Hugo Bedau gives a clear and well-reasoned argument against the death penalty, based on the premise that the state ought to use the least harsh or intrusive means needed to ensure public safety. I share Bedau's feeling against the death penalty. But Bedau's argument puts most of its eggs in a consequentialist basket: the idea that punishment is justified only to deter crime (and to incapacitate criminals so long as they are dangerous). It seems to me that sufficiency-for-deterrence, on which Bedau concentrates, is uncertain, and hence problematic as a criterion for endorsing or opposing any particular punishment. Furthermore, Bedau, at least at some moments, seems to reject all retributive criminal justice, not just capital retribution.
When he writes that punishment may be a necessary condition of social safety but is not an end-in-itself, Bedau unnecessarily dismisses Kantian and other non-consequentialist theories of punishment. These theories hold that doing justice is a socially and morally valid end, quite apart from, or at least in addition to, advancing public welfare or safety. Opponents of the death penalty need not reject deontological ideas about criminal justice. This may be just as well, since a more or less deontological view of punishment is probably held, no doubt side by side with consequentialist ideas, by many if not most citizens, who would have to be persuaded in order for the death penalty to be abolished. (1)
Bedau's argument against retributivism, or at least against capital retributivism, is this: We cannot or do not "retaliate" in literal kind for most crimes--how would you "retaliate" for rape or fraud or assault?--and therefore it is unprincipled to say we ought to retaliate in kind for murder. Bedau accepts that "the graver the crime the greater the punishment deserved," (2) but that idea does not provide a tariff for what the punishment should be for murder or for any particular crime, only that the graver crime should be punished more gravely than the less grave. This is a familiar truth about punishments. Logic as such lays down no table of sentences. Hence the Mikado's object all sublime--the sublime being always just out of reach--he only hoped to achieve in time, to let the punishment fit the crime, the punishment fit the crime.
This argument, at least standing alone, suggests not only that any particular punishment is arbitrary, but that a $100 fine for murder would be proportionate as long as it was the stiffest punishment on the books and rape was punished by an $80 fine, and so forth. (3)
I think Bedau would agree and would say that this is why we need to consider consequences--deterrence, public safety--and not retribution. In fact, Bedau says that if we could develop a response to crime that was less invasive than punishment and that was sufficient for public safety, then it would be difficult and perhaps impossible to justify punishment of any sort as a morally permissible practice. (4)
Various forms of behavior modification, psychological conditioning, and perhaps electronic surveillance are the alternatives to punishment that come to mind. They seem unsatisfactory to many people, perhaps to most, precisely because these techniques do not punish and therefore do not respect the autonomy and moral responsibility of the offender. It is a root idea of justice that crime should be punished--that the world is out of joint when evildoers escape with impunity. (5) Of course, there can be retributive, non-instrumental punishment short of death. It might be well to recognize the widespread intuition, shared by opponents as well as supporters of the death penalty, that grave crimes deserve serious punishment, quite apart from whether the punishment is a useful instrument of safety or social welfare. (6)
Bedau himself tacitly accepts retributivism when he insists that punishment should apply only to the guilty. …