1.  How does Nathanson first state the argument that is to be considered in this essay?

2.  Ernest van den Haag says that the Supreme Court was mistaken to attend to the 'arbitrariness' argument.
What is van den Haag's response to this argument?

3.  Explain the distinction that van den Haag makes between the demands of justice and the demands of equality.  How does this distinction figure in his objection to the 'arbitrariness' argument?

4.  Explain the two case-scenarios that Nathanson presents that show the initial plausibility of van den Haag's claim that 'we should do justice whenever we can in individual cases and that failure to do justice in all cases is no reason to withold punishment or reward from individuals'.

5.  Nathanson says that there are different 'arguments from arbitrariness', and points out the different kinds of arbitariness in different ways in which tickets might be arbitrarily given out.  Explain his point here.

6.   Nathanson maintains that van den Haag overlooks one extremely important kind of arbitrariness that might occur in the dispensing of punishment.  What is the arbitrariness that van den Haag overlooks, according to Nathanson?

7.   In Nathanson's view, what does research indicate with respect to the  arbitrariness that van den Haag misses?

8.  State clearly the (kind of) arbitrariness that van den Haag is addressing in his objection to the argument from arbitrariness.

9.   Nathanson offers  a couple of 'rhetorical questions' that he says characterize characterize van den Haag's objections to the argument from arbitrariness under consideration here.  What are these questions?

10.  Explain the two case-scenarios that Nathanson presents to use against van den Haag's objections?

11.  Explain the conclusions that Nathanson draws from his second pair of  scenarios.

12.  Explain the implications that Nathanson's second set of scenarios have for van den Haag's objection, as Nathanson sees these things.

13.  Nathanson takes into consideration the possibility that the 'deliberateness' with which the arbitrary punishments are distributed may be reason for complaint against his examples.  How does he respond to such a possibility?

14.  Nathanson mentions an ojection that supporter of the death penalty might make even though these supporters acknowledge that the arbitrariness pointed out by Nathanson is, indeed, a serious complaint against the death penalty.  Explain this objection.

15.  How does Nathanson respond to those who complain that if we are forced to abandon the death penalty because of arbitrary application, we will be forced to abandon virtually all punishment for the same reason?

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Discussion questions

1.  Are Nathanson's criticisms of van den Haag fair to the position that van den Haag holds, as far as you can tell from the van den Haag reading that has been assigned?

2.  On balance, does Nathanson make a strong enough case to make reasonable people give up the Death Penalty, or can reasonable people still maintain that the death penalty should be allowed?  To the best of your ability, explain how someone might defend the latter view.

 Stephen Nathanson is professor of philosophy at Northeastern University. His books include An Eye for an Eye: The Morality of Punishing by Death and Should We Consent to be Govemed? He argues that the state institution of the death penalty ought to be abolished because it has been and will continue to be arbitrarily imposed. He also anticipates, and responds to, some of Ernest van den Haag's objections to the argument from arbitrariness.

 In this article, I will examine the argument that capital punishment ought to be abolished because it has been and will continue to be imposed in an arbitrary manner.

  This argument has been central to discussions of capital punishment since the Supreme
 Court ruling in the 1972 case Furman u Georgia. In a 5 - decision, the Court ruled that capital punishment as then administered was unconstitutional. Although the Court issued several opinions, the problem of arbitrariness is widely seen as having played a central role in the Court's thinking. As Charles Black, Jr., has put it,

 . . . The decisive ground of the 1972 Furman case anti-capital punishment ruling—the
 ground persuasive to the marginal justices needed for a majority—was that, out of a
 large number of persons "eligible" in law for the punishment of death, a few were se
  lected as if at random, by no stated (or perhaps statable) critena, while all the rest
  suffered the lesser penalty of imprisonment.1

  Among those justices moved by the arbitrariness issue, some stressed the discriminatory aspects of capital punishment, the tendency of legally irrelevant factors like race and economic status to determine the severity of sentence, while others emphasized the "freakish" nature of the punishment, the fact that it is imposed on a minuscule percentage of murderers who are not obviously more deserving of death than others.

  Although the Supreme Court approved new death penalty laws in Gregg u Georgia (1976), the reasoning of Furman was not rejected. Rather, a majority of the Court determined that Georgia's new laws would make arbitrary imposition of the death penalty much less likely. By amending procedures and adding criteria which specify aggravating and mitigating circumstances, Georgia had succeeded in creating a system of "guided discretion," which the court accepted in the belief that it was not likely to yield arbitrary insults.

  The Gregg decision has prompted death penalty opponents to attempt to show that "guided discretion" is an illusion. This charge has been supported in various ways. Charles Black has supported it by analyzing both the legal process of decision making in capital cases and the legal criteria for determining who is to be executed. He has argued that, appearances to the contrary, there are no meaningful standards operating in the system. Attacking from an empirical angle, William Bowers and Glenn Pierce have tried to show that even after Furman and under new laws, factors like race and geographic location of the trial continue to play a large role and that the criteria which are supposed to guide judgment do not separate those sentenced into meaningfully distinct groups. Perhaps the most shocking conclusion of Bowers and Pierce concerns the large role played by the race of the killer and the victim, as the chances of execution are by far the greatest when blacks kill whites and least when whites kill blacks.2

  The upshot of both these approaches is that "guided discretion" is not working and, perhaps, cannot work. If this is correct and if the argument for arbitrariness is accepted, then it would appear that a return from Gregg to Furman is required. That is, the Court should once again condemn capital punishment as unconstitutional.

  I have posed these issues in terms of the Supreme Court's deliberations. Nonetheless, for opponents of the death penalty, the freakishness of its imposition and the large role played by race and other irrelevant factors are a moral as well as a legal outrage. For them, there is a fundamental moral injustice in the practice of capital punishment and not just a departure from the highest legal and constitutional standards.

 The argument from arbitrariness has not, however, been universally accepted, either as a moral or a constitutional argument. Ernest van den Haag, an articulate and longtime defender of the death penalty, has claimed that the Supreme Court was wrong to accept this argument in the first place and thus that the evidence of arbitrariness presented by Black, Bowers and Pierce and others is beside the point. In his words

 . . . the abolitionist argument from capnciousness, or discretion, or discrimination, would be more persuasive if it were alleged that those selectively executed are not guilty. But the argument merely maintains that some other guilty, but more favored persons, or groups, escape the death penalty. This is hardly sufficient for letting anyone else found guilty escape the penalty  On the contrary, that some guilty persons or groups elude it argues for extending the death penalty to them.

  Having attacked the appeal to arbitrariness, van den Haag goes on to spell out his own conception of the requirements of justice. He writes:

 Justice requires punishing the guilty—as many of  the guilty as possible, even if only some can punished—and sparing the innocent—as many of the innocent as possible, even if not all are spared. It would surely be wrong to treat everybody with equal injustice in preference to meting out justice at least to some.... [I]f the death penalty is morally just, however discriminatorily applied to only some of the guilty, it does remain just in each case in which it is applied.

 Distinguishing sharply between the demands of justice and the demands of equality, van den Haag claims that the justice of individual punishments depends on individual guilt alone and not on whether punishments are equally distributed among the class of guilty persons.

  Van den Haag's distinction between the demands of justice and the demands of equality parallels the distinction drawn by Joel Feinberg between "noncomparative" and ``comparative'' justice. Using Feinberg's terminology, we can express van den Haag's view by saying that he believes that the justice of a particular punishment is a noncomparative matter. It depends solely on what a person deserves and not on how others are treated. For van den Haag, then, evidence of arbitrariness and discrimination is irrelevant, so long as those who are executed are indeed guilty and deserve their punishment.

  There is no denying the plausibility of van den Haag's case. In many instances, we believe it is legitimate to punish or reward deserving individuals, even though we know that equally deserving persons are unpunished or unrewarded. Consider two cases:

 A. A driver is caught speeding, ticketed, and required to pay a fine. We know that the percentage of speeders who are actually punished is extremely small, yet we would probably regard it as a joke if the driver protested that he was being treated unjustly or if someone argued that no one should be fined for speeding unless all speeders were fined.

 B. A person performs a heroic act and receives a substantial reward, in addition to the respect and admiration of his fellow citizens. Because he deserves the reward, we think it just that he receive it, even though many equally heroic persons are not treated similarly. That most heroes are unsung is no reason to avoid rewarding this particular heroic individual.

  Both of these instances appear to support van den Haag's claim that we should do justice whenever we can in individual cases and that failure to do justice in all cases is no reason to withhold punishment or reward from individuals.

 Is the argument from arbitrariness completely unfounded then? Should we accept van den Haag's claim that "unequal justice is justice still"?

  In response to these questions, I shall argue that van den Haag's case is not as strong as it looks and that the argument from arbitrariness can be vindicated.

  As a first step in achieving this, I would like to point out that there are in fact several different arguments from arbitrariness. While some of these arguments appeal to the random and freakish nature of the death penalty, others highlight the discriminatory effects of legally irrelevant factors. Each of these kinds of arbitrariness raises different sorts of moral and legal issues.

  For example, though we may acknowledge the impossibility of ticketing all speeding drivers and still favor ticketing some, we must not find every way of determining which speeders are ticketed equally just. Consider the policy of ticketing only those who travel at extremely high speeds, as opposed to that of ticketing every tenth car. Compare these with the policy of giving tickets only to speeders with beards and long hair or to speeders whose cars bear bumper stickers expressing unpopular political views. While I shall not pursue this point in detail, I take it to be obvious that these different selection policies are not all equally just or acceptable.

  A second difference between versions of the argument from arbitrariness depends on whether or not it is granted that we can accurately distinguish those who deserve to die from those who do not. As van den Haag presents the argument, it assumes that we are able to make this distinction. Then, the claim is made that from this class of people who deserve to die, only some are selected for execution. The choice of those specific persons from the general class of persons who deserve to die is held to be arbitrary.

  Van den Haag neglects a related argument which has been forcefully defended by Charles Black. Black's argument is that the determination of who deserves to die—the first step—is itself arbitrary. So his claim is not merely that arbitrary factors determine who among the deserving will be executed. His point is that the determination of who deserves to die is arbitrary. His main argument is that  the official choices—by prosecutors, judges,  juries, and governors—that divide those who are to die from those who are to live are on the whole not made, and cannot be  made, under standards that are consistently meaningful and clear, but that they are often made, and in the foreseeable future will continue often to be made, under no standards  at all or under pseudo-standards without discoverable meaning.6

  According to Black, even the most conscientious officials could not make principled judgments about desert in these instances, because our laws do not contain clear principles for differentiating those who deserve to die from those who do not. While I shall not try to summarize Black's analysis of the failures of postFurman capital punishment statutes, it is clear that if van den Haag were to meet this argument,  he would have to provide his own analysis of these laws in order to show that they do provide clear and meaningful standards. Or, he would have to examine the actual disposition of cases under these laws to show that the results have not been arbitrary. Van den Haag does not attempt to do either of these things. This seems to result from a failure to distinguish (a) the claim that judgments concerning who deserves to die are arbitrarily made, from (b) the claim that judgments concerning who among the deserving shall be executed are arbitrarily made.

  Van den Haa~s may simply assume that the system does a decent job of distinguishing those who deserve to die from those who do not, and his assumption gains a surface plausibility because of his tendency to oversimplify the nature of the judgments which need to be made. In contrast to Black, who stresses the complexity of the legal process and the complexity of the judgments facing participants in that process, van den Haag is content to say simply that "justice requires punishing the guilty. . . and sparing the innocent." This maxim makes it look as if officials and jurors need only divide people into two neat categories, and if we think of guilt and innocence asfactual categories, it makes it look as if the only judgment necessary is whether a person did or did not kill another human being.

  In fact, the problems are much more complicated than this. Not every person who kills another human being is guilty of the same crime. Some may have committed no crime at all, if their act is judged to be just)fiable homicide. Among others, they may have committed first degree murder, second-degree murder, or some form of manslaughter Furthermore, even if we limit our attention to those who are convicted of first-degree murder, juries must consider aggravating and mitigating circumstances in order to judge whether someone is guilty enough to deserve the death penalty. It is clear, then, that simply knowing that someone is factually guilty of killing another person is far from sufficient for determining that he deserves to die, and if prosecutors, juries, and judges do not have criteria which enable them to classify those who are guilty in a just and rational way, then their judgments about who deserves to die will necessanly be arbitrary and unprincipled.

  Once we appreciate the difficulty and complexity of the judgments which must be made
 about guilt and desert, it is easier to see how they might be influenced by racial characteris
 tics and other irrelevant factors. The statistics compiled by Bowers and Pierce show that blacks
 killing whites have the greatest chance of being executed, while whites killing blacks have the
 least chance of execution. What these findings strongly suggest is that officials and jurors think
 that the killing of a white by a black is a more serious crime than the killing of a black by a
 whice. Hence, they judge that blacks killing whites deserve a more serious punishment than
 whites killing blacks. Given the bluntness of our ordinary judgments about desert and the com
 plexity of the choices facing jurors and of ficials, it may not be surpnsing either that people find it difficult to make the fine discriminations required by law or that such judgments are influenced by deep-seated racial or social attitudes.

  Both legal analysis and empirical studies should undermine our confidence that the legal system sorts out those who deserve to die from those who do not in a nonarbitrary manner. If we cannot be confident that those who are executed in fact deserve to die, then we ought not to allow executions to take place at all.

  Because van den Haag does not distinguish this argument from other versions of the argument from arbitrariness, he simply neglects it. His omission is serious because this argument is an independent, substantial argument against the death penalty. It can stand even if other versions of the argument from arbitrariness fall.

 I would like now to turn to the form of the argument which van den Haag explicitly deals with and to consider whether it is vulnerable to his criticisms. Let us assume that there is a class of people whom we know to be deserving of death. Let us further assume that only some of these people are executed and that the executions are arbitrary in the sense that those executed have not committed worse crimes than those not executed. This is the situation which Justice Stewart described in Furman. He wrote:

 These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.

What is crucial here (and different from the argument previously discussed) is the assumption that we can judge the reprehensibility of both the petitioners and others convicted of similar crimes. Stewart does not deny that the petitioners deserve to die, but because other equally deserving people escape the death penalty for no legally respectable reasons, the executions of the petitioners, Stewart thought, would violate the Eighth and Fourteenth Amendments.

  This is precisely the argument van den Haag rejected. We can sum up his reasons in the following rhetorical questions: How can it possibly be unjust to punish someone if he deserves the punishment? Why should it matter whether or not others equally deserving are punished?

I have already acknowledged the plausibility of van den Haag's case and offered the examples of the ticketed speeder and the rewarded hero as instances which seem to confirm his view. Nonetheless, I think that van den Haag is profoundly mistaken in thinking that the justice of a reward or punishment depends solely on whether the recipient deserves it.

Consider the following two cases which are structurally similar to A and B (given above) but which elicit different reactions:

 C. I tell my class that anyone who plagiarizes will fail the course. Three students plagiarize papers, but only one receives a failing grade. The other two, in describing their motivation, win my sympathy, and I give them passing grades.

 D. At my child's birthday party, I offer a prize to the child who can solve a particular puzzle. Three children, including my own, solve the puzzle. I cannot reward them all so I give the prize to my own child.

  In both cases, as in van den Haag's, only some of those deserving a reward or punishment receive it. Unlike cases A and B, however, C and D do not appear to be just, in spite of the fact that the persons rewarded or punished deserve what they get. In these cases, the justice of giving them what they deserve appears to be affected by the treatment of others.

  About these cases I am inclined to say the following. The people involved have not been treated justly. It was unjust to fail the single plagiarizer and unjust to reward my child. It would have been better—because more just—to have failed no one than to have failed the single student. It would have been better to have given a prize to no one than to give the prize to my child alone.

  The unfairness in both cases appears to result from the fact that the reasons for picking out those rewarded or punished are irrelevant and hence that the choice is arbitrary. If I have a stated policy of failing students who plagiarize, then it is unjust for me to pass students with whom I sympathize. Whether I am sympathetic or not is irrelevant, and I am treating the student whom I do fail unjustly because I am not acting simply on the basis of desert. Rather, I am acting on the basis of desert plus degree of sympathy. Likewise, in the case of the prize, it appears that I am preferring my own child in giving out the reward, even though I announced that receipt of the award would depend only on success in solving the puzzle.

  This may be made clearer by varying the plagiarism example. Suppose that in spite of my stated policy of failing anyone who plagiarizes, Iam regularly lenient toward students who seem sufficiently repentant. Suppose further that I am regularly more lenient with attractive female students than with others. Or suppose that it is only redheads or wealthy students whom I fail. If such patterns develop, we can see that whether a student fails or not does not depend simply on being caught plagiarizing. Rather, part of the explanation of a particular student's being punished is that he or she is (or is not) an attractive female, redheaded or wealthy. In these instances, I think the plagiarizers who are punished have grounds for complaint, even though they were, by the announced standards, clearly guilty and deserving of punishment.

  If this conclusion is correct, then doing justice is more complicated than van den Haag realizes. He asserts that it would be "wrong to treat everybody with equal injustice in preference to meting out justice at least to some." If my assessment of cases C and D is correct, however, it is better that everyone in those instances be treated "unjustly" than that only some get what they deserve. Whether one is treated justly or not depends on how others are treated and not solely on what one deserves.

  In fact, van den Haag implicitly concedes this point in an interesting footnote to his essay. In considering the question of whether capital punishment is a superior deterrent, van den Haag mentions that one could test the deterrent power of the death penalty by allowing executions for murders committed on Monday, Wednesday, and Friday, while setting life imprisonment as the maximum penalty for murders committed on other days. In noting the obstacles facing such an experiment, he writes:

 . . . it is not acceptable to our sense of justice that people guilty of the same crime would get different punishments and that the difference would be made to depend deliberately on a factor irrelevant to the nature of the crime or of the criminal. (emphasis added)

  Given his earlier remarks about the argument from arbitrariness, this is a rather extraordinary comment, for van den Haag concedes that the justice of a punishment is not solely determined by what an individual deserves but is also a function of how equally deserving persons are treated in general.

  In his case, what he finds offensive is that there is no difference between what the Monday, Wednesday, Friday murderers deserve and what the Tuesday, Thursday, Saturday, and Sunday murderers deserve. Yet the morally irrelevant factor of date is decisive in detemmining the seventy of the punishment. Van den Haag (quite rightly) cannot swallow this.

  Yet van den Haag's example is exactly parallel to the situation described by opponents of the death penalty. For, surely, the race of the criminal or victim, the economic or social status of the criminal or victim, the location of the crime or trial and other sue) factors are as irrelevant to the gravity of the crime and the appropnate severity of the punishment as is the day of the week on which the crime is committed. It would be as outrageous for the severity of the punishment to depend on these factors as it would be for it to depend on the day of the week on which the crime was committed.

  In fact, it is more outrageous that death sentences depend on the former factors because a person can control the day of the week on which he murders in a way in which he cannot control his race or status. Moreover, we are committed to banishing the disabling effects of race and economic status from the law. Using the day of the week as a critical factor is at least not invidiously discriminatory, as it neither favors nor disfavors previously identifiable or disadvantaged groups.

  In reply, one might contend that I have overlooked an important feature of van den Haag's example. He rejected the deterrence experiment not merely because the severity of punishment depended on irrelevant factors but also because the irrelevant factors were deliberately chosen as the basis of punishment. Perhaps it is the fact that irrelevant factors are deliberately chosen which makes van den Haag condemn the proposed experiment.

  This is an important point. It certainly makes matters worse to decide deliberately to base life and death choices on irrelevant considerations. However, even if the decision is not deliberate, it remains a serious injustice if irrelevant considerations play this crucial role. Individuals might not even be aware of the influence of these factors. They might genuinely believe that their judgments are based entirely on relevant considerations. It might require painstaking research to discover the pattems underlying sentencing, but once they are known, citizens and policymakers must take them into consideration. Either the influence of irrelevant factors must be eradicated or, if we determine that this is impossible, we may have to alter our practices more radically.

  This reasoning, of course, is just the reasoning identified with the Furman case. As Justice Douglas wrote:

 A law that stated that anyone making more than $50,000 would be exempt from the death penalty would plainly fall, as would a law that in terms said that blacks, those who never went beyond the fifth grade in school, those who make less than $3,000 a year, or those who were unpopular or unstable should be the only people executed. A law which in the overall view reaches the same result in practice has no more sanctity than a law which in terms provides the same.

  The problem, in Douglas's view, was that the system left life and death decisions to the "uncontrolled discretion of judges or juries," leading to the unintended but nonetheless real result that death sentences were based on factors which had nothing to do with the nature of the crime. What I want to stress here is that the arbitrariness and discrimination need not be purposeful or deliberate. We might discover, as critics allege, that racial prejudice is so deeply rooted in our society that prosecutors, juries, and judges cannot free themselves from prqudice when determining how severe a punishment for a crime should be. Furthermore, we might conclude that these tendencies cannot be eradicated, especially when juries are called upon to make subtle and complex assessments of cases in the light of confusing, semi-technical criteria. Hence, although no one decides that race will be a factor, we may predict that it will be a factor, and this knowledge must be considered in evaluating policies and institutions.

  If factors as irrelevant as the day of the crime determine whether people shall live or die and if the influence of these factors is ineradicable, then we must conclude that we cannot provide a just syscem of punishment and even those who are guilty and deserving of the most severe punishments (like the Monday killers in van den Haag's experiment) will have a legitimate complaint that they have been treated unjustly.

 I conclude, then, that the treatment of classes of people is relevant to determining the justice of punishments for individuals and van den Haag is wrong to dismiss the second form of the argument from arbitrariness. That argument succeeds in showing that capital punishment is unjust and thus provides a powerful reason for abolishing it.

 Supporters of the death penalty might concede that serious questions of justice are raised by the influence of arbitrary factors and still deny that this shows that capital punishment ought to be abolished. They could argue that some degree of arbitrariness is present throughout the system of legal punishment, that it is unreasonable to expect our institutions to be perfect, and that acceptance of the argument from arbitrariness would commit us to abolishing all punishment. In fact, van den Haag makes just these points in his essay. He writes:

 The Constitution, though it enjoins us to minimize capriciousness, does not enjoin a standard of unattainable perfection or exclude penalties because that standard has not been attained.... I see no more merit in the attempt to persuade the courts to let all capital-crime defendants go free of capital punishment because some have wrongly escaped it than I see in an attempt to persuade
 the courts to let all burglars go because some have wrongly escaped imprisonment.

  It is an important feature of this objection that it could be made even by one who conceded the injustice of arbitrarily administered death sentences. Rather than agreeing that capital punishment should be abolished, however, this objection moves from the premise that the flaws revealed in capital punishment are shared by all punishments to the conclusion that we must either (a) reject all punishments (because of the influence of arbitrary factors on them) or (b) reject the idea that arbitrariness provides a aufficient ground for abolishing the death penalty.

  Is there a way out of this dilemma for death penalty opponents?

  I believe that there is. Opponents of the death penalty may continue to support other punishments, even though their administration also involves arbitrariness. This is not to suggest, of course, that we should be content with arbitrariness or discrimination in the imposition of any punishment. Rather the point is to emphasize that the argument from arbitrariness counts against the death penalty with special force. There are two reasons for this.

  First, death is a much more severe punishment than imprisonment. This is universally acknowledged by advocates and opponents of the death penalty alike. It is recognized in the law by the existence of special procedures for capital cases. Death obliterates the person, depriving him or her of life and thereby, among other things, depriving him or her of any further rights of legal appeal, should new facts be discovered or new understandings of the law be reached. In this connection, it is worth recalling that many people were executed and are now dead because they were tried and sentenced under the pre-Furman laws which allowed the "uncontrolled discretion of judges and juries."

  Second, though death is the most severe punishment in our legal system, it appears to be unnecessary for protecting citizens, while punishments generally are thought to promote our safety and well-being. The contrast between death and other punishments can be brought out by asking two questions. What would happen if we abolished all punishments? And, what would happen if we abolished the death penalty?

  Most of us believe that if all punishments were abolished, there would be social chaos, a Hobbesian war of all against all. To do away with punishment entirely would be to do away with the criminal law and the system of constraints which it supports. Hence, even though the system is not a just one, we believe that we must live with it and strive to make it as fair as possible. On the other hand, if we abolish capital punishment, there is reason to believe that norhing will happen. There is simply no compelling evidence that capital punishment prevents murders better than long-term prison sentences. Indeed, some evidence even suggests that capital punishment increases the number of murders. While I cannot review the various empirical studies of these questions here, I think it can plausibly be asserted that the results of abolishing punishment generally would be disastrous, while the results of abolishing capital punishment are likely to be insignificant.

  I conclude then that the argument from arbitrariness has special force against the death penalty because of its extreme severity and its likely uselessness. The arbitrariness of other punishments may be outweighed by their necessity, but the same cannot be said for capital punishment.

In closing, I would like to comment briefly on one other charge made by van den Haag, the charge that the argument from arbitrariness is a "sham" argument because it is not the real reason why people oppose the death penalty. Those  who use this argument, van den Haag claims, would oppose capital punishment even if it were not arbitrarily imposed.

  At one level, this charge is doubly fallacious. The suggestion of dishonesty introduced by the word "sham" makes the argument into an ad hominem. In addition, the charge suggests that there cannot be more than one reason in support of a view. There are many situations in which we offer arguments and yet would not change our view if the argument were refuted, not because the argument is a sham, but because we have additional grounds for what we believe.

  Nonetheless, van den Haag's charge may indicate a special difficulty for the argument from arbitrariness, for the argument may well strike people as art)ficial and legalistic. Somehow, one may feel that it does not deal with the real issues—the wrongness of killing, deterrence, and whether murderers deserve to die.

  Part of the problem, I think, is that our ordinary moral thinking involves specific forms of conduct or general rules of personal behavior. The argument from arbitrariness deals with a feature of an institution, and thinking about institutions seems to raise difficulties for many people. Believing that an individual murderer deserves to die for a terrible crime, they infer that there ought to be capital punishment, without attending to all of the implications for other individuals which will follow from setting up this practice.

  The problem is similar to one that John Stuart Mill highlighted in On Liberty. For many people, the fact that an act is wrong is taken to be aufficient ground for its being made illegal. Mill argued against the institutionalization of all moral judgments, and his argument still stnkes many people as odd. If the act is wrong, they ask, shouldn't we do everything in our power to stop it? What they fail to appreciate, however, are all of the implications of institutionalizing such judgments.

  Likewise, people ask, If so and so deserves to die, shouldn't we empower the state to execute him? The problem, however—or one of many problems—is that institutionalizing this judgment about desert yields a system which makes neither moral nor legal sense. Moreover, it perpetuates and exacerbates the liabilities and disadvantages which unjustly befall many of our fellow citizens. These are genuine and serious problems, and those who have raised them in the context of the capital punishment debate have both exposed troubling facts about the actual workings of the criminal law and illuminated the difficulties of acting justly. Most importantly, they have produced a powerful argument against authorizing the state to use death as a punishment for crime.

 NOTES

  1. Capital Pun6hment: The Inevitability of Caprice and Mistahe, 2d ed. (New York: W W Nonon ~ Co., 1981), p. 20.

  2. lbid., passim; W Bowers and G. Pierce, "Arbitranness and Discrimination under Post Furman Capital Statutes," Cnme ~ Delinquency 26 (1980) 563~35. Reprinted in The Death Penalty in Amenca, 3d ed. ed. Hugo Bedau (New York: Oxford University Press, 1982), pp. 206-24.

  3. "The Collapse of the Case Against Capital Punishment," National Review, 31 March 1978: 397. A bnefer version of

 this paper appeared in the Cnminal Law Bulletin 14 (1978): 51-68 and is reprinted in Bedau, pp. 323-33.

 4 Ibid.

  5. "Noncomparative Justice," in Rights, Justice, and the Bounds of Llherty Essays in Social Philosophy (Pnnceton, NJ: Princeton University Press, 1980); originally published in the Philosophical Review 83 (1974): 297-338.

6. Black, Capital Punishment, p. 29.
7. Reprinted in Bedau, pp. 263 64.

  8. Using Feinberg's terminology, these can be described as cases in which the critena of comparative and noncomparative justice conflict with one another. l am arguing that in these instances, the cntena of comparative justice take precedence. Although Feinberg does discuss such conflicts, it is unclear to me from his essay whether he would agree with this claim.

  9. Van den Haag, "The Collapse of the Case Against Capital Punishment," p. 403, n. 12. (This important footnote does not appear in the shorter version of the paper.)

 10. Repnnted in Bedau, pp. 255-56.

 11. Van den Haag, "The Collapse of the Case Against Capital Punishment," p. 397.

 12. For a discussion of the role of discnmination throughout the cnminal justice system and recommendations for reform, see American Fnends Service Committee, Strugglefor Jushce (New York: Hill and Wang, 1971).

 13. In support oE the superior deterrent power of the death penalty, van den Haag cites 1. Ehrlich, "The Deterrent Effect of Capital Punishment: A Question of Life and Death," Amencan Economic Review 65 (1975): 397-417. Two reviews of the evidence on deterrence, both of which criticize Ehrlich at length, are Hans Zeisel, "The Deterrent Effect of the Death Penalty: Facts v Faith," and Lawrence Klein et al., "The Deterrent Effect of Capital Punishment: An Assessment of the Evidence." (Both of these articles appear in Bedau.) The thesis that executions increase the number of homicides is defended by W Bowers and G. Pierce in "Deterrence or Brutalization: What is the Effect of Executions?," Cnme 6 Delinquency 26 (1980): 453-84.

 My thanks are due to Hugo Bedau, William Bowers, Richard Daynard, and Ernest van den Haag for reactions to my thinking about the death penalty I would especially like to thank Ursula Bentele for helpful discussions and access to unpublished research, Nelson Lande for spirited comments (both philosophical and grammatical), andJohn Troyer, whose keen and persistent cnticisms of my views forced me to wnte this article.

 Stephen Nathanson, "Does It Matter If the Death Penalty Is Arbitranly Administered?"

Philosophy And Public A~airs 14

 (Spnng 1985). Copyright (c) 1985 by Pnnceton University

 Press. Reprinted by permission of Pnnceton University Press.