About the Death Penalty

Down the street at Austin Criminal Defense Lawyer, Jamie was visited by death penalty enthusiast Jeff Deutsch. Jeff recognizes that, as long as we have a death penalty, we are going to kill innocents — “Zero innocent victims is not compatible with any human, and necessarily imperfect, institution” — but feels that the benefits of having the death penalty outweigh the detriment of killing an innocent person now and again. He points out, quite rightly, that we do lots of things that kill innocent people because the benefits outweigh the costs. In Jeff’s utilitarian analysis, capital punishment is appropriate because its benefits — retribution, incapacitation, and deterrence, in his view — outweigh its costs. He asks: “Do you feel that the good that capital punishment does justifies the innocent people executed? If not, why not?”


I reject lex talionis. Retribution is a goal unworthy of a civilized society. Not one of us has the wisdom to know what another of us deserves for the wrongs he has done.

Incapacitation doesn’t justify capital punishment because we can incapacitate people without killing them. The death penalty is not self-defense.

Deterrence doesn’t justify capital punishment to me because I’m not convinced that capital punishment has a general deterrent effect.

Even if it were proven that every execution prevented two murders, or twenty, or 200, I would oppose the death penalty for reasons not contemplated in Jeff’s philosophy.

Capital punishment does harm beyond the execution of innocents. When a government kills its citizens (especially when it kills innocent ones), for example, it sets the tone for the society. Just as a parent hitting a child teaches the child that violence is a viable solution when people do things you don’t like, the government, by killing people, sends a message about the value of human life. By taking life, we show how low a value we place on it. The good that capital punishment might do does not justify the innocent people executed. It also does not justify the evil of cold-blooded government killing.

Even if I weren’t convinced that the death penalty has far-reaching detrimental effects on society beyond the execution of innocents, I would oppose it. Utility is not, and should not be, the be-all and end-all of public policy. Ethics has a role to play as well.

Death-penalty enthusiasts pitch it as a choice — the (factually guilty) person “chose” to put his life on the line. But I see every day how every decision that anyone makes is limited by his environment and his genes, neither of which he chose. If a person is a product of nature and nurture and nothing more, then ending a person’s life unnecessarily (assuming that he can be incapacitated and specifically deterred by punishment short of death) is punishing him for the choices that others made for him. Punishing the child for the sins of the parents (which are, in turn, the sins of the grandparents, great-grandparents, and so forth) may well be useful, but it is wrong.

0 responses to “About the Death Penalty”

  1. Hello,

    Your post is one of the purest exercises in moral relativism I have ever seen.

    So “[n]ot one of us has the wisdom to know what another of us deserves for the wrongs he has done,” eh? Then how do we know that pickpockets, armed robbers and arsonists deserve to be imprisoned, or that petty thieves, litterers and speeders deserve to be fined?

    Or how do you know that no one deserves death?

    It’s also truly refreshing to see someone admitting that he doesn’t believe in personal responsibility for crime. Well, capital crime, anyway. Or do you have a theory of how people can exercise their free will while, say, raping or robbing someone at gunpoint, while said free will evaporates the moment before they pull the trigger?

    Yes, people are limited by their environment and their genes – just as, say, the walls and hallways of your office building limit where you can go. But they rarely if ever force you into a specific location.

    Also, such arguments are a gross insult to the many people who have suffered much worse environments and genetic inheritances and yet done the right thing most of the time and certainly never murdered anyone.

    If you feel environment and genes are such controlling factors:

    (1) Do you support sterilization for criminals – especially those who grew up in hard circumstances and hence are much less likely to be able to provide close to ideal settings for their children?

    (2) Do you decline credit for your own accomplishments, since after all you simply had a better environment and better genes?

    (3) Are you under the impression that most if not all criminals are poor – “depraved on accounta [they]’re deprived”?

    (4) Last but not least, why should we even pay attention to any of your writings, including your post on the death penalty? After all, it’s not as if you held any beliefs and then chose to express them where you otherwise could have stayed silent – your environment and your genes made you type what you did.

    With regard to violence and “cold-blooded government killing” – are you under the impression that, for example, our liberation of Kuwait in 1991 (or Western Europe and much of Germany in 1944-5) was accomplished by killing no one, or even by killing only enemy combatants? What other “viable solution[s]” would have come to mind for you?

    With regard to incapacitation without killing – are you under the impression that prisoners never commit crimes (eg, rape) or escape?

    Last but not least – with regard to the value of life: if someone is murdered, how would you propose to best show how precious was the life which someone wantonly destroyed?


    Jeff Deutsch

  2. Jeffrey,

    It is wrong to take a life unnecessarily. It is wrong to steal unnecessarily. It is wrong to hurt another person unnecessarily. It is wrong to lie unnecessarily. Taking a life, stealing, hurting another person, and lying (among other things) are to be avoided if at all possible. Isn’t that the opposite of moral relativism?

    I am grateful for your thoughtful comments. I respond in the order in which you ask your questions.

    We don’t know what anyone deserves. Pickpockets, armed robbers, arsonists, prostitutes, drug users, inside traders . . . I don’t know what they deserve, and I contend that you, unless you’re omniscient (my guess is that you’re not), don’t know either. We still punish them by applying other penal principles (specific and general deterrence, incapacitation, rehabilitation, and so forth) but the belief that we humans know enough to impose retributive justice on each other is pure hubris.

    The idea that government (the distilled essence of our individual imperfections) can know who deserves what is downright loony.

    I’m not saying that nobody deserves to die. Some people might well deserve to die. As far as I know, we all deserve to die. It is certain that, eventually, we all will. But the default condition is life and I’m not trying to kill anyone, so I’m comfortable with my lack of omniscience.

    Every act — even your unavoidable urge to respond or not to respond to this post — is purely the result of your genes and your environment. The only argument for free will is that it appears that we have free will. But that appearance is an illusion. At no point in your life could you have decided to be a remorseless killer (you’re not a remorseless killer, are you?). Neither could I. Why? Because our brains are wired to be able to feel remorse, and our parents taught us to feel remorse when we did wrong. But get whacked hard enough on the head, and your brain might lose the connections that allow you to feel remorse, and all of your parents’ teachings will suddenly be for naught.

    I don’t believe you have enough information to say that people have “suffered much worse environments and genetic inheritances and yet done the right thing most of the time.” If they’ve “chosen” to do the right thing, it’s because something went right in either their upbringing or their genes compared to the guy who did wrong.

    I hadn’t considered sterilization for criminals. That would be a drastic step, and I think we’re falling far short of having done everything else possible to ensure that the children of criminals have the guidance and opportunity (i.e. environment) necessary to do right.

    I absolutely decline credit for my own accomplishments. I am the luckiest guy in the world, and I make no bones about it.

    Not all criminals are poor. (Thank God for that!) The sort of “environment” that causes crime is not necessarily the one that you seem to assume. Rich people often raise their children badly. Greed infects all socioeconomic strata. Traumatic brain injury can affect anyone, as can mental illness. The factors that you and I can see that affect the development of a child’s personality are the tip of the iceberg.

    You either will or you won’t pay attention to my writings, as your genes and environment lead you to do. (It doesn’t really matter to me whether you do or not, except that I enjoy the discussion.) There’s no “should” about it. Not everyone is able to see the truth.

    I will admit that governments are inevitable in this imperfect world, and that governments, by their nature as monopolizers of violence, use violence to solve problems. When your only tool is a hammer . . . I don’t know how governments solve problems among themselves without violence. If governments were not inevitable, it wouldn’t be an issue.

    But a government using violence against its own constituents is, in my mind, an issue entirely separate from a government using violence against another government’s constituents. Civilian deaths in wartime are generally not justified by retribution but by necessity. Eisenhower didn’t claim that the residents of Hiroshima “deserved” to die.

    Sometimes prisoners do commit crimes and escape. Let’s try to solve that problem. It’s not necessary to kill them to do so. There are prisons in which prisoners do not commit crimes, and from which they don’t escape.

    I don’t feel the need to prove to the world how much value I place on human life. My job is to teach my children to value human life; I truly don’t give a damn what the rest of you think.

    It’s a little bit pathetic that some people feel a need to show that they value human life (do they protest too much?) and extremely pathetic that, by killing someone, they prove that they value human life (why, yes, they do protest too much!). I’m not judging you — your genes and environment made you what you are.

    It’s just sad, is all.

    Again, thank you for your comments. The more we’re challenged, the more we grow.

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