Capital Punishment: Killing to Stop Killing?

This blog post is the first in a series I’ll be writing about capital punishment in the US.

In the twilight of the Trump presidency, as the soon-to-be-former Chief Executive ponders issuing a slew of pardons, he also became the country’s Chief Executioner. By July 2020, the federal government hadn’t executed anyone in 17 years; but in the last seven months, 13 convicted inmates have been put to death, which — as The New York Times reported on January 19 (one day before Joe Biden, an opponent of the death penalty, is to be inaugurated) — is more than three times the number that the US government has executed in the previous six decades.

As the conservative Supreme Court majority green-lighted the last of these executions on Friday, January 15, Justice Sonia Sotomayor noted that “Over the past six months, this court has repeatedly sidestepped its usual deliberative processes, often at the government’s request, allowing it to push forward with an unprecedented, breakneck timetable of executions.”

Before we look at why the government considers it not only lawful but desirable to kill some of its prisoners (aside from why the Trump Administration has been so eager to do so), let’s take a look at why most people obey laws at all.

Laws and other rules often – although not always – relate to bad behavior and what society can and should do about it, the publicly identified goal in most cases being to influence behavior by threatening people with consequences if they disobey, or otherwise act in some proscribed manner. Of course, there are many reasons why most people obey most laws. For example, you may simply be safer and better off as a result. Traffic laws often directly benefit the obedient: Drivers in the United States are well-advised to stay to the right – especially on two-lane roads – because other drivers are likely to be doing the same thing and it can be lethally disadvantageous to be disobeying this particular law when encountering a law-abiding oncoming car. Similarly for stopping at a red light, since others, approaching the same intersection at a right angle, will be responding to their green. In such cases, legal threats are generally unnecessary. Obedience is promoted because of the obvious threat that failure to do so can result in an immediately bad outcome.

A second motivation for being law-abiding stems from the widespread feeling that laws and rules should be followed because they carry with them the force of moral obligation. People frequently do things because it is part of being a good and responsible person, although in such cases, there is often a behind-the-scenes threat that to behave otherwise is to label one’s self deviant, unethical, and possibly at risk of becoming a social outcast, or if nothing else evoking a painful personal sense of cognitive dissonance.[1]

Closely related is what Immanuel Kant labelled the categorical imperative, the realization by a rational person that one should “always act in accordance with that maxim through which you can at the same time will that it become a universal law." For example, if you are undecided about whether to lie, cheat, or steal, and then ask yourself what society would be like if everyone did that, a rational individual will grasp the answer.

But even here, threats lurk. For one thing, even though Kantians prefer to emphasize the strictly rational and supposedly “imperative” aspect of Kant’s imperative, it requires not only sufficient cognition to recognize the negative outcome to society if it is not followed, but the negative outcome itself – which good Kantians yearn to avoid – is nothing but a threat, that a community of liars, cheaters, or thieves would become unmanageable and therefore unacceptable. For another, it assumes that people will follow Kant’s rule in part because to act counter to one’s rational recognition is to threaten one’s sense of being rational and considerate.

Finally, laws are also obeyed because (cynics would say nearly always because) of the threat of punishment if you get caught. Hence modern societies that differ in substantial ways are prone to have the equivalent of codified laws and rules, enforced by police, judges, jails, and prisons. These serve many functions: locking up offenders so they cannot repeat their crime, satisfying public desire that wrong-doers be punished, taking this process out of the hands of victimized individuals and their families, and especially, deterring additional offenses by the threat of apprehension and incarceration.

Threats are thus fundamental to law enforcement, with the expectation that the prospect of “condign” (suitable, appropriate) punishment will not only inhibit malefactors but also deter would-be perpetrators by the educative effects of justice administered publicly to convicted offenders.

Whether it does so is another matter. Legally mandated punishments also raise the fraught question of providing equal justice under the law, as well as establishing reasonable laws, suitable punishments, and sometimes at least the appearance of mercy. By the end of the 18th century, English law was lacking in what we now see as suitable punishments, never mind mercy. It specified 220 different offenses—most of them involving theft of property—that were punishable by death. The expressed intent of the infamous Bloody Code was deterrence: “Men are not hanged for stealing horses,” wrote the Marquis of Halifax, “but that horses may not be stolen.”[i]

There we have it: deterrence. But horses were stolen nevertheless, and people — poor people, pretty much exclusively — were hanged for stealing a quill pen or a bolt of cloth. Now, in the US, people (once again, almost exclusively poor people and members of minority groups) are executed for murder. But murders now, like stealing horses in the 18th century, happen nonetheless. And as we’ll see, executions don’t help.

Punishment Essential Reads

A Curious Question About Physical Punishment of Children

Why Do Children Punish Unfairness?

David P. Barash's most recent book is Threats: Intimidation and Its Discontents (2020, Oxford University Press).

[1] A painful psychological phenomenon in which people find themselves confronting two incompatible self-concepts, as with the problem of reconciling belief that you are a good, law-abiding person with the fact that you have just broken a law.