ISSUES AND ANSWERS: Does the death penalty only deter ‘rational’ people?

Human beings fear death. If we receive the death penalty for murdering innocent people, we won’t do it because we don’t want to die. Thus, the death penalty deters us from killing, plain and simple.

This seems like common sense, doesn’t it? Then why do some abolitionists claim that the death penalty does not deter crime?

I also have some reservation about the deterrent effect of the death penalty. To be clear, the death penalty, just like all forms of punishment, may have some deterrent effect. However, that effect is more limited than is commonly believed.

Typically, when someone claims the death penalty deters crime, they implicitly make two assumptions: first, that the potential offender is a rational agent capable of considering the consequences of their actions, and second, the offender fears a particular type of consequence, namely, death. Also, the claim doesn’t consider the offender’s level of confidence that they won’t be caught.

No fear of death

Hsin-Wen Lee

Some people don’t fear death —this may be due to mental illness, false beliefs or distorted values. For instance, Adam might believe that God sent him to kill Bill, and after fulfilling his sacred duty, he will ascend to heaven. Adam will not be deterred by the death penalty from killing Bill. Death is not a bad consequence for Adam if he truly believes he’ll end up in heaven.

Or, John might think if he becomes a serial killer, he will be feared by society and will receive media attention. He believes it will make him Übermensch or superior human. This may be a distinction he is willing to pursue at the cost of his own life.

One thing worth noting: if a person has already received the death penalty, then no additional punishment is likely to deter her from committing more crime. They’re going to die anyway. The consequence can’t be worse.

No concern for consequences

Most of us are able to think rationally most of the time. However, there are times when we become possessed by strong emotions and lose that capacity, perhaps only temporarily. For instance, there are times when people find out that a loved one was unjustly hurt or that we were betrayed by someone close to them. It is not unusual for people to become overpowered by fear or anger and lose the capacity to consider consequences. Under those circumstances, people do not care about consequences, so they likely won’t be deterred by any penalty.

Catch me if you can

Sometimes even rational people who fear death won’t be deterred by the death penalty. This is because they are confident they won’t be caught. For instance, Steven is confident about his plan for a perfect murder and Ted believes he knows all the loopholes in the criminal justice system. Neither Steven nor Ted will be deterred by the death penalty.

I believe my analysis shows that the death penalty has a more limited deterrent effect than is commonly believed. It deters only good people like you and me — rational human beings who value life and fear death. However, it does not deter those who should be our real concern in criminal deterrence. Abolitionists may be right.

Hsin-Wen Lee is a University of Delaware professor in the Department of Philosophy. Her work focuses on political and law philosophy — specifically on the philosophy of criminal punishment, nationalism and multiculturalism.

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