The Principled Case Against the Death Penalty

by: Daniel De Groot

Sun Mar 15, 2009 at 15:15


From David Kaib's quick hit we learn the good news that New Mexico's legislature has passed a bill banning capital punishment, which now awaits Governor Bill Richardson's decision to sign or veto.  

This is of course a postive step, and I'm hopeful that with his Presidential and Cabinet ambitions most likely doomed, due to his looming legal problems, that Richardson will (perhaps akin to former Illinois Gov. George Ryan) have a change of heart and sign the bill.  New Mexico isn't alone, as several other states have death penalty repeals that have some level of legislative action beyond introduction.

However, the unfortunate aspect to this, is that it is all happening as a cost saving measure rather than from any decisive turn against the morality of the death penalty.  In fact, capital punishment still polls very strongly in America, much stronger than in most other comparable wealthy democracies.  In the 2006 GSS, the death penalty for murder was supported by even a bare majority of self identified liberals.  So it's clear death penalty opponents have a lot of work to do to turn this around.  Inside, I'm going to try and make a philisophical case against the death penalty.  It's not wrong just because it's inefficient or expensive, it is fundamentally unjust and immoral.  

Daniel De Groot :: The Principled Case Against the Death Penalty
Most of the time, cases against the death penalty rest on the following sorts of claims:

  • Innocent people get killed
  • It's often cruelly painful to the subject
  • It disproportately impacts the poor and minorities
  • It isn't a deterrent, and may even increase murders
  • It's too expensive
  • Victim families do not get closure
  • It dehumanizes the guards, executioners and society generally
  • Juries may be reluctant to convict defendants if the death penalty is a possibility
  • It puts the US in the company of China, Iran and Saudi Arabia for using it
  • Killing is just wrong and the state shouldn't be in the business of doing it

I believe all of these are true, or at least have strong evidence to back them.  However these sorts of arguments miss the point in the capital punishment debate.  They assume that we who argue against the death penalty must prove it is wrong.  Instead, it is the opposite that is true.  The problem with capital punishment is that proponents have utterly failed to make the case for it.  That alone should cause the practice to end, if we are true to the philosophical roots of how a free society should be governed.

Why It's Wrong: A Violation of The Basis of a Free Society

One fundamental value, is the default assumption that all behaviour not illegal, is legal.  It doesn't have to be that way, one can imagine a society of repression where government acts to legalize behaviours which would otherwise be forbidden.  Sufficiently repressive societies will more or less end up functioning much like that anyway - if the secret police can drag you away at a whim, you'll probably self regulate yourself out of doing a great many things that there are no written rules against.  So that assumption is vital, the presumption of permissiveness.  It is the very basis of a "free" society.

Given that, one is left with the question of "under what circumstances can behaviours be made illegal then?  When can society mandate certain acts?"  

A good starting point is John Stuart Mill's Harm Principle, which stated:


That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

It's a simple expression that underlies the liberal vision of the rational State and society.  It doesn't resolve everything, as the details of what measures "prevent harm to others" is contentious, but it does rule out a great many things.  Interpreting this principle more broadly, you can arrive at something like section 1 of the Canadian Charter of Rights and Freedoms:


1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

It is here that capital punishment fails the test.  Obviously the Canadian charter has no legal effect in the US, but I'm using it as an expression of a relevant philosophical premise:  If you want to propose that the State should have the power to kill certain citizens for engaging in certain behaviours, you are proposing to give the State a massive freedom curtailing power (to revoke life itself), in service of...what exactly?  What greater end can justify this abrogation of the ultimate human and civil right?

And things do work this way in the US.  Many laws are premised on their service to the "general welfare" or that they are "necessary and proper" for the fulfilment of government's role.  It's just that the Charter states it more  succinctly.  

Opponents don't have to cite studies or do comparative research to other countries.  In this understanding of a free society, the onus should properly rest with those who wish to curtail freedom to explain why, rather than those who wish to keep freedom to explain why not.  You want government to act, particularly in such a severe and irrevocable manner, you need to show it works.

It's certainly true that capital punishment is very popular, but that's more to do with some kind of ingrained human appetite for vengeance that sees itself expressed in capital punishment rather than the practice meeting the threshold for societal utility.  I say that because I've not see a good argument for the practice, so the fact of its popularity must rest on something other than an empirical case.

Does capital punishment save lives?  Does it comfort the loved ones of victims?  Where is the evidence for these propositions?  The logical theory about why these things might be true is simply not good enough.  In a world that had never tried the death penalty, we might accept this, but we now have more than enough statistical data on which to base or refute these assertions, and they are easily cast into doubt.

It is as if the prosecution made opening and closing arguments, with nothing in between. The defence doesn't actually even need to call a witness.

The Fall Out

Once you arrive here, capital punishment becomes a very dangerous deviation from the fundamental nature of a free society.  The meritless arguments for capital punishment (usually "punishment" meaning "vengeance") are not valid reasons for government action, and if we accept such things, we risk other illegitimate encroachments on freedom that perhaps have intuitive/emotive appeal but lack substantive societal merit.  A not insignificant example are the prohibitions on felons and prisoners voting.  These too serve no useful societal purpose, and have many deleterious side-effects.  Why are they supported?  

After that, the negative effects of capital punishment are just insult upon injury.  Not only is it not demonstrably saving lives or comforting victims, but it is killing innocent people, and inflicting psychological harm to the guards, executioners and other officials in the judicial system who have any role in executions.  It costs more than life imprisonment, and adds incentive to people on the run from the law to kill police officers rather than face death behind bars.  It might even be setting murderers free, since any jury is liable to have at least one person more than queasy about convicting someone of a crime for which they will be put to death.  Who wants that on their conscience?

In short, it is bad policy that not only fails to achieve its aims, but makes things much worse.  As a violation of the principles of a free society it is simply morally wrong.  If liberalism really is resurgent in the US, it is time to start making these sorts of moral arguments that return to the foundations of how democratic societies are organized.  Liberalism is coherent and holistic, and cafeteria "pick and choose" ideologies leave society prone to accept atrocity where they don't feel personally harmed by the bad policy.    


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great piece, I'll play devil's advocate (4.00 / 1)
Let me say I am against the death penalty, and I am very proud that New Jersey recently ended it.  The cost argument was very effective and was cited repeatedly by my state senator. I can't help but notice you resort to it once you get going. The execution of innocents is sickening, and easily remedied by ending the death penalty.

But:

You'll know, of course, that to a conservative, or really to an ordinary person, it is you who have to prove your case. You are the one changing traditions and laws. I do not think that your claim that your opponents have to prove their case and you don't is fully convincing.  It's apparent you don't believe it anyway, since you go on to make arguments.  Similarly you state there is no evidence the death penalty comforts victim's families, but I'm pretty sure our opponents can find someone who says he was comforted.

Also, you don't think banning prisoners from voting is wise?
I don't want to shock you here, but if there are local areas where prisoners would outnumber ordinary residents.  Of course we often only think of Presidential elections, but you are telling me prisoners are going to vote on bond issues, property taxes rates, the mayor, and the like? It's asking for corruption, whoever the prison warden is would be the most powerful political force in the town. That is a loser of an argument and you would be better off dropping it.



New Jersey politics at Blue Jersey.


ok (0.00 / 0)

You'll know, of course, that to a conservative, or really to an ordinary person, it is you who have to prove your case. You are the one changing traditions and laws. I do not think that your claim that your opponents have to prove their case and you don't is fully convincing.  It's apparent you don't believe it anyway, since you go on to make arguments.  Similarly you state there is no evidence the death penalty comforts victim's families, but I'm pretty sure our opponents can find someone who says he was comforted.

Yes, that's true of how these debates play out.  The onus is wrongly put on us to make our case.  Maybe I'm just shouting at the wind hoping to change that, but it's useful to at least be aware that on this, we have fallen away from the philosophical roots of how society works.

As for comforted victims, I said the claim was doubtful and not proven (also if it really did comfort victims, would that alone justify it?)  Finding anecdotal cases is not proving that claim.  Do victim families move on significantly faster if the killer is executed versus states where the killer gets life?  What about families who discover later that the wrong person was executed?  


Also, you don't think banning prisoners from voting is wise?
I don't want to shock you here, but if there are local areas where prisoners would outnumber ordinary residents.  Of course we often only think of Presidential elections, but you are telling me prisoners are going to vote on bond issues, property taxes rates, the mayor, and the like?

Well, prisoners have full voting rights in Maine and Vermont.  Is there any evidence either state is overwhelmed with corruption by the influence of the incarcerated vote?  You've presented a logical possible problem to felon voting (one which, if true, could be solved by having felons vote by mail to their real homes, not where the prison is located, at worst they should still vote in state-wide and national elections), but the possible problem needs to be demonstrated.

It's possible there could be good reasons to curtail felons or prisoners from voting, if that's so, those things need to be proven, and any restrictions tailored exactly to the problem.  


[ Parent ]
test (0.00 / 0)
Do victim families move on significantly faster if the killer is executed versus states where the killer gets life?

I don't think this is testable.  There is no control.  Victims are too different from each other.


[ Parent ]
aggregates (4.00 / 1)
Compare 100 or 1000 in capital cases where the death penalty was applied versus a similar number where it wasn't.  My understanding is that capital punishment actually makes things worse by dragging out the healing process.  If the person is to get "closure" they won't get it until the convict is actually executed, which will typically take years to exhaust all the appeals (necessary since it somewhat reduces the chances of executing the wrong person).

Versus a situation where the convict gets life in prison, and the victim's family can immediately move on to other things as far fewer people go through all levels of appeal if the death penalty isn't given.


[ Parent ]
The argument I use with Conservatives (0.00 / 0)
(who generally self-identify as Christians even if they don't really grasp the finer points of the faith) is this:

"Hell is the place for killers, why would you want to go there? If you leave that man alone, he will get where he's headed. There is no need for the rest of us to follow."

It stumps them pretty well.

Montani semper liberi


[ Parent ]
I think that this issue defies a clean philosophical analysis (0.00 / 0)
Which is why practical arguments typically are more persuasive.  Criminal punishment balances the sometimes opposing values of retribution and rehabilitation.  The Harm Principle cited above does not endorse either value over the other and arguably is consistent with both - one could prevent a criminal from harming others by, among other things, incarcerating the criminal, killing the criminal (thereby also preventing the criminal from harming other inmates), or rehabilitating the criminal.  In fact, I haven't read Mill for a while but it is my understanding that he actually approved of the death penalty as well as heavy sentencing in general: http://www.mnstate.edu/gracyk/...

As you note, the death penalty is likely a product of a deeply ingrained desire for vengeance.  I think few would argue that the desire for retribution has no place in sentencing, and if one accepts that such feelings may influence sentencing, then the question becomes how much weight they should be given.  While one might argue that the desire for vengeance should never be valued more than the wrongdoer's life, I suppose the counterargument would be that a criminal who committed an especially horrific crime has become something less than human and therefore is not entitled to such consideration.  

For those reasons, I do think that a more effective avenue of attack is to emphasize the practical realities of maintaining the death penalty that you described.


well (0.00 / 0)
Thanks for the Mill link. Funny enough, his vision of the legitimate use of the death penalty in 1868 is still more limited than its contemporary application in 2009 America.  


While one might argue that the desire for vengeance should never be valued more than the wrongdoer's life, I suppose the counterargument would be that a criminal who committed an especially horrific crime has become something less than human and therefore is not entitled to such consideration.  

Yeah, it does play out this way, and enters a realm of metaphysics where we circle around definitions of what it means to be human, and whether we can safely allow ourselves to dehumanize others based on their behaviour (a slippery slope).  I don't think there's a way out of that sort of thing as it becomes profoundly emotional.  That's why I think it best to force proponents of the system to say:  What is the real net benefit?   Who gains from this, and if we do gain anything at all, is it worth the very real practical costs we know about?  


[ Parent ]
Federal death penalty is not just for murders. (4.00 / 1)
Bill Clinton's "60 New Death Penalties" enacted in 1994 included such trivial offenses as cultivating a field of hemp.

Only 1 Democratic Senator, Feingold, voted against. A few Republicans voted against the package over the attached gun control provisions.



This is a Test of the Emergency Free Speech System. This is only a Test. In an actual Free Speech Emergency, I'll be locked up.


The only thing wrong with the death penalty (0.00 / 0)
is  that there's too many people on Death Row.

We should fry the scumbags.


it amazes me (0.00 / 0)
how people can arbitrarily wright about the death penalty as if this was just a right or wrong issue.  there is much more involved here than just the government taking a life.  this about emotional feelings, anger, sadness, hate, dispair, lost.  most people never really think about the death penalty.  They are sometimes asked about it and they skirt the response by saying I am either for or against it.  Most people who write about it like you did have never really had a personal connection to death row or and inmate or a victim or victim's family.  It is really easy to take a moral position on paper and say you are against the death penalty and that its wrong.  I epecially like the part where you write "its often cruelly painfull to the subject".  

This is by far the worst agrument I have ever heard.  
you have obviously not had your child raped and murdered!!!

As a common sense approach, I would cut this subjects nuts off and put two in his head.  As a practical approach, I will let the state fry him until he is extra crispy.  As far as pain is concerened, there couldn't be enough pain inflicted on your so called subject.  


I take it you have? (0.00 / 0)


Montani semper liberi

[ Parent ]
My condolences (4.00 / 2)
If you have lost someone to crime.  I'm sorry if anything I've written was insensitive or caused additional grief, but I cannot apologize for seeing capital punishment as wrong and saying so.  Who speaks for the families of people wrongly put to death?  

Some of Tim McVeigh's victims' families wanted him to die.  Others did not.  What of their views?  Should the families of 9/11 victims been given sole voice of America's response to terrorism?  What if the bereaved of a person killed by a drunk driver demands the death penalty?  The road you would have us go down doesn't end well for anyone.  

Everyone gets a say in matters of life and death.  What if the police some day decide I am the perfect suspect for a person murdered in my neighbourhood, and I have no alibi?

If I lost a loved one, I would probably feel as you do.  Or maybe not, I can't speculate and don't like to think about it, but I have given this issue a lot of thought.  I used to be a proponent and have come around to oppose it.  

Finally, I should say there are multiple organizations for families of murder victims who feel differently from you and oppose the death penalty.  As this person who lost a loved one argues, capital punishment diverts valuable law enforcement resources away from catching murderers (the great majority of whom still get away with their crimes) to executing the few that are caught.


[ Parent ]
Kant argued (0.00 / 0)
that a person who murders deserves to die - if we don't kill him, we're actually not treating him as a full person.

By the murderer's own lights, killing is OK. So he's really not in a position to object.

The problem with the death penalty is that it entails killing innocent people, at least until the day somebody invents an infallible guilt-determining machine.  


So now you have killed him (0.00 / 0)
By your own argument, you deserve to die.

Montani semper liberi

[ Parent ]
It's not really "my" argument (0.00 / 0)
but I suppose Kant would say that the entire society is the one killing the criminal, not any particular person, even if there is one person who literally flips the switch or whatever.  

[ Parent ]
Then the whole society (0.00 / 0)
deserves to die. You can see why this isn't a good argument?

Montani semper liberi

[ Parent ]
Doesn't work like that for Kant (0.00 / 0)
Society, or more accurately the State, is something distinct from a conglomeration of individuals. It gets to do things individuals don't.

[ Parent ]
philophically... (0.00 / 0)
I wonder if this:

That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

is the converse of this:

Free Will; except where it impedes the Free Will of another

(the latter being my own)


practical (0.00 / 0)
You're missing one essential, if deeply cynical, truth about all this.

If you want to propose that the State should have the power to kill certain citizens for engaging in certain behaviours, you are proposing to give the State a massive freedom curtailing power (to revoke life itself), in service of...what exactly?

The answer is: permanent protection from the criminal in the future.  Stripped of all emotion, the death penalty is: life imprisonment without parole, with the added insurance that no government body or board in the future will change or commute the sentence.  It is life imprisonment with insurance.

In that sense, it is not about vengeance any more than the desire for life imprisonment without parole is about vengeance.  It does have the added benefit of offering added security to society and victims that the criminal will never, ever, EVER get out.

This is a real value to a society that doesn't trust our prison system to keep us safe.


Yet, in my opinion, (4.00 / 1)
life without parole is far harsher. That's why it's a better punishment.

I think the death penalty is a gut issue, it won't be solved by appeals to the head but only by appeals to the gut. Vengeance is a natural,  human emotion, and if you want people to give up state-sanctioned killing (which I do) it can't be by denying their impulse for vengeance.

I have had a close relative before very very close to committing murder (yes and armed, of course, I do live in the South) and the reasoning I used at the time was "if you kill that person, it is the end of their trouble and the beginning of yours."

Montani semper liberi


[ Parent ]
fair logical possibility (0.00 / 0)
Demonstrate it empirically.  Do states without the death penalty have more convicted murderers escaping or being paroled/pardoned and subsequently going on to kill others?  

I think there is reason to suspect the death penalty makes convicted felons more desperate to escape, as they have nothing to lose.  Once they do escape, they're more likely to fight law enforcement rather than meekly surrender.  



[ Parent ]
About the polling… (4.00 / 2)
Public opinion in favor of the death penalty may well be softer than it appears.  As you can see in the link above, the numbers drop substantially if you offer life in prison as an alternative.  That brings support down to a plurality, almost but not quite even with the alternative.  

This is despite the fact that principled opposition to the death penalty of the kind Daniel offers us here is almost never heard as part of our political discourse. Imagine if arguments like Daniel's could be heard out there in the MSM. Compare that to our discourse surrounding criminal punishment (i.e. MSNBC's endless specials on prisons and murder that look like old clips of Inside Edition in the 75% of their air time not covered by KO, Rachel, or Tweety.) It would not take much to move that number down substantially.  


Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.


death penalty (0.00 / 0)
This is one of the major reasons why  the use of the capital punishment is still a  deeply divisive issue in the U.S. Few countries in the industrial world not counting the United States really allows the capital punishment. Though the debate over the death penalty and its morality is one that will continue for a long time, the costs of the capital punishment is considerable. I read this here: Taxpayers foot hefty bill to have the death penalty.

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