Why the deterrence argument for capital punishment fails

Abstract

Violence and the threat of violence are among the standard responses to situations of conflict. Often, when violence is used or threatened, an argument is provided in an effort to justify the use of violence in the given circumstance. Many such arguments, though certainly not all, point to the useful consequences of a given violent act or practice as the principal grounds for its justification. Such arguments are particularly prevalent in political thinking, wherein the practical efficacy of an act is one of the crucial issues for deciding whether the act should be done. Since violence is generally perceived to be at the very least prima facie wrong, some justification must be provided by the users of violence if they are to convince themselves and others that they are not guilty of moral wrongdoing when they do violence. It is the intent of these justifying arguments to establish that violence in the given circumstance is at the very least morally permissible, and sometimes even morally obligatory. Given that justifying arguments are designed to provide a justification for doing something that is considered to be prima facie wrong, it makes sense to suppose that belief in the success of these arguments (on the part of both the user of violence and others) may contribute to the actual practice of violence. Thus, a careful scrutiny of such justifying arguments, particularly those that are convincing and are widely adhered to, is exceedingly important, given the objective of minimizing as much as possible the actual practice of violence. Two circumstances in which there is widespread agreement that violence is justified are the circumstance of self-defense (in which one uses violence to prevent harm to oneself) and that of punishment (in which one uses violence on those who have performed some morally wrong, usually criminal, action). It is my intent in this paper to examine capital punishment (CP) as a paradigm example of violent action for which justifying arguments are provided. In the following analysis I will limit my focus to one field of justifying arguments, namely the arguments from deterrence. These are arguments which say that CP is justified by virtue of one of its consequences, namely the fact that it is uniquely effective in deterring persons from performing actions similar to the acts (usually murder) which are performed by those who would be subjected to CP.(1) Arguments of this sort are among the most widely used justifications for CP in political rhetoric and private thinking about CP, and therefore warrant close scrutiny. In what follows I will provide a careful explication of deterrence-based arguments for CP; I will then show that, even if one grants that CP is a more effective deterrent than other forms of severe punishment, there are two serious problems with these deterrence arguments. The first of these is a problem simply with those arguments which support CP (although similar problems may exist with deterrence arguments supporting other forms of punishment). This problem, as we shall see, makes the deterrence arguments for CP inconclusive at best. The second problem, one which has so far escaped notice in the literature on the subject of deterrence (at least in the form presented here), may have more far-reaching implications, in that it is equally applicable to deterrence-based arguments for punishment taken as such, and not just for CP in particular. This second problem is, I think, a decisive one, and recommends the abandonment of deterrence arguments for CP, and perhaps for punishment in general. It should be noted from the outset that those who wish to justify CP are almost universally compelled to accept that the kind of lethal violence they are advocating is at least prima facie wrong. The reason for this is clear: almost all supporters of CP wish to reserve CP for cases of murder, usually for cases of especially brutal murder or of multiple murders; and their primary reason for applying CP to cases of murder is their conviction that there is something wrong with using lethal violence against another human being. …