The Death Penalty, Deterrence, and Desert

The debate never gets old . . .   Here is a link to Carol Steiker's new article, "No, Capital Punishment Is Not Morally Required."  And, here is the abstract:

Cass Sunstein and Adrian Vermeule have argued that, if recent empirical studies claiming to find a substantial deterrent effect from capital punishment are valid, consequentialists and deontologists alike should conclude that capital punishment is not merely morally permissible, but actually morally required. While there is ample reason to reject this argument on the ground that the empirical studies are deeply flawed (as economists John Donohue and Justin Wolfers elaborate in a separate essay), this response directly addresses Sunstein and Vermeule's moral argument. Sunstein and Vermeule contend that recognition of the distinctive moral agency of the government and acceptance of "threshold" deontology (by which categorical prohibitions may be overridden to avoid catastrophic harm) should lead both consequentialists and deontologists to accept the necessity of capital punishment. This response demonstrates that neither premise leads to the proposed conclusion. Acknowledging that the government has special moral duties does not render inadequately deterred private murders the moral equivalent of government executions. Rather, executions constitute a distinctive moral wrong (purposeful as opposed to non-purposeful killing), and a distinctive kind of injustice (unjustified punishment). Moreover, acceptance of "threshold" deontology in no way requires a commitment to capital punishment even if substantial deterrence is proven; rather, arguments about catastrophic "thresholds" face special challenges in the context of criminal punishment. This response also explains how Sunstein and Vermeule's argument necessarily commits us to accepting other brutal or disproportionate punishments, and concludes by suggesting that even consequentialists should not be convinced by the argument.

Larry Solum (thanks, Larry, for the link) comments:

I highly recommend this article which takes on the now famous (or infamous) Sunstein-Vermeule life-life thesis. Steiker is absolutely right that Sunstein & Vermeule do not have an argument to collapse the moral distinction between intentional killing--executions are surely that--and nonintentional killings, but I do not see how this point damages the Sunstein-Vermeule thesis in the way that Steiker claims. I am currently in Guangzhou China & I don't have enough time to give this the comment it deserves, but briefly, I think that the key argument that Sunstein and Vermeule could make--whether they are clear about this, I am not sure--is that more wrongful killing of innocents results from failure to deter than from accidentally execution of innocents. This is assuming their empirical hypothesis is correct--which is controversial, of course. When the government executes an innocent person by mistake, the action is intentional under the description "killing the person sentenced to death by execution," but it is not intentional under the description "killing an innocent person." So, while the government acts intentionally, it does not kill innocents intentionally. Hence, Steiker's point, although correct, does not really defeat the "innocent life-innocent life" point, which is the point that Sunstein and Vermeule should be making. I don't think the Sunstein-Vermeule argument works, but my reasons are entirely different than Steikers. Maybe more on this later! Read Steiker's piece!