Afterword: Proportionality and the difference death makes

Abstract

Anyone who reflects on the practice of capital punishment has to work through two issues. The first is that of the justification of punishment in general, the second is that of the place of within his or her overall theory of punishment. It appears that both advocates and opponents of the penalty are--at the present stage of their unfolding dialogue--embarrassed in similar ways by the need to reconcile their positions on the first issue with the conclusion that they favor on the second. Let me explain. Advocates of the penalty are embarrassed by the fact that they are unwilling to accept certain modes of punishment that their general theories do not, by themselves, rule out. From a death-penalty advocate's retributivist perspective, those who commit the most heinous crimes deserve death; and, from his deterrence perspective, execution deters more effectively than any admissible non-capital alternative. Even so, certain kinds of punishment are ruled out even though they seem as deserved as death, and even though they may deter at least as effectively as death. Torture as a mode of punishment, for example, is nearly universally condemned by capital punishment's advocates and opponents alike. But death-penalty advocates are not easily able to derive the constraint against torture and other methods from their general theories of punishment. This side-constraint against inhumane punishment dangles in an ad hoc way from the main body of the death-penalty advocate's position. The resulting challenge to the death-penalty advocate is this: What principled basis can you have for simultaneously judging torture to be impermissibly inhumane and capital punishment to be permissibly humane? Neither desert nor deterrence can be appealed to answer this challenge because, by themselves, they might justify both and torture as punishments. Opponents of the penalty run into a different but related difficulty. For the most part, death-penalty opponents do not categorically condemn the practice of criminal punishment. In fact, death-penalty opponents are quick to draw attention to extremely severe, but morally permissible, alternatives to capital punishment, such as life imprisonment without the possibility of parole. But opponents insist that death is different; punishment by is impermissible even though severe punishment is generally justifiable. At this juncture, death-penalty opponents have two tactical moves open to them. The first is to argue that violates a principle of proportionality that must be satisfied in order to justify fully a given mode or quantum of punishment. The second is to argue that fails to deliver any, or any sufficient, additional deterrent punch, and so violates an aspect of what Hugo Bedau calls the minimum invasion principle, which can be traced to Bentham and Beccaria. (1) This second option makes the abolitionist's position hostage to the resolution of difficult and complex--perhaps intractable--empirical issues. This may be inevitable, but in pursuing the second option the abolitionist appears at least provisionally to concede that in some possible world not unrecognizably dissimilar to our own, capital punishment would be morally permissible. The issue becomes one of whether or not our world is sufficiently similar to that world--an issue which moral philosophers are not specially trained or equipped to answer. Worse for the abolitionist is this: even if it is shown or granted that there is an important empirical gap between our earth and the nearest, accessible twin earth in which capital punishment is morally permissible, there will be a residual moral question whether we should (a) discontinue capital punishment because of its relative lack of efficacy, or (b) refine, restrict, or otherwise reform our practice of capital punishment so that it equals the twin-Earth level of efficacy. For this very reason, I suspect that most abolitionists would not want to rest their case against capital punishment on empirical grounds alone. …