(Not) Punishable By Death (Part 2)

Ethicists dedicate a lot of time to discussing whether the death penalty is morally permissible. Recently, I turned to consider a related – though often overlooked – question: does the death penalty even count as punishment in the first place? I noted that, on most standard accounts, a punishment must harm the offender. I considered three possible times at which that harm might occur: (1) during execution; (2) before execution; or (3) after execution. I argued that (3) is largely unknowable, while the harm associated with (1) and (2) is neither necessary nor sufficient for the successful completion of the death penalty.

But “harm” isn’t limited to merely giving us something bad. Harm can also come in the form of depriving us of something good. Perhaps the harm of the death penalty isn’t found in the bad things it might (though doesn’t have to) add to our lives, but rather in the good things it takes away. This provides us with a fourth option for how the death penalty might count as punishment.

Option 4: The Offender is Harmed via Deprivation

Epicurus famously argued that death can’t be bad for us. Why? Because if we don’t exist, we can’t be harmed. A key premise of Epicurus’s argument is that death means our total annihilation. This is often referred to as the “Termination Thesis.” It’s a controversial claim (anyone who believes in some kind of afterlife will necessarily reject the Termination Thesis), but let’s accept it, and see where it leads. If death means our total annihilation, then – by definition – we won’t be around to experience death. To use Epicurus’s own words:

“…so long as we exist, death is not with us; but when death comes, then we do not exist.”

Epicurus’s final move is to note that if we cannot experience something, then that thing cannot be bad for us.

It’s a comforting notion – but it rarely provides solace to those who have misgivings about death. Why? Because, for most of us, the badness of death isn’t about the experience of bad things, but rather our inability to experience good things. Put simply: death is bad because it deprives us. It deprives us of the ability to see our favorite team win the next Super Bowl, to watch the next installment in our favorite film franchise, or to experience the joy of our grandchildren graduating college.

If this deprivation explains the badness of death, then it might also describe the harm of the death penalty. Put simply: the death penalty isn’t harmful because it causes pain and suffering to the offender (though it may). Rather, it’s harmful because it deprives the offender of all of the good things they might otherwise have enjoyed.

In this way, the death penalty shares much with a prison sentence. Offenders are placed behind bars to deprive them of their freedom, and all of the things that they might have used that freedom to enjoy. The death penalty does the same thing – albeit on a more permanent basis.

But there’s a problem. Consider those other cases in which a punishment harms an offender via deprivation – like a fine or a prison sentence. In both cases, there is someone who is currently being deprived. The fined offender is now being deprived of their money. The imprisoned offender is now being deprived of their freedom. The same is not true of the executed offender. By the time that sentence deprives the offender – that is, by the time the death penalty has been carried out – the offender is no longer around to experience that deprivation. This is, in a way, a repackaging of Epicurus’s initial argument. In fact, we might reformulate his original claim to say precisely this:

“…so long as we exist, deprivation is not with us; but when deprivation comes, then we do not exist.”

But maybe this is a mistake. Fred Feldman argues that the question “when does death deprive us?” simply misses the point. All things considered, death causes us to live a shorter (and therefore less valuable) life. But when, precisely, is a shorter life worse than a longer life? According to Feldman, this question doesn’t really make sense. It’s sort of like asking “when is a math exam worse than a pizza party?” If there is an answer, it’s probably “eternally.”

What this means, then, is that the deprivation created by the death penalty doesn’t harm the offender at a time, but – rather – harms them eternally. But this leads to some unintuitive claims. Technically, an offender’s execution harms them prior to their execution. In fact, it harms them prior to the commission of their crime. It was even harming them as an infant – long before thoughts of wrongdoing even entered their mind.

Perhaps we’re willing to accept these unintuitive claims in order to preserve the death penalty’s status as a punishment. But even if we are, there is a larger concern at hand. Once again, this harm seems neither necessary nor sufficient for the satisfactory completion of the death penalty. In order to illustrate this, consider a case in which an offender’s remaining life would not in fact be filled with good things. In such a case, execution would not deprive them (and thus not harm) them. Yet we would still see them as having received their sentence upon their death. This shows that the harm of deprivation isn’t necessary for the successful completion of the death penalty. Consider an alternative case in which the execution of an offender goes wrong, and the offender doesn’t die, but instead falls into a permanent coma. In such a case, the offender would be deprived of future goods, but we’d most likely see them as having avoided their sentence. This shows that the harm of deprivation is insufficient for the successful completion of the death penalty.

So where does this leave us? Ultimately, there appears to be no good way of fleshing out the harm of the death penalty. This leaves us with three options going forward: The first is to find an alternative basis for the harm of the death penalty. The second would be to revise our definition of punishment and remove the requirement of “harm” – though this would create a raft of other problems, and see us include many things in our definition of punishment that ought to be excluded. The third alternative is to merely acknowledge that – despite its widespread use as a response to wrongdoing – the death penalty does not, in fact, qualify as a “punishment.”

But what would be the implications of this third alternative? Does it really matter if the death penalty fails to meet our standard definition of “punishment”? It might – especially when we remember that the reason why this failure has occurred is because the death penalty (despite appearances to the contrary) doesn’t actually harm the offender. In particular, this might create serious problems for how we come to justify the practice in the first place.

Consider, for example, the consequentialist justification for the death penalty, which argues that we should execute a murderer because doing so will deter future murders. But how can the death penalty effectively deter when it’s entirely incapable of harming the offender? Consider, alternatively, the retributivist justification for the death penalty, which argues that we should execute murderer merely because this is what he deserves. This is usually rooted in the idea that someone who commits the worst crime imaginable should receive the most harmful punishment at our disposal. But, if what we’ve said above is true, the death penalty isn’t harmful at all. So if the retributivist is looking to cause the most harm possible to the offender, they’ll need to look to a punishment other than the death penalty.

In this way, the inability of execution to harm the offender doesn’t just rob the death penalty of its status as a “punishment,” it also removes much of what we might’ve used to morally justify its use in the first place.