28/01/2020 In Defense of Capital Punishment - Public Discourse

Natural Law

In Defense of Capital Punishment

September 29, 2011 By Edward Feser

If one accepts the legitimacy of punishment and the principle of

proportionality, then it is impossible to claim that capital punishment is
intrinsically wrong.

Most critics of capital punishment pay little attention to the question of

“punishment,” focusing almost exclusively on their argument with “capital.”
This is a fatal mistake, for as it happens, anyone who agrees that
punishment as such is legitimate cannot fail also to agree, if he thinks
carefully about the matter, that capital punishment can be legitimate, at
least in principle. Of course, some critics of capital punishment reject
punishment of any sort, but Christopher Tollefsen (who, in a recent Public
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Discourse article, claimed that capital punishment is intrinsically immoral)

presumably would not.

Traditionally, the aims of punishment are threefold: retribution, or in icting

on a wrongdoer a harm he has come to deserve because of his o ense;
correction, or chastising the wrongdoer for the sake of getting him to
change his ways; and deterrence, discouraging others from committing the
same o ense. Retribution is necessarily the most fundamental. Strictly
speaking, we cannot correct someone who doesn’t deserve correction; at
most we might try to a ect his behavior (via drugs, say) in a sub-personal
manner that doesn’t appeal, as true correction does, to his sense of desert
and shame. We also cannot justly in ict a punishment on someone for
purposes of deterrence unless he deserves that punishment. That
retribution is fundamental doesn’t entail that those with the authority to do
so must always exact retribution on an o ender. It does, however, mean
that retribution may be exacted, all things being equal (though of course
things are not always equal); it also means that retribution—in icting a
harm that is deserved—must always be part of any act of punishment, even
if it is not the only part.

Now, what a wrongdoer deserves as punishment is a harm proportionate to

his o ense. If we allow that someone guilty of stealing $100 deserves to be
punished, we must also acknowledge that he ought not to be punished by
having $100,000 taken from him, or by having merely ten cents taken from
him; he has not done anything to deserve the harsher punishment, but he
does deserve more than the lesser punishment. In short, the punishment
should t the crime. This does not mean that a wrongdoer should have the
same wrong in icted upon him that he has committed against others—that
rapists should be raped, or that arsonists should have their houses burned
down. Sometimes in icting such punishments would be impossible (a mass
murderer cannot be executed multiple times), or would do more harm
than good. The point is rather that the gravity of the punishment should
re ect the gravity of the wrongdoing. Hence those guilty of large thefts
should be punished more severely than those guilty of small ones, those
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than those merely guilty of theft, and so forth. This principle of

proportionality might, in some cases, be di cult to apply practically, but we
cannot plausibly reject it without rejecting the notions of desert and
punishment along with it.

If wrongdoers do deserve punishment, and if punishment ought to be

scaled to the gravity of the crime (harsher punishments for graver crimes),
then it would be absurd to deny that there is a level of criminality for which
capital punishment is appropriate, at least in principle. Even if it were
claimed that a single murder would not merit it, it is not di cult to imagine
crimes that would. Ten murders? Ten murders coupled with the rape and
torture of the victims? Genocide? If wrongdoers deserve punishment and
the punishment ought to be proportional to the o ense, then at some
point we are going to reach a level of criminality for which capital
punishment is appropriate at least in principle. To claim that no crime
could justify capital punishment—to claim, for instance, that a cold-
blooded genocidal rapist can never even in principle merit a greater
punishment than the lifelong imprisonment in icted on a bank robber—is
implicitly to give up the principle of proportionality and, with it, any
coherent conception of just punishment.

Obviously, questions might be raised about whether capital punishment is

advisable in practice, even if it is allowable in principle. Enough has been
said, however, to show that it is not intrinsically wrong to resort to it, at
least not if punishment as such is legitimate. (For a more detailed defense
of capital punishment along similar lines, see chapter 4 of David
Oderberg’s Applied Ethics.)

Now, why does Tollefsen think that capital punishment is intrinsically

wrong? He appeals to what he calls the “Essential Dignity View” of human
beings, according to which “human beings … possess dignity, or excellence,
in virtue of the kind of being they are; and this essential dignity can be used
summarily to express why it is impermissible, for example, intentionally to
kill human beings: to do so is to act against their dignity.” On this basis,

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Tollefsen concludes that “it is always wrong intentionally to kill a human

person,” from which it follows that capital punishment is wrong.

It is one thing merely to assert that capital punishment is against human

dignity; it is quite another actually to show that it is. To be sure, it is
plausible to say that to kill an innocent person is to act against his dignity. It
is also plausible to say that imprisoning or ning an innocent person is
contrary to his dignity. Suppose, however, that someone claimed that
imprisoning or ning even a guilty person would be contrary to his dignity. I
assume Tollefsen would disagree; certainly he should. The reason is
obvious: A guilty person deserves such punishment, but an innocent person
does not. So if a guilty person can, consistent with his dignity, deserve
imprisonment or a ne, why could he not also deserve capital punishment,
if his o ense is grave enough?

Tollefsen notes that a defender of capital punishment might claim that a

guilty person has lost his dignity. But the defender certainly need not say
this. On the contrary, to regard a person as deserving of punishment is
implicitly to a rm his dignity as a human being, for it is to acknowledge
that he has free will and moral responsibility, unlike a robot or a mere
animal. If in icting lesser punishments is not incompatible with human
dignity and even implicitly a rms it, then given the principle of
proportionality, capital punishment also can be compatible with (and
indeed an a rmation of) human dignity.

Allowing, at least for the sake of argument, that some o enders might
deserve to die, Tollefsen objects that the legitimacy of capital punishment
still does not follow, for “it could well be that no human being has the
authority to warrant intentional killing, even of the guilty.” Yet Tollefsen
gives us no reason to doubt that the state has such authority, and there is
ample reason to think that it does. Presumably, Tollefsen would concede
that the state has the authority to in ict lesser punishments—
imprisonment, nes, and the like. But if the state has the authority to in ict
punishment per se, and a punishment ought to be proportionate to the
o ense, then what reason can there be for denying that the state can also,
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in principle, legitimately in ict the death penalty for extremely grave

o enses?

Tollefsen also suggests that there are di culties in determining which

o enses merit capital punishment and which do not, if any o enses merit
it at all. The same, however, could be said of any punishment. We do not
need to settle the question of whether an embezzler deserves fteen years
in prison or only ten in order to know that imprisonment as such can be a
legitimate punishment. Similarly, we do not need to settle the question of
exactly which o enses merit capital punishment in order to know that some
o enses will. The principle of proportionality su ces to show that much.

In Tollefsen’s view, however, “the deepest reason to be opposed to capital

punishment” is that “action directly (intentionally) contrary to any human
good [such as the good of life] makes no sense, is void of practical
intelligibility.” But since a human being can deserve punishment, and a
punishment ought to be proportional to the o ense, it follows that he can
deserve death if his o ense is grave enough. The fact that he, through his
own freely chosen actions, has come to merit capital punishment is
precisely what gives sense and intelligibility to the act of in icting this
punishment on him.

When the human dignity that Tollefsen rightly champions is considered in

light of the principle of proportionality, it is clear that the intentional killing
of a human being is not intrinsically wrong. What is intrinsically wrong is
the intentional killing of an innocent human being. That is why, contrary to
what Tollefsen insinuates, those who oppose abortion and euthanasia but
support capital punishment are perfectly consistent in their thinking. If
anyone’s position is incoherent, it is Tollefsen’s—at least if he allows that
punishment as such is legitimate and accepts the principle of
proportionality. The late philosopher Ralph McInerny once noted that
when probing the thinking of some students who were opposed to capital
punishment, “what I detected, rightly or wrongly, was an animus against
punishment as such.” This makes a kind of sense, for as I have argued, the
legitimacy of punishment per se and the legitimacy of capital punishment
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in particular stand or fall together. I presume that Tollefsen would agree

that punishment is legitimate and that it ought to be proportional to the
o ense. What is doubtful is whether he can have any reason for doing so.

About the Author

EDWARD FESER
Edward Feser is an Associate Professor of Philosophy at
Pasadena City College in Pasadena, CA.

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