About the Death Penalty

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Down the street at Austin Criminal Defense Lawyer, Jamie wasvisited by death penalty enthusiast Jeff Deutsch. Jeff recognizes that, as long as we have a death penalty, we are going to kill innocents - "Zero innocent victims is not compatible with any human, and necessarily imperfect, institution" - but feels that the benefits of having the death penalty outweigh the detriment of killing an innocent person now and again. He points out, quite rightly, that we do lots of things that kill innocent people because the benefits outweigh the costs. In Jeff's utilitarian analysis, capital punishment is appropriate because its benefits - retribution, incapacitation, and deterrence, in his view - outweigh its costs. He asks: "Do you feel that the good that capital punishment does justifies the innocent people executed? If not, why not?"


I reject lex talionis. Retribution is a goal unworthy of a civilized society. Not one of us has the wisdom to know what another of us deserves for the wrongs he has done.

Incapacitation doesn't justify capital punishment because we can incapacitate people without killing them. The death penalty is not self-defense.

Deterrence doesn't justify capital punishment to me because I'm not convinced that capital punishment has a general deterrent effect.

Even if it were proven that every execution prevented two murders, or twenty, or 200, I would oppose the death penalty for reasons not contemplated in Jeff's philosophy.

Capital punishment does harm beyond the execution of innocents. When a government kills its citizens (especially when it kills innocent ones), for example, it sets the tone for the society. Just as a parent hitting a child teaches the child that violence is a viable solution when people do things you don't like, the government, by killing people, sends a message about the value of human life. By taking life, we show how low a value we place on it. The good that capital punishment might do does not justify the innocent people executed. It also does not justify the evil of cold-blooded government killing.

Even if I weren't convinced that the death penalty has far-reaching detrimental effects on society beyond the execution of innocents, I would oppose it. Utility is not, and should not be, the be-all and end-all of public policy. Ethics has a role to play as well.

Death-penalty enthusiasts pitch it as a choice - the (factually guilty) person "chose" to put his life on the line. But I see every day how every decision that anyone makes is limited by his environment and his genes, neither of which he chose. If a person is a product of nature and nurture and nothing more, then ending a person's life unnecessarily (assuming that he can be incapacitated and specifically deterred by punishment short of death) is punishing him for the choices that others made for him. Punishing the child for the sins of the parents (which are, in turn, the sins of the grandparents, great-grandparents, and so forth) may well be useful, but it is wrong.

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