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Capital punishment has generated an incredible amount of public debate. Is the practice constitutional? Does it deter crime? Is it humane? Supporters and opponents of capital punishment disagree on all of these issues and many more. There is perhaps only one thing that unites these two camps: the belief that the death penalty is society's most severe punishment.
In this Article, I argue that this belief is mistaken. Capital punishment is not at the top of the punishment hierarchy. In fact, it is no punishment at all. My argument builds from a basic conception of punishment endorsed by the Supreme Court: for something to qualify as a punishment, it must be bad, in some way, for the person who is punished. By drawing upon the philosophical literature regarding death, I show that this is not the case. Contrary to our intuitions, the death penalty is not bad, in any way, for a condemned criminal.
This conclusion should not be understood to suggest that death is never bad. In most circumstances, death is bad. There are, however, situations in which it is not, and capital punishment, as employed in the United States penal system, is one such situation. By showing that capital punishment is not bad for the condemned criminal, I provide a strong constitutional objection to the practice.
INTRODUCTION
The death penalty is the worst punishment society can inflict upon one of its members. It is the most powerful act of reprobation-the ultimate sign of condemnation for a fellow human. Politicians have declared it.1 Scholars have affirmed it.2 Even the United States Supreme Court has held it to be true.3
The claim that death is the ultimate sanction has been repeated so frequently that most simply accept it without question.4 In this Article, however, I ask whether such acceptance is warranted. My investigation leads me to conclude that it is not. In the U.S. criminal justice system, capital punishment is not actually a punishment. As unintuitive as this claim sounds, the Supreme Court's theory of punishment supports this conclusion.
The particular theory endorsed by the Court is known as retribution, and one of its core principles is that, for something to be a punishment, it must be bad, in some way, for the...