The Case Against the Case Against the Death Penalty

Abstract

Despite the continuing belief by a majority of Americans that the death penalty is morally permissible, the death penalty has few academic defenders. This lack of academic defenders is puzzling because of the strong philosophical justification the death penalty finds in traditional theories of punishment. The three major theories of punishment (the deterrent, the retributive, and the rehabilitative), far from showing that the death penalty is not justified, tend to provide good reasons to favor the death penalty. Indeed, every attempt to show that the major theories of punishment rule out the death penalty either involves smuggling in other assumptions that are not intrinsic to the theory of punishment or puts into question that theory’s ability to serve as a theory of punishment in general. Because arguments against the death penalty find little traction from within punishment theory, ideas outside of punishment theory, such as “dignity,” “decency,” or “civilization,” provide better grounds for criticizing capital punishment. The article begins sketching how such an argument might proceed, but does not give a fully fleshed-out version of the argument, in part because it is unclear whether such an argument can succeed.