Dr. Hoekema is executive director of the American Philosophical Association, Newark, Delaware.
This article appeared in the Christian Century March 28, 1979, p. 338. Copyright by the Christian Century Foundation and used by permission. Current articles and subscription information can be found at www.christiancentury.org. This material was prepared for Religion Online by Ted & Winnie Brock.
Even if one is sympathetic to the claim that a murderer deserves to die, there are compelling reasons not to entrust the power to decide who shall die to the persons and procedures that constitute our judicial system.
In 1810 a bill introduced in the British Parliament sought to abolish capital punishment for the offense of stealing five shillings or more from a shop. Judges and magistrates unanimously opposed the measure. In the House of Lords, the chief justice of the Kings Bench, Lord Ellenborough, predicted that the next step would be abolition of the death penalty for stealing five shillings from a house; thereafter no one could “trust himself for an hour without the most alarming apprehension that, on his return, every vestige of his property [would] be swept away by the hardened robber” (quoted by Herbert B. Ehrmann in “The Death Penalty and the Administration of Justice,” in The Death Penalty in America, edited by Hugo Adam Bedau [Anchor, 1967], p.415).
During the same year Parliament abolished the death penalty for picking pockets, but more than 200 crimes remained punishable by death. Each year in Great Britain more than 2,000 persons were being sentenced to die, though only a small number of these sentences were actually carried out.
In this regard as in many others, the laws of the English colonies in North America were much less harsh than those of the mother country. At the time of the Revolution, statutes in most of the colonies prescribed hanging for about a dozen offenses — among them murder, treason, piracy, arson, rape, robbery, burglary, sodomy and (in some cases) counterfeiting, horse theft and slave rebellion. But by the early 19th century a movement to abolish the death penalty was gaining strength.
The idea was hardly new: czarist Russia had eliminated the death penalty on religious grounds in the 11th century. In the United States the movement had been launched by Benjamin Rush in the 18th century, with the support of such other distinguished citizens of Philadelphia as Benjamin Franklin and Attorney General William Bradford. By the 1830s, bills calling for abolition of capital punishment were being regularly introduced, and defeated, in several state legislatures. In 1846 Michigan voted effectively to abolish the death penalty — the first English-speaking jurisdiction in the world to do so.
In the years since, 12 states have abolished capital punishment entirely. Although statutes still in effect in some states permit the death penalty to be imposed for a variety of offenses — ranging from statutory rape to desecration of a grave to causing death in a duel — murder is virtually the only crime for which it has been recently employed. There are about 400 persons in U.S. prisons under sentence of death, but only one execution (Gary Gilmore’s) has been carried out in this country in the past 11 years.
However, the issue of whether capital punishment is justifiable is by no means settled. Since the Supreme Court, in the case of Furman v. Georgia in 1972, invalidated most existing laws permitting capital punishment, several states have enacted new legislation designed to meet the court’s objections to the Georgia law. And recent public-opinion surveys indicate that a large number, possibly a majority, of Americans favor imposing the death penalty for some crimes. But let us ask the ethical question: Ought governments to put to death persons convicted of certain crimes?
First, let us look at grounds on which capital punishment is defended. Most prominent is the argument from deterrence. Capital punishment, it is asserted, is necessary to deter potential criminals. Murderers must be executed so that the lives of potential murder victims may be spared.
Two assertions are closely linked here. First, it is said that convicted murderers must be put to death in order to protect the rest of us against those individuals who might kill others if they were at large. This argument, based not strictly on deterrence but on incapacitation of known offenders, is inconclusive, since there are other effective means of protecting the innocent against convicted murderers — for example, imprisonment of murderers for life in high-security institutions.
Second, it is said that the example of capital punishment is needed to deter those who would otherwise commit murder. Knowledge that a crime is punishable by death will give the potential criminal pause. This second argument rests on the assumption that capital punishment does in fact reduce the incidence of capital crimes — a presupposition that must be tested against the evidence. Surprisingly, none of the available empirical data shows any significant correlation between the existence or use of the death penalty and the incidence of capital crimes.
When studies have compared the homicide rates for the past 50 years in states that employ the death penalty and in adjoining states that have abolished it, the numbers have in every case been quite similar; the death penalty has had no discernible effect on homicide rates. Further, the shorter-term effects of capital punishment have been studied by examining the daily number of homicides reported in California over a ten-year period to ascertain whether the execution of convicts reduced the number. Fewer homicides were reported on days immediately following an execution, but this reduction was matched by an increase in the number of homicides on the day of execution and the preceding day. Executions had no discernible effect on the weekly total of homicides. (Cf. “Death and Imprisonment as Deterrents to Murder,” by Thorsten Sellin, in Bedau, op. cit., pp. 274-284, and “The Deterrent Effect of Capital Punishment in California,” by William F. Graves, in Bedau, op. cit., pp. 322-332.)
The available evidence, then, fails to support the claim that capital punishment deters capital crime. For this reason, I think, we may set aside the deterrence argument. But there is a stronger reason for rejecting the argument — one that has to do with the way in which supporter of that argument would have us treat persons.
Those who defend capital punishment on grounds of deterrence would have us take the lives of some — persons convicted of certain crimes — because doing so will discourage crime and thus protect others. But it is a grave moral wrong to treat one person in a way justified solely by the needs of others. To inflict harm on one person in order to serve the purposes of others is to use that person in an immoral and inhumane way, treating him or her not as a person with rights and responsibilities but as a means to other ends. The most serious flaw in the deterrence argument, therefore, is that it is the wrong kind of argument. The execution of criminals cannot be justified by the good which their deaths may do the rest of us.
A second argument for the death penalty maintains that some crimes, chief among them murder, morally require the punishment of death. In particular, Christians frequently support capital punishment by appeal to the Mosaic code, which required the death penalty for murder. “The law of capital punishment,” one writer has concluded after reviewing relevant biblical passages, “must stand as a silent but powerful witness to the sacredness of God-given life” (“Christianity and the Death Penalty,” by Jacob Vellenga, in Bedau, op. cit., pp. 123-130).
In the Mosaic code, it should be pointed out, there were many capital crimes besides murder. In the book of Deuteronomy, death is prescribed as the penalty for false prophecy, worship of foreign gods, kidnapping, adultery, deception by a bride concerning her virginity, and disobedience to parents. To this list the laws of the book of Exodus add witchcraft, sodomy, and striking or cursing a parent.
I doubt that there is much sentiment in favor of restoring the death penalty in the U.S. for such offenses. But if the laws of Old Testament Israel ought not to govern our treatment of, say, adultery, why should they govern the penalty for murder? To support capital punishment by an appeal to Old Testament law is to overlook the fact that the ancient theocratic state of Israel was in nearly every respect profoundly different from any modern secular state. For this reason, we cannot simply regard the Mosaic code as normative for the United States today.
But leaving aside reference to Mosaic law, let me state more strongly the argument we are examining. The death penalty, it may be urged, is the only just penalty for a crime such as murder; it is the only fair retribution. Stated thus, the argument at hand seems to be the right kind of argument for capital punishment. If capital punishment can be justified at all, it must be on the basis of the seriousness of the offense for which it is imposed. Retributive considerations should govern the punishment of individuals who violate the law, and chief among these considerations are the principle of proportionality between punishment and offense and the requirement that persons be punished only for acts for which they are truly responsible. I am not persuaded that retributive considerations are sufficient to set a particular penalty for a given offense, but I believe they do require that in comparative terms we visit more serious offenses with more severe punishment.
Therefore, the retributive argument seems the strongest one in support of capital punishment. We ought to deal with convicted offenders not as we want to, but as they deserve. And I am not certain that it is wrong to argue that a person who has deliberately killed another person deserves to die?
But even if this principle is valid, should the judicial branch of our governments be empowered to determine whether individuals deserve to die? Are our procedures for making laws and for determining guilt sufficiently reliable that we may entrust our lives to them? I shall return to this important question presently. But consider the following fact: During the years from 1930 to 1962, 466 persons were put to death for the crime of rape. Of these, 399 were black. Can it seriously be maintained that our courts are administering the death penalty to all those and only to those who deserve to die?
Two other arguments deserve brief mention. It has been argued that, even if the penalty of life imprisonment were acceptable on other grounds, our society could not reasonably be asked to pay the cost of maintaining convicted murderers in prisons for the remainder of their natural lives.
This argument overlooks the considerable costs of retaining the death penalty. Jury selection, conduct of the trial, and the appeals process become extremely time-consuming and elaborate when death is a possible penalty. On the other hand, prisons should not be as expensive as they are. At present those prisoners who work at all are working for absurdly low wages, frequently at menial and degrading tasks. Prisons should be reorganized to provide meaningful work for all able inmates; workers should be paid fair wages for their work and charged for their room and board. Such measures would sharply reduce the cost of prisons and make them more humane.
But these considerations — important as they are — have little relevance to the justification of capital punishment. We should not decide to kill convicted criminals only because it costs so much to keep them alive. The cost to society of imprisonment, large or small, cannot justify capital punishment.
Finally, defenders of capital punishment sometimes support their case by citing those convicted offenders — for example, Gary Gilmore — who have asked to be executed rather than imprisoned. But this argument, too, is of little relevance. If some prisoners would prefer to die rather than be imprisoned, perhaps we should oblige them by permitting them to take their own lives. But this consideration has nothing to do with the question of whether we ought to impose the punishment of death on certain offenders, most of whom would prefer to live.
Let us turn now to the case against the death penalty. It is sometimes argued that capital punishment is unjustified because those guilty of crimes cannot help acting as they do: the environment, possibly interacting with inherited characteristics, causes some people to commit crimes. It is not moral culpability or choice that divides law-abiding citizens from criminals — so Clarence Darrow argued eloquently — but the accident of birth or social circumstances.
If determinism of this sort were valid, not only the death penalty but all forms of punishment would be unjustified. No one who is compelled by circumstances to act deserves to be punished. But there is little reason to adopt this bleak view of human action. Occasionally coercive threats compel a person to violate the law; and in such cases the individual is rightly excused from legal guilt. Circumstances of deprivation, hardship and lack of education — unfortunately much more widely prevalent — break down the barriers, both moral and material, which deter many of us from breaking the law. They are grounds for exercising extreme caution and for showing mercy in the application of the law, but they are not the sole causes of crimes: they diminish but do not destroy the responsibility of the individual. The great majority of those who break the law do so deliberately, by choice arid not as a result of causes beyond their control.
Second, the case against the death penalty is sometimes based on the view that the justification of punishment lies in the reform which it effects. Those who break the law, it is said, are ill, suffering either from psychological malfunction or from maladjustment to society. Our responsibility is to treat them, to cure them of their illness, so that they become able to function in socially acceptable ways. Death, obviously, cannot reform anyone.
Like the deterrence argument for capital punishment, this seems to be the wrong kind of argument. Punishment is punishment and treatment is treatment, and one must not be substituted for the other. Some persons who violate the law are, without doubt, mentally ill. It is unreasonable and inhumane to punish them for acts which they may not have realized they were doing; to put such a person to death would be an even more grievous wrong. In such cases treatment is called for.
But most persons who break the law are not mentally ill and do know what they are doing. We may not force them to undergo treatment in place of the legal penalty for their offenses. To confine them to mental institutions until those put in authority over them judge that they are cured of their criminal tendencies is far more cruel than to sentence them to a term of imprisonment. Voluntary programs of education or vocational training, which help prepare prisoners for non-criminal careers on release, should be made more widely available. But compulsory treatment for all offenders violates their integrity as persons; we need only look to the Soviet Union to see the abuses to which such a practice is liable.
Let us examine a third and stronger argument, a straightforward moral assertion; the state ought not to take life unnecessarily. For many reasons — among them the example which capital punishment sets, its effect on those who must carry out death sentences and, above all, its violation of a basic moral principle — the state ought not to kill people.
The counterclaim made by defenders of capital punishment is that in certain circumstances killing people is permissible and even required, and that capital punishment is one of those cases. If a terrorist is about to throw a bomb into a crowded theater, and a police officer is certain that there is no way to stop him except to kill him, the officer should of course kill the terrorist. In some cases of grave and immediate danger, let us grant, killing is justified.
But execution bears little resemblance to such cases. It involves the planned, deliberate killing of someone in custody who is not a present threat to human life or safety. Execution is not necessary to save the lives of future victims, since there are other means to secure that end.
Is there some vitally important purpose of the state or some fundamental right of persons which cannot be secured without executing convicts? I do not believe there is. And in the absence of any such compelling reason, the moral principle that it is wrong to kill people constitutes a powerful argument against capital punishment.
Of the arguments I have mentioned in favor of the death penalty, only one has considerable weight. That is the retributive argument that murder, as an extremely serious offense, requires a comparably severe punishment. Of the arguments so far examined against capital punishment, only one, the moral claim that killing is wrong, is, in my view, acceptable.
There is, however, another argument against the death penalty which I find compelling — that based on the imperfection of judicial procedure. In the case of Furman v. Georgia, the Supreme Court struck down existing legislation because of the arbitrariness with which some convicted offenders were executed and others spared. Laws enacted subsequently in several states have attempted to meet the court’s objection, either by making death mandatory for certain offenses or by drawing up standards which the trial jury must follow in deciding, after guilt has been established, whether the death penalty will be imposed in a particular case. But these revisions of the law diminish only slightly the discretion of the jury. When death is made the mandatory sentence for first-degree murder, the question of death or imprisonment becomes the question of whether to find the accused guilty as charged or guilty of a lesser offense, such as second-degree murder.
When standards are spelled out, the impression of greater precision is often only superficial. A recent Texas statute, for example, instructs the jury to impose a sentence of death only if it is established “beyond a reasonable doubt” that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” (Texas Code of Criminal Procedure, Art. 37.071; quoted in Capital Punishment: The Inevitability of Caprice and Mistake, by Charles L. Black, Jr. [Norton, 1974], p. 58). Such a law does not remove discretion but only adds confusion.
At many other points in the judicial process, discretion rules, and arbitrary or incorrect decisions are possible. The prosecutor must decide whether to charge the accused with a capital crime, and whether to accept a plea of guilty to a lesser charge. (In most states it is impossible to plead guilty to a charge carrying a mandatory death sentence). The jury must determine whether the facts of the case as established by testimony in court fit the legal definition of the offense with which the defendant is charged — a definition likely to be complicated at best, incomprehensible at worst. From a mass of confusing and possibly conflicting testimony the jury must choose the most reliable. But evident reliability can be deceptive: persons have been wrongly convicted of murder on the positive identification of eyewitnesses.
Jurors must also determine whether at the time of the crime the accused satisfied the legal definition of insanity. The most widely used definition — the McNaghten Rules formulated by the judges of the House of Lords in 1843 — states that a person is excused from criminal responsibility if at the time of his act he suffered from a defect of reason which arose from a disease of the mind and as a result of which he did not “know the nature and quality of his act,” or “if he did know it . . . he did not know he was doing what was wrong” (quoted in Punishment and Responsibility, by H. L. A. Hart [Oxford University Press, 1968], p. 189). Every word of this formula has been subject to legal controversy in interpretation, and it is unreasonable to expect that juries untrained in law will be able to apply it consistently and fairly. Even after sentencing, some offenders escape the death penalty as a result of appeals, other technical legal challenges, or executive clemency.
Because of all these opportunities for arbitrary decision, only a small number of those convicted of capital crimes are actually executed. It is hardly surprising that their selection has little to do with the character of their crimes but a great deal to do with the skill of their legal counsel. And the latter depends in large measure on how much money is available for the defense. Inevitably, the death penalty has been imposed most frequently, on the poor, and in this country it has been imposed in disproportionate numbers on blacks.
To cite two examples in this regard: All those executed in Delaware between 1902 and the (temporary) abolition of the state’s death penalty in 1958 were unskilled workers with limited education. Of 3,860 persons executed in the United States between 1930 and the present, 2,066, or 54 per cent, were black. Although for a variety of reasons the per capita rate of conviction for most types of crime has been higher among the poor and the black, that alone cannot explain why a tenth of the population should account for more than half of those executed. Doubtless prejudice played a part. But no amount of goodwill and fair-mindedness can compensate for the disadvantage to those who cannot afford the highly skilled legal counsel needed to discern every loophole in the judicial process.
Even more worrisome than the discriminatory application of the death penalty is the possibility of mistaken conviction and its ghastly consequences. In a sense, any punishment wrongfully imposed is irrevocable, but none is so irrevocable as death. Although we cannot give back to a person mistakenly imprisoned the time spent or the self-respect lost, we can release and compensate him or her. But we cannot do anything for a person wrongfully executed. While we ought to minimize the opportunities for capricious or mistaken judgments throughout the legal system, we cannot hope for perfect success. There is no reason why our mistakes must be fatal.
Numerous cases of erroneous convictions in capital cases have been documented; several of those convicted were put to death before the error was discovered. However small their number, it is too large. So long as the death penalty exists, there are certain to be others, for every judicial procedure — however meticulous, however compassed about with safeguards — must be carried out by fallible human beings.
One erroneous execution is too many, because even lawful executions of the indisputably guilty serve no purpose. They are not justified by the need to protect the rest of us, since there are other means of restraining persons dangerous to society, and there is no evidence that executions deter the commission of crime. A wrongful execution is a grievous injustice that cannot be remedied after the fact. Even a legal and proper execution is a needless taking of human life. Even if one is sympathetic — as I am — to the claim that a murderer deserves to die, there are compelling reasons not to entrust the power to decide who shall die to the persons and procedures that constitute our judicial system.