Van Den Haag

Christopher Hurtado —  March 23, 2010
Van Den Haag | Christopher Hurtado


Is the death penalty constitutional, useful, and morally justifiable?

I. The Constitutional Question

The Fifth Amendment implies a “due process of law” to deprive someone of life. The Eight Amendment prohibits “cruel and unusual punishment,” but does not supersede the Fifth Amendment, as both were simultaneously enacted. The Fourteenth Amendment reasserts and makes explicit the previously implied authority to “deprive of life…” by “due process of law.” Therefore, for the death penalty to now be unconstitutional, it must now be seen as “cruel and unusual.” However, there is no moral consensus to this effect.

Cruel must mean beyond a rational-utilitarian purpose (rehabilitation, incapacitation, or deterrence). The death penalty is not rehabilitative, is unnecessary for incapacitation, and its deterrent effect is indemonstrable – as is the deterrent effect of any punishment. However, the Constitution does not demand its demonstration, only intention. Justice is a rational but non-utilitarian purpose of punishment. It constitutionally requires punishment to be proportionate to the gravity of the crime. This escalation cannot stop short of death unless injustice is proved. “There is no proof of cruelty here in either sense.

Unusual is generally interpreted as violating either the Eighth Amendment by random arbitrariness or the Fourteenth Amendment by biased arbitrariness. In other words, “unusual” seems to mean “unequal.” Unavoidable capriciousness may place some groups at a disadvantage, but is accidental and thus unavoidable. While discretionary judgment is imperfect, there is no constitutional standard of imperfection pertaining to them that would exclude the death penalty. Avoidable capriciousness should be prevented by abolishing random distribution of penalties, but not the maldistributed penalties themselves.

II. Preliminary Moral Issues

Justice has primacy over equality. It is irrational to abolish penalties because they can, at best, be applied only to an unavoidably capricious selection of the guilty. It is rational to punish as many of those deserving of punishment as possible, even if it is impossible to punish all of those so deserving. If the death penalty is just, it should be applied equally to all deserving parties. However, this is an argument for equally applying justice, not for equally failing to apply it. Unequal justice is justice still. “Equality before the law should be extended and enforced then – but not at the expense of justice.”

Maldistribution among the guilty and between the guilty and the innocent are sham arguments. Abolitionists oppose the death penalty, not its maldistribution. Miscarriages of justice should be avoided. However, they do not justify the abolition of the death penalty. The death penalty is a practice that, like all others, is justified as long as its practice outweighs the moral advantages outweigh its moral drawbacks.

III. Deterrence

There is previously unavailable marginal statistical evidence for the deterrent effect of the death penalty. The choice to be made is either to trade the lives of convicted murderers for those seven or eight lives that might be spared by the deterrent effect of the death penalty or vice versa. Only a zero marginal deterrent effect can justify eliminating the deterrent. Non deterrence is a sham argument. Those who argue against the death penalty on non deterrence grounds admittedly wold oppose it regardless of its deterrent effect. Experiments to determine the deterrent effect of the death penalty are impractical, but unnecessary as thought experiments suffice to prove it. Those who argue against the death penalty assume that capital crimes are not deterrable because in some cases they have not been Van Den Haag deterred, or that there is not additional deterrent effect beyond life imprisonment, but offer no proof. Without the threat of capital punishment, murderers who have already been imprisoned for life or face certain life imprisonment cannot be deterred from continuing to murder with impunity. Likewise, unless capital punishment is reserved for the worst crimes, it will increase the likelihood of further, more serious crimes by those facing it for lesser crimes.

IV. Some Popular Arguments

Abolitionists argue against capital punishment on grounds that its public display barbarizes. However, capital punishment need not be publicly displayed in order to be effective. It need only be publicly known. Abolitionists argue that murders is a crime of passion that cannot be deterred. This only evidences the deterrent effect of capital punishment upon rational people. Abolitionists argue, based on pickpockets carrying out their crime at the public execution of one of their kind, that capital punishment is not an effective deterrent to criminality. This may be true of those already habituated in crime, but not of those considering or forming criminal habits. Furthermore, this case does not prove that capital punishment is an ineffective deterrent in all cases.

V. The Final Moral Considerations

Abolitionists argue against capital punishment on the grounds that revenge is an immoral motive. This is irrelevant since justice is and deterrence are its purpose, and therefore the only valid considerations in determining whether it is justified. The threat of capital punishment is exacerbated by the rejection of the convict by society implied in it, thus adding to its effectiveness as a deterrent. The death penalty for murder affirms the sanctity of life. Failing to apply it in such cases cheapens life. The right to life does apply equally to murderers and their victims. The crime itself is an abnegation of this right on the part of the criminal. The courts must see that justice is done and society’s values are upheld, to the point of capital punishment, if justified, regardless of how difficult a choice it may be. Society demonstrates its degree of disapproval toward wrong acts through punishment commensurate in degree to the degree of wrong. This is necessarily so. Failure to promote capital punishment of murderers is a failure to affirm the value of the life of the victim in a misguided attempt to affirm life in the case of the murderer.

Christopher Hurtado

Posts Twitter Facebook

Christopher Hurtado is President and CEO of Linguistic Solutions and Adjunct Instructor of Philosophy and Political Science at Utah Valley University. He holds a BA in Middle East Studies/Arabic and Philosophy and an MA in Nonproliferation and Terrorism Studies. He coauthored Vacation Spanish: A Survival Guide for Mexico, the Caribbean, Central & South America. He is married to children's book author and homeschool mom, Alysia Gonzalez. Together they have nine children. They are active in their church and in their community.