The Ultimate Punishment: A Defense

Author(s): Ernest van den Haag

Source: Harvard Law Review, Vol. 99, No. 7 (May, 1986), pp. 1662-1669
Published by: Harvard Law Review Association
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 COMMENTARIES
THE ULTIMATE PUNISHMENT: A DEFENSE
Ernestvan den Haag*
In an average year about 20,000 homicides occur in the United
States. Fewer than 300 convicted murderers are sentenced to death.
But because no more than thirty murderers have been executed in
any recent year, most convicts sentenced to death are likely to die of
old age.' Nonetheless, the death penalty looms large in discussions:
it raises important moral questions independent of the number of
executions. 2
The death penalty is our harshest punishment.3 It is irrevocable:
it ends the existence of those punished, instead of temporarily impris-
oning them. Further, although not intended to cause physical pain,
execution is the only corporal punishment still applied to adults.4
These singular characteristics contribute to the perennial, impassioned
controversy about capital punishment.

I. DISTRIBUTION
Consideration of the justice, morality, or usefulness, of capital
punishment is often conflated with objections to its alleged discrimi-
natory or capricious distribution among the guilty. Wrongly so. If
capital punishment is immoral in se, no distribution among the guilty
could make it moral. If capital punishment is moral, no distribution
would make it immoral. Improper distribution cannot affect the qual-
ity of what is distributed, be it punishments or rewards. Discrimi-
natory or capricious distribution thus could not justify abolition of the

* The authors of these Commentaries have not seen drafts of each other's pieces. The
Commentary format is not meant to be a debate, but rather is meant to present different
perspectives on current issues of public importance.
** John M. Olin Professor of Jurisprudence and Public Policy, Fordham University.
1 Death row as a semipermanent residence is cruel, because convicts are denied the normal
amenities of prison life. Thus, unless death row residents are integrated into the prison popu-
lation, the continuing accumulation of convicts on death row should lead us to accelerate either
the rate of executions or the rate of commutations. I find little objection to integration.
2 The debate about the insanity defense is important for analogous reasons.
3 Some writers, for example, Cesare Bonesana, Marchese di Beccaria, have thought that life

imprisonment is more severe. See C. BECCARIA, DEI DELITTI E DELLE PENE 62-70 (I764).
More recently, Jacques Barzun, has expressed this view. See Barzun, In Favor of Capital
Punishment, in THE DEATH PENALTY IN AMERICA I54 (H. Bedau ed. I964). However, the
overwhelming majority of both abolitionists and of convicts under death sentence prefer life
imprisonment to execution.
4 For a discussion of the sources of opposition to corporal punishment, see E. VAN DEN

HAAG, PUNISHING CRIMINALS I96-2o6 (I975).

I662

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i986] FOR CAPITAL PUNISHMENT I663

death penalty. Further, maldistribution inheres no more in capital

punishment than in any other punishment.
Maldistribution between the guilty and the innocent is, by defini-
tion, unjust. But the injustice does not lie in the nature of the
punishment. Because of the finality of the death penalty, the most
grievous maldistribution occurs when it is imposed upon the innocent.
However, the frequent allegations of discrimination and capriciousness
refer to maldistribution among the guilty and not to the punishment
of the innocent.5
Maldistribution of any punishment among those who deserve it is
irrelevant to its justice or morality. Even if poor or black convicts
guilty of capital offenses suffer capital punishment, and other convicts
equally guilty of the same crimes do not, a more equal distribution,
however desirable, would merely be more equal. It would not be
more just to the convicts under sentence of death.
Punishments are imposed on persons, not on racial or economic
groups. Guilt is personal. The only relevant question is: does the
person to be executed deserve the punishment? Whether or not others
who deserved the same punishment, whatever their economic or racial
group, have avoided execution is irrelevant. If they have, the guilt
of the executed convicts would not be diminished, nor would their
punishment be less deserved. To put the issue starkly, if the death
penalty were imposed on guilty blacks, but not on guilty whites, or,
if it were imposed by a lottery among the guilty, this irrationally
discriminatory or capricious distribution would neither make the pen-
alty unjust, nor cause anyone to be unjustly punished, despite the
undue impunity bestowed on others.6
Equality, in short, seems morally less important than justice. And
justice is independent of distributional inequalities. The ideal of equal
justice demands that justice be equally distributed, not that it be
replaced by equality. Justice requires that as many of the guilty as
possible be punished, regardless of whether others have avoided pun-
ishment. To let these others escape the deserved punishment does not
do justice to them, or to society. But it is not unjust to those who
could not escape.
These moral considerations are not meant to deny that irrational
discrimination, or capriciousness, would be inconsistent with consti-

i See infra pp. I664-65.

6 Justice Douglas, concurring in Furman v. Georgia, 408 U.S. 238 (I972), wrote that "a law
which . . . reaches that [discriminatory] result in practice has no more sanctity than a law which
in terms provides the same." Id. at 256 (Douglas, J., concurring). Indeed, a law legislating
this result "in terms" would be inconsistent with the "equal protection of the laws" provided by
the fourteenth amendment, as would the discriminatory result reached in practice. But that
result could be changed by changing the distributional practice. Thus, Justice Douglas not-
withstanding, a discriminatory result does not make the death penalty unconstitutional, unless
the penalty ineluctably must produce that result to an unconstitutional degree.

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I 664 HARVARD LAW REVIEW [Vol. 99:I662

tutional requirements. But I am satisfied that the Supreme Court has

in fact provided for adherence to the constitutional requirement of
equality as much as is possible. Some inequality is indeed unavoidable
as a practical matter in any system.7 But, ultra posse nemo obligatur.
(Nobody is bound beyond ability.)8
Recent data reveal little direct racial discrimination in the sen-
tencing of those arrested and convicted of murder.9 The abrogation
of the death penalty for rape has eliminated a major source of racial
discrimination. Concededly, some discrimination based on the race of
murder victims may exist; yet, this discrimination affects criminal
victimizers in an unexpected way. Murderers of whites are thought
more likely to be executed than murderers of blacks. Black victims,
then, are less fully vindicated than white ones. However, because
most black murderers kill blacks, black murderers are spared the
death penalty more often than are white murderers. They fare better
than most white murderers.10 The motivation behind unequal distri-
bution of the death penalty may well have been to discriminate against
blacks, but the result has favored them. Maldistribution is thus a
straw man for empirical as well as analytical reasons.

II. MISCARRIAGES
OF JUSTICE
In a recent survey Professors Hugo Adam Bedau and Michael
Radelet found that 7000 persons were executed in the United States
between igoo and I985 and that 25 were innocent of capital crimes.11
Among the innocents they list Sacco and Vanzetti as well as Ethel
and Julius Rosenberg. Although their data may be questionable, I do
not doubt that, over a long enough period, miscarriages of justice will
occur even in capital cases.

7 The ideal of equality, unlike the ideal of retributive justice (which can be approximated
separately in each instance), is clearly unattainable unless all guilty persons are apprehended,
and thereafter tried, convicted and sentenced by the same court, at the same time. Unequal
justice is the best we can do; it is still better than the injustice, equal or unequal, which occurs
if, for the sake of equality, we deliberately allow some who could be punished to escape.
8 Equality, even without justice, may remain a strong psychological, and therefore political,

demand. Yet Charles Black, by proving the inevitability of "caprice"(inequality), undermines

his own constitutional argument, because it seems unlikely that the Constitution's fifth and
fourteenth amendments were meant to authorize the death penalty only under unattainable
conditions. See C. BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND
MISTAKE (I974).
9 See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, BULLETIN No. NCJ-98,399,
CAPITAL PUNISHMENT 1984, at 9 (I985); Johnson, The Executioner's Bias, NAT'L REV., Nov.
I5, I985, at 44.
10It barely need be said that any discrimination against (for example, black murderers of
whites) must also be discrimination for (for example, black murderers of blacks).
11Bedau & Radelet, Miscarriages of Justice in Potentially Capital Cases (Ist draft, Oct.
I985) (on file at Harvard Law School Library).

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i986] FOR CAPITAL PUNISHMENT I665

Despite precautions, nearly all human activities, such as trucking,

lighting, or construction, cost the lives of some innocent bystanders.
We do not give up these activities, because the advantages, moral or
material, outweigh the unintended losses.12 Analogously, for those
who think the death penalty just, miscarriages of justice are offset by
the moral benefits and the usefulness of doing justice. For those who
think the death penalty unjust even when it does not miscarry, mis-
carriages can hardly be decisive.

III. DETERRENCE
Despite much recent work, there has been no conclusive statistical
demonstration that the death penalty is a better deterrent than are
alternative punishments.'3 However, deterrence is less than decisive
for either side. Most abolitionists acknowledge that they would con-
tinue to favor abolition even if the death penalty were shown to deter
more murders than alternatives could deter.14 Abolitionists appear to
value the life of a convicted murderer or, at least, his non-execution,
more highly than they value the lives of the innocent victims who
might be spared by deterring prospective murderers.
Deterrence is not altogether decisive for me either. I would favor
retention of the death penalty as retribution even if it were shown
that the threat of execution could not deter prospective murderers not
already deterred by the threat of imprisonment.15 Still, I believe the
death penalty, because of its finality, is more feared than imprison-
ment, and deters some prospective murderers not deterred by the

12 An excessive number of trucking accidents or of miscarriages of justice could offset the

benefits gained by trucking or the practice of doing justice. We are, however, far from this
situation.
13 For a sample of conflicting views on the subject, see Baldus & Cole, A Comparison of the

Work of Thorsten Sellin and Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 85
YALE L.J. 170 (1975); Bowers & Pierce, Deterrence or Brutalization: What Is the Effect of
Executions?, 26 CRIME & DELINQ. 453 (I980); Bowers & Pierce, The Illusion of Deterrence in
Isaac Ehrlich's Research on Capital Punishment, 85 YALE L. J. I87 (I975); Ehrlich, Fear of
Deterrence: A Critical Evaluation of the "Report of the Panel on Research on Deterrent and
Incapacitative Effects", 6 J. LEGALSTUD. 293 (I977); Ehrlich, The Deterrent Effect of Capital
Punishment: A Question of Life and Death, 65 AM. ECON. REV. 397, 4I5-I6 (I975); Ehrlich &
Gibbons, On the Measurement of the Deterrent Effect of Capital Punishment and the Theory of
Deterrence, 6 J. LEGALSTUD. 35 (I977).
14 For most abolitionists, the discrimination argument, see supra pp. I662-64, is similarly
nondecisive: they would favor abolition even if there could be no racial discrimination.
15If executions were shown to increase the murder rate in the long run, I would favor
abolition. Sparing the innocent victims who would be spared, ex hypothesi, by the nonexecution
of murderers would be more important to me than the execution, however just, of murderers.
But although there is a lively discussion of the subject, no serious evidence exists to support
the hypothesis that executions produce a higher murder rate. Cf. Phillips, The Deterrent Effect
of Capital Punishment: New Evidence on an Old Controversy, 86 AM. J. Soc. I39 (I980)
(arguing that murder rates drop immediately after executions of criminals).

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i666 HARVARD LAW REVIEW [Vol. 99:I662

threat of imprisonment. Sparing the lives of even a few prospective

victims by deterring their murderers is more important than preserving
the lives of convicted murderers because of the possibility, or even
the probability, that executing them would not deter others. Whereas
the lives of the victims who might be saved are valuable, that of the
murderer has only negative value, because of his crime. Surely the
criminal law is meant to protect the lives of potential victims in
preference to those of actual murderers.
Murder rates are determined by many factors; neither the severity
nor the probability of the threatened sanction is always decisive.
However, for the long run, I share the view of Sir James Fitzjames
Stephen: "Some men, probably, abstain from murder because they
fear that if they committed murder they would be hanged. Hundreds
of thousands abstain from it because they regard it with horror. One
great reason why they regard it with horror is that murderers are
hanged."116 Penal sanctions are useful in the long run for the formation
of the internal restraints so necessary to control crime. The severity
and finality of the death penalty is appropriate to the seriousness and
the finality of murder.17

IV. INCIDENTAL ISSUES: COST, RELATIVE SUFFERING,

BRUTALIZATION
Many nondecisive issues are associated with capital punishment.
Some believe that the monetary cost of appealing a capital sentence
is excessive. 18 Yet most comparisons of the cost of life imprisonment
with the cost of execution, apart from their dubious relevance, are
flawed at least by the implied assumption that life prisoners will
generate no judicial costs during their imprisonment. At any rate, the
actual monetary costs are trumped by the importance of doing justice.
Others insist that a person sentenced to death suffers more than
his victim suffered, and that this (excess) suffering is undue according
to the lex talionis (rule of retaliation).19 We cannot know whether

16 H. GROSS, A THEORY OF CRIMINAL JUSTICE 489 (1979) (attributing this passage to Sir
James Fitzjames Stephen).
17 Weems v. United States, 217 U.S. 349 (1910), suggests that penalties be proportionate to

the seriousness of the crime - a common theme of the criminal law. Murder, therefore, demands
more than life imprisonment, if, as I believe, it is a more serious crime than other crimes
punished by life imprisonment. In modern times, our sensibility requires that the range of
punishments be narrower than the range of crimes - but not so narrow as to exclude the death
penalty.
18 Cf. Kaplan, Administering Capital Punishment, 36 U. FLA. L. REV. I77, I78, I90-9I
(I984) (noting the high cost of appealing a capital sentence).
19For an example of this view, see A. CAMUS, REFLECTIONS ON THE GUILLOTINE 24-30
(I959). On the limitations allegedly imposed by the lex talionis, see Reiman, Justice, Civiliza-
tion, and the Death Penalty: Answering van den Haag, I4 PHIL. & PUB. AFF. I15, II9-34
(I985).

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I986] FOR CAPITAL PUNISHMENT I667

the murderer on death row suffers more than his victim suffered;
however, unlike the murderer, the victim deserved none of the suf-
fering inflicted. Further, the limitations of the lex talionis were meant
to restrain private vengeance, not the social retribution that has taken
its place. Punishment - regardless of the motivation - is not in-
tended to revenge, offset, or compensate for the victim's suffering, or
to be measured by it. Punishment is to vindicate the law and the
social order undermined by the crime. This is why a kidnapper's
penal confinement is not limited to the period for which he imprisoned
his victim; nor is a burglar's confinement meant merely to offset the
suffering or the harm he caused his victim; nor is it meant only to
offset the advantage he gained.20
Another argument heard at least since Beccaria21is that, by killing
a murderer, we encourage, endorse, or legitimize unlawful killing.
Yet, although all punishments are meant to be unpleasant, it is seldom
argued that they legitimize the unlawful imposition of identical un-
pleasantness. Imprisonment is not thought to legitimize kidnapping;
neither are fines thought to legitimize robbery. The difference between
murder and execution, or between kidnapping and imprisonment, is
that the first is unlawful and undeserved, the second a lawful and
deserved punishment for an unlawful act. The physical similarities
of the punishment to the crime are irrelevant. The relevant difference
is not physical, but social.22

V. JUSTICE, EXCESS, DEGRADATION

We threaten punishments in order to deter crime. We impose them
not only to make the threats credible but also as retribution (justice)
for the crimes that were not deterred. Threats and punishments are
necessary to deter and deterrence is a sufficient practical justification
for them. Retribution is an independent moral justification.23 Al-

20 Thus restitution (a civil liability) cannot satisfy the punitive

purpose of penal sanctions,
whether the purpose be retributive or deterrent.
21 See supra note 3.
22 Some abolitionists
challenge: if the death penalty is just and serves as a deterrent, why
not televise executions? The answer is simple. The death even of a murderer, however well-
deserved, should not serve as public entertainment. It so served in earlier centuries. But in
this respect our sensibility has changed for the better, I believe. Further, television unavoidably
would trivialize executions, wedged in, as they would be, between game shows, situation
comedies and the like. Finally, because televised executions would focus on the physical aspects
of the punishment, rather than the nature of the crime and the suffering of the victim, a
televised execution would present the murderer as the victim of the state. Far from commu-
nicating the moral significance of the execution, television would shift the focus to the pitiable
fear of the murderer. We no longer place in cages those sentenced to imprisonment to expose
them to public view. Why should we so expose those sentenced to execution?
23 See van den Haag, Punishment as a Device for Controlling the Crime Rate, 33 RUTGERS

L. REv. 706, 7I9 (I98I) (explaining why the desire for retribution, although independent, would
have to be satisfied even if deterrence were the only purpose of punishment.)

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i668 HARVARD LAW REVIEW [Vol. 99:I662

though penalties can be unwise, repulsive, or inappropriate, and those

punished can be pitiable, in a sense the infliction of legal punishment
on a guilty person cannot be unjust. By committing the crime, the
criminal volunteered to assume the risk of receiving a legal punish-
ment that he could have avoided by not committing the crime. The
punishment he suffers is the punishment he voluntarily risked suffer-
ing and, therefore, it is no more unjust to hinmthan any other event
for which one knowingly volunteers to assume the risk. Thus, the
death penalty cannot be unjust to the guilty criminal.24
There remain, however, two moral objections. The penalty may
be regarded as always excessive as retribution and always morally
degrading. To regard the death penalty as always excessive, ope must
believe that no crime - no matter how heinous - could possibly
justify capital punishment. Such a belief can be neither corroborated
nor refuted; it is an article of faith.
Alternatively, or concurrently, one may believe that everybody, the
murderer no less than the victim, has an imprescriptible (natural?)
right to life. The law therefore should not deprive anyone of life. I
share Jeremy Bentham's view that any such "natural and imprescrip-
tible rights" are "nonsense upon stilts."25
Justice Brennan has insisted that the death penalty is "uncivilized,"
"inhuman," inconsistent with "human dignity" and with "the sanctity
of life,"26 that it "treats members of the human race as nonhumans,
as objects to be toyed with and discarded,"'7 that it is "uniquely
degrading to human dignity"28 and "by its very nature, [involves] a
denial of the executed person's humanity."29 Justice Brennan does not
say why he thinks execution "uncivilized." Hitherto most civilizations

24 An explicit threat of punitive action is necessary to the justification of any legal punish-
ment: nulla poena sine lege (no punishment without [preexisting] law). To be sufficiently
justified, the threat must in turn have a rational and legitimate purpose. "Your money or your
life" does not qualify; nor does the threat of an unjust law; nor, finally, does a threat that is
altogether disproportionate to the importance of its purpose. In short, preannouncement legi-
timizes the threatened punishment only if the threat is warranted. But this leaves a very wide
range of justified threats. Furthermore, the punished person is aware of the penalty for his
actions and thus volunteers to take the risk even of an unjust punishment. His victim, however,
did not volunteer to risk anything. The question whether any self-inflicted injury - such as a
legal punishment - ever can be unjust to a person who knowingly risked it is a matter that
requires more analysis than is possible here.
25 2 THE WORKS OF JEREMY BENTHAM 105 (J. Bowring ed. 1972). However, I would be
more polite about prescriptible natural rights, which Bentham (lescribed as "simple nonsense."
Id. (It does not matter whether natural rights are called "moral" or "human" rights as they
currently are by most writers.)
26 THE DEATH PENALTY IN AMERICA 256-63 (H. Bedau ed.. 3d ed. i982) (quoting Furman
v. Georgia, 408 U.S. 238, 286, 305 (I972) (Brennan, J., concurring).
27 Id. at 272-73; see also Gregg v. Georgia, 428 U.S. I53. 230 (1976) (Brennan, J., dis-
senting).
28 Furman v. Georgia, 408 U.S. 238, 291 (1972) (Brennan, J., concurring).
29 Id. at 290.

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i986] FOR CAPITAL PUNISHMENT I669

have had the death penalty, although it has been discarded in Western
Europe, where it is currently unfashionable probably because of its
abuse by totalitarian regimes.
By "degrading," Justice Brennan seems to mean that execution
degrades the executed convicts. Yet philosophers, such as Immanuel
Kant and G.F.W. Hegel, have insisted that, when deserved, execu-
tion, far from degrading the executed convict, affirms his humanity
by affirming his rationality and his responsibility for his actions. They
thought that execution, when deserved, is required for the sake of the
convict's dignity. (Does not life imprisonment violate human dignity
more than execution, by keeping alive a prisoner deprived of all
autonomy?)30
Common sense indicates that it cannot be death - our common
fate - that is inhuman. Therefore, Justice Brennan must mean that
death degrades when it comes not as a natural or accidental event,
but as a deliberate social imposition. The murderer learns through
his punishment that his fellow men have found him unworthy of
living; that because he has murdered, he is being expelled from the
community of the living. This degradation is self-inflicted. By mur-
dering, the murderer has so dehumanized himself that he cannot
remain among the living. The social recognition of his self-degrada-
tion is the punitive essence of execution. To believe, as Justice Bren-
nan appears to, that the degradation is inflicted by the execution
reverses the direction of causality.
Execution of those who have committed heinous murders may
deter only one murder per year. If it does, it seems quite warranted.
It is also the only fitting retribution for murder I can think of.

30 See Barzun, supra note 3, passim.

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