Jonah Goldberg on the Death Penalty

As the Supremes say: I concur in part and dissent in part.

This utilitarian calculus is not only understandable but rational and deeply seductive. Death penalty opponents understand this, which is why they insist that deterrence has no effect. I think this is poppycock, the studies saying otherwise be damned. It defies common sense to think that Chinese officials won't be deterred at all by Zheng's demise. At minimum, this will raise the price of bribes in China - which, as any economist will tell you, means that at the margins there will be fewer bribes. That the statistical evidence in the U.S. allegedly doesn't support the deterrence argument is more of a commentary on the inefficiencies of our criminal justice system.

But the point is that it shouldn't matter whether capital punishment is a deterrent. The death penalty cannot be justified by the deterrence argument alone. As the late sociologist Ernest van den Haag wrote, "Deterring the crimes, not yet committed, of others does not morally justify execution of any convict (except to utilitarians, who think usefulness is a moral justification)." It is child's play to make the utilitarian case for executing shoplifters, but as all but the most morally stunted should see, hanging one shoplifter cannot be justified by the argument that it will deter another.

Like van den Haag, I support the death penalty because I believe that in some cases the death penalty is just. But, save perhaps in the realm of military justice or some truly grave crisis, executing to set an example for others is an indefensible rationalization of mob rule. That is what they have in China and, too often, that is what some advocates of the death penalty argue for here.

I agree that execution is primarily a moral issue and is done in large part to do “justice.” But to dismiss the utilitarian argument (that executing killers deters others from committing similar crimes) is unwise and counter-intuitive. Of course we don’t execute shoplifters because we believe that the punishment must fit the crime. Neither do we condemn them to life imprisonment or to having their hands chopped off.

It should be noted that not too many hundreds of years ago “we” did execute people who stole or poached game from the master’s domains.