Against and for Capital Punishment
SUNSTEIN & VERMEULE 58 STAN. L. REV. 703
1/9/2006 10:51:05 AM
IS CAPITAL PUNISHMENT MORALLY REQUIRED? ACTS, OMISSIONS, AND LIFELIFE TRADEOFFS
Cass R. Sunstein* and Adrian Vermeule**
Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect. But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. The familiar problems with capital punishment— potential error, irreversibility, arbitrariness, and racial skew—do not require abolition because the realm of homicide suffers from those same problems in even more acute form. Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent. The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve. The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.
INTRODUCTION................................................................................................ 704 I. EVIDENCE .................................................................................................... 710 II. CAPITAL PUNISHMENT: MORAL FOUNDATIONS AND FOUR OBJECTIONS ... 716 A. Morality and Death............................................................................. 717 B. Acts and Omissions ............................................................................. 719 1. Is the act/omission distinction coherent with respect to government?...............................................................................
1/9/2006 10:51:05 AM
IS CAPITAL PUNISHMENT MORALLY REQUIRED? ACTS, OMISSIONS, AND LIFELIFE TRADEOFFS
Cass R. Sunstein* and Adrian Vermeule**
Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect. But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. The familiar problems with capital punishment— potential error, irreversibility, arbitrariness, and racial skew—do not require abolition because the realm of homicide suffers from those same problems in even more acute form. Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent. The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve. The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.
INTRODUCTION................................................................................................ 704 I. EVIDENCE .................................................................................................... 710 II. CAPITAL PUNISHMENT: MORAL FOUNDATIONS AND FOUR OBJECTIONS ... 716 A. Morality and Death............................................................................. 717 B. Acts and Omissions ............................................................................. 719 1. Is the act/omission distinction coherent with respect to government?...............................................................................