The Best Argument in Favor of Capital Punishment

Christopher Carr comments that “if we’re going to have capital punishment, we shouldn’t sugarcoat or whitewash it. We should have public gladiatorial competition or hangings with children in attendance. If we’re going to be barbarians, let’s at least be barbarians with balls. There’s a real deterrent right there.” 

Indeed, it would be a deterrent.  But not a deterrent from barbarism, as Christopher calls it.  A deterrent from acting with moral clarity.  I explained this in response to my cohort’s post, The Best Argument Against Capital Punishment, as follows:

Indeed, the taking of human life—even justifiably—takes a toll on a right-minded person. However, this truth resides in a layer of abstraction that includes other particulars of human political organization. Local police are called upon to use reasonable force, extending often to deadly force, in the discharge of their duties. In some instances, civilians must kill in their own self-defense or in the defense of others, and in so doing are justified by the law.

At a slightly higher level of abstraction, we can also say that jailers who lock up human beings continuously deprive these individuals of their liberty. Sheriffs who enforce on civil judgments must, in the course of their duties, deprive defendants of their property.

What is the common thread in all of these cases? A man who has defrauded another has no moral right to the property he holds as a result of his fraud. A sheriff thus does not deprive the fraudster of “property” in the [proper] understanding of the word. A man who is convicted of crimes of violence has forfeited his moral right to liberty, and thus the jailer deprives him of nothing by locking him in a cage.

Similarly, in a case where a human being has intentionally and imminently threatened the life of another, he is deemed by moral reason to have forfeited his moral right to be free from mortal threat to his own life. A man who kills in self-defense not only has committed no moral wrong: he has saved one innocent life at the expense of none. His courage profits the world an invaluable gift.

What difference is there, then, in the taking of a life forfeited through aggression in the moment of that aggression, and the taking of a life forfeited through aggression at a later time upon conviction through a due process of law? In moral reason, there is none. The decision to kill another in self-defense is no different than the decision to kill an individual convicted of murder and sentenced through due process to death. In each case, that individual has forfeited his life.

Still, your point is well taken: aggression actually perceived by the senses in the moment of passion better satisfies the moral faculty than does a court judgment many months or years later. There is a difference, however, between a moral faculty that is unpersuaded and one that is inoperative. Beings who have moral reason must also have the moral courage to see it carried out. A man who refuses to execute because he is unconvinced the life is truly already forfeit is courageous for the same reason as he who carries out the order who is convinced of the moral forfeiture. A man who does not believe in moral forfeiture, however, lacks moral reason to begin with.

I take it by Christopher’s comment that he is unpersuaded that life can ever be deemed forfeit by acts of mortal aggression against innocent human life.  We will have to disagree on that point.  However, to those who do not share that view, then obviously it would not profit the human race anything to muddy our moral faculties by infusing more violence into the death penalty process.  Assuming due process has been given (this is no small assumption, granted, but let’s not fight the hypothetical), then what good is there in making the ultimate act more emotional, more gut-wrenching, more tormenting to the tender feelings of the community?  Think back to the fraudster who has forfeited his right to a sum of money: should we collect damages by taking his family’s home instead of “sugarcoating” or “whitewashing” it by levying his bank account?  Or the jailer who has to deprive prisoners of their liberty: should he dangle images of the prisoner’s family in front of him to cause the jailer to witness the anguish the prisoner feels?  Or the victim who kills his assailant in self-defense:  does he owe a moral obligation to defend himself in the most violent manner available to him so that he fully appreciates the gravity of what he’s done?

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at


  1. Very interesting. I always thought that if we brought back public hangings it would act as a deterrent to someone wanting to commit a murderous act. But as you put it at the end whats the point, it’s just plain mean really. The real issue is going through due process and making sure that justice is actually administered.

    Rick Saxby,

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  4. I just stumbled on your blog…going through just a line in the middle, I’m sure I have found something to backup my project…I am a law student studying at the University of Uyo Nigeria. Currently I’m writing my mid year project on death penalty. My project supervisor is an abolitionist and I’m for death penalty. Thanks a lot, for here there are some clues for me to storm on regardless of your sure stand on this…

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