The recent death sentence given to the man who murdered 11 people at a synagogue in Pittsburgh in 2018 highlights a subset of questions about the death penalty: Whether there are some crimes that are so awful, so heinous, that they rise above any usual opposition to capital punishment and require retributive killing as the only proper response from society.
There are times, I admit, when opposition to the death penalty is … challenging, let us say. A close friend, a staunch liberal from Boston, confessed to me some years back that he truly has contradictory feelings about the death sentence imposed on the surviving perpetrator of the Boston Marathon bombing—an April 2013 atrocity that killed three people, left hundreds maimed, and had all of Boston reeling. His moral wrestling feels similar to that of the rabbi wounded in the Pittsburgh killings who can’t quite bring himself to fully admit he supports capital punishment for the killers, but he’s damn close.
That vexed and unsettled feeling can also be seen in a recent op-ed in the Washington Post by Daniella Greenbaum, a writer of Jewish heritage, also reflecting on the Pittsburgh killings. The author closely analyzes centuries of Jewish thought and philosophy that have resulted in opposing conclusions about the morality of capital punishment. But she makes her ultimate stance clear at the end of her essay: “The Biden administration has sought and won a death sentence against the perpetrator of this country’s worst antisemitic attack. As a Jew and as an American, I simply say: Thank you.”
But let’s step back
The “heinous” angle to the death penalty debate still needs to reside within a defensible logic about when it is proper to kill a human being in retribution. So let’s look at some basic moral reasoning. Traditionally, decisions on what’s right or wrong, good or bad, have relied on two approaches (I am oversimplifying here, but not too much): One focuses on outcomes—the consequences of a moral decision. The other approach focuses solely on what’s right or just—principles that hold regardless of the results that are produced. If something’s right or wrong, it’s just right or wrong.
So let’s look at capital punishment from both perspectives.
Does the death penalty result in positive consequences for society?
The best-known justification for capital punishment is that one type of consequence—deterring others from committing similar crimes—justifies government-sponsored killing. But is this really true? Spend some time researching the issue and you’ll see there is no definitive answer. It’s a bunch of writers quoting “research studies” at each other like people trading Bible verses. Ultimate answer: It’s not clear. Do we want to base life-or-death decisions on contradictory evidence about the death penalty as a deterrent? Is, “It might work” a consistent moral position?
Does the death penalty adhere to a defensible moral principle?
Now we can highlight the other approach to the death penalty debate: That there is an unyielding principle that undergirds capital punishment. Here we need to distinguish between a culture- or religious-based principle and a moral principle, underpinned by clear and universal moral reasoning. For example, the advisory in the Christian scriptures that women should be silent in the church is a religious and cultural principle but not a moral one.
So, the moral principle most obviously related to capital punishment would be “justice,” held by the Christian church, for example, to be a cardinal virtue. A summary of the “justice” argument in favor of the death penalty is something like this: Justice requires that criminals suffer losses equal to those they inflicted on others. By imposing death on those who deliberately inflict death on others, the death penalty ensures justice for all.
But let’s see if the death penalty truly ensures justice for all. If the principle of justice is being fairly imposed, then we should know beyond a reasonable doubt that innocent people are not being killed. But we cannot ensure that. Since 1973, at least 190 former death-row prisoners have been exonerated of all charges related to the wrongful conviction that had put them on death row. Do we want to kill innocent people?
Then, can we be sure that the death penalty is being administered consistently in the US, regardless of race, creed or place of origin? Again, no. One study in Washington State found that Black defendants are four times more likely to be sentenced to death than similarly charged non-Black defendants. Killers of White people are more than four times as likely to be sentenced to death as killers of Black people. Do we want to kill people of color at a higher rate than White people committing the same crime?
Finally, we need to consider atrocities committed by prosecutors who skew or withhold evidence that might exonerate those accused of capital crimes. Two former governors of Alabama recently reflected on erroneous decisions they made while in office about the administration of the death penalty. They write, “We both presided over executions while in office, but if we had known then what we know now about prosecutorial misconduct, we would have exercised our constitutional authority to commute death sentences to life.”
If the death penalty is uncertain at best about what results it achieves, and if its most relevant moral principle—justice—fails, then what’s left? The only thing remaining is a principle, but it’s not a moral one: It’s vengeance. Some defend this principle. One Heritage Foundation paper for example, holds up retribution as a fitting guideline for dealing with capital crimes. It says vengeance is “an expression of society’s right to make a moral judgment by imposing a punishment on a wrongdoer befitting the crime he has committed.” But determining what that word “befitting” means just takes us back to the start of the moral argument. Does death “befit” death?
At the heart of vengeance is not a moral principle but an emotional reaction. A desire for vengeance is a natural, visceral response to many crimes, especially things like mass murder. But morality has to involve rational thinking beyond emotions.
Some of you may still be digging in your heels here: Some crimes are so heinous that death is the only proper response. But on what basis would you create some sort of made-up category of especially heinous crimes that are out of bounds from the moral reasoning applied here? If you start trying to draw lines between violent acts “deserving” of the death penalty and those that are not, you’re just stuck in a quagmire. Who gets to draw the line, and where? Number of people killed, manner in which the killing takes place? What? Are you comfortable letting Texas, for example (the state that has executed the most people since 1976) draw that line on behalf of society?
The death penalty cannot be held up as a clear example of a moral virtue, nor can it be depended on to produce just consequences. In the end, the only defensible position on capital punishment that truly passes the morality test is: A society or nation must never counter death with death. Period. After various kinds of ethical justifications for capital punishment fail, all you’re left with is vengeance—an emotional, non-moral principle that does not add to the good of society but which, in fact, saps its strength.