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Cass Sunstein and Adrian Vermeule argue that, if recent empirical studies finding that capital punishment has a substantial deterrent effect are valid, consequentialists and deontologists alike should conclude that capital punishment is not merely morally permissible but actually morally required. While the empirical studies are highly suspect (as John Donohue and Justin Wolfers elaborate in a separate article in this Issue), this Article directly critiques Sunstein and Vermeule's moral argument. Acknowledging that the government has special moral duties does not render inadequately deterred private murders the moral equivalent of government executions. Rather, executions constitute a distinctive moral wrong (purposeful as opposed to nonpurposeful killing) and a distinctive kind of injustice (unjustified punishment). Moreover, acceptance of "threshold" deontology in no way requires a commitment to capital punishment even if substantial deterrence is proven. Rather, arguments about catastrophic "thresholds" face special challenges in the context of criminal punishment. This Article also explains how Sunstein and Vermeule's argument necessarily commits us to accepting other brutal or disproportionate punishments and concludes by suggesting that even consequentialists should not be convinced by the argument.
INTRODUCTION
As an opponent of capital punishment, I have participated in many (and witnessed many more) debates about the morality and wisdom of the death penalty. The debate usually begins with one of two dramatic gambits by the proponent of capital punishment, both of which derive their power from the grievous harms suffered by murder victims and their loved ones. The first gambit is to consider in detail the facts of one or more capital murders and to propose that only the punishment of death is an adequate and proportional response to the terrible suffering of the victim intentionally inflicted by the perpetrator-a predominantly retributive argument. The second gambit-a modified version of which Cass Sunstein and Adrian Vermeule use to begin their provocative article1-is predominantly consequentialist. This gambit is to suggest that if the death penalty can prevent-through incapacitation of the offender or general deterrence-the loss to murder of even one innocent life, then it is a morally justified or perhaps even morally required penal response. A common response to both of these gambits is to ask why it is we do not rape rapists, torture torturers, or rape and then murder those who rape...