Is capital punishment morally required? Acts, omissions, and life-life tradeoffs.

• Author: Sunstein, Cass R.

INTRODUCTION I. EVIDENCE II. CAPITAL PUNISHMENT: MORAL FOUNDATIONS AND FOUR OBJECTIONS A. Morality and Death B. Acts and Omissions 1. Is the act/omission distinction coherent with respect to government? 2. Is the act/omission distinction morally relevant to capital punishment? C. The Arbitrary and Discriminatory Realm of Homicide D. Preferable Alternatives and the Principle of Strict Scrutiny E. Slippery Slopes F. Deontology and Consequentialism Again III. COGNITION AND CAPITAL PUNISHMENT A. Salience B. Acts, Omissions, and Brains C. A Famous Argument that Might Be Taken as a Counterargument IV. IMPLICATIONS AND FUTURE PROBLEMS A. Threshold Effects (?) and Regional Variation B. International Variation C. Offenders and Offenses D. Life-Life Tradeoffs and Beyond CONCLUSION INTRODUCTION

Many people believe that capital punishment is morally impermissible. In their view, executions are inherently cruel and barbaric. (1) Often they add that capital punishment is not, and cannot be, imposed in a way that adheres to the rule of law. (2) They contend that, as administered, capital punishment ensures the execution of (some) innocent people and also that it reflects arbitrariness, in the form of random or invidious infliction of the ultimate penalty. (3)

Defenders of capital punishment can be separated into two different camps. Some are retributivists. (4) Following Immanuel Kant, (5) they claim that for the most heinous forms of wrongdoing, the penalty of death is morally justified or perhaps even required. Other defenders of capital punishment are consequentialists and often also welfarists. (6) They contend that the deterrent effect of capital punishment is significant and that it justifies the infliction of the ultimate penalty. Consequentialist defenses of capital punishment, however, tend to assume that capital punishment is (merely) morally permissible, as opposed to being morally obligatory.

Our goal here is to suggest that the debate over capital punishment is rooted in an unquestioned assumption and that the failure to question that assumption is a serious moral error. The assumption is that for governments, acts are morally different from omissions. We want to raise the possibility that an indefensible form of the act/omission distinction is crucial to some of the most prominent objections to capital punishment--and that defenders of capital punishment, apparently making the same distinction, have failed to notice that according to the logic of their theory, capital punishment is morally obligatory, not just permissible. We suggest, in other words, that on certain empirical assumptions, capital punishment may be morally required, not for retributive reasons, but rather to prevent the taking of innocent lives. (7)

The suggestion bears not only on moral and political debates, but also on constitutional questions. In invalidating the death penalty for juveniles, for example, the Supreme Court did not seriously engage the possibility that capital punishment for juveniles may help to prevent the death of innocents, including juvenile innocents. (8) And if our suggestion is correct, it relates to many questions outside of the context of capital punishment. If omissions by the state are often indistinguishable, in principle, from actions by the state, then a wide range of apparent failures to act--in the context not only of criminal and civil law, but of regulatory law as well--should be taken to raise serious moral and legal problems. Those who accept our arguments in favor of the death penalty may or may not welcome the implications for government action in general. In many situations, ranging from environmental quality to appropriations to highway safety to relief of poverty, our arguments suggest that in light of imaginable empirical findings, government is obliged to provide far more protection than it now does, and it should not be permitted to hide behind unhelpful distinctions between acts and omissions.

The foundation for our argument is a significant body of recent evidence that capital punishment may well have a deterrent effect, possibly a quite powerful one. (9) A leading national study suggests that each execution prevents some eighteen murders, on average. (10) If the current evidence is even roughly correct--a question to which we shall return--then a refusal to impose capital punishment will effectively condemn numerous innocent people to death. States that choose life imprisonment, when they might choose capital punishment, are ensuring the deaths of a large number of innocent people. (11) On moral grounds, a choice that effectively condemns large numbers of people to death seems objectionable to say the least. For those who are inclined to be skeptical of capital punishment for moral reasons--a group that includes one of the current authors--the task is to consider the possibility that the failure to impose capital punishment is, prima facie and all things considered, a serious moral wrong.

Judgments of this sort are often taken to require a controversial commitment to a consequentialist view about the foundations of moral evaluation. One of our principal points, however, is that the choice between consequentialist and deontological approaches to morality is not crucial here. We suggest that, on certain empirical assumptions, theorists of both stripes might converge on the idea that capital punishment is morally obligatory. On consequentialist grounds, the death penalty seems morally obligatory if it is the only or most effective means of preventing significant numbers of murders; much of our discussion will explore this point. For this reason, consequentialists should have little difficulty with our arguments. For deontologists, a killing is a wrong under most circumstances, and its wrongness does not depend on its consequences or its effects on overall welfare. Many deontologists (of course not all) believe that capital punishment counts as a moral wrong. But in the abstract, any deontological injunction against the wrongful infliction of death mms out to be indeterminate on the moral status of capital punishment if the death is necessary to prevent significant numbers of killings.

The unstated assumption animating much opposition to capital punishment among intuitive deontologists is that capital punishment counts as an "action" by the state, while the refusal to impose it counts as an "omission," and that the two are altogether different from the moral point of view. A related way to put this point is to suggest that capital punishment counts as a "killing," while the failure to impose capital punishment counts as no such thing and hence is far less problematic on moral grounds. We shall investigate these claims in some detail. But we doubt that the distinction between state actions and state omissions can bear the moral weight given to it by the critics of capital punishment. Whatever its value as a moral concept where individuals are concerned, the act/omission distinction misfires in the general setting of government regulation. If government policies fail to protect people against air pollution, occupational risks, terrorism, or racial discrimination, it is inadequate to put great moral weight on the idea that the failure to act is a mere "omission."

No one believes that government can avoid responsibility to protect people against serious dangers--for example, by refusing to enforce regulatory statutes--simply by contending that such refusals are unproblematic omissions. (12) If state governments impose light penalties on offenders or treat certain offenses (say, domestic violence) as unworthy of attention, they should not be able to escape public retribution by contending that they are simply refusing to act. Where government is concerned, failures of protection, through refusals to punish and deter private misconduct, cannot be justified by pointing to the distinction between acts and omissions.

It has even become common to speak of "risk-risk tradeoffs," understood to arise when regulation of one risk (say, a risk associated with the use of DDT) gives rise to another risk (say, the spread of malaria, against which DDT has been effective). (13) Or suppose that an air pollutant creates adverse health effects but also has health benefits, as appears to be the case for ground-level ozone. (14) It is implausible to say that, for moral reasons, social planners should refuse to take account of such tradeoffs; there is general agreement that whether a particular substance ought to be regulated depends on the overall effect of regulation on human well-being.

As an empirical matter, criminal law is pervaded by its own risk-risk tradeoffs. When the deterrent signal works, a failure to impose stringent penalties on certain crimes will increase the number of those crimes. A refusal to impose such penalties is, for that reason, problematic from the moral point of view. It should not be possible for an official--a governor, for example--to attempt to escape political retribution for failing to prevent domestic violence or environmental degradation by claiming that he is simply "failing to act." The very idea of "equal protection of the laws," in its oldest and most literal sense, attests to the importance of enforcing the criminal and civil law so as to safeguard the potential victims of private violence. (15) What we are suggesting is that to the extent that capital punishment saves more lives than it extinguishes, the death penalty produces a risk-risk tradeoff of its own--indeed, what we will call a life-life tradeoff.

Of course, the presence of a life-life tradeoff does not resolve the capital punishment debate. By itself, the act of execution may be a wrong, in a way that cannot be said of an act of imposing civil or criminal penalties for, say, environmental degradation. But the existence of life-life tradeoffs raises the possibility that for those who oppose killing, a...