Capital Punishment:The Rationales

A slight perusal of the laws by which the measures of vindictive and coercive justice are established will discover so many disproportions between crimes and punishments, such capricious distinctions of guilt, and such confusion of remissness and severity as can scarcely be believed to have been produced by public wisdom, sincerely and calmly studious of public happiness.
—Samuel Johnson, Rambler 114

Nietzsche denied that capital punishment ever arose from a single or consistent theory of its intent or effect. It erupted from a tangle of overlapping yet conflicting urges, which would be fitted out with later rationalizations. The only common denominator he found in the original urges was some form of grievance (he used the French term ressentiment).1 One can expand his own list of such urges:

Killing as exclusion. This occurs when society does not want to admit any responsibility for persons considered outsiders. Abandonment of wounded or captured people one does not want to feed or support is an example, or exposure of unwanted children, or exiling the defenseless (as the blind and old Oedipus was extruded from Thebes), or “outlawing”—leaving people without protection to any predators on them. Outlawing was an English practice continued in our colonies. In fact, Thomas Jefferson, when he revised the laws of Virginia for the new republic, left certain categories of offenders “out of the protection of the laws”—freed slaves who either enter the state or refuse to leave it, a white woman bearing a black child who does not leave the state within a year.2 These could be killed or mistreated in any way without remedy at law. The ancient Greeks denied offenders recourse to law by the penalty of atimia (loss of rights). There were lesser degrees of this, but the full degree of “atimia…and condemnation to death are interchangeable.”3 Nietzsche calls this “Punishment as the expulsion of a degenerate element…as a means of preserving the purity of a race or maintaining a social type.”

Killing as cleansing. Outlawing abandons people to possible or probable death but does not directly bring it about. Other forms of extrusion require society’s purification by destruction of a polluted person. Unless society or its agents effect this purification, the pollution continues to taint them. Lesser pollutions can be robbed of their effect by simply driving away the affected person. But deeper taints are removed only by accompanying the expulsion with something like stoning the polluter to death or throwing him off a cliff. Plato said that the murderer of anyone in his own immediate family was to be killed by judicial officers and magistrate, then “thrown down naked on a designated crossroads outside the city; whereupon every official present must throw his own stone at the head of the corpse, to cleanse the whole city, and finally must take him beyond the land’s outer boundaries and cast him out, all rites of burial denied” (Laws 873b–c).

Killing as execration. Sometimes the community must thrust away contamination by ritual curses (arai), joining the punitive cry of the Furies, who are also called Arai (Aeschylus, Eumenides 417). When Prometheus is punished by exposure as the penalty of theft, Brute Force (Bia) tells the technician clamping him to the rock (Hephaistos) that he should curse as well as immobilize him (Aeschylus, Prometheus 38, 67–68). Southern lynch mobs stayed to curse with fury their hanged victim from a similar impulse.

Killing to maintain social order. Superiors dramatize their dominance by showing that it is easy for those higher in the social scale to kill those lower, but harder for the lower to kill the higher. Plato’s legal code devised a penalty for a slave who kills a free man—public scourging to death before the free man’s tomb and family—that had no symmetrical penalty for a free man who kills a slave (Laws 872b–c). In Jefferson’s legal code, slaves could not testify against whites, but whites could testify against slaves.4 In parts of this country still, a black killing a white is far more likely to receive a death sentence than a white killing a black. Nietzsche calls this “Punishment as a means of inspiring fear of those who determine and execute the punishment.”

Killing to delegitimize a former social order. Revolutionary tribunals execute officials of an overthrown regime. Even without a coup, critics of Athenian democracy claimed that mass juries were too ready to condemn their leaders. When the Turkish general Lala Mustafa Pasha captured Cyprus from the Venetians in 1570, the podestà who had held out against him, Marcantonio Bragadin, was mutilated (nose and ears cut off), dragged around the city walls, dangled from a ship’s mast, tied naked to a post, skinned alive, beheaded, and “quartered” (his four limbs cut off). Then his skin, stuffed with straw, was tied to a cow and led through the streets of the Famagusta, before being returned as a victory prize to Constantinople. Venetian rule was pulverized in its representative. Nietzsche calls this “Punishment as a festival, namely as the rape and mockery of a finally defeated enemy.”


Killing as posthumous delegitimation. Some inquisitors tried dead men and symbolically executed them.5 The leaders of the Gowrie Plot that tried to supplant King James VI of Scotland in 1600 were tried posthumously and their corpses were hanged, drawn (eviscerated), and quartered. In 897, Stephen VI had the corpse of his predecessor, Pope Formosus, exhumed, propped up in his papal garb, tried and condemned for usurpation, stripped of his vestments, his head (that had borne the tiara) cut off, along with the three fingers of his right hand used in benediction, and head, fingers, and body then thrown in the Tiber—all to declare Stephen’s consecration of bishops and ordination of priests invalid.

Killing as total degradation. The previous three forms of execution punished an offender as a member of a class (lower or higher); but other humiliating deaths are contrived to deprive a person of humanity as such. Public torture before death was one means for this—scourging that makes the offender scream and writhe, losing dignity along with his composure. The Greek punishment for theft was apotympanismos, the beating of a naked man clamped down in a crouched position before he was left to die of exposure (it is the punishment given to Prometheus in his play, though he cannot die).6 The death for traitors in Elizabethan England was an elaborate piece of theater. First the offender was dragged backward on a hurdle to the place of execution—signifying, said the Attorney General Sir Edward Coke, that the man was “not worthy any more to tread upon the face of the earth whereof he was made; also for that he hath been retrograde to nature, therefore is he drawn backward at a horse-tail.”7 Then the man (it was a male punishment) was stripped, hanged, cut down living, castrated, disemboweled, his heart and viscera thrown in boiling water, decapitated, quartered, and his head exposed on Tower Bridge. When Jesuit priests were hanged, drawn, and quartered, their head, members, torso, and clothes were hidden away to prevent the taking of relics.

Killing and posthumous degradation. Refusal of burial led the ancient Greeks to let bodies be exposed for ravaging by dogs and kites (Creon’s treatment of Polyneices in Sophocles’ Antigone). Romans let crucified bodies hang to be pecked at and decompose. Florentines in the Renaissance dangled the corpses of criminals from the high windows of the Bargello till they rotted, and commissioned artists like Andrea del Sarto to depict them there, prolonging the shame after they were gone.8 Joan of Arc was killed by a slow fire that consumed her clothes and skin, then the flames were raked away, to expose her body as a woman’s and to show that no demon had spirited her away. Then intense fire was mounted to burn her down to ashes for scattering in the Seine, to prevent any collection of relics.9

Killing by ordeal. In this punish-ment, the innocent were supposed to be protected if subjected to ordeal by combat, ordeal by fire (walking through it, as Saint Francis is supposed to have done in Egypt), or ordeal by water. The latter was especially reserved for suspected witches, who would sink only if innocent. A less lethal form of this punishment survived in the “ducking stool” for immersing witches. Jefferson’s revised code says this: “All attempts to delude the people, or to abuse their understanding by exercise of the pretended [claimed] arts of witchcraft, conjuration, enchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15 stripes.”10

Threatened killing as inducement to remorse. Refusal to undergo trial by ordeal could be taken as a confession, leading to a lesser penalty than death. Recanting could have the same effect. Joan of Arc, when first brought out to the stake with its kindling, renounced her voices as “idolatry” (devil worship), and was given life imprisonment. Only when she abjured her recantation was she actually put to the stake. Scaffold repentance could reduce the sentence to less than death—or, at the least, make officials perform a “merciful” (a swifter, not a lingering) execution—e.g., letting a man die in the noose before being cut down for disemboweling. Nietzsche calls this punishment for the “improvement” of the criminal.

Killing as repayment. The lex talionis, as it exacts “an eye for an eye,” must exact a life for a life. We say, “You’re going to pay for this.” Jefferson followed the logic of his state’s lex talionis:


Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least…. Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury, and moreover shall forfeit one half of his lands and goods to the sufferer.11

Taking a life for a life on this principle is called by Nietzsche “Punishment as recompense to the injured party for the harm done.”

Killing as repayment-plus. In Athenian law, repayment was of equal value if the crime was unintentional, but of double if it was intentional.12 On that principle, death has not been reserved only for taking a life, but can be considered an added penalty for crimes like major theft, rape, treasonous speech, and the like.

Killing as victim therapy. The Attic orator Antiphon has the father of a son killed by accident plead that the unintentional killer must be punished; the death leaves the father aggrieved (epithymion—much like Nietzsche’s ressentiment).13 The grievance, of course, would be even greater if the killing were intentional. Soothing this sense of grievance is now called “giving closure” to the ordeal of victims.

Killing as a form of pedagogy. We say that punishing a man will “teach him a lesson.” More important, it may teach others the consequence of crime, deterring anyone who contemplates a similar offense. Kant said that the person should be treated as his own end, not as a means for others’ advantage. But the person executed is, by this theory, turned into a teaching instrument for the benefit of others.


Public Execution

Experience of past times gives us little reason to hope that any reformation will be effected by a periodical havoc of our fellow beings.
—Samuel Johnson, Rambler 114

The fourteen types of capital punishment listed above do not exhaust all the possible urges expressed in our havocking of others. And as Nietzsche said, they are not neat little separate rationales. They conflict with each other at an intellectual level, but they reinforce each other at the emotional level. They are more powerful for certain people in certain combinations. But they have one thing in common: they all demand, in logic, maximum display and publicity. The outlaw’s status must be proclaimed for people to act on it. The other effects sought—whether cleansing, order enforcement, delegitimation, humiliation, repayment, therapy, deterrence—can only be achieved if an audience sees what is being done to satisfy, intimidate, soothe, or instruct it.

In fact, various means to dramatize the process, to make its meaning clear, to show the right way to “read” it, were invented. Those going to the scaffold often had their crimes blazoned on their backs. Joan of Arc wore a fool’s cap with her four crimes printed on it. A crucified man had his crime posted on the cross. Lesser criminals were branded to sustain the memory of their crime. Ingenious means of execution were invented to express society’s horror, anger, power, and the like. Any punishment that fits the crime should be seen to fit the crime. Indeed, the only urges that people now commonly admit to—the last four in the above list (repayment of two kinds, “closure,” and deterrence)—are closely linked with publicity. The repayment is to us, to society as well as to the victims, the therapy is for the victims’ contemplation, and an act meant to deter should vividly catch the attention of those who might benefit from it. How can they “learn their lesson” if it is not spelled out for them?

Our unconfessed difficulty is that we have given up whatever logic there was to the death penalty, since we have become unable to embrace most of the practices of the past. We no longer believe in a divine miasma to be purged, or divine guidance to be revealed in survival by ordeal. We have given up the desecration of corpses, killing as a reinforcement of class distinctions, torture, maiming, evisceration, and all the multiple methods used to reduce the criminal to a corpus vile. Even Jefferson wavered on the lex talionis when it came to blinding an offender (he could go as far as a nose for a nose, but not as far as an eye for an eye). Our Constitution forbids cruel and unusual punishment, and we take that to mean that there will be no gratuitous humiliation of the convict—we do not even put people in the stocks anymore, much less invite the public to see a condemned man being strapped onto a gurney. We want painless executions, so we have recurred to one of the few humane-looking methods of the Greeks—lethal injection (hemlock), though among the many deterrents to becoming a philosopher, Socrates’ quiet (and self-chosen) death in his seventies has never ranked very high.

So far from stigmatizing or humiliating the inmate of death row, we now provide him with a long and costly process meant to ascertain guilt, with free legal aid if he cannot afford his own, with counseling and family visits, with reading of his choice and TV, a last meal to his specifications, a last request, religious attendance, guaranteed burial, a swift and nearly painless death. We shut up his last hours from the general public, and act as if this secret rite will deter by some magic of mere occurrence. We treat the killing as a dirty little secret, as if we are ashamed of it. Well, we should be ashamed. Having given up on most of the previous justifications for the death penalty, we cling to a mere vestige of the practice, relying most urgently on one of the least defensible defenses of it.



The gibbet, indeed, certainly disables those who die upon it from infesting the community; but their death seems not to contribute more to the reformation of their associates than any other method of separation.
—Samuel Johnson, Rambler 114

The bad faith of the process shows in the insistence on using the deterrence argument when it has been discredited by all the most reputable studies. This is an old story. In the eighteenth century, Samuel Johnson, who liked to defend any tradition he could, discovered no deterrent effect following on traditional executions, though they were far more numerous and far more public than they are now (factors, some people think, that add to deterrent effect). In the middle of the twentieth century, Arthur Koestler could refer to a strong scholarly record on the matter:

This belief in the irreplaceable deterrent value of the death-penalty has been proved to be a superstition by the long and patient inquiries of the Parliamentary Select Committee of 1930 and the Royal Commission on Capital Punishment of 1948; yet it pops up again and again. Like all superstitions, it has the nature of a Jack-in-the-box; however often you hit it over the head with facts and statistics, it will solemnly pop up again, because the hidden spring inside it is the unconscious and irrational power of traditional beliefs.14

Present and former presidents of the most prestigious criminological societies, polled in 1995, overwhelmingly said they did not think the death penalty significantly reduces the homicide rate (94 percent), and they knew of no empirical evidence that would support such a claim (94.1 percent).15 They held (79.2 percent) that execution causes no reduction in crime—a finding confirmed by the fact that states with the death penalty have higher murder rates than those without (the region with the highest number of homicides, the South, accounts for over 80 percent of the nation’s executions).16 Furthermore, countries in Europe that have given up the death penalty have far lower murder rates than does the United States (since those countries do have gun control laws).17 Disbelief in the deterring power of execution is also expressed, though not so overwhelmingly, by police chiefs and sheriffs—not a far-left part of the community—surveyed by Peter D. Hart Research Associates in 1995. They did not think (67 percent) that executions significantly reduce homicides. In fact, New York’s former police chief Patrick V. Murphy responded that “the flimsy notion that the death penalty is an effective law enforcement tool is being exposed as mere political puffery.”18

Expert criminologists said (100 percent, joined in this by 85 percent of the police chiefs) that politicians support the death penalty for symbolic reasons, to show they are tough on crime, though that distracts them (86.6 percent of the criminologists, 56 percent of the police chiefs) from addressing better methods of reducing the homicide rate. The police listed five things that would be more effective in fighting crime, including longer sentences, more police, and gun control. It takes little observation of actual politicians to confirm that politicians support the death penalty for electoral reasons. Now-Senator Dianne Feinstein, who had opposed capital punishment as a very active member of the California parole board, embraced it in 1990 when she ran for governor. When I asked her during that campaign what had made her change her position, she said that she had become convinced that executions do deter other criminals. I said that most studies I had seen denied this, but she told me she had read new and better research, though she could not name it for me. “I’ll send it to you,” she promised—but she never did. The only empirical evidence that mattered to her was her knowledge of the way Rose Bird had been resoundingly defeated for reelection as the chief justice of the Supreme Court of California because she opposed capital punishment.

When Andrew Young ran for governor of Georgia in 1990, he too abandoned his earlier opposition to the death penalty (though his daughter remained an activist opponent of it, because of its disproportionate rate among blacks—the NAACP Legal Defense Fund discovered that a black’s chance of being executed in Georgia was eleven times that of a white). I asked Young if he too had been convinced that executions deter. He said that he had not, but that as mayor of Atlanta he had listened to police tell him that it discouraged them to catch criminals and see them escape execution—“I did it for their morale.” (He did it, though, only when he was leaving the mayor’s office and addressing a much whiter constituency in his race for governor.)

Other politicians obviously look to the polls, not to policy studies, when taking their stand on executions. Campaigning to become the senator from New York, Hillary Clinton knew how much support the state’s former governor, Mario Cuomo, had lost because of his resolute stand against executions. William Weld, while he was still governor of Massachusetts, said that he relied not on studies but on “my gut”: “My gut is that…capital punishment is deterrent.”19 The deft use of the death penalty issue by Bob Graham as governor of Florida and in his 1986 race for the Senate is studied in a book that Timothy McVeigh is known to have read in prison.20 In 1984, Graham dismissed scholarly studies on the death penalty by saying, “This is an issue that is inherently beyond what empirical research can validate,” making him another gut-truster like Weld.21 But if we cannot know the deterrent effect, we are certainly killing one man for a hypothetical effect on others that is uncertain.

Actually, the deterrent theory of capital punishment, always weak, is especially flimsy now, when a rash of cases—some involving DNA evidence—has proved that some innocent men are on death row. The evidence of incompetent defenses, faked evidence, and negligent procedures has led to announced or informal moratoria on executions.22 In Oklahoma alone, where Timothy McVeigh’s crime was committed, the evidence in approximately three thousand cases is now tainted by the defective lab work of one technician, Joyce Gilchrist.23 The execution of the innocent is not a new issue, but widespread public awareness of it is. The British study by the Select Committee on Capital Punishment, cited by Arthur Koestler, found cases of mistaken executions, including “many” reported by the governor of Sing Sing in America.24

Some try to separate the problem of killing the right person from the question of whether we should execute any person at all. But since the principal prop of the death penalty is deterrence theory, that prop is knocked out when uncertainty of guilt enters the national consciousness. Even if we were to grant that executions deter, they may not deter people who think it is a random matter whether the right person is caught. If they might get off while guilty, or be killed while innocent, that fact is not a very stable basis for forswearing a particular homicide. And executing the mentally defective or marginally juvenile, like the disproportionate killing of blacks, cannot much intimidate a would-be murderer who is mentally sound, of mature age, or white.

These considerations join longer-term flaws in the deterrence argument. Juries are readiest to convict people for crimes of passion, sexually charged rape-murders, child-abuse murders, or serial killings. To see these offenders caught will not necessarily affect the person most likely to have the coolness and calculation that deterrence requires. And obviously they do not affect other people in the grip of obsessions, mental instability, or drug- or alcohol-induced frenzy. Plato was against executing those guilty of a crime of passion (Laws 867c–d), but our juries reflect more the anger of society than the didactic strategies of deterrence. In doing this, the juries fail to make the calculations that we are told future murderers will make. The whole theory is senseless.



[People come] in thousands to the legal massacre and look with carelessness, perhaps with triumph, on the utmost exacerbations of human misery.
—Samuel Johnson, Rambler 114

“Closure” has become a buzzword, not only for discussing the death penalty but for addressing any kind of social discontent. When the unmarried mother of Jesse Jackson’s child sued Rev. Jackson, it was not about anything so crass as money, it was to find “closure” for herself and her child.25 Who can deprive a grieving person of solace? This is the argument Antiphon’s prosecutor made when he demanded emotional relief for the loss of his child to an accident. Attorney General John Ashcroft endorsed the argument by arranging for the families of Timothy McVeigh’s victims to see him die. This conflicts with the logic of deterrence, since the families are not viewing the event to deter them from becoming mass murderers. If the real point of executions is to act in terrorem for other criminals, the Oklahoma families are the least appropriate audience.

Ashcroft’s response to the hot pressures of the McVeigh case is just that of Dianne Feinstein or Andrew Young to less emotionally charged instances of capital punishment, where no mass murder is involved. McVeigh, the cold killer revealed in American Terrorist, by Lou Michel and Dan Herbeck,[26 ]triggers all the upsurges of emotion Nietzsche described. We feel that the very existence of a McVeigh is an affront to society, a pollutant of our life, a thing we cannot be clean of without execration. But the politician does not want to be seen ministering to atavistic reactions in their raw state. So he invokes deterrence where it does not apply, or says that humane consideration of the victims’ sympathies trumps all other considerations. Seeing the murderer die, we are told, will just help the families to “close a chapter of their lives.”

But is this really likely? The aim of emotional healing is to bring inflamed emotions of loss and ressentiment back into a manageable relationship with other parts of one’s life. Does that happen when, for many years in most cases (six years so far in McVeigh’s case), a victim’s survivors focus on seeing that someone pays for his or her loss? This tends to reenact the outrage in a person’s mind, rather than to transcend it. It prolongs the trauma, delaying and impeding the healing process. When I asked Sister Helen Prejean, the author of Dead Man Walking,27 what she has observed, she said that families are asked by prosecutors to attend the trial of a relative’s murderer, but to show no emotion lest they cause a mistrial. “They learn new details of the crime, and with each new turn of the trial and its aftermath the media call them to get a reaction.” This is less like healing than like tearing scabs open again and again. Some relatives who want to escape this process are accused by their own of not loving the victim, says Sister Helen: “I have seen families torn apart over the death penalty.”

What’s more, the sterile, anodyne, and bureaucratic procedures of a modern execution can baffle the desire for revenge encouraged before its performance. Sister Helen recalls a man who said he wished to see more suffering, and who comes with pro-death demonstrators to all later executions. This is hardly one who has found “closure.” The eeriness of the closure language was revealed when McVeigh himself, through his lawyer, Rob Nigh, expressed sympathy for the relatives’ “disappointment” after his execution was delayed.28 He is more the manipulator of these grieving people than an offering to them.

Emotional counselors work toward reconciliation with the facts, as religious leaders recommend forgiveness. Many church bodies oppose the death penalty, drawing on rich traditions in the various faiths. Saint Augustine resisted the killing of murderers, even of two men who had murdered one of his own priests, arguing that the fate of souls is in God’s hands (Letters 133, 134). It is true that Thomas Aquinas likened the killing of murderers to the amputation of a limb for the good of the whole body, but his fellow Dominican Niceto Blázquez points out how defective this argument is: Thomas was drawing an analogy with the excommunication of sinners from the Church, the body of Christ—but that is a move meant to promote reunion, to rescue a person from the death of his soul, not to impose a death on the body.29

Conservative Catholics, who are aghast at fellow believers’ willingness to ignore the Pope on matters like contraception, blithely ignore in their turn papal pleas to renounce the death penalty (addressed most recently to the McVeigh case). And I have not seen Bible-quoting fundamentalists refer to the one place in the Gospels where Jesus deals with capital punishment. At John 8:3–11, he interrupts a legal execution (for adultery) and tells the officers of the state that their own sinfulness deprives them of jurisdiction. Jesus himself gives up any jurisdiction for this kind of killing: “Neither do I condemn you.” George W. Bush said during the campaign debates of last year that Jesus is his favorite philosopher—though he did not hesitate to endorse the execution of 152 human beings in Texas, where half of the public defenders of accused murderers were sanctioned by the Texas bar for legal misbehavior or incompetence. Mr. Bush clearly needs some deeper consultation with the philosopher of his choice.

This Issue

June 21, 2001