in that death house was one of the most bizarre, confusing experiences I have ever had. It wasn’t like visiting somebody dying in a hospital, where you can see the person getting weaker and fading. Patrick was so fully alive, talking and responding to me and writing letters to people and eating.

I’d look around at the polished tile floors—everything so neat—all the officials following a protocol, the secretary typing up forms for the witnesses to sign afterwards, the coffee pot percolating, and I kept feeling that I was in a hospital and the final act would be to save this man’s life.

It felt strange and confusing because everyone was so polite. They kept asking Patrick if he needed anything. The chef came by to ask him if he liked his last meal—the steak (medium rare), the potato salad, the apple pie for dessert.

When the warden with the strap-down team came for him, I walked with him. God heard his prayer, “Please, God, hold up my legs.” It was the last piece of dignity he could muster. He wanted to walk.

I saw this dignity in him, and I have seen it in the three men I have accompanied to their deaths. I wonder how I would hold up if I were walking across a floor to a room where people were waiting to kill me.

The essential torture of the death penalty is not finally the physical method of death: bullet or rope or gas or electrical current or injected drugs. The torture happens when conscious human beings are condemned to death and begin to anticipate that death and die a thousand times before they die. They are brought close to death, maybe four hours away, and the phone rings in the death house, and they hear they have received a stay of execution. Then they return to their cells and begin the waiting all over again….

The U.N. Universal Declaration on Human Rights states that there are two essential human rights that every human being has: the right not to be tortured and the right not to be killed.

I wish Pope John Paul II in his encyclical “The Gospel of Life” had been as firm and unconditional as the U.N.

The pope still upholds the right of governments to kill criminals, even though he restricts it to cases of “absolute necessity” and says that because of improvements in modern penal systems such cases are “very rare, if not practically nonexistent.”

Likewise, the U.S. Catholic bishops in their 1980 “Statement on Capital Punishment,” while strongly condemning the death penalty for the unfair and discriminatory manner in which it is imposed, its continuance of the “cycle of violence,” and its fundamental disregard for human dignity, also affirm in principle the right of the state to kill.

But I believe that if we are to have a firm moral bedrock for our society, we must establish that no one may be permitted to kill—no one—and that includes government….

In this last decade of the 20th century, U.S. government officials kill citizens with dispatch with scarcely a murmur of resistance from the Christian citizenry. In fact, surveys of public opinion show that those who profess Christianity tend to favor capital punishment slightly more than the overall population—Catholics more than Protestants.

True, in recent years leadership bodies of most Christian denominations have issued formal statements denouncing the death penalty, but generally that opposition has yet to be translated into aggressive pastoral initiatives to educate clergy and membership on capital punishment. I do not want to pass judgment on church leaders, but I invite them to work harder to do the right thing.

I also believe that we cannot wait for the church leadership to act. We have to put our trust in the church as the people of God; things have to come up from the grassroots.

The religious community has a crucial role in educating the public about the fact that government killings are too costly for us, not only financially, but—more important—morally. Allowing our government to kill citizens compromises the deepest moral values upon which this country was conceived: the inviolable dignity of human persons….

I have no doubt that we will one day abolish the death penalty in America. One day all the death instruments in this country—electric chairs, gas chambers, and lethal-injection needles—will be housed behind velvet ropes in museums.

Today, however, executions are still the order of the day, and people are being executed at an ever-increasing rate in this country.

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People are scared of crime, and they’ve been manipulated by politicians who push this button for all it’s worth. For politicians, the death penalty is a convenient symbol and an easy way to prove how tough they are on criminals and crime. It allows them to avoid tackling the complex issue of how to get to the roots of crime in our communities.

But we may be close to bottoming out, which has to happen before momentum can build in the other direction. Right now we may be at just the beginning of the dawning of consciousness.

The death penalty is firmly in place, but people are beginning to ask, “If this is supposed to be the solution, how come we’re not feeling any better? How come none of us feels safer?” People are beginning to realize that they have been duped and that the death penalty has not so much to do with crime as it has to do with politics….

When people support executions, it is not out of malice or ill will or hardness of heart or meanness of spirit. It is, quite simply, that they don’t know the truth of what is going on.

And that is not by accident. The secrecy surrounding executions makes it possible for executions to continue. I am convinced that if executions were made public, the torture and violence would be unmasked and we would be shamed into abolishing executions….

When you accompany someone to the execution, as I have done three times as a spiritual advisor, everything becomes very crystallized, distilled, and stripped to the essentials. You are in this building in the middle of the night, and all these people are organized to kill this man. And the gospel comes to you as it never has before: Are you for compassion, or are you for violence? Are you for mercy, or are you for vengeance? Are you for love, or are you for hate? Are you for life, or are you for death? …

In his last words [Patrick Sonnier] expressed his sorrow to the victims’ family. But then he said to the warden and to the unseen executioner behind the plywood panel, “but killing me is wrong, too.” …

Discussion Questions

1. Prejean maintains that all humans have intrinsic moral value—”Nobody is disposable human waste.” Do you agree with Prejean? Does moral respect require that all people, including terrorists, be treated with dignity even when they treat others as “disposable human waste”? Support your answers.

2. Both Immanuel Kant and John Locke disagree with Prejean’s interpretation of the Bible, arguing instead that the Bible demands retributive justice: “Who so sheddeth Man’s Blood, by Man shall his Blood be shed.” Discuss how Prejean might respond to their interpretations of biblical imperatives regarding retributive justice.

3. Prejean argues that the death penalty in this country is linked to racism and poverty. Does the fact that people who are nonwhite and poor are more likely to get the death penalty make it unjust and, hence, immoral? Discuss how van den Haag might respond to Prejean as well as how Prejean might respond to van den Haag.

4. According to psychologist Carol Gilligan, moral maturity entails integrating the justice and the care perspectives. Develop a policy on capital punishment that draws from both perspectives.

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DAVID B. MUHLHAUSEN

How the Death Penalty Saves Lives

David B. Muhlhausen, PhD, is a research fellow for the Center for Data Analysis at The Heritage Foundation. In the following reading, he argues that some crimes are so heinous that they may require the death penalty.

Critical Reading Questions

1. Why did a jury convict Earl Ringo Jr. of two first-degree murders?

2. How do Americans feel about the death penalty?

3. What evidence does Muhlhausen present to support his claim that the death penalty is an effective deterrent and saves lives?

4. What, according to Muhlhausen, is a proper emotion response to wrongful conduct such as murder?

5. What does Muhlhausen conclude regarding the execution of Ringo?

On Sept. 10, Earl Ringo Jr. was executed in Missouri. Before you decide whether or not this is right, consider what Ringo did.

In July 1998, Ringo and an accomplice planned to rob a restaurant where Ringo had previously worked. Early one morning, they followed delivery truck driver Dennis Poyser and manager-in-training Joanna Baysinger into the building before shooting Poyser to death and forcing Baysinger to hand over $1,400. Then, Ringo encouraged his partner to kill her. A jury convicted Ringo of two first-degree murders.

Some crimes are so heinous and inherently wrong that they demand strict penalties—up to and including life sentences or even death. Most Americans recognize this principle as just.

A Gallup poll from May on the topic found that 61 percent of Americans view the death penalty as morally acceptable, and only 30 percent disagreed. Even though foes of capital punishment have for years been increasingly vocal in their opposition to the death penalty, Americans have consistently supported capital punishment by a 2-to-1 ratio in murder cases. They are wise to do so.

David B. Muhlhausen, “How the Death Penalty Saves Lives,” The Heritage Foundation, September 30, 2014. Used by permission of The Heritage Foundation.

Studies of the death penalty have reached various conclusions about its effectiveness in deterring crime. But a 2008 comprehensive review of capital punishment research since 1975 by Drexel University economist Bijou Yang and psychologist David Lester of Richard Stockton College of New Jersey concluded that the majority of studies that track effects over many years and across states or counties find a deterrent effect.

Indeed, other recent investigations, using a variety of samples and statistical methods, consistently demonstrate a strong link between executions and reduced murder rates. For instance, a 2003 study by Emory University researchers of data from more than 3,000 counties from 1977 through 1996 found that each execution, on average, resulted in 18 fewer murders per county. In another examination, based on data from all 50 states from 1978 to 1997, Federal Communications Commission economist Paul Zimmerman demonstrated that each state execution deters an average of 14 murders annually.

A more recent study by Kenneth Land of Duke University and others concluded that, from 1994 through 2005, each execution in Texas was associated with “modest, short-term reductions” in homicides, a decrease of up to1772.5 murders. And in 2009, researchers found that adopting state laws allowing defendants in child murder cases to be eligible for the death penalty was associated with an almost 20 percent reduction in rates of these crimes.

In short, capital punishment does, in fact, save lives. That’s certainly not to say that it should be exercised with wild abandon. Federal, state and local officials must continually ensure that its implementation rigorously upholds constitutional protections, such as due process and equal protection of the law. However, the criminal process should not be abused to prevent the lawful imposition of the death penalty in capital cases.

Moral indignation is an appropriate response to inherently wrongful conduct, such as that carried out by Earl Ringo Jr. While the goal of lower crime through deterrence is worthwhile, lawmakers need to place special emphasis on the moral gravity of offenses in determining the proportionality of punishment.

The execution of Ringo was morally just. And it may just save the lives of several innocents.

Discussion Questions

1. Is the fact that the majority of Americans favor the death penalty morally relevant? Support your answer.

2. According to the Death Penalty Information Center, the majority of studies have found no evidence that the death penalty saves innocent lives and that data. Indeed, in the study by Bijou Yang and David Lester cited in the reading, Yang and Lester state that their study was not conclusive. They wrote: “The implications of this review of the evidence concerning the existence of a deterrent effect from executions should be considered with some caution because executions result in the death of individuals.”²⁸ Given that the evidence is inconclusive can the death penalty still be justified?

3. Helen Prejean, in her essay “Would Jesus Pull the Switch?” maintains that capital punishment is wrong since it is a violation of the intrinsic worth of humans. Philosopher Immanuel Kant, in contrast, argues that it is because murders have intrinsic worth as humans they have a right to be punished even if it means the death penalty. Which person presents the best argument and why?

4. U.S. criminal defense attorney Clarence Darrow (1857–1938) was an outspoken opponent of the death penalty. Darrow believed that human behavior is determined by circumstances out of our control and, therefore, does not deserve to be punished. In his “Address to the Prisoners in the Chicago County Jail,” Darrow told the inmates:

In one sense, everybody is equally good and equally bad. We all do the best we can under the circumstances … there were circumstances that drove you to do exactly the thing which you did. You could not help it any more than we outside can help taking the positions we take….

I will guarantee to take from this jail, or any jail in the world, five hundred men who have been the worst criminals and law-breakers who ever got into jail, and I will go down to our lowest streets and take five hundred of the most abandoned prostitutes, and go out somewhere where there is plenty of good land, and will give them a chance to make a living, and they will be as good people as the average in the community.²⁹

Do you agree with Darrow? Discuss how Muhlhausen might respond to Darrow’s claim that criminals are simply products of their environments.

Yang, Bijou and Lester, David, “Deterrent Effect of Executions: A Meta-Analysis Thirty Years After Ehrlich,” Journal of Criminal Justice vol. 36, no. 5, September/October 2008, 453–460.

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MATTHEW SCHMITZ

The Death Penalty Is Just and Merciful

Matthew Schmitz is a writer living in New York and senior editor of First Things. His writing has appeared in The New York Times, The Washington Post, The Spectator, The National Review, and other publications. In the following reading, Schmitz argues that the death penalty is more humane than the alternatives.

Critical Reading Questions

1. Why does Schmitz disagree with the commonly held belief that the recent Nebraska vote to abolish the death penalty represents moral progress?

2. Why do most people oppose capital punishment?

3. How does Schmitz respond to Pope Francis’s suggestion that we abolish both the death penalty and life imprisonment?

4. How does Schmitz respond to the argument that the only legitimate justification of capital punishment is deterrence?

5. What is the position of the United States bishops on capital punishment?

It is possible to view Nebraska’s recent vote to abolish the death penalty—a vote that brought together liberals, budget balancers, and social conservatives—as a heartening sign that partisan divisions can be overcome, that moral progress can arrive even in places that vote Republican, and that the brutal façade of structural racism may one day crack and topple. This view has much to recommend it: It appeals to our desire to overcome tiresome divisions, confirms the superiority of the present over the past, and does honor to the principled people who have argued, often very eloquently, that we must unknot the hangman’s noose.

It also suffers from certain defects. Its story of moral progress asks us to overlook the countless cruelties of our criminal-justice system as we congratulate ourselves on the elimination of a relatively rare punishment (Nebraska’s last execution was in 1997). It suggests that the only purpose of criminal justice is deterrence—a view long championed by Beccaria, Bentham, and other apostles of cruel efficiency. It asks us to ignore that life imprisonment, the only alternative to capital punishment, is hardly more humane.

Matthew Schmitz, “The Death Penalty Is Just and Merciful,” National Review, May 29, 2015. Copyright © 2015 National Review. Used with permission.

Indeed, comparing our differing reactions to capital punishment and life imprisonment is one of the more direct ways to see what lies behind most death-penalty opposition. As Pope Francis has observed, “Life imprisonment is a hidden death penalty.” His suggestion that we abolish both is rather questionable (taken seriously, it requires parole for Pol Pot, halfway houses for Hitler), but his basic insight is sound. Is it really more barbaric to grant a terrible murderer a dignified death than to force him to live a life of confinement, perhaps to undergo humiliating force-feeding, and then to die in the hands of the state even if not by the state’s hand?

While some writers have made detailed arguments distinguishing death from other punishments, most people who oppose the death penalty do so based on loose intuitions, about barbarity and humaneness, that should179apply with equal—perhaps greater—force to life imprisonment. That we are ready to accept the latter but not the former reflects that much of the opposition to the death penalty comes not from moral indignation but from aesthetic revulsion. We have undergone not an increase in conscience but an intensification of our squeamishness. We seek bloodless means, however cruel they may be.

Most people who oppose the death penalty do so based on loose intuitions, about barbarity and humaneness, that should apply with equal—perhaps greater—force to life imprisonment.

How did we get here? As Stephanos Bibas writes in his book The Machinery of Criminal Justice, such Enlightenment thinkers as Cesare Beccaria argued that the purpose of punishment was “to deter crime rather than exact deserved retribution.” As Jeremy Bentham said, criminal justice should function as a “mechanism to inflict enough pain to outweigh the pleasure of crime.” Whenever opponents of capital punishment say that it has no deterrent effect, they speak with the voice of Bentham. Punishment is no longer about just retribution, about reintegration.

The views of these thinkers have gained currency because their approach promises to eliminate the inequalities that can result from an ethic of mercy (which is bound to be applied unequally) and the apparent establishment-clause problems that come with ideas of retribution and moral instruction—it was not uncommon for colonial-era judges to deliver religious exhortations to those they were sentencing. Yet this view fails to recognize the moral and human dimensions of punishment—the reference to a higher power, the principle that retribution should be proportionate to the crime, the possibility of reconciliation—that makes criminal justice a matter of punishing men rather than herding animals. It may lead to outcomes that are less “problematic,” but it has gone hand in hand with the rise of a system that is at once sterile, hygienic, and cruel.

It is regrettable that the claim, made most prominently in John Paul II’s Evangelium Vitae, that deterrence is the only legitimate justification for capital punishment has encouraged an attenuation also of Christian reasoning on punishment. Indicative of this loss is the remark by the Catholic writer and Jesuit priest James Martin that “it is wrong, in all cases, to take a human life.” John Paul II’s words are better read in the broad sweep of Christian tradition, in the manner recommended by Avery Dulles in his article “Catholicism and Capital Punishment”:

The Catholic magisterium does not, and never has, advocated unqualified abolition of the death penalty. I know of no official statement from popes or bishops, whether in the past or in the present, that denies the right of the State to execute offenders at least in certain extreme cases. The United States bishops, in their majority statement on capital punishment, conceded that “Catholic teaching has accepted the principle that the State has the right to take the life of a person guilty of an extremely serious crime.” Joseph Cardinal Bernardin, in his famous speech on the “Consistent Ethic of Life” at Fordham in 1983, stated his concurrence with the “classical position” that the State has the right to inflict capital punishment.

Recently Alex Tuckness and John M. Parrish have written against “the decline of mercy in public life.” If we are to reverse that decline, if we are to erect a criminal-justice system that is less cold and cruel, we could do worse than to defend and extend the death penalty. This is a conclusion that I reach as a Catholic, as someone who has marched against the application of the death penalty in individual cases, and as a native Nebraskan inclined to take pride in his state but unable to do so in this case.

The alternatives to the death penalty are not less cruel, and perhaps more so; the arguments against it are either narrow or absurd; the reasons for it, which have always gone well beyond deterrence, remain as real in our time as they were in Hammurabi’s. Simply as a sign that punishment is not just about the carrots and sticks of deterrence but that it is an inevitably moral project concerned with right and wrong, justice and injustice, the death penalty has much to teach us still. In countless individual cases, mercy will be called for, but both justice and mercy are obscured when we call the death penalty unjust.

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Discussion Questions

1. One of Schmitz’s justifications of capital punishment is that life imprisonment is crueler. However, does the fact the life imprisonment is so cruel and dehumanizing as currently implemented justify capital punishment or does it call for an overhaul of our penal system so it is more humane and less cruel? Discuss how Jeremy Bentham might answer this question.

2. Justice Thurgood Marshall in his dissenting opinion on the Glossip v. Gross Supreme Court case argued that the death penalty is unconstitutional because it is excessive, it is cruel and unusual punishment and that life imprisonment would serve the same purpose. Discuss how Schmitz might respond to Marshall. Which person makes the best argument and why?

3. Discuss how Schmitz might respond to Immanuel Kant’s claim that not only does the state have a right to punish, but the murderer has a right to be punished by taking his life. Do you agree? Support your answer.

4. Over 160 people on death row have later been found innocent and released. Schmitz does not directly address the problem of error and sentencing an innocent person of to death. Discuss how he might address the issue.

5. Would giving prisoners the choice between life in prison and the death penalty overcome some of Schmitz’s concerns? Discuss also how Schmitz might respond to this question.

CASE STUDIES

1. KARLA FAYE TUCKER: THE REPENTANT MURDERER

There’s no question that thirty-eight-year-old Karla Faye Tucker of Texas was guilty of murder. In 1983, while strung out on drugs, Tucker hacked her two helpless victims to death with a pickax. She even boasted afterward that the killing gave her a sexual thrill.

Tucker later came to regret her deeds. She found God, she said, and was a changed person. “God reached down inside of me and literally uprooted all of that stuff and took it out and poured himself in.” Tucker became involved in a prison-run program counseling young people to stay away from crime. “The world per se may not believe I deserve forgiveness,” she told the world in an ABC interview, “but God says He’s forgiven me.”

More than one hundred people gathered outside the Texas prison on February 3, 1998, the day of her scheduled execution, some protesting the death penalty and hoping for a stay of execution, others rallying in support of her execution. Despite pleas for her pardon, Tucker was executed that evening by lethal injection.

Discussion Questions

1. Women make up less than 2 percent of the death row population. Is the fact that the vast majority of violent crime is committed by young men relevant to the practical application of capital punishment? Because women, in general, do not need deterring, can capital punishment be justified in Tucker’s case?

2. A survey of seven hundred death row inmates found that most share certain characteristics. Seven out of ten began their criminal careers as children, going on to commit more and more serious crimes, crimes that often included killing, before the murder that landed them on death row.³⁰ Like most inmates on death row, Tucker had a rough childhood. A former181prostitute, she was using marijuana by age eight and heroin at age eleven. She was on drugs when she committed the murders. Discuss whether any of this relevant to her moral responsibility for her action.

3. One of the arguments against the death penalty is that people change. Capital punishment denies people the opportunity for growth, whereas other types of punishment do not. It is generally years before a death sentence is finally carried out. Meanwhile some people, like Tucker, go through major changes and moral growth. Should this be taken into consideration? Is it fair to punish people for a crime they committed during a different “stage” in their lives? Support your answers.

4. U.S. criminal defense attorney Clarence Darrow (1857–1938) was an outspoken opponent of the death penalty. Darrow believed that human behavior is determined by circumstances out of our control and, therefore, does not deserve to be punished. In his “Address to the Prisoners in the Chicago County Jail,” Darrow told the inmates:

In one sense, everybody is equally good and equally bad. We all do the best we can under the circumstances … there were circumstances that drove you to do exactly the thing which you did. You could not help it any more than we outside can help taking the positions we take….

I will guarantee to take from this jail, or any jail in the world, five hundred men who have been the worst criminals and law-breakers who ever got into jail, and I will go down to our lowest streets and take five hundred of the most abandoned prostitutes, and go out somewhere where there is plenty of good land, and will give them a chance to make a living, and they will be as good people as the average in the community.³¹

Do you agree with Darrow? Discuss how van den Haag might respond to Darrow’s claim that criminals are simply products of their environments.

2. TERRORISM, 9/11, AND THE DEATH PENALTY

The September 11 Twin Towers attack in New York City in 2001 was the deadliest terrorist attack in U.S. history, killing almost 3,000 people and injuring thousands more. Khalid Sheik Mohammed, a Pakistani Islamic militant, member of al-Qaeda, and the alleged mastermind behind the attack, was captured in Pakistan. He was held at a secret CIA prison in Afghanistan until 2006 when he was transferred to Guantanamo Bay Prison in Cuba.

During his captivity, he was repeatedly waterboarded. In 2007 he confessed to being the mastermind behind the 9/11 attack, among other things.

In 2008 he was charged with war crimes. The administration under President Bush sought the death penalty for the murder of people in the 9/11 attacks. In his defense, Khalid Sheik Mohammed claimed he was not responsible for the attacks and that he provided false information in order to stop the waterboarding. The case is still ongoing.

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Discussion Questions

1. Prejean argues that capital punishment is inconsistent with the intrinsic value of human life. Despite their terrible crimes, murderers are human beings and deserve to be treated with dignity. Do you agree? Does morality require that terrorists such as Khalid Sheik Mohammed, if he is guilty, and the 9/11 terrorists be treated with dignity? Support your answers.

2. The terrorists who were directly responsible for the destruction of the World Trade Center died in the attacks. Does retributive justice require that people who order murders, but do not carry them out themselves, receive the death penalty? Support your answers. Discuss how Kant and Schmitz would most likely respond to these questions.

3. French existentialist Albert Camus claimed that there is a moral contradiction in a policy, such as capital punishment, that imitates the violence it claims to hate.³² Do you agree with Camus? Are we as a community made a little less virtuous by executing Khalid Sheik Mohammed and other convicted terrorists? Support your answers.

4. Can social contract theory and the concept of forfeiture of rights be used to justify the execution of people from other countries, such as the al Qaeda terrorists, who violate our social contract—especially for actions that might be considered a capital crime in one culture but a heroic act in their own? Support your answer.

3. “BORN KILLERS”: CAPITAL PUNISHMENT AND THE GENETIC LOTTERY

Sociopaths make up 20 percent of prison inmates in the United States, and 50 percent of prison inmates responsible for the most serious and violent crimes, such as murder, armed robbery, and kidnapping.³³ Violent or destructive behavior in sociopaths may begin to manifest itself during childhood or adolescence.

In 1989, fifteen-year-old Craig Price murdered three of his neighbors. When the police arrived at the Heaton home in Warwick, Rhode Island, they found three mutilated bodies. Joan Heaton, thirty-nine, had been stabbed with a knife eleven times, strangled, and bitten in the face. Her daughter Jennifer, ten, had been stabbed sixty-two times. Melissa, eight, had been stabbed eight times and her skull crushed.

Price was arrested shortly after the bodies were found. Police later discovered that two years earlier Price had murdered another neighbor. He also had a record of assaults, burglaries, and other crimes.

Does Price think what he did was immoral? When asked about the murders, Price shrugged his shoulders and responded: “Morality is a private choice.” According to Police Captain Kevin Collins, who witnessed Price’s confessions to the four murders, “He just loves to kill. There’s no doubt … that he’s going to kill again.”³⁴

There is nothing unusual about Price’s background: He came from what seemed to be a good family and lived in a middle-class neighborhood. Price is in all likelihood a sociopath, a person whose cerebral cortex, because of the genetic lottery, is incapable of processing emotional stimuli like a normal brain. Because sociopaths have no sense of guilt, remorse, or concern for the well-being of others, they are impervious to rehabilitation efforts.

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Males with an extra Y chromosome also have a genetic predisposition to violent crime. Although the majority of XYY males do not engage in violent behavior, studies have found that maximum-security prison hospitals have a much higher than normal incidence of XYY males.

Discussion Questions

1. Sociopathy can be fairly accurately identified using brain imaging along with psychological testing. Likewise, the presence of the XYY chromosome can be detected through genetic testing. Discuss whether violent criminals should be compelled to take these tests, or if would this be a violation of their rights.

2. Under Rhode Island law, the maximum sentence for juveniles, regardless of their crimes, is detention in the training school until they turn twenty-one. Should children who kill, such as Craig Price, be treated and punished as adults? Discuss how Schmitz would most likely respond to this question.

3. Plato maintained that a human without a conscience is not a person and, as such, lacks moral standing. Because sociopaths are not persons, he makes a provision in his Republic for the execution of those “whose souls are incurably evil.” Do you agree with Plato? Should sociopaths who murder automatically receive the death penalty? Or does the inability of sociopaths to distinguish right from wrong mean that the concept of retributive justice and punishment is inapplicable to them? Is it fair that people who are disadvantaged by the “genetic lottery” be punished? Support your answers. Discuss also how Bentham and Kant might answer these questions.

4. Discuss whether it would be appropriate for courts to use genetic screening to determine whether a person has a genetic tendency toward violence. If so, should these genetic test results be available to parents as well as to schools and employers? Support your answer.

4. INSIDE A TEXAS DEATH CHAMBER

Texas has been dubbed “the execution capital of the free world.” Journalist Michael Graczyk of the Houston bureau of the Associated Press has witnessed about seventy executions. “It’s my job,” he says. “It’s like going to cover a baseball game or a basketball game.” In the past, executions were scheduled for midnight; now they are held at 6 p.m. for the convenience of those involved. As the prisoner is ushered into the death chamber, guards stand around talking about their kids, Little League, and what they’re going to do on their day off. There is no blood, no sense of horror, no scream of anguish as the needle is inserted into the inmate’s arm. When the execution is over, it just looks like the inmate went to sleep. Graczyk wrote, after the execution of brutal murderer Billy Joe Woods, “It was bizarre to look around and see all these people just doing their job. It was just another day at the office.”³⁵

Outside a handful of anti–death penalty advocates are crying, “Murderer!”—not at the man about to be executed, but at the gray-shirted guards. Later they chanted into a megaphone, “God bless Billy Woods. God bless Billy Woods.”

Discussion Questions

1. Does the death penalty brutalize and numb all those who participate in it, as abolitionists claim? Discuss how Muhlhausen and Schmitz might respond to this objection to capital punishment.

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2. Prejean argues that capital punishment creates sympathy for the murderer. Does it weaken respect for the authority of the law if the state is seen as the murderer and the death row inmate as the victim? Support your answer.

3. Executions involving lethal injection generally require the presence of a physician. Should physicians participate in executions, or does this require them to go against their professional code of ethics—specifically, the principle of nonmaleficence or “Do no harm”—as the AMA claims? Does the principle of nonmaleficence preclude anyone from executing another person? Support your answers.

4. Prejean suggests making executions public. It is the secrecy surrounding executions, she maintains, that keeps the public from realizing just how brutal capital punishment really is. Discuss whether executions should be open to the public.

5. CLARENCE DARROW

U.S. criminal defense attorney Clarence Darrow (1857–1938) was an outspoken opponent of the death penalty. Darrow was a leading voice in against the death penalty. In his 1902 “Address to the Prisoners in the Chicago County Jail,” Darrow told the inmates:

In one sense, everybody is equally good and equally bad. We all do the best we can under the circumstances … there were circumstances that drove you to do exactly the thing which you did. You could not help it any more than we outside can help taking the positions we take….

I will guarantee to take from this jail, or any jail in the world, five hundred men who have been the worst criminals and law-breakers who ever got into jail, and I will go down to our lowest streets and take five hundred of the most abandoned prostitutes, and go out somewhere where there is plenty of good land, and will give them a chance to make a living, and they will be as good people as the average in the community.³⁶

Darrow is perhaps best known for his defense in 1924 of 19-year-old Nathan Leopold and 18-year-old Richard Loeb. Both were student at the University of Chicago and from affluent Chicago families. The two boys planned and carried out the brutal murder of boy with the intention of committing the perfect crime. Darrow successfully argued that the boys, who both plead guilty, should not get the death penalty which, Darrow argued, “roots back to the beast of the jungle.”

Darrow also believed that human behavior is determined by circumstances out of our control and, therefore, does not deserve to be punished. He pointed out in his defense of Leopold and Loeb that the boys’ youth, genetic inheritance, and surging sexual impulses all contributed to their committing the crime. The boys were spared the death penalty and instead sentenced to prison.

Discussion Questions

1. Discuss Darrow’s claim that human behavior is “determined by circumstances out of our control and, therefore does not deserve to be punished.” Do you agree with Darrow? Support your answer.

2. Schmitz in his reading “The Death Penalty is Just and Merciful” argues that the death penalty is more humane than life in prison. Discuss Schmitz’s argument in light of the fact that Loeb was murdered in prison in 1936 by another prisoner. Would Leob have been185better off getting the death penalty, as Schmitz argues? Support your answer. Discuss also how Darrow might respond to Schmitz.

3. Imagine the Immanuel Kant was the prosecuting attorney in this case. Would Kant seek the death penalty? Discuss would Darrow most likely respond to Kant’s position. Which man makes the stronger argument? Support your answer.

4. What if the Loeb and Leopold have been involved in a school shooting or terrorist plot that resulted in the deaths of dozens or even hundreds of people. Should the outrage of the public over the killings, as well as the number of people murdered, be taken into account in sentencing the two?

NOTES

1. Amnesty International, “The Death Penalty in 2016: Facts and Figures,” April 11, 2017, http://www.amnestyusa.org.

2. George Pettinico, “Crime and Punishment: America Changes Its Mind,” Public Perspective (September/October 1994): 29–32.

3. Bureau of Justice Statistics, “Capital Punishment,” December 1999, NCJ-179012.

4. Bureau of Justice Statistics, “Capital Punishment Statistics,” August 24, 2003, www.ojp.usdoj.gov/bjs.

5. “Upcoming Executions,” Death Penalty Information Center, March 28, 2018, https://deathpenaltyinfo.org/upcoming executions.

6. John Gramlich, “American’s Incarceration Rate Is at a Two-Decade Low,” Pew Research Center, May 2, 2018.

7. For the latest statistics, go to the Department of Justice website at http://www.ojp.usdoj.gov/bjs/cp.htm or go to www.antideathpenalty.org/statistics.

8. Quinnipiac Poll, “Most U.S. Voters Back Life Over Death penalty,” March 22, 2018.

9. http://deathpenaltyinfor.org/2017sentencing.

10. Helen Prejean, Dead Man Walking (New York: Random House, 1993), 47.

11. Margaret Talbot, “The Executioner’s I.Q. Test,” New York Times Magazine, June 29, 2003.

12. Death Penalty Information Center, “Innocence: The List of Those Freed from Death Row,” April 2018.

13. Emma Marris, “DNA Tests Put Death Penalty Under Fire,” Nature 439 (January 12, 2006): 126–127. For the latest figures go to www.innocenceproject.org.

14. John Locke, The Second Treatise of Government (1689).

15. Jeremy Bentham, “An Introduction to the Principles of Morals and Legislation,” in Utilitarianism, ed. Mary Warnock (Cleveland: Meridian, 1962).

16. John Stuart Mill, “Parliamentary Debate on Capital Punishment Within Prisons Bill,” in Hansard’s Parliamentary Debates, 3rd ser. (London: Hansard, 1868).

17. Immanuel Kant, The Philosophy of Law, pt. 2, trans. W. Hastie (Edinburgh: T. T. Clark, 1887), 194–198.

18. Prejean, Dead Man Walking, 110.

19. John A. Tures, “Does the Death Penalty Reduce the Murder Rate?” December 2, 2017, www.huffingtonpost.com.

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20. Brian Gilmore, “Spotlight on the Death Penalty,” Progressive 67, no. 8 (August 2003): 38.

21. Joe Soss, Laura Langbein, and Alan Metelko, “Why Do White Americans Support the Death Penalty?” Journal of Politics 397 (2003): 397–421.

22. Ernest van den Haag, “The Ultimate Punishment: A Defense of Capital Punishment,” The Harvard Review 99 (1986): 1662–1669.

23. “Cost of Death Penalty,” 2018, www.deathpenaltyinfo.org/news/post/16/2018.

24. Fareed Zakaria, “The Hard Truth about Going Soft,” Time, Oct, 17, 2011; also see “The High Cost of the Death penalty,” http://death.rdSecure.org/article.php?id-42.

25. Stewart Alexander, “Capital Punishment: Cruelty and Cost,” December 24, 2006, www.indybay.org/newsitems/2006/12/24/18340433.php.

26. “Study Reveals Flaws in U.S. Death Sentences,” Facts On File 60, no. 3106 (June 15, 2000): 404.

27. Lawrence Kohlberg, P. Scharf, and J. Hickey, “The Justice Structure of the Prison: A Theory and Intervention,” Prison Journal 51 (1972): 3–14.

28. Bijou Yang and David Lester, “Deterrent Effect of Executions: A Meta-Analysis Thirty Years After Ehrlich,” Journal of Criminal Justice 36, no. 5 (September/October 2008): 453–460.

29. Clarence Darrow, Crime and Criminals: An Address Delivered to the Prisoners in the Chicago County Jail, (Chicago: Charles H. Kerr, 1902).

30. Dan Malone, “Views from Death Row,” Providence Sunday Journal, May 25, 1997, p. D1.

31. Darrow, Crime and Criminals, 1902.

32. Albert Camus, Reflections sur la Peine Capital (Paris: Calmann-Levy, 1957), 199.

33. Martha Stout, The Sociopath Next Door (New York: Broadway Books, 2005), 82.

34. John Larrabee, “At 21, RI Serial Killer Soon Will Go Free,” USA Today, June 6, 1994, p. A8.

35. Malone, “Views from Death Row,” p. D5.

36. Darrow, Crime and Criminals, 1902.