Is Capital Punishment Immoral Even If It Does Deter Murder?


After years of inconclusive debate, recent studies purport to demonstrate that capital punishment does indeed deter murder, perhaps to the tune of multiple saved lives for each person executed. In response to these studies, Professors Sunstein and Vermeule have argued that since capital punishment leads to a net savings of innocent lives, it may be morally required on consequentialist grounds. I argue, even assuming the validity of the studies, that capital punishment cannot be justified in the United States in the current historical context for reasons of justice that trump consequentialist considerations. Mine is not an argument that capital punishment is absolutely immoral, since in a sufficiently just society I think it can be justified, at least in some instances. Rather the point is, first, that the consequentialist argument countenances the execution of those who due to diminished mental capacity are not sufficiently blameworthy to warrant the death penalty, in particular children and the mentally impaired; and, second, that since social injustices contribute to murder, particularly among the impoverished and disadvantaged, that substantial societal reform must be undertaken before capital punishment could be considered justifiable. At that point it is an open question whether capital punishment would even be needed as a deterrent to murder.


Criminal Law | Criminal Procedure

Date of this Version

January 2006