The Courts, the Constitution, and Capital Punishment

By Hugo Adam Bedau | Go to book overview

3
Deterrence and the Death Penalty

Ernest van den Haag's recent article, "On Deterrence and the Death Penalty,"1 raises a number of points of that mixed character (i.e., empirical-and-conceptual- and-normative) that typifies most actual reasoning in social and political controversy but that (except when its purely formal aspects are in question) tends to be ignored by philosophers. I pass by any number of tempting points in Ms critique to focus in detail only on those that affect his account of what he says in the major topic, namely, the argument for retaining or abolishing the death penalty as that issue turns on the question of deterrence.

On this topic, van den Haag's main contentions seem to be these five: (1) Abolitionists of a utilitarian persuasion "claim that capital punishment is useless because it does not deter others." (2) There are some classes of criminals and some circumstances in which "the death penalty is the only possible deterrent." (3) As things currently stand, "deterrence [namely, of criminal homicide by the death penalty] has not been demonstrated statistically"; but it is mistaken to think that "non-deterrence" has been demonstrated statistically. (4) The death penalty is to be favored over imprisonment, because "the added severity of the death penalty adds to deterrence, or may do so." (5) "Since it seems more important to spare victims than to spare murderers, the burden of proving that the greater severity inherent in irrevocability adds nothing to deterrence lies on those who oppose capital punishment."

Against these contentions I propose to argue as follows: regarding (1), utilitarian abolitionists do not argue as van den Haag claims, and they would be in error if they did; his assertion in (2), that situations exist in which the death penalty is the only possible deterrent, is misleading and, in the interesting cases, is empirically insignificant; concerning (3), the heart of the dispute, van den Haag is correct in affirming that deterrence has not been determined statistically, but he is incorrect in denying that nondeterrence has been demonstrated statistically; his suggestion, (4), that the added severity of the death penalty contributes to its deterrent function, is unempirical and one-sided as well; finally, his contention regarding the burden of proof, (5), which he would impose entirely upon abolitionists, is a dodge and is based on a muddled analysis.

The reason for pursuing in some detail what at first might appear to be mere polemical controversy is not that van den Haag's essay is so persuasive or likely to be of unusual influence. The reason is that the issues he raises, even though they are familiar, have not been nearly adequately discussed, despite a dozen

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