Thursday, November 17, 2011

Debating the death penalty

My argument is actually somewhat different from what you are describing. As the death penalty is now practiced in America, we take extra precautions with it, in virtue of its irreversibility. As a result, two advantages of the death penalty over life imprisonment are compromised. First, while most people think the state pays less by using the death penalty than it does in life imprisonment, the fact is that when litigation costs are factored in, execution is more expensive. Second, the deterrent effect is diminished, since not only does the criminal expect to get away with it (otherwise, he wouldn't commit the crime), but also, should someone actually be tried and convicted and sentence to death, death is hardly immanent, because the murderer can expect a long appeals process which is going to delay the execution for many years, assuming the execution occurs at all. This is probably the reason why crime statistics in states without the death penalty are no worse than in states with it. Having the death penalty just means that you might be sentenced to death, and then after 20 years or so, after your appeals run out, you may get executed, unless, of course, they decide not to execute you, which they might very well do.

i) Actually, I think that exposes the duplicity of death-penalty opponents. They raise inconsistent objections.

On the one hand they object to capital punishment because the appellate process diminishes the deterrent effect of capital punishment.

On the other hand they object to capital punishment given the risk of executing the innocent.

Yet the point of the appellate process is to minimize the risk of executing the innocent. So if this is a dilemma for death-penalty proponents, it is also a dilemma for death-penalty opponents.

ii) And this is a false dilemma for death-penalty proponents who support capital punishment primarily on grounds of retribution rather than deterrence.

Of course, the irreversibility of the death penalty is an argument against its very existence.

i) But, as I pointed out in my post, our society condones many hazardous activities. Those consequences are equally irreversible. So Reppert will need to modify his argument.

ii) A life sentence is also irreversible for innocent convicts who die in prison.. And even if their conviction is reversed 40 years later, they can’t get those years back. You go in young, you come out old. Your kids are grown. Your wife remarried. Your mojo is gone. 

However, where we do practice the death penalty, we seem to concede an important point to its opponents, namely, that there should be a lot more appeals when we execute than when we imprison, because we can release exonerated prisoners, but not people we have executed.  

i) Actually, I see no reason why we shouldn’t take the same precautions in case of life imprisonment.

ii) Keep in mind, though, that under our current system, the point of appealing the verdict is not to confirm or disconfirm the actual guilt of the defendant, but to confirm or disconfirm whether he received a “fair” trial. Were his due process rights violated at any point? Should he be acquitted on a technicality, even if he’s guilty? So we could streamline the process without upping the risk of executing the innocent. 

iii) Also keep in mind that death-penalty opponents don’t necessarily view life imprisonment as a morally acceptable alternative. They may offer that as part of their incremental strategy to phase out the death penalty, but they may also view life imprisonment as harsh, vindictive, and pointless.

If, say, they reject retributive punishment in favor of remedial punishment, they are just as likely to oppose life imprisonment for murder. Consider how Norway punishes murder–even mass murder.


  1. There are many capital crimes in the O.T., while conviction requires 2 or 3 eye witnesses, and if they lied then they were to receive the punishment which their false testimony incurred.

    Moreover, the laws they were judged by were that of God's, who today would be convicted as a law breaker.

    In principle we may support CP, but only if the first conditions at least are met, while those who punish those who do good shall realize what the wages of sin are, in the resurrection of damnation.

  2. i) You're confusing principles with methods. Eyewitness testimony is a source of evidence, not a standard of evidence.

    ii) The standard is probative evidence. Eyewitness testimony was simply the best available evidence at the time.

    iii) You're also confusing what's obligatory with what's permissible. Even if you say the death penalty isn't obligatory, it remains morally permissible and just–unless you reject the inspiration of the OT. As such, it is still appropriate.

    iv) Moreover, the death penalty is grounded in a cultural universal: the image of God.

  3. Good analysis, and i do hold that that CP is morally permissible and just, as the laws of God are holy, just and good. Some moral laws are directly applicable in all cultures (adultery, etc.) while others are applicable by adaptation (a fence around your roof), but i think whether all the penalties should be adapted today gets into the doctrine of theonomy, which i have not examined much.

    My point was the danger of abuse, while the absence of CP can promote worse. God is a God of balance which is hard to find and maintain.

    A resolution from the largest Prot denom (SBC), urges that for applicable crimes, “capital punishment be administered only when the pursuit of truth and justice result in clear and overwhelming evidence of guilt.”

    As for R. Catholcism which this blog deals with much,

    Cardinal Ratzinger wrote in 2004 that “it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.” (

    Aquinas stated, “Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. The just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder...Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord.” ("The Catechism of Trent: The Fifth Commandment".)

    The Modern Catholic Dictionary (1980) by John A. Hardon, S.J., (imprimatur by Joseph T. O'Keefe, Vicar General, Archdiocese of New York, Dec. 13, 1979), describes the Catholic position of capital punishment:

    “It is certain from Scripture that civil authorities may lawfully put malefactors to death. ... Christian dispensation made no essential change [to the Old Testament endorsement of the death penalty], as St. Paul expressly says .... [citing Romans 13:4]. Among the errors of the Waldenses condemned by the Church in the early thirteenth century was the proposition that denied the lawfulness of capital punishment." (Argentre, Collectio de Novis Erroribus, I, 86)

    "....The practice question remains of how effective a deterrent capital punishment is in some modern states, when rarely used or only after long delays. In principle, however, it is morally licit because in the most serious crimes the claims of retribution and deterrence are so demanding that the corrective value of punishment must, if necessary, be sacrificed.”

    Cardinal Dulles states in an historical overview:

    “In modern times Doctors of the Church such as Robert Bellarmine and Alphonsus Liguori held that certain criminals should be punished by death. Venerable authorities such as Francisco de Vitoria, Thomas More, and Francisco Suárez agreed. John Henry Newman, in a letter to a friend, maintained that the magistrate had the right to bear the sword, and that the Church should sanction its use, in the sense that Moses, Joshua, and Samuel used it against abominable crimes.” (Avery Cardinal Dulles, “Catholicism and Capital Punishment”, in First Things (April, 2001).