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The sections relevant to the Nathanson essay begin with the section entitled 'Discrimination' below.

Study questions.

1. State clearly and concisely each of the criticisms that van den Haag makes against Nathanson.

2. With respect to each of the criticisms offered by van den Haag against Nathanson, are they criticisms of a point that Nathanson actually holds/argues for?

3. Offer your own assessment of the effectiveness of van den Haag's criticisms. In other words, who makes the better case, Nathanson or van den Haag? Defend your view point by point.

4. State clearly and concisely each of the criticisms that van den Haag makes against Reiman.

5. With respect to each of the criticisms offered by van den Haag against Reiman, are they criticisms of a point that Reiman actually holds/argues for?

6. Offer your own assessment of the effectiveness of van den Haag's criticisms. In other words, who makes the better case, Reiman or van den Haag? Defend your view point by point.

Refuting Reiman and Nathanson, by Ernest van den Haag

Ernest van den Haag responds here to Jeffrey Reiman and Stephen Nathanson s arguments. He asserts that Reiman fails to show that the death penalty is necessarily inconsistent with .advanced" "civilizations. " He also questions Reiman's efforts to justify alternative punishments as appropriate to the crime of murder. He accuses Nathanson of preferring "equal injustice "(letting all get away with murder if some do) to "unequal justice" (punishing some deservedly guilty murderers, even if a few do escape their rightful punishment).

I shall consider Jeffrey Reiman's view of the punishment offenders deserve before turning to his moral scruples, alleged to justify lesser punishments, and to the discriminatory distribution of the death penalty which Stephen Nathanson stresses.

Reiman believes the death penalty is deserved by some murderers, but should never be imposed. Moral scruples should preclude it. If the punishment deserved according to the lex talionis is morally repugnant, we may impose less, provided the suffering imposed in lieu of what is deserved is proportional to the suffering inflicted on the crime victim. However, suffering exceeding that of his victim can never be deserved by the offender; to impose it would be "unjust for the same reasons that make punishment of the innocent unjust."

MEASUREMENT

How do we know whether the punitive suffering to be imposed on the offender is less or "equal to that which he imposed on the victim" so as not to exceed what he deserves?' Cardinal and interpersonal measurement of suffering would be required to find out. Although ordinal measurement is possible in some cases, the cardinal and interpersonal measurement required by Reiman's scheme is not.3 How many days must the kidnapper be confined, to suffer as much, but no more, than his victim? If he kept his victim three days, are three days of confinement correct? Or three hundred? Or one thousand? If he half-starved his victim, should we do as much to him, or, how do we commute starvation into additional time?

Punishment for kidnapping can be, within limits, of the same kind as the crime, although all we can actually do to conform to Reiman's prescription even here is to confine for a longer time the kidnapper who kept his victim for a longer time. We have no way of comparing the victim's suffering with the victimizer's, and to limit the latter accordingly Execution too bears some similarity to the murderer's crime. But confinement? How do we make it commensurate with murder? What about the punishment for assault, burglary, or rape? How do we compare the pain suffered by the victims with the pain to be imposed on the offender by confinement, to make sure that the latter not exceed the fonner? There is no way of applying Reiman's criterion of desert. Fortunately, we don't need to.

ACTUAL DESERT

Even if, somehow, we knew that three days'confinement inflicts as much pain as his victim suffered on the kidnapper who kept his victim three days, we would feel that the kidnapper deserves much more punishment. That feeling would be appropriate. The offender imposed undeserved suffering on his victim. Why should society not impose undeserved (in Reiman's terminology) suffering on the offender? Tt would be undeserved only if one accepts Reiman's flawed view of retribution, for, in addition to whatever he deserves for what his victim suffered, the offender also deserves punishment for breaking the law, for imposing undeserved unlawful suffering on someone. Retributionism of any kind cannot authorize less, despite Reiman's view that suffering imposed on the criminal is unjust when it exceeds the suffering of his victim.

Although occasionally he indicates awareness of the social harm caused by crime and even of the social function of punishment, Reiman treats crimes as though involving but a relationship between victim and offender, implemented by judicial authorities.' From this faulty premise he infers that retribution should not exceed the harm done to the victim, an idea derived from the lex talionis. But that primitive rule was meant to limit the revenge private parties could exact for what was regarded as private harm. The function of the rule was to guard against social disruption by unlimited and indefinitely extended vengeance.

Crimes are no longer regarded merely as private harms. Retribution for the suffering of the individual victims, however much deserved, is not punishment,any more than restitution is. Punishment must vindicate the disrupted public order, the violated law, must punish for the social harm done. If my neighbor is burglarized or robbed, he is harmed. But we all must take costly precautions, and we all feel and are threatened: crime harms society as it harms victims. Hence, punishment must, whenever possible, impose pain believed to exceed the pain suffered by the individual victim of crime. No less is deserved. Punishment must be determined by the total gravity of the crime, the social as well as the individual harm, and by the need to deter from the harmful crime. There are ordinal limits to deserved punishments, but cardinal upper limits are set only by harm, habit and sentiment-not by victim suffering.

Let me now turn to the moral scruples which should lead us to reduce punishment to less than what is deserved in some cases. I share some of Reiman's scruples: although he deserves it, I do not want to see the torturer tortured. Other scruples strike me as unjustified.

POVERTY AND CULPABILITY

Reiman believes "that the vast majority of murders in America are a predictable response to the frustrations and disabilities of impoverished social circumstances" which could be, but are not remedied because "others in America benefit," wherefore we have "no right to exact the full cost ... from our murderers until we have done everything possible to rectify the conditions that produce their crimes." 5 Murder here seems to become the punishment for the sins of the wealthy According to Reiman, "the vast majority" of current murderers are not fully culpable,
since part of the blame for their crimes must be placed on those who fail to "rectify the conditions that produce their crimes."

I grant that certain social conditions predictably produce crime more readily than others. Does it follow that those who commit crimes in criminogenic conditions are less responsible, or blameworthy, than they would be if they did not live in these conditions? Certainly not. Predictability does not reduce responsibility. Reiman remains responsible for his predictable argument. Culpability is reduced only when the criminal's ability to control his actions, or to realize that they are wrong, is abnormally impaired. If not, the social conditions in which the criminal lives have no bearing on his responsibility for his acts. Conditions, such as poverty, just or unjust, may increase the temptation to commit crimes. But poverty is neither a necessary nor a sufficient condition for crime, and thus certainly not a coercive one. If there is no compulsion, temptation is no excuse. The law is meant to restrain, and to hold responsible, those tempted to break it. It need not restrain those not tempted, and it cannot restrain those who are unable to control their actions.
Reiman's claim, that even "though criminals can control their actions, when crimes are predictable responses to unjust circumstances, then those who benefit from and do not remedy those conditions bear some responsibility for the crimes and thus the criminals cannot be held wholly responsible for them. . . " seems quite unjustified. Those responsible for unjust conditions must be blamed for them,6 but not for crimes that are "predictable responses to unjust circumstances," if the respondents could have avoided these crimes, as most people living in unjust conditions do.

If crimes are political, that is, address not otherwise remediable "unjust circumstances," they may be held to be morally, if not legally, excusable, on some occasions.7 But the criminal's moral, let alone legal, responsibility for a crime which he committed for personal gain and could have avoided, is not diminished merely because he lives in unjust circumstances, and his crime was a predictable response to them. Suppose the predictable response to unjust wealth were drunken driving, or rape. Would his wealth excuse the driver or the rapist? Why should poverty, if wealth would not? 8

Crime is produced by many circumstances, "just" and "unjust." The most just society may have no less crime than the least just (unless "just" is defined circularly as the absence of crime). Tracing crime to causal circumstances is useful and may help us to control it. Suggesting that they eo ipso are excuses confuses causality with nonresponsibility Tout comprendre ce n'est pas tout pardonner, Mme. de Sta6's followers to the contrary notwithstanding. Excuses require specific circumstances that diminish the actor's control over his actions.

Since "unjust circumstances" do not reduce the responsibility of criminals for their acts, I shall refrain from discussing whether Reiman's circumstances really are unjust, or merely unequal, and whether they do exist because someone benefits from them and could be eliminated if the alleged beneficiaries wished to eliminate them. I am not sure that unjust circumstances always can be remedied, without causing worse injustices. Nor do I share Reiman's confidence that we know what social justice is, or how to produce it.

CIVILIZATION

Reiman thinks that the death penalty is not civilized, because it involves the total subjugation of one person to others, as does slavery, or prostitution.9

Whereas slavery usually is not voluntary, the murderer runs the risk of execution voluntarily: he could avoid it by not murdering. I find nothing uncivilized in imposing the risk of subjugation and death on those who decide to murder.

Nota bene: Persons who act with diminished capacity, during moments of passion, are usually convicted of manslaughter rather than murder. Even if convicted of murder, they are not sentenced to death; only if the court believes the murderer did have a choice, and intended to murder, can he receive the death sentence.

Reiman refers to research finding a brutalization effect, such that executions lead to more homicides. The data are unpersuasive. Some researchers find an increase, some a decrease, of homicides immediately after an execution. 10 Either effect seem [s] ephemeral, involving bunching, rather than changes in the annual homicide rate.

To argue more generally, as Reiman also does, that capital punishment is inconsistent with the advancement of civilization, is to rely on arbitrary definitions of "advancement" and "civilization" for a circular argument. If civilization actually had "advanced" in the direction Reiman, quoting Durkheim, thinks it has, why is that a reason for not preferring "advancement" in some other, perhaps opposite, direction? I cannot find the moral (normative) argument in Reiman's description.

DETERRENCE

The death penalty should be retained if abolition would endanger us, Reiman believes. But he does not believe that abolition would. He may be right. However, some of his arguments seem doubtful.

He thinks that whatever marginal deterrent effect capital punishment has, if it has any, is not needed, since life imprisonment provides all the deterrence needed. How can it be ascertained that punishment x deters "everyone who can be deterred" so that punishment x-plus would not deter additional persons? I can see no way to determine this, short of experiments we are unlikely to undertake. Reiman may fear life imprisonment as much, or more, than death. Couldn't someone else fear death more and be insufficiently deterred by life imprisonment?

I cannot prove conclusively that the death penalty deters more than life imprisonment, or that the added deterrence is needed. Reiman cannot prove conclusively that the added deterrence is not needed, or produced. I value the life of innocents more than the life of murderers. Indeed, I value the life of murderers negatively. Wherefore I prefer over- to underprotection. I grant this is a preference.

SELF-DEFENSE

Reiman also believes that murderers who are not deterred by the risk they run because their victims may defend themselves with guns will not be deterred by the risk of execution. This seems unrealistic. Murderers rarely run much risk from self- defense since they usually ambush unsuspecting victims.

TORTURE

On my reasoning, Reiman contends, torture should be used, since it may deter more than execution; or else, even if more deterrent than alternatives, the death penalty should be abolished as torture was: "either we must abolish the electric chair or reinstitute the rack," is his colorful phrase. But there is a difference. I do not oppose torture as undeserved or nondeterrent (although I doubt that the threat of the rack, or of anything adds deterrence to the threat of execution), but simply as repulsive. Death is not; nor is the death penalty Perhaps repulsiveness is not enough to exclude the rack. If Reiman should convince me that the threat of the rack adds a great deal of deterrence to the threat of execution he might persuade me to overcome my revulsion and to favor the rack as well. It certainly can be deserved.

MORAL THEORY

In The Death Penalty: A Debate 11 1 noted that only when punishments are based not on retribution alone, but also on deterrence, they rest on a theory, that is, on a correlation of recurrent facts to a prediction: punishment x will, ceteris paribus, reduce the rate of crime y by 10%, and x-plus will bring a reduction of 20%. Reiman censures me for using "theory" when I should have written "empirical theory." He is right. Further, deterrence does not morally justify any punishment, unless one has first accepted the moral desirability of reducing crime, and the tolerability of the costs. I should have pointed that out. Finally, I did not mean to deny that there are moral theories to justify retribution. They strike me as more dependent on feeling than empirical theories are. More to the point, unlike deterrence theory, justice theories are not meant to predict the effect of various punishments, and are not capable of determining, except ordinally, what these punishments should be, although they can help to justify the distribution of punishments.12

MODES OF EXECUTION

As Reiman stresses, the spectacle of execution is not pretty Nor is surgery Wherefore both should be attended only by the necessary personnel. 13 1 do not find Reiman's aesthetic or moral scruples sufficient to preclude execution or surgery. However, I share his view that lethal injections are particularly unpleasant, not so much because of the subjugation which disturbs him, but because of the veterinary air. (We put animals "to sleep" when sick or inconvenient.) In contrast, shooting strikes me as dignified; it is painless too and probably the best way of doing what is necessary.

LIFE IMPRISONMENT

Reiman proposes life imprisonment without parole instead of execution. Although less feared, and therefore likely to be less deterrent, actual lifelong imprisonment strikes me as more cruel than execution even if perceived as less harsh. Its comparative cruelty was stressed already by Cesare Bonesana, Marchese di Beccaria, and by many others since.

Life imprisonment also becomes undeserved over time. A person who committed a murder when twenty years old and is executed within five years-far too long and cruel a delay in my opinion is, when executed, still the person who committed the murder for which he is punished. His identity changes little in five years. However, a person who committed a murder when he was twenty years old and is kept in prison when sixty years old, is no longer the same person who committed the crime for which he is still being punished. The sexagenarian is unlikely to have much in common with the twenty-year-old for whose act he is being punished; his legal identity no longer reflects reality Personality and actual identity are not that continuous. In effect, we punish an innocent sexagenarian who does not deserve punishment, instead of a guilty twenty- year-old who did. This spectacle should offend our moral sensibilities more than the deserved execution of the twenty-year- old. Those who deserve the death penalty should be executed while they deserve it, not kept in prison when they no longer deserve any punishment.

DISCRIMINATION

Disagreeing with the Supreme Court, Stephen Nathanson believes that the death penalty still is distributed in an excessively capricious and discriminatory manner. He thinks capital punishment is "unjust" because poor blacks are more likely to be sentenced to death than wealthy whites. Further, blacks who murdered whites are more likely to be executed than those who murdered blacks. 14 This last discrimination has been thrown into relief recently by authors who seem to be under the impression that they have revealed a new form of discrimination against black murderers. They have not. The practice invidiously discriminates against black victims of murder, who are not as fully, or as often, vindicated as white victims are. However, discrimination against a class of victims, although invidious enough, does not amount to discrimination against their victimizers. The discrimination against black victims, the lesser punishment given their murderers, actually favors black murderers, since most black victims are killed by black murderers. Stephen Nathanson and Jeffrey Reiman appear to think that they have captured additional discrimination against black defendants. They are wrong.

Neither the argument from discrimination against black victims, nor the argument from discrimination against black murderers, has any bearing on the guilt of black murderers, or on the punishment they deserve.

Invidious discrimination is never defensible. Yet I do not see wherein it, in Reiman's words, "would constitute a separate and powerful argument for abolition," or does make the death penalty "unjust" for those discriminatorily selected to suffer it, as Stephen Nathanson believes.15 if we grant that some (even all) murderers of blacks, or, some (even all) white and rich murderers, escape the death penalty, how does that reduce the guilt of murderers of whites, or of black and poor murderers, so that they should be spared execution too? Guilt is personal. No murderer becomes less guilty, or less deserving of punishment, because another murderer was punished leniently, or escaped punishment altogether. We should try our best to bring every murderer to justice. But if one got away with murder wherein is that a reason to let anyone else get away? A group of murderers does not become less deserving of punishment because another equally guilty group is not punished, or punished less. We can punish only a very small proportion of all criminals. Unavoidably they are selected accidentally We should reduce this accidentality as much as possible but we cannot eliminate it. 16

EQUAL INJUSTICE AND UNEQUAL JUSTICE

Reiman and Nathanson appear to prefer equal injustice-letting all get away with murder if some do-to unequal justice: punishing some guilty offenders according to desert, even if others get away Equal justice is best, but unattainable. Unequal justice is our lot in this world. It is the only justice we can ever have, for not all murderers can be apprehended or convicted, or sentenced equally in different courts. We should constantly try to bring every offender to justice. But meanwhile unequal justice is the only justice we have, and certainly better than equal injustice-giving no murderer the punishment his crime deserves.

MORE DISCRIMINATION

Nathanson insists that some arbitrary selections among those equally guilty are not "just." He thinks that selecting only bearded speeders for ticketing, allowing the cleanshaven to escape, is unjust. Yet the punishment of the bearded speeders is not unjust. The escape of the cleanshaven ones is. I never maintained that a discriminatory distribution is just-only that it is irrelevant to the guilt and deserved punishment of those actually guilty

Nathanson further suggests that it is not just to spare some student plagiarizers punishment for (I suppose) irrelevant reasons, while punishing others. Again the distribution is discriminatory, i.e., unjust. But the punishment of the plagiarizers selected is not. (The non punishment of the others is.) Nathanson thinks that giving a prize only to one of three deserving children (his own) is unjust. Not to the deserving child. Only to the others, just as it was unjust not to punish the others who deserved it, but not unjust to punish the deserving plagiarizers who were irrelevantly selected. 17

Nathanson taxes me with inconsistency because in a footnote I wrote that irrelevant discriminations are "not acceptable to our sense of justice." They are not. But I did not say that those who deserved the punishment received, or the reward, were unjustly treated, that is, did not deserve it and should not have received it. Rather those equally situated also should have received it, and the distribution was offensive because they did not. Whenever possible this inequality should be corrected, but certainly not by not distributing the punishment, or the reward at issue, or by not giving it to the deserving. Rather by giving it as well to those who because of discrimination did not get it. G might have done better to write in my footnote that discriminatory distributions offend our sense of equal justice. But neither the Constitution nor I favor replacing justice with equality.)

Nathanson quotes the late Justice Douglas suggesting that a law which deliberately prescribes execution only for the guilty poor, or which has that effect, would be unconstitutional. Perhaps. But the vice would be in exempting the guilty rich; the guilty poor would remain guilty, and deserving of prescribed punishment even if the guilty rich escape legally or otherwise. 18

Further on Nathanson points out that the inevitable capriciousness in the distribution of punishments (only a very small percentage of offenders are ever punished and the selection unavoidably is morally arbitrary) while no reason to abolish punishment in general, may still be an argument for abolishing capital punishment because of its unique severity, and because we could survive without. We can survive without many things, which is not reason for doing without, if one thinks, as I do, that we survive better with. As for the unique severity of the death penalty it is, of course, the reason for imposing it for uniquely heinous crimes. The guilt of those who committed them is not diminished, if they are selected by a lottery from among all those guilty of the crime.

Following Charles Black, Nathanson notes that those executed are not necessarily the worst murderers, since there is no way of selecting these. He is right. It seems quite sufficient, however, that those executed, though not the worst, are bad enough to deserve execution. That others who deserved it even more got away, does not make those executed insufficiently deserving.

Nathanson goes on to insist that "not every person who kills another is guilty of the same crime." True. Wherefore the law makes many distinctions, leaving only a small group of those guilty of homicide eligible for the death penalty Further, capital punishment is not mandated. The court must decide in each case whether or not to impose it. To impose capital punishment, courts must find that the aggravating circumstances attending the murder outweigh the mitigating ones, both of which must be listed in the law. Nathanson is right in pointing out that the criteria listed in the law are not easy to apply If they were, we would not need the judgment of the court. That judgment is not easy to make. It may seem too severe, or not severe enough, in some cases, as would mandated penalties. So what else is new?

NOTES

1. See Jeffrey H. Reiman, "Justice, Civilization, and the Death Penalty: Answering van den Haag," Philosophy & Public Affairs 14, no. 2: 128. Unless otherwise noted, all my quotations are taken from Reiman's article.

2. This question arises only when the literal lex talionis is abandoned-as Reiman proposes to do, for good reason-in favor of the proportional retribution he suggests. How, by the way, would we punish a skyjacker? Summing up the suffering of all the skyjacked passengers? What about the damage to air traffic?

3. The order of punishments is notoriously hard to coordinate with the order of crimes: even when punishments are homogeneous, crimes are not.

4. Perhaps Reiman's excessive reliance on the Hegelian justification of retribution (to vindicate the quality of victim and offender) or on the Kantian version (to vindicate the rationality of both) is to blame.

5. Reiman does not say here that murder deserves less than the death penalty, but only that "the vast majority of murderers" deserve less because impoverished. However, wealthy murderers can be fully culpable, so that we may "exact the full cost" from them.
6. Who are they? They are not necessarily the beneficiaries, as Reiman appears to believe. I benefit from rent control, which I think unjust to my landlord, but I'm not responsible for it. I may benefit from low prices for services or goods, without being responsible for them, or for predictable criminal responses to them. Criminals benefit from the unjust exclusionary rules of our courts. Are they to blame for these rules?

7. See my Political Violence & Civil Disobedience, passim (New York: Harper & Row, 1972) for a more detailed argument.

8. Suppose unjust wealth tends to corrupt, and unjust poverty does not. Would the wealthy be less to blame for their crimes?

9. Prostitution does not involve total subjugation and is voluntary In an ambiguous footnote Reiman asserts that it is the perception of prostitution as subjugation that makes it offensive. But this perception, derived from pulp novels more than from reality, is not what makes the voluntary act offensive. Rather, it is the sale of sex as a fungible service, divorced from affection and depersonalized that is offensive. Anyway, when something is offensive because misperceived it is not the thing that is offensive,

10. David P Philips, "The Deterrent Effect of Capital Punishment: New Evidence on an Old Controversy," The American journal of Sociology (July 1980). For further discussion see loc. cit., July 1982. See also Lester, Executions as a Deterrent to Homicides 44 Psychological Rep. 562 (1979).

11. Ernest van den Haag and John P Conrad (New York: Plenum Press, 1983).

12. See my Punishing Criminals (New York: Basic Books, 1975) which is superseded to some extent by the views expressed in my "Criminal Law as a Threat System 73, journal of Criminal Law and Criminolog 2 (1982).

13. Both spectacles when graphically shown may also give rise to undesirable imitations or inspirations.

14. Despite some doubts, I am here granting the truth of both hypotheses.

15. Stephen Nathanson, "Does It Matter If the Death Penalty Is Arbitrarily Administered?" Philosophy & Public Affairs 14, no. 2. Unless otherwise noted, all further quotations are taken from Nathanson's article.

16. Discrimination or capriciousness is (when thought to be avoidable and excessive) sometimes allowed by the courts as a defense. Apparently this legal device is meant to reduce discrimination and capriciousness. But those spared because selected discriminatorily for punishment do not become any less deserving of it as both Reiman and Nathanson think, although not punishing them is used as a means to foster the desired equality in the distributions of punishments.

17. There will be some difficulty in explaining to the children who did not get the reward, why they did not, but no difficulty in explaining why one deserving child got it-unless the children share Nathanson's difficulty in distinguishing between justice and equality

18. See [note] 16.