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CHAPTER 11

Popular Arguments

ERNEST VAN DEN HAAG


Consider now some perpetually popular arguments against the death
penalty.
Barbarization
The argument concerning barbarization received its most incisive formulation from Cesare Bonesana, Marchese di Beccaria, in his Dei Delitti e
del/e Pene ("Of Crimes and Punishments," 1764), a short but influential
treatise to which, when it was translated into French, Voltaire added a
commentary.
Beccaria wrote: "Laws which punish homicide ... commit murder
themselves" by imposing the death penalty. The laws thereby give "an
example of barbarity." Beccaria advocated life imprisonment (which meant
lifelong imprisonment then) for murder because "the death of a criminal is
... a less efficacious method of deterring others than the continued example
of man ... as a beast of burden [in] perpetual slavery ... in chains and
fetters, in an iron cage ... "These conditions of imprisonment would not be
tolerated today. lt is hard to see wherein Beccaria's life imprisonment would
be less barbaric than the death penalty. I should think it more so. At any
rate, Beccaria's argument that lifelong imprisonment is more deterrent than
execution is ignored today.
However, Beccaria's objection to the death penalty as "murder" still is
repeated by abolitionists, who like to refer to execution as "legalized murder." That phrase is oxymoranie (the adjective contradicts the noun it qualifies). Murder is the unlawful taking of an innocent life. Executions, being
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Ernest van den Haag and John P. Conrad 1983

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lawful, are not murders, and they take the life of a person who has been
found guilty, not innocent. The victim of murder was murdered. The murderer, found guilty of that crime, is executed. Executions are neither the
moral nor the legal equivalent of murder. One can see in the punishment
the moral equivalent of a crime (as in "legalized murder") only if one fails
to perceive the moral difference between murdering an innocent victim and
executing a criminal-or if one willfully is blind to that difference. If not,
executions are no more "murder" than arrests are "kidnappings" or taxes
"thefts."
To be sure, executions are physically identical to murder: Both kill. But
that does not make them morally or legally identical. Many punishments
are physically identical to the crimes they punish or to other crimes. The
Iex talionis even demanded that all punishments be similar to the crimes
they are meant to punish. Thus, Thomas Jefferson proposed, however reluctantly, that mutilators be mutilated (see Chapter 1, p. 33). A fine, which
lawfully takes money from an offender who (e.g.) unlawfully took money
from others, is physically identical to the crime punished. Lawful confinement (imprisonment) punishes a kidnapper who unlawfully confined an
innocent person. The difference between crimes, such as murder, and lawful
acts, such as execution, is moral and legal, not physical: Crimes are legal
wrongs; punishments are lawfully imposed to deter others from crime and
to retribute against criminals, thereby vindicating the law.
The physical similarity, or identity, of crimes and punishments is just
as irrelevant as the physical identity of a crime (e.g., driving a stolen car)
and a lawful act (driving a car one is legally entitled to drive). Identical
physical acts often have different social and moral meanings. Rape differs
from consensual intercourse morally, socially, and legally-but not physically. Physical similarity to crimes does not morally disqualify punishments;
they are morally disqualified only if grossly excessive, or if useless and
gratuitous.
I feel no need to deal with the more general contention that the death
penalty somehow barbarizes sociallife, since that contention is either definitional or Iacks any evidence to support it. Surely it cannot be contended
that states without the death penalty, such as New York, are generally less
barbarous than states with the death penalty.
Another popular argument is often advanced in connection with "barbarization": Executions, by setting an example of violence, may encourage
homicide rather than deter from it. There are some sturlies purporting to
show that the rate of homicide rises temporarily after each execution, presumably because of imitation. Other studies indicate that the rate of homi-

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cide falls at least for some weeks after each execution, presumably because
of deterrence. * The evidence is inconclusive. lt is quite possible that executions encourage some and discourage other prospective murderers. But if
either study were to prove correct, it still would teil us little of relevance.
Executions may raise or lower the homicide rate temporarily-they may
cause some bunching of homicides, as seasonal factors do. But only changes
in the annual homicide rate, with which these studies do not deal, would be
relevant if we are interested in determining the effects of executions.
Although of interest to experts obsessed with statistical manipulations, however inconclusive, these studies do not answer the question we still must ask:
Are executions at all likely to increase the annual homicide rate? If they
were public, that possibility cannot be ignored. People who, for one reason
or another, are on the brink of crime may imitate what they see. If true, this
would be an argument not against executions but against public executions.
Any public display of violence may mobilize to some degree the violent
impulses that most of us harbor consciously or, more often, unconsciously,
and that most of us control. Movies that feature violence-war movies,
westerns, detective movies-may Iead to imitative violent behavior, particularly by the young. So do violent crimes and, perhaps, boxing. No doubt
Greek tragedies in their time had the same effect. This hardly is an argument for eliminating all violence in art, on TV, in movies, or in sports. We
cannot eliminate it in life either.
Yet there is much to be said for avoiding the display of unnecessarily
explicit violence and of gratuitous violence: violence not required for an aesthetically satisfying representation of a subject. Certainly there is an excellent argument for not feeding the young a diet of senseless and repetitive
violence.t However, the idea that executions-which have not been public
for many years-will make the difference amid all the violence reported in
the press and fictionalized in art and entertainment seems rather strained
on the face of it, if not altogether absurd.
Still, public executions might serve as a grisly entertainment, as they
did in the past, and do more harm than good. Hence, executions should be
*For a full discussion of these studies, see David P. Phillips, "The Deterrent Effect of Capital
Punishment," American Journal of Sociology 86 (July 1980), pp. 139-148, and subsequent
discussion by various hands, American Journal of Sociology 88 (July 1982), pp. 161-172.
tThe National Institute of Mental Health, in its 1982 report Television & Behavior, states
that there is "overwhelming" evidence that TV violence causes "aggressive behavior" in
children. The report's evidence is somewhat questionable, but its conclusion seems common
sense: Children learn from TV and are likely to imitate what they see on the screen or
elsewhere.

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announced as tbey are now, but tbey sbould not become a public spectacle.
Tbere are many actions recognized as useful and necessary tbat, nonetbeless, we do not wisb to open to public view. Vivisection may be indispensable
to medical researcb, but we do not display it. Nor do we sbow tbe painful
effects of some useful medications. One may argue against tbe public sbowing of sexual activity witbout tberefore opposing sex. Tbus, one may argue
against public executions witbout opposing executions. Tbere is no reason
to make a spectacle of any punisbment, of pain, or, for tbat matter, of sex.
Now, it is true tbat tbe deterrent effect of executions-indeed, of all
punisbments-rests on tbeir being known. But executions will be known
witbout being sbown, just as imprisonment is known witbout being sbown.
"Not sbown" is not tbe same as "not known"; not public is not tbe same as
secret. Tbe media certainly sbould be informed wben a convicted murderer
is executed. But it does not follow tbat tbe event sbould be televised, or even
tbat it sbould be described in so mucb detail as to possibly stimulate
imitation.
Abolitionists sometimes cballenge retentionists, suggesting tbat executions would be more deterrent if televised. Tbey imply tbat retentionists
wbo oppose televised executions do not bave tbe courage of tbeir convictions.
Tbe frivolity oftbis argument bas already been indicated. One may add tbat
to see a man at tbe point of deatb always inspires pity and terror-bowever
deserved tbe execution may be. Tbe argument for televising executions
migbt bave more merit, altbougb still not sufficient merit, if tbose favoring
it could find a way of televising tbe murder tbat led to tbe execution as weil.
At least tbe presentation would be more balanced.

The Pickpocket Anecdote


Debate about public executions brings to mind tbe pickpocket anecdote. I bave not been able to ascertain tbe source oftbis anecdote, altbougb
it is frequently referred to in tbe abolitionist literature. Usually-and
wrongly-tbe anecdote is attributed to Dr. Jobnson, via Boswell (I bave
made tbis mistake myself).
According to tbe anecdote, numerous pickpockets were seen to be
active in a crowd in eigbteentb century London tbat bad gatbered to see a
pickpocket banged. Tbose wbo report tbe unverifiable anecdote-se non e
vero e ben trovato-usually conclude tbat even a banging taking place
before tbeir eyes did not deter pickpockets. How, tben, can we expect executions to deter murder? If tbe deatb penalty does not deter pickpockets, it

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won't deter murderers. This plausible conclusion is not legitimate for any
and all of the following reasons:
1. More deterrence can be expected only if ceteris paribus a penalty
has been increased. It was not. Pickpockets bad been hanged for centuries.
They expected to be hanged if convicted. Those who remained or became
pickpockets despite this known threat obviously were not deterred by it.
There was no reason to expect them to become deterred by seeing one of
their number hangedas they fully expected. Any crime rate will be reduced
only when penalties are increased, not when they are unchanged. lt is not
logical to expect offenders who became offenders aware of the risk and the
current penalty to be subsequently deterred by the same risk and the same
penalty. More would be deterred only if the penalty were inflicted more
often or if it became more severe.
For all we know, the death penalty did reduce the number of pickpockets to an unknown degree. That some remained active does not show that it
did not. No penalty is likely to eliminate any crime altogether. Penalties,
including the death penalty, can be expected only to reduce the frequency
of crime.
2. One may object that the public execution, though it does not change
the penalty, makes it more visible, vivid, and impressive. Perhaps. But executions were not unusual in the eighteenth century. They were taken in
stride by everybody and regarded as public entertainment. Executions gathered big crowds whose attention was distracted and who offered great opportunities for pickpockets.
3. The facts as presented in the anecdote suffice neither to prove nor to
disprove any deterrent effects of the public hanging. Perhaps there were
fewer pickpockets active in the execution crowd than in crowds of equal size
gathered for some other reason. Perhaps there were more. We will never
know unless we learn (a) the number of pickpockets active in the execution
crowd, (b) the number of offenses committed by them-and unless we can
compare these numbers to (c) the number of pickpockets active in a crowd
gathered foradifferent occasion, and (d) the number of offenses committed
by them. Without these data no conclusion can be drawn. Deterrence is
always comparative. Nobody maintains that any penalty or any increase of
penalties can deter all offenders. Whether dealing with the threat of death
or of imprisonment, the theory of deterrence suggests only that penalties
reduce (not eliminate) crime and that more severe penalties. including the
death penalty, deter more than less severe ones.
4. Even if the harshness of punishments is greatly increased, as well as

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the risk of suffering them, the added deterrent effect upon those habitually
engaged in criminal activities-e.g., pickpockets-usually is slight.
Increased penalties have little effect on those already committed to crime.
They are effective, rather, by reducing the number of persons who start
criminal activities. Deterrence does not so much inj/uence habits already
formed, criminal or legitimate, as it injiuences habit formation.
Many deterrence studies fail because they disregard the fact that deterrence affects habit formation rather than habits. Thus, deterrence is effective in the long and not so much in the short run. However, most studies are
concerned with short periods. These short-run studies only measure the
effect of new or old threats on criminal habits already formed, whereas the
effectiveness of deterrence can be determined only by measuring the effects
of threats on habit formation.
Criminal habits respond to deterrent threats as economic habits
respond to the threats of unemployment and lower wages. These threats
have only a slight effect on persons already in a given occupation, be it coal
mining or hat making. They have a major effect on the number of new
entrants. So with criminal occupations.
Revenge and Retribution
It has frequently been argued that capital punishment is imposed
merely to gratify an unworthy desire for revenge-unchristian, uncharitable, and futile. Is it? And is revenge the reason for capital punishment?
Obviously capital punishment is imposed not only for revenge or retribution,
but also for the sake of deterrence-to spare future victims of murder by
carrying out the threat of execution upon convicted murderers. But Iet me
leave this aside for the moment.
Retribution certainly does play a role. lt differs from revenge in some
respects, though not in all. Revenge is a private matter, a wish to "get even"
with a person one feels has injured one, whether or not what that person did
was legal. Unlike revenge, retribution is legally threatened beforehand for
an act prohibited by law. It is imposed by due process and only for a crime,
as threatened by law. Retribution is also limited by law. Retribution may
be exacted when there is no personal injury and no wish for revenge; conversely, revenge may be carried out when there was neither a crime nor a
real injury. The desire for revenge is a personal feeling. Retribution is a
legally imposed social institution.
Nonetheless, the motives socialized by punishment, including the death

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penalty, may well include the motive of revenge. But motives should not be
confused with purposes, and least of all with effects. The motive for, say,
capital punishment may well be revenge, at least on the part of the father
bereaved by the murder of bis daughter. The intention of the law, however,
may be to deter other murderers or to strengthen social solidarity by retributive punishment. Either or both or neither of these effects may be achieved.
Consider now the motive of revenge. Is it so contemptible after all?
Perhaps forgiveness is better. It does not follow that revenge is bad. It can
be, after all, a compensatory and psychologically reparative act. I cannot
see wherein revenge must be morally blameworthy if the injury for which
vengeance is exacted is. However, revenge may be socially disruptive: Only
the avenger determines what to avenge, on whom, to what degree, when,
and for what. This leaves far too much room for the arbitrary infliction of
harm. Therefore, societies always have tried to Iimit and regulate revenge
by transforming it into legal retribution, by doing justice according to what
is deserved in place of the injured party.
Retribution is hard to define. It is barder still to determine the punishments that should be exacted by "just deserts" once the Iex talionis is abandoned. Yet retribution does give the feeling of justice that is indispensable
if the law is to be socially supported. In the case of murder, there is not
much doubt about the penalty demanded by our sense of justice. It is hard
to see why the law should promise a murderer that what he did to bis victim
will never be done to him, that he will be supported and protected in prison
as long as he lives, at taxpayers' expense.
Although trendy churchmen recently have tended to deny it, historically the main Christian churches, Roman Catholic and Protestant, have
staunchly supported the death penalty, often on the basis of numerous biblical passages advocating it for murder and sometimes for transgressions
that today we regard as minor. The oft-quoted "vengeance is mine, I will
repay, saith the Lord" (Rom. 12:19) is not as opposed to vengeance as it is
made to appear. Paul does not quote the Lord as rejecting vengeance but as
reserving it to himself: You must not seek vengeance, you must leave it to
the Lord. According to Christian tradition, the punishments the Lord will
inflict upon those whom he does not forgive are far more terrible and Iasting
than what any vengeful mortal could inflict on another. What could be
worse than hell, the punishment inflicted for violating God's law? God recognizes and does not deprecate the desire for vengeance. He teils us to leave
the fulfillment of this desire to Hirn.
If we return to earth and read on after Romans 12, we find in the next

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chapter, 13, what the Apostle Paul actually bad in mind. "The Ruler," he
says in 13:4, "beareth not the sword in vain: for he is the minister of God,
a revenger to execute wrath upon him that doeth evil." The meaning is clear.
The Ruler, not the injured individual, should "execute wrath." Disruptive
private vengeance should be institutionalized and replaced by social retribution, retribution by the ruler. The Gospels, far from opposing it, support
retribution in the very passages so often quoted against it.

JOHN P. CONRAD
This chapter deals with three unrelated topics. I have little to say about
barbarization, more about pickpockets, and still more about revenge and
retribution. Our differences in this exchange are hardly polar, but worth
some brief discussion.

On Barbarization
The accounts of public executions to be found in such treatises as Radzinowicz's History of Eng/ish Criminal Law 1 or Foucault's Discipline and
Punish 2 certainly support my fastidious opponent's aversion for such spectacles. The hangings at Tyburn and Newgate that diverted the eighteenth
century London populace-and many of their aristocratic "betters"-were
barbaric events. The behavior of the central character-his stoicism or bis
fright, bis last statement of repentance or innocence, bis general bearing at
the final moment before he swung-was viewed as a theatrical performance
as to which comparisons and critical judgments could be made.
Even the most ardent contemporary advocates of capital punishment
refuse to recommend public executions. So far as I know, none have
accepted the abolitionist challenge to call for the televised presentation of
the ceremonies in the electric chair or on the gallows. Dr. van den Haag
correctly supposes that the sight of a man facing bis final moments in such
a situation would excite unwholesome sympathies for him.
In short, our collective squeamishness requires that these dreadful spectacles be kept out of sight. Whatever edification they can offer must be limited to a newspaper account, never graphic enough to match the event itself.
W e reserve attendance at the executions to the necessary specialists. Impersonality has replaced barbarism. Whether that is an improvement is not for
me to judge. I favor abolition of the whole process.

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Pickpockets on the Gallows


Sofaras I can discover, the original version of the pickpocket paradox
is to be found in a nineteenth century book of ruminations entitled Vacation
Thoughts on Capital Punishment, written by one Charles Phillips. I have
been unable to obtain a copy of this volume myself, but it was popular
enough in its time to go into four editions. Artbur Koestler, to whose Reflections on Banging I am indebted for this discovery, quotes this author as
explaining that "the thieves selected the moment when the strangled man
was swinging above them as the happiest opportunity, because they knew
that everybody's eyes were on that person and all were looking up." 3
No doubt. That's only a partial answer to my opponent's perplexity.
The anomaly of picking pockets while a pickpocket was swinging doesn't
respond to bis four heavily labored points. I think the explanation of the
paradox is simple enough. The pickpockets knew, with good reason, that the
chances of their being caught, red-handed or otherwise, were slim. At the
time, London bad no organized police. Apprehension for crimes such as this
depended on the initiative, the persistence, and the good luck of the victim.
Occasionally the victim bad enough of all these requisites, or the thief was
inept, and an arrest could be made, the pickpocket could be tried and sent
to the gallows.
But in eighteenth century London, just as in twentieth century New
York, the chances of getting away with a minor property crime were excellent. If you can make away with my wallet without getting caught on the
spot, you won't get caught. And of what significance is any penalty for picking pockets if pickpockets aren't arrested and brought to justice?
Dr. van den Haag's observation, "Penalties, including the death penalty, can be expected only to reduce the frequency of crime" is meaningless
unless the criminals who commit it are apprehended in sufficient numbers
to make the penalty a serious prospect for them.
My empirical opponent's econometrics are true enough of coal miners
and hat makers, and perhaps more or less true of muggers and burglars,
although in these latter occupations the incentives and disincentives are
more complex than they are for steady jobs in a mine or a mill. But murder
is rarely an occupation. Except for hit men and contract assassins, nobody
"enters" the career of murder. The event of murder takes place on impulse,
on a real or fancied provocation, or, sometimes, as an unintended but culpable accident in the course of committing another kind of crime. The application of economic analysis to murder is an absurdity that is not fully appar-

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ent in a university office or on a semmar blackboard. It is singularly


inappropriate in real life.
With all the emphasis that italics can command, Dr. van den Haag
proclaims, "deterrence ... influences habil formation." How does he know
this? He does not say; he merely deplores the concentration of research on
the study of deterrence "in the short run." I have yet tothink of a research
design that will enable him to test the effectiveness of deterrence in forming
habits in the long run, and I predict that my dogmatic opponent is safe from
an empirical refutation of bis commonsense proposition.

Revenge and Retribution


Dr. van den Haag correctly accounts for retribution as a means of satisfying the desire of victims for revenge without the disorders that would
attend personal revenge. Up to that point we are in agreement, but I find it
difficult to follow my opponent's perplexities in defining retribution. In my
chapter on the subject, I went to considerable trouble to define it and its
function in denouncing crime and promoting civic solidarity around norms
of conduct. I explained that retribution does not, cannot, and must not
depend on the Iex talionis, which, it seems, Dr. van den Haag has a lingering
wish to revive.
Just as neither of us is a lawyer-though we venture intrepidly into
discourse on constitutional law when so inclined-neither of us is a theologian. I cannot claim a command of the hermeneutic sturlies of the Pauline
epistles. Nonetheless, the plain intent of Romans 12 is clear enough: Paul
was urging forbearance and forgiveness to those who wrong us. In the last
verse of this noble chapter, he exhorted bis Roman communicants, "Be not
overcome of evil, but overcome evil with good," which, theology to one side,
seems like an excellent principle to live by. In the thirteenth chapter, on
which Dr. van den Haag relies for confirmation of bis preference for executioners to deal with evil, I can learn only that a good Christian must Subordinate hirnself to earthly rulers and their power, because that power is
ordained by God. The good man has nothing to fear from the ruler, but the
evil man must expect the wrath of the ruler as well as bis sword. And I
suppose that the sword could be expected in first-century Rome, and a good
Christian could not plead exemption from the power of the Roman state.
So what is my subtle opponent's point? Neither modern Christianity
nor the American Civil Liberties Union contends that the state does not or
should not have the power to punish evil in any way that seems suitable to
the rulers. As an independent moralist, I say that capital punishment is

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unwise, unnecessary, and a disfigurement of the criminal law. If religious


people and theologians agree with me, I do not see that they are denying
the teaching of Saint Paul.

Notes
1. Sir Leon Radzinowicz, A History of English Crimina/ Law, vol. 4 (London: Stevens,
1948, 1956, 1968). See particularly Volume I, which is replete with the history of capital
punishment.
2. Michel Foucault, Discipline and Punish, trans. Alan Sheridan (New York: Pantheon,
1977), pp. 3-6.
3. Artbur Koestler, Rejlections on Banging (London: Gollancz, 1956), p. 58.

ERNEST VAN DEN HAAG


I rest my case. I do not think my arguments have been refuted. But
two remarks are stimulated by Professor Conrad's response.
1. I am not a lawyer or a theologian, as Conrad correctly observes. I
am also not a criminal. Nonetheless, I feel competent to write on crime, law,
and religion. One does not have to be a participant to form a competent
opinion on an experience-else only Nazis could write about Nazism and
only ancient Greeks on ancient Greece.
2. St. Paul's epistle is better understood if one distinguishes clearly
between justice and mercy. In my opinion, Professor Conrad fails to do so.
Justice distributes punishments (or rewards) according to perceived desert.
I follow the Bible in believing that murderers deserve death. Mercy is compassionate with the distressed or punished or miserable, regardless of desert.
The gospels do stress mercy but do not expect it to replace justice. No society could survive without justice. God hirnself is represented above all as
being just-assigning people to heaven and hell, according to desert. He is,
in addition, merciful and asks us to be, to the extent of loving the criminal
while hating the crime. The repentant criminal may indeed be redeemed.
But Scripture does not say that he will be redeemed in this world, or counsel
that we abolish justice, including the death penalty where deserved, in favor
of mercy.

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