NCJ Number
79071
Journal
University of Missouri-Kansas City Law Review Volume: 49 Issue: 2 Dated: (Winter 1981) Pages: 158-169
Date Published
1981
Length
12 pages
Annotation
This article argues that even if the death penalty has significant deterrent value, capital punishment would not be justified. It also discusses considerations for and against the claim that capital punishment is a good deterrent.
Abstract
There are two main types of arguments concluding that the death penalty has deterrent value. The first argument relies on statistical evidence, but such data are not conclusive. The second argument is that almost no one wants to die. However, to acknowledge a widely shared, deeply entrenched desire not to die is far from admitting a significant deterrent effect of capital punishment. To obtain important deterrent results from capital punishment, the probability that the violent act will result in the criminal's own death must be believed by the offender to be more likely than that of dying in a car crash or by some other accident. The article finds the standard arguments for the deterrent effect of capital punishment to be unsuccessful, and even if they were successful capital punishment advocates would have to draw the outer limits of acceptable punishment by death by making reference to retributive considerations. Furthermore, since people are almost never fully responsible for their actions, the Old Testament 'life for a life' dictum would, in most cases, function as an argument against the appropriateness of punishment by death. Finally, capital punishment is shown to have an inevitable and seriously infelicitous expressive characteristic, closely associated with some counterdeterrent effects. The article overturns two common philosophical assumptions. The first involves the idea that different kinds of arguments for and against capital punishment are quite distinct. Even if punishment by death could be shown to have a significant deterrent effect, a generally acceptable view about when such punishment is appropriate could not be framed unless deterrence arguments were supplemented by retributive considerations of appropriateness. These must serve to rule out capital punishment for lesser crimes and capital punishment enhanced with varieties of torture. The second such assumption concerns the popular picture of the retributivist as hard hearted and vengeful. The article concludes that retribution considerations weigh as heavily against punishment by death as in favor of it. Both of these points increase awareness of the importance of the retributive considerations in arguments concerning punishment by death. Retributive arguments serve the cause of abolition. As such, they should not be neglected by the abolitionist or the retentionist. A total of 23 footnotes are provided. (Author summary modified)