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Capital punishment
CAPITAL PUNISHMENT Joseph Margolis1 Current pressures in the United States to restore or reactivate the death penalty cannot but remind us that the justification of capital punishment is conceptually troublesome.
Lf the death penalty were a
deterrent to homicide or other crimes, i t might s t i l l be judged indefensible as a determinate form of punishment; and i_f_f i t were actually not a deterrent of crime, i t might s t i l l be judged to be a justifiable form of punishment.
I t is clear that the death penalty cannot be con-
strued as rehabilitative, reformative, or corrective--unless,
what is
ordinarily not intended, i t encourages remorse or contrition or the like; but even i f i f did that, i t would of course fail to restore the offender to the community of effective agents.
I t is also awkward to
defend capital punishment as a deterrent to others, because the very extremity of the treatment, the taking of another's l i f e , calls for an adequate defense in terms of the offense i t s e l f .
This is not to deny
that execution justified for a given offense may be thought to be of further use as a deterrent; but i t is d i f f i c u l t to see, assuming the seriousness with whichthe sanctity of l i f e is pressed--characteristically, in considering a suitable punishment for murder--how that very seriousness can be sustained by offering up a l i f e (perhaps another l i f e ) on the 1joseph Margolis is Professor of Philosophy, Temple University, Philadelphia, Pennsylvania.
270 grounds of its u t i l i t y with regard to possible future crimes. Furthermore, l i a b i l i t y to punishment does not entail the j u s t i f i a b i l i t y of any particular punishment or even the necessity for actually invoking punishment; and the deterrence of crime, however effective, does not, merely as such, come to grips with the conceptual distinction of punishment
(6, 9). Deterrence seems to be more n a t u r a l l y linked to j u s t i f y i n g
a policy
favoring one or another a l t e r n a t i v e sort of j u s t sentence or of applying such a policy in a p a r t i c u l a r case; but i t must then presuppose an answer to an u l t e r i o r question.
Liability
to punishment, on the other hand,
is a logical matter, in the sense that confirming a criminal act e n t a i l s such l i a b i l i t y .
But that only shows that the usual j u s t i f i c a t i o n
for
exacting any p a r t i c u l a r penalty--including the death p e n a l t y - - i s not entailed by such l i a b i l i t y . other, legal or moral.
The one issue is logical or conceptual; the
Imposing punishment does not appear to be obliga-
tory (contra Kant and Hegel [7, 5]).
But how i t is to be j u s t i f i e d ,
in p a r t i c u l a r how the death penalty is to be j u s t i f i e d ,
and
is hardly clear.
So i t is a rather extreme view that holds that crime a c t u a l l y requires some punishment or other; and i t is uncertain, even when some punishment or other would be j u s t , what p a r t i c u l a r punishment would be j u s t i f i e d . Hence, too, i t is clear that a criminal deserves to be punished i f what is meant by that is that he is r i g h t l y l i a b l e to be punished; but whether he deserves to be punished in t h i s way or that is j u s t the question in dispute.
The theory of criminal desert or of which determinate punishment
would be properly r e t r i b u t i v e of which crimes cannot, even i f one
271 subscribes to the lex t a l i o n i s , import:
be fixed except by convention or symbolic
i t is normally impossible to take another's l i f e
in precisely the
same way in which another is alleged to have wrongly done so; and, per impossibile, i t would require committing another crime.
So a r e t r i b u t i v e
view of punishment cannot convincingly make actual punishment necessary and i t cannot, f o r any given crime, deduce some entailed l i a b i l i t y p a r t i c u l a r form of punishment.
to a
Capital punishment, therefore, cannot be
defended as the logical match for the crime of murder or of any other crime.
This is not to say e i t h e r that i t can or cannot be defended.
i f i t is construed as r e t r i b u t i v e ,
But
since i t cannot be r e h a b i l i t a t i v e and
since i t is awkward to defend as d e t e r r e n t , i t must be construed as the symbolic equivalent of the o r i g i n a l
crime, the symbolically adequate
penalty assigned in v i r t u e of a s o c i e t y ' s condemnation of the crime committed (4, 8).
Precisely because of such considerations, however, i t is
troublesome to defend capital punishment. In any case, i t
is essential to see ( I ) that all sociological
studies
of the effectiveness of the deterrent force of the death penalty are conceptually defective i f they are construed as j u s t i f y i n g
the penalty f o r
homicide or f o r other aggravated crimes, and (2) that whatever deterrent force the penalty may have is l o g i c a l l y independent of whatever may j u s t i f y i t s use.
These features of the usual debates are not always noticed.
Furthermore, they bear d e c i s i v e l y on the defense of the death penalty because of the uncertainty with which the actual s t a t i s t i c a l be interpreted.
findings may
There have been strong arguments to the e f f e c t that the
death penalty cannot be shown to have been an e f f e c t i v e deterrent
272 (1, 2, 10, 11).
And, though there have been suggestive arguments
claiming evidence of the deterrent force of the death penalty (3, 12, 13), there are characteristic uncertainties. Yunker (13), who claims, on the basis of his studies, that "one execution will deter 156 murders," concedes that his figures simply support the finding that "the data from the past few years show rather definitively an inverse correlation between executions and the homicide rate."
He does not press the actual ratio and he admits that he has not
precluded the possibility that "there is no causal inverse relation between executions and homicides." Given the reasonableness of a connection, the study serves "to estimate the true deterrence function." The bare facts are, apparently, that between 1963 and 1972, when the death penalty was effectively phased out, the homicide rate increased from 4.5 per 100,000 persons to 8.9, a distinctive increase in the 2 overall pattern in the United States since 1933. Yunker'sassumptions are:
"(1) current executions E are positively related to the current
homicide rate HR; (2) the current homicide rate HR is inversely related to the past level of executions E."
He is, however, prepared to consider
the possibility that E and HR may vary independently of one another. Isaac Ehrlich (3) had also concluded that the death penalty has a deterrent effect on homicides; but admitting other variables than those Yunker favors, Ehrlich concludes that each execution deters no more than seven or eight homicides on the average. The difference in these two sets of 2Source (given by Yunker): U.S. Department of Health, Education and Welfare, Social Indicators, 1973; and U.S. Bureau of the Census, Historical Statistics of the U.S., Statistical Abstract (various dates).
273 findings is rather striking, given the uncertain causal connection between E and HR; also, Ehrlich's figures suggest an extremely modest payoff for the death penalty policy.
Even Yunker's figures lead to a
comparatively modest expectation, i f one supposes that homicides are approaching 10,000 a year and that there is bound to be considerable inelasticity in the reduction of homicides with an increasing number of executions.
In 1963, there were only 21 executions, the highest
number for the interval summarized.
On a straightline projection, on
Yunker's figures, i t would take about 64 executions to wipe out homicides! But of course Yunker recognizes the impact of other factors, for instance, unemployment, urbanization, poverty, social inequities, availa b i l i t y of psychiatric aid, use of drugs, proportion of nonwhite population, proportion of youth population, availability of deadly weapons, expectations regarding apprehension and conviction for homicide, functioning of the corrections system, popular and sub-cultural exaltation of violence, nature of the socialization of children and adults.
So the
deterrent effect of the death penalty is relatively inelastic, though i t is not quite as marginal for Yunker as i t is for Ehrlich.
S t i l l , i t is
d i f f i c u l t to justify the claim that one execution will deter 156 homicides i f one admits the inelasticity of the homicide rate. Now then, given these considerations and concedin9 for the sake of the argument the deterrent force of the death penaltg, what may be said For and against the penalty as a justifiable form of punishment, either :or murder or for other aggravated crimes (e.g., skyjacking, dealing in leroin, rape, treason, attacking police, political assassination, etc.)?
274
The Royal Commission on Capital Punishment (10) suggests several interesting points:
for one, that there is some evidence that the very
existence of the policy of capital punishment "may act as an incitement to murder on the mentally abnormal;" for another, that there is some evidence that "abolition of the penalty may be followed for a short time by an increase in homicides and crimes of violence . . . but . . . that, as soon as a country has become accustomed to the new form of the extreme penalty, abolition w i l l not in the long run lead to an increase of crime;" and for a t h i r d , that there is no clear evidence that the reintroduction of the death penalty "has [wherever attempted] led to a f a l l [in the homicide r a t e ] . "
This rather outflanks Yunker's argument and invites a
good deal more f l e x i b i l i t y . But the recollection of e a r l i e r observations leads to a curious conclusion.
The strongest argument favoring the death penalty w i l l eschew
deterrence for the following reasons:
(1) deterrence i t s e l f presupposes
a prior j u s t i f i c a t i o n of punishment; (2) deterrence exhibits the awkward feature of addressing an actual crime i n d i r e c t l y by addressing a class of future, as yet uncommitted crimes that a community d i r e c t l y wishes to avoid; (3) the extremity of the penalty is somewhat inappropriately linked not to the seriousness of the actual crime but to the seriousness with which a community wishes to avoid a class of related, as yet uncommitted crimes; (4) the s t a t i s t i c a l .evidence regarding the deterrent force of the death penalty suggests that i t may be marginal, r e l a t i v e l y i n e l a s t i c , occasionally counterproductive, unproductive under certain circumstances, possibly even causally insignificant; (5) the extremity of the penalty is harder to
275 defend in direct proportion as the s t a t i s t i c a l evidence is indecisive or unfavorable.
This is not to deny that the death penalty may be
defended on the grounds of deterrence.
But under the circumstances, i t
should be much easier to defend on retributive grounds i f such grounds be understood in the sense already sketched.
To do so, however, intro-
duces new d i f f i c u l t i e s . To appreciate this, recall that there is no possibility of a l i t e r a l match between crime and punishment: every retributive thesis must assign a conventional or symbolic equivalent for a given crime; deterrent considerations can only modify such an equivalent in the direction of leniency. the reason is plain.
I f punishment were thereby made to exceed what the
appropriate ratio should be, i t would be palpably unjust; furthermore, given the extremity of the penalty, a deliberate injustice could hardly be defended or ignored; and, i f the deterrent feature were j u s t i f i a b l e on retributive grounds, deterrence i t s e l f would be otiose.
I f , however, the
death penalty is to be defended on symbolic or conventional grounds, then i t becomes increasingly imperative to ask why something less than execution should not be adequate. Herein is the possibility of stalemate.
For, among
r e t r i b u t i v i s t s , some may hold that the only appropriate match for taking a l i f e is taking the l i f e of the murderer--not by the lex talionis but by some conventionalist analogue--and some may deny this.
Deterren t consid-
erations will be irrelevant, and there will be no objective grounds on ~hich to decide exclusively in favor of either alternative. S t r i c t l y speaking, the argument against, the death penalty may be ~trengthened, for (a) i_f_f there is no objective resolution between these
276 competing perceptions, (b) i f there is some interest in deterrent, rehabilitative, and other nonretributive functions of punishment, and (c) if_f the death penalty is the most extreme punishment possible, then there must be some disposition to favor the more generous alternative over the more severe.
In this sense, there is a certain asymmetry in
the relative strength of approving and disapproving of the death penalty.
The trouble is that i t is not enough to disqualify the death
penalty. The reason is simply that the propriety of matching murder (or other heinous crimes) with a penalty less than death i t s e l f depends on the socially developed convictions of one community or another. Hence, i t is quite possible (and not at all unusual) that particular societies should be strongly disposed to see the death penalty as the only appropriate match for such crimes. One may well admit that punishment f i t s the crime in a symbolic sense only and s t i l l maintain that the only f i t t i n g symbol is execution. Here social factors are instructive.
One may hazard the guess that
in a society in which the actual routines of serving a sentence or of f u l f i l l i n g the conditions of punishment are unperceived by the community at large, or in which cynicism develops about the management of criminal justice and the avoidance of punishment, or in which violent crimes are on the increase and the competence of enforcement agencies declines, there will be a strong inclination to perceive execution as the only appropriate match for murder and other extreme crimes. The reason is simply that the very purpose of the law is seen to be threatened by such changes; hence, the tolerance of more lenient forms of punishment cannot but be reduced.
277 In this sense, a society's view of the j u s t i f i c a t i o n of capital punishment is tantamount to a view of its own security.
And in this sense,
too, the apparent asymmetry between supporting and rejecting the death penalty will prove irrelevant.
REFERENCES 1. 2.
.
Bedau, Hugo, ed. The Death Penalty in America. Doubleday, 1964.
Garden City, N.Y.:
• "Deterrence and the Death Penalty: A Reconsideration," Journal of Criminal Law, Criminology and Police Science, Vol. 61, December 1970, pp. 539-548. Ehrlich, Isaac• "The Deterrent Effect of Capital Punishment: A Question of Life and Death," American Economic Review, Vol. 65, June 1975, pp. 397-417.
4.
Feinberg, Joel. Doing and Deserving• Princeton, N.J.: University Press, 1970, Ch. 5.
5.
Hegel, G.W.F. The Philosophy of Hight, trans. T.M. Knox. London: Oxford University Press, 1969, section 100.
6•
Honderich, Ted. Punishment. Hutchinson, 1969.
7.
Kant, Immanuel. The Philosophy of Law, trans. W. Hastie. T.T. Clark, 1887, Pt. I I .
8.
Margolis, Joseph. Negativities• The Limits of Life. Charles Merrill, 1975, Ch. 6.
.
Princeton
The Supposed Justifications.
London: Edinburgh:
Columbus, Ohio:
Quinton, A.M. "On Punishment," in Philosophy, Politics, and Society, ed• P. Laslett. Oxford: Blackwell, 1956. London:
10.
Royal Commission on Capital Punishment 1949-53 Report. H.M.S.O., 1953, pp. 17-24.
11.
Sellin, T., ed.
12.
Van den Haag, Ernest. "On Deterrence and the Death Penalty," Journal of Criminal Law, Criminology and Police Science, Vol. 55, June 1969, pp. 141-147.
13.
Yunker, James A. "Is the Death Penalty a Deterrent to Homicide? Some Time Series Evidence," Journal of Behavioral Economics, Vol• 5, Summer 1976, pp. 45-81.
Capital Punishment.
278
New York: Harper and Row, 1967.
Lf the death penalty were a
deterrent to homicide or other crimes, i t might s t i l l be judged indefensible as a determinate form of punishment; and i_f_f i t were actually not a deterrent of crime, i t might s t i l l be judged to be a justifiable form of punishment.
I t is clear that the death penalty cannot be con-
strued as rehabilitative, reformative, or corrective--unless,
what is
ordinarily not intended, i t encourages remorse or contrition or the like; but even i f i f did that, i t would of course fail to restore the offender to the community of effective agents.
I t is also awkward to
defend capital punishment as a deterrent to others, because the very extremity of the treatment, the taking of another's l i f e , calls for an adequate defense in terms of the offense i t s e l f .
This is not to deny
that execution justified for a given offense may be thought to be of further use as a deterrent; but i t is d i f f i c u l t to see, assuming the seriousness with whichthe sanctity of l i f e is pressed--characteristically, in considering a suitable punishment for murder--how that very seriousness can be sustained by offering up a l i f e (perhaps another l i f e ) on the 1joseph Margolis is Professor of Philosophy, Temple University, Philadelphia, Pennsylvania.
270 grounds of its u t i l i t y with regard to possible future crimes. Furthermore, l i a b i l i t y to punishment does not entail the j u s t i f i a b i l i t y of any particular punishment or even the necessity for actually invoking punishment; and the deterrence of crime, however effective, does not, merely as such, come to grips with the conceptual distinction of punishment
(6, 9). Deterrence seems to be more n a t u r a l l y linked to j u s t i f y i n g
a policy
favoring one or another a l t e r n a t i v e sort of j u s t sentence or of applying such a policy in a p a r t i c u l a r case; but i t must then presuppose an answer to an u l t e r i o r question.
Liability
to punishment, on the other hand,
is a logical matter, in the sense that confirming a criminal act e n t a i l s such l i a b i l i t y .
But that only shows that the usual j u s t i f i c a t i o n
for
exacting any p a r t i c u l a r penalty--including the death p e n a l t y - - i s not entailed by such l i a b i l i t y . other, legal or moral.
The one issue is logical or conceptual; the
Imposing punishment does not appear to be obliga-
tory (contra Kant and Hegel [7, 5]).
But how i t is to be j u s t i f i e d ,
in p a r t i c u l a r how the death penalty is to be j u s t i f i e d ,
and
is hardly clear.
So i t is a rather extreme view that holds that crime a c t u a l l y requires some punishment or other; and i t is uncertain, even when some punishment or other would be j u s t , what p a r t i c u l a r punishment would be j u s t i f i e d . Hence, too, i t is clear that a criminal deserves to be punished i f what is meant by that is that he is r i g h t l y l i a b l e to be punished; but whether he deserves to be punished in t h i s way or that is j u s t the question in dispute.
The theory of criminal desert or of which determinate punishment
would be properly r e t r i b u t i v e of which crimes cannot, even i f one
271 subscribes to the lex t a l i o n i s , import:
be fixed except by convention or symbolic
i t is normally impossible to take another's l i f e
in precisely the
same way in which another is alleged to have wrongly done so; and, per impossibile, i t would require committing another crime.
So a r e t r i b u t i v e
view of punishment cannot convincingly make actual punishment necessary and i t cannot, f o r any given crime, deduce some entailed l i a b i l i t y p a r t i c u l a r form of punishment.
to a
Capital punishment, therefore, cannot be
defended as the logical match for the crime of murder or of any other crime.
This is not to say e i t h e r that i t can or cannot be defended.
i f i t is construed as r e t r i b u t i v e ,
But
since i t cannot be r e h a b i l i t a t i v e and
since i t is awkward to defend as d e t e r r e n t , i t must be construed as the symbolic equivalent of the o r i g i n a l
crime, the symbolically adequate
penalty assigned in v i r t u e of a s o c i e t y ' s condemnation of the crime committed (4, 8).
Precisely because of such considerations, however, i t is
troublesome to defend capital punishment. In any case, i t
is essential to see ( I ) that all sociological
studies
of the effectiveness of the deterrent force of the death penalty are conceptually defective i f they are construed as j u s t i f y i n g
the penalty f o r
homicide or f o r other aggravated crimes, and (2) that whatever deterrent force the penalty may have is l o g i c a l l y independent of whatever may j u s t i f y i t s use.
These features of the usual debates are not always noticed.
Furthermore, they bear d e c i s i v e l y on the defense of the death penalty because of the uncertainty with which the actual s t a t i s t i c a l be interpreted.
findings may
There have been strong arguments to the e f f e c t that the
death penalty cannot be shown to have been an e f f e c t i v e deterrent
272 (1, 2, 10, 11).
And, though there have been suggestive arguments
claiming evidence of the deterrent force of the death penalty (3, 12, 13), there are characteristic uncertainties. Yunker (13), who claims, on the basis of his studies, that "one execution will deter 156 murders," concedes that his figures simply support the finding that "the data from the past few years show rather definitively an inverse correlation between executions and the homicide rate."
He does not press the actual ratio and he admits that he has not
precluded the possibility that "there is no causal inverse relation between executions and homicides." Given the reasonableness of a connection, the study serves "to estimate the true deterrence function." The bare facts are, apparently, that between 1963 and 1972, when the death penalty was effectively phased out, the homicide rate increased from 4.5 per 100,000 persons to 8.9, a distinctive increase in the 2 overall pattern in the United States since 1933. Yunker'sassumptions are:
"(1) current executions E are positively related to the current
homicide rate HR; (2) the current homicide rate HR is inversely related to the past level of executions E."
He is, however, prepared to consider
the possibility that E and HR may vary independently of one another. Isaac Ehrlich (3) had also concluded that the death penalty has a deterrent effect on homicides; but admitting other variables than those Yunker favors, Ehrlich concludes that each execution deters no more than seven or eight homicides on the average. The difference in these two sets of 2Source (given by Yunker): U.S. Department of Health, Education and Welfare, Social Indicators, 1973; and U.S. Bureau of the Census, Historical Statistics of the U.S., Statistical Abstract (various dates).
273 findings is rather striking, given the uncertain causal connection between E and HR; also, Ehrlich's figures suggest an extremely modest payoff for the death penalty policy.
Even Yunker's figures lead to a
comparatively modest expectation, i f one supposes that homicides are approaching 10,000 a year and that there is bound to be considerable inelasticity in the reduction of homicides with an increasing number of executions.
In 1963, there were only 21 executions, the highest
number for the interval summarized.
On a straightline projection, on
Yunker's figures, i t would take about 64 executions to wipe out homicides! But of course Yunker recognizes the impact of other factors, for instance, unemployment, urbanization, poverty, social inequities, availa b i l i t y of psychiatric aid, use of drugs, proportion of nonwhite population, proportion of youth population, availability of deadly weapons, expectations regarding apprehension and conviction for homicide, functioning of the corrections system, popular and sub-cultural exaltation of violence, nature of the socialization of children and adults.
So the
deterrent effect of the death penalty is relatively inelastic, though i t is not quite as marginal for Yunker as i t is for Ehrlich.
S t i l l , i t is
d i f f i c u l t to justify the claim that one execution will deter 156 homicides i f one admits the inelasticity of the homicide rate. Now then, given these considerations and concedin9 for the sake of the argument the deterrent force of the death penaltg, what may be said For and against the penalty as a justifiable form of punishment, either :or murder or for other aggravated crimes (e.g., skyjacking, dealing in leroin, rape, treason, attacking police, political assassination, etc.)?
274
The Royal Commission on Capital Punishment (10) suggests several interesting points:
for one, that there is some evidence that the very
existence of the policy of capital punishment "may act as an incitement to murder on the mentally abnormal;" for another, that there is some evidence that "abolition of the penalty may be followed for a short time by an increase in homicides and crimes of violence . . . but . . . that, as soon as a country has become accustomed to the new form of the extreme penalty, abolition w i l l not in the long run lead to an increase of crime;" and for a t h i r d , that there is no clear evidence that the reintroduction of the death penalty "has [wherever attempted] led to a f a l l [in the homicide r a t e ] . "
This rather outflanks Yunker's argument and invites a
good deal more f l e x i b i l i t y . But the recollection of e a r l i e r observations leads to a curious conclusion.
The strongest argument favoring the death penalty w i l l eschew
deterrence for the following reasons:
(1) deterrence i t s e l f presupposes
a prior j u s t i f i c a t i o n of punishment; (2) deterrence exhibits the awkward feature of addressing an actual crime i n d i r e c t l y by addressing a class of future, as yet uncommitted crimes that a community d i r e c t l y wishes to avoid; (3) the extremity of the penalty is somewhat inappropriately linked not to the seriousness of the actual crime but to the seriousness with which a community wishes to avoid a class of related, as yet uncommitted crimes; (4) the s t a t i s t i c a l .evidence regarding the deterrent force of the death penalty suggests that i t may be marginal, r e l a t i v e l y i n e l a s t i c , occasionally counterproductive, unproductive under certain circumstances, possibly even causally insignificant; (5) the extremity of the penalty is harder to
275 defend in direct proportion as the s t a t i s t i c a l evidence is indecisive or unfavorable.
This is not to deny that the death penalty may be
defended on the grounds of deterrence.
But under the circumstances, i t
should be much easier to defend on retributive grounds i f such grounds be understood in the sense already sketched.
To do so, however, intro-
duces new d i f f i c u l t i e s . To appreciate this, recall that there is no possibility of a l i t e r a l match between crime and punishment: every retributive thesis must assign a conventional or symbolic equivalent for a given crime; deterrent considerations can only modify such an equivalent in the direction of leniency. the reason is plain.
I f punishment were thereby made to exceed what the
appropriate ratio should be, i t would be palpably unjust; furthermore, given the extremity of the penalty, a deliberate injustice could hardly be defended or ignored; and, i f the deterrent feature were j u s t i f i a b l e on retributive grounds, deterrence i t s e l f would be otiose.
I f , however, the
death penalty is to be defended on symbolic or conventional grounds, then i t becomes increasingly imperative to ask why something less than execution should not be adequate. Herein is the possibility of stalemate.
For, among
r e t r i b u t i v i s t s , some may hold that the only appropriate match for taking a l i f e is taking the l i f e of the murderer--not by the lex talionis but by some conventionalist analogue--and some may deny this.
Deterren t consid-
erations will be irrelevant, and there will be no objective grounds on ~hich to decide exclusively in favor of either alternative. S t r i c t l y speaking, the argument against, the death penalty may be ~trengthened, for (a) i_f_f there is no objective resolution between these
276 competing perceptions, (b) i f there is some interest in deterrent, rehabilitative, and other nonretributive functions of punishment, and (c) if_f the death penalty is the most extreme punishment possible, then there must be some disposition to favor the more generous alternative over the more severe.
In this sense, there is a certain asymmetry in
the relative strength of approving and disapproving of the death penalty.
The trouble is that i t is not enough to disqualify the death
penalty. The reason is simply that the propriety of matching murder (or other heinous crimes) with a penalty less than death i t s e l f depends on the socially developed convictions of one community or another. Hence, i t is quite possible (and not at all unusual) that particular societies should be strongly disposed to see the death penalty as the only appropriate match for such crimes. One may well admit that punishment f i t s the crime in a symbolic sense only and s t i l l maintain that the only f i t t i n g symbol is execution. Here social factors are instructive.
One may hazard the guess that
in a society in which the actual routines of serving a sentence or of f u l f i l l i n g the conditions of punishment are unperceived by the community at large, or in which cynicism develops about the management of criminal justice and the avoidance of punishment, or in which violent crimes are on the increase and the competence of enforcement agencies declines, there will be a strong inclination to perceive execution as the only appropriate match for murder and other extreme crimes. The reason is simply that the very purpose of the law is seen to be threatened by such changes; hence, the tolerance of more lenient forms of punishment cannot but be reduced.
277 In this sense, a society's view of the j u s t i f i c a t i o n of capital punishment is tantamount to a view of its own security.
And in this sense,
too, the apparent asymmetry between supporting and rejecting the death penalty will prove irrelevant.
REFERENCES 1. 2.
.
Bedau, Hugo, ed. The Death Penalty in America. Doubleday, 1964.
Garden City, N.Y.:
• "Deterrence and the Death Penalty: A Reconsideration," Journal of Criminal Law, Criminology and Police Science, Vol. 61, December 1970, pp. 539-548. Ehrlich, Isaac• "The Deterrent Effect of Capital Punishment: A Question of Life and Death," American Economic Review, Vol. 65, June 1975, pp. 397-417.
4.
Feinberg, Joel. Doing and Deserving• Princeton, N.J.: University Press, 1970, Ch. 5.
5.
Hegel, G.W.F. The Philosophy of Hight, trans. T.M. Knox. London: Oxford University Press, 1969, section 100.
6•
Honderich, Ted. Punishment. Hutchinson, 1969.
7.
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