Afterword: Proportionality and the Difference Death Makes

William A. Edmundson

Anyone who reflects on the practice of capital punishment has to work through
two issues. The first is the justification of punishment generally, the second is the
place death has within his or her overall theory of punishment. It appears that
both advocates and opponents of the death penalty areat the present stage of
their unfolding dialogueembarrassed in similar ways by the need to reconcile
their positions on the first issue with the conclusion they favor on the second. Let
me explain.
Advocates of the death penalty are embarrassed by the fact that they are
unwilling to accept certain modes of punishment that their general theories do
not, by themselves, rule out. From a death-penalty advocates retributivist
perspective, those who commit the most heinous crimes deserve death; and, from
his deterrence perspective, execution deters more effectively than any admissible
non-capital alternative. Even so, certain kinds of punishment are ruled out even
though they seem as deserved as death, and even though they may deter at least as
effectively as death. Torture as a mode of punishment, for example, is nearly
universally condemned by capital punishments advocates and opponents alike.
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Electronic copy available at: http://ssrn.com/abstract=1143532

But death-penalty advocates arent easily able to derive the constraint against
torture and other inhumane methods from their general theories of punishment.
This side-constraint against inhumane punishment dangles in an ad hoc way
from the main body of the death-penalty advocates position. The resulting
challenge to the death-penalty advocate is this: What principled basis can you
have for simultaneously judging torture to be impermissibly inhumane and capital
punishment to be permissibly humane? Neither desert nor deterrence can be
appealed to answer this challenge because, by themselves, they might justify both
death and torture as punishments.
Opponents of the death penalty run into a different but related difficulty.
Death-penalty opponents, for the most part, do not categorically condemn the
practice of criminal punishment. In fact, death-penalty opponents are quick to
draw attention to extremely severe, but morally permissible, alternatives to capital
punishment, such as life imprisonment without the possibility of parole. But
death is different, opponents insist; punishment by death is impermissible even
though severe punishment is generally justifiable. Death-penalty opponents have,
at this juncture, two tactical moves open to them. The first is to argue that death
violates a principle of proportionality that must be satisfied in order fully to
justify a given mode or quantum of punishment. The second is to argue that death
fails to deliver any, or any sufficient, additional deterrent punch, and so violates
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Electronic copy available at: http://ssrn.com/abstract=1143532

an aspect of what Hugo Bedau calls the minimum invasion principle, which can
be traced to Bentham and Beccaria.1
The abolitionists second option makes her position hostage to the
resolution of difficult and complexperhaps intractableempirical issues. This
may be inevitable, but in pursuing the second option the abolitionist appears at
least provisionally to concede that in some possible world not unrecognizably
dissimilar to our own, capital punishment is morally permissible. The issue
becomes, whether or not our world is sufficiently similar to that worldan issue
that is not one that moral philosophers are specially trained or equipped to
answer. Worse, for the abolitionist, is this: even if it is shown or granted that
there is an important empirical gap between our Earth and the nearest, accessible
twin Earth where capital punishment is morally permissible, there will be a
residual moral question whether we should a) discontinue capital punishment
because of its relative lack of efficacy, or b) refine, restrict, or otherwise reform
our practice of capital punishment so that it equals the twin-Earth level of
efficacy. For this very reason, I suspect that most abolitionists would not want to
rest case against capital punishment on empirical grounds alone.
This means that the abolitionist has to develop the first option, that is, to

Hugo Bedau, The Minimum Invasion Argument Against the Death

Penalty, ___ Criminal Justice Ethics ___ (October, 2002).
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detail a principle of proportionality (interpreting proportionality as broadly as

you wish) that makes it plain why death is relevantly different from the range of
very severe non-capital alternatives she permits and prefers. But, ironically, this
is much like the position the death-penalty advocate was in when we last
lookedhe has to say why death is different from the range of inhumane but
otherwise justifiable punishments he counts as morally impermissible. It wont
do for either side to claim that his or her position is presumptively correct, and to
cast upon the other side the burden of persuasion (as both Thomas Sorell and
Claire Finklestein seem, in opposite ways, to do). It wont do for the abolitionist
to suggest that articulating a principle of proportionality is the death-penalty
advocates task, not hers. Nor will it do for the death-penalty advocate simply to
disavow the lex talionis (as Michael Davis does) as a proportionality principle.
The abolitionist could deny that there is anything like a proportionality principle
at work in the field, but that seems tantamount to denying that a principled
general account of punishment is availablea costly position to take. Equally, the
death-penalty advocate could retract his objection to torture and other inhumane
methods of punishment, and follow wherever his basic justificatory apparatus
leadsbut this, too, is a costly position, especially so for the death-penalty
advocate who concedes that a principle of proportionality limits the operation of
noncapital punishment.
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A proportionality principle is demanded, but not easy to come by even in

broad outline. A simpleminded approach to proportionality interprets the idea as
involving at least this: A is disproportionately severe with respect to X, and B is
not, only if A is worse than B. But such an approach immediately places the
abolitionist in an awkward position. If the abolitionist takes the position that
death is worse than life without parole, she supplies ammunition to the advocates
deterrence argument: How can what is admittedly worse not have a greater
deterrent power, whether or not social science can measure it? But the
alternative, that is, not to say that death is worse, seems to undercut the appeal to
disproportionality: How can what is not worse be disproportionately severe?
But the death-penalty advocate is not in any better a position. The deathpenalty advocate wants to say that torture is a disproportionately harsh
punishment, but death is not, with respect to death-eligible crimes. But, as has
been pointed out, that cant be because torture is per se worse than deathmost of
us would prefer to undergo a period of torture rather than be executed. The notworse punishment is ruled out as disproportionate on some other, still obscure,
ground. Both advocates and opponents of capital punishment are embarrassed by
the simpleminded approach to proportionality. Both have a reason to reject an
interpretation of proportionality that makes being worse a necessary condition
of being disproportionate with respect to some non-disproportionate alternative.
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Nevertheless, the badness of death, of torture, and of imprisonment

obviously have something to do with our moral intuitions about punishments that,
respectively, inflict them. Most advocates admit and even stress the badness of
death, but not all do. Mill advocated the death penalty on the ground that it was
not as bad for the criminal as long-term confinement. Hugo Bedau points out that
few inmates for life attempt suicide, which he takes to reflect their judgment of
the matter. But, as Mill argued, they may not be the best judges. Whos a better
judge? Epicurus held that Death is nothing to us, that is, not an evil in itself,
and not to be feared, in itself. Torture, on the other hand, was presumably
something to Epicurus, and confinement would have been something to him too,
despite the modesty of his desires. But, as Thomas Nagel has pointed out, death
neednt be a something to be bad, if it deprives us of what is good.
The badness of death is philosophically controversial, and may after all
not be the right aspect of death to consult for purposes of determining whether the
death penalty violates a principle of proportionality in punishing. Death-penalty
advocates are caught between talking up the badness of death (to emphasize its
deterrent power) and downplaying it (to keep from overreaching their constraint
against inhumanity). Abolitionists are eloquent about the badness of death for the
criminal but guarded when it comes to its badness for the crime victim(s). Both
advocates and opponents have reason to be wary of stressing too much the
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badness of death, as opposed to something else about it that counts morally in

judgments about proportion.
Is proportionality even the right concept? The death-penalty advocate
might prefer to say that torture is impermissible not because disproportionate, but
because inhumane, where inhumanity is spelled out in some terms not tied to the
idea of proportionality. Similarly, the abolitionist might prefer to stress the
cruelty of capital punishment, rather than anything tied in with the separate
constraint against disproportionate punishment. But I dont think what the
advocate and the abolitionist want to stress about torture and death (respectively),
is easily understood apart from the well-recognized stricture against
disproportionate punishment. It seems to me that there must be some link
between the thought that twelve years hard labor in irons is an impermissible
response to the crime of falsifying records2 and the thought that death, or torture,
is an impermissible response to any crime whatever. If that link is cannot
properly be tied to an underlying principle of proportionality then, I think, so
much the worse for any hope of systematizing our moral intuitions.
Michael Davis suggests that we can get at the constraint against torture,

Weems v. United States, 217 U.S. 349 (1910).

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and the concept of inhumane treatment, by a shocks the conscience test.3 This
is sporting in the sense that it shows a readiness to let count what Chief Justice
Warren called the evolving standards of decency that mark the progress of a
maturing society,4 and to let the empirical sociologist be the referee.5 Thomas
Sorell invokes a principle of responsibility that stresses the permissibility of
requiring the criminal to take the medicine society, through the institutions of law,
has prescribed.6 Among other problems with these two suggestions, I find that
neither is seriously engaged with the larger task of elaborating a principle of
proportionality. Sorells line contains, in itself, no resources for disallowing
torture as a permissible punishment, and Daviss line exposes the dismaying
possibility that torture may be restored to moral permissibility if it someday (and
somewhere) ceases to shock. The death-penalty advocates stricture against
inhuman punishments remains dangling.
Claire Finklestein, hoping to discover principled grounds for rejecting

Michael Davis, Another A Priori Argument Against the Death Penalty

Refuted, ___ Criminal Justice Ethics ___ (October, 2002).
4

Trop v. Dulles, 356 U.S. 86, 100-01 (1958).

Unlike the dissenting Justices Rehnquist, Scalia, and Thomas in Atkins

v. Virginia, 70 U.S.L.W 4585 (2002)).
6

Thomas Sorell, Two Ideals and the Death Penalty, ___ Criminal
Justice Ethics ___ (October, 2002).
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capital punishment, suggests that what matters about death is not its badness but
its rational eligibility. She rejects both deterrence and retributivist accounts of
punishment, and outlines a contractualist alternative. The crucial issue here is not
the general adequacy of a contractualist account but its ability to discriminate
between death and other punishments. Can it do so? This seems doubtful at the
very outset because, for the ur-contractualist Hobbes, persons entering civil
society retain a natural right (i.e., a Hohfeldian moral permission) to resist both
the jailor and the executioner. A contractualist abolitionism has to explain how to
prise this Hobbesian right apart and to say why a rational actor would surrender
the imprisonment half of it but not the death half. Finklesteins answer stresses
the completeness and finality of death, as contrasted to imprisonment.
Imprisonment leaves the body itself inviolate, though confined, allows its owner
to pursue projects, though limited, and holds open the possibility of compensation
should the prisoners conviction turn out to have been wrongful. These factors,
she argues, dont boil down to mere deontological intuitions but furnish a
principled basis for rejecting capital punishment while maintaining a
contractualist defense of a sufficient bulk of accepted practices of punishment.
Has Finklestein successfully finessed the proportionality issue? Apart
from possible doubts about the success of her general contractualist account, one
has to wonder whether it shares one of the liabilities of Sorells principle of
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responsibility: can it support or explain the stricture against torture? Torture

neednt be physically injurious (though it can be), nor need it curtail all of lifes
projects and plans, nor is its erroneous infliction any less (or less perfectly)
compensable than erroneous imprisonment is. Reason takes death off of the
(hypothetical) bargaining table, but puts torture back on. Finkelstein astutely
points out that few of the evil actions that constitute crimes are regarded as
permissible punishments, but her account does not suggest what principled basis
there might be for this general asymmetry.
The difficulty for the contractualist or responsibility theorist, then, seems
precisely the difficulty facing retributivists and deterrence theorists; that is, to
integrate their favored lists of proscribed punishments into a general account of
proportionality. Nor is there any reason to think that other theories of punishment
(moral education, denunciation, rehabilitation, incapacitation, etc.) avoid the need
to give an account of proportionality that represents it as a principled, systematic
force rather than a mere catalogue of discrete intuitions. No more precision is to
be demanded than is appropriate to the subject matter, as Aristotle cautioned, but
the issue of the moral permissibility of the death penalty is unlikely to be resolved
or further advanced by philosophical efforts that do not undertake a general
account of proportionality in punishing.

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 2002 William A. Edmundson

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