I

If it is agreed that the principle of proportionality requires that the most heinous acts deserve and receive the most severe punishments, then the main issue is that of identifying what that punishment would be. Given that justice is fairness, what would be the most appropriate punishment for the most heinous acts of wrongdoing? Civilized societies conventionally and with good reason judge that certain treatment of wrong doers, while possible, is not under any circumstances either morally permissible or morally justified – such as having rats attack and consume the person. Recognizing such is a precondition for the treatment of wrongdoers to be justified punishment.

Is the death penalty, administered in an immediate and humane manner, under all possible circumstances, morally forbidden (as the rat method is), or can it, under appropriate conditions, be morally justified? Instant death (often associated with contemporary capital punishment) often occurs by accident or naturally, and as such is not readily classified as an extraordinary event, as life in solitary confinement is/would be. And, as for the right to life, it is important to appreciate, as C. L. Ten puts it, that ‘without punishment there could not logically be legal rights . . . , that the punishment of those who violate people's rights is part of what it is for people to have rights’ (Crime, Guilt, and Punishment). By violating the rights of others, one forfeits certain of one's rights. ‘If life is the highest of goods, death must be the greatest punishment and, therefore, appropriate for the taking of life’ (Ernest van den Haag, Punishing Criminals).

Accordingly, the issue now is whether critics of the death penalty can support their thesis that capital punishment is inherently, under any and all circumstances, morally forbidden, is murder; that no wrongdoing can ever, under any circumstances, be sufficient to deprive one of one's right to life. If that can be accomplished, then the issue is resolved: executing wrongdoers can never be justified. However, if such a defense is not possible, then we need to address whether a lifetime sentence in confinement is the most severe morally permissible form of punishment (or is execution more severe and therefore most fitting for utterly odious behavior)?

One could, however, divert these issues by directing attention to matters of reorienting the criminal's worldview, supplying the opportunity for criminals to realize and appreciate their wrongdoing. Such is less likely to occur (primarily due to the time factor) if the death penalty is imposed. To concentrate on this aspect of criminal sentencing is to move away from the criterion of justice as fairness to a utilitarian criterion of what treatment would most likely achieve the greatest benefit for society as a whole. The argument is that no one benefits from executing wrongdoers; deeds are not undone, reversed, while a life sentence could result in a better person than the one who committed the crime. And the reply is to agree, but adding that benefit is not the primary rationale for deciding how society is to treat criminals. Not primary, but certainly one of the results that society desires from treatment of criminals. With this qualification, we are led to consider that different types of crimes warrant different kinds of treatment – some based on the justice criterion, others on the utilitarian criterion.

Returning now to the principle of proportionality. If imposing a death sentence on someone is not inherently wrong, as killing in self-defense and during times of war killing innocent citizens are, admittedly unfortunate, not inherently wrong, then what conditions would make capital punishment morally impermissible? Furthermore, if the most heinous crimes deserve the most severe punishment, then by recommending life sentences rather than capital punishment, isn't one judging capital punishment inappropriate for heinous crimes because of not being sufficiently severe? Few would adopt such a position. This brings us back to the thesis that the death penalty can never, under any circumstances, be morally justified, and the need for supporting arguments for that thesis. And platitudes, clichés, and comments such as that the agency that executes wrong doers would be acting exactly as those who commit heinous crimes if it imposed the death sentence that is a ‘cruel and unusual’ punishment that ‘degrades and dehumanizes all participate in its processes’, just won't do. Surgeons amputate limbs in order to save patients' lives, as one who tortures another might do as a form of entertainment – therefore surgeons should be judged exactly as we judge terrorists? I think not, for motives and intention make all the difference.

Rather than being degrading and dehumanizing, philosophers such as Kant, Hegel and Bradley have insisted that, when deserved, execution actually affirms the criminal's humanity by acknowledging his rationality and accountability for his behavior. If there is any degradation it is self-inflicted; and execution is society's way of expelling heinous wrongdoers from the community of the living. As ironic as it might sound execution, when deserved, is required in recognition of the convict's dignity. It would be unjust, immoral, to not execute those who deserve it.

Thus is the counterthesis, and until the issues detailed and the questions asked are thoroughly addressed, one is premature in dismissing the counterthesis in favor of continuing to judge that capital punishment can never be justified as moral.

A direct way to criticize the above argument and respond to the challenge is by denying that it is ever absolutely certain that someone is fully guilty of a heinous wrongdoing, rejecting what is posited in the Preface: that the punishment in question pertains to only those who are truly guilty of their crimes.

By granting the absence of absolute certainty regarding someone's guilt (or any other issue not a tautology) does that render my argument and challenge null and void, or only somewhat weakened relative to the degree of certainty that is possible? I will attempt to defend the latter.

If we assume (since any inquiry will involve assumptions) that the common notion that the theistic deity is all powerful – meaning can do anything – is mistaken, and that the accurate characterization would be that such a deity can do all things that are logically possible, cannot do what is self-contradictory, then we can conclude that the theistic deity, being all knowing, cannot make a mistake. I suggest that it is an analytic truth that ‘God cannot make a mistake’. If there is agreement regarding this, then let's imagine that God judges, say, Sam, deserving of execution for being guilty of a major transgression. Could the theistic deity make such a judgment, it not being self-contradictory (nor a tautology)? Again, if there is agreement on this matter, then wouldn't that entail that there is nothing about executing someone, irrespective of the circumstances, that makes it morally impermissible, morally unjustified? I would think that the defenders of the thesis at issue would disagree, citing the lack of any parallel between an omniscient being's absolute certain judgment and the less than certain judgment of mere mortals. They would contend that it is the absence of humans ever being absolutely certain regarding someone's guilt that makes capital punishment, in any circumstance, morally impermissible, unjustified.

That humans lack absolute certainty is not denied, but what that entails is a matter of dispute. Clearly there is a wide range of degrees of certainty corresponding to the range of degrees of probability. While anything is possible that is not self-contradictory, not all things are equally probable or improbable. That there can be an instance or occasion when under normal conditions the law of gravity is not applicable is highly improbable, yet possible. That Hitler, Stalin, or the Unibomber are innocent of ever doing any avoidable harm to innocent people is extremely unlikely, yet possible. That a company of enemy soldiers, guns blazing as they charge forward, does not mean you any harm, while possible, significantly lacks credible probability. Every day in many ways we make important decisions based on our assumption of the constancy of nature and the trustworthiness of our experiences. When all the evidence indicates that our life is being seriously threatened and if nothing is done we will surely die, we do not (and rightly so) hesitate to take steps to divert the threat, we don't, not for a second, consider that it is possible that we misjudged the evidence and no harm to us is likely.

However, a fault can be called, again pointing out how there is not a parallel, this time, between killing in self-defense when one lacks absolute certainty and executing someone when we lack absolute certainty as to their guilt. Fair enough. Consider then the following. A political activist is caught on close-range videos shooting to death half-a-dozen civilians in as mall, is captured and freely brags of his actions; DNA evidence is a match. Is it possible that he is completely innocent in the matter of the mall killings? Yes, but very unlikely. Is the absence of absolute certainty – making it impossible to be mistaken regarding his guilt – sufficient to refrain from sentencing him to be executed? I don't think so. Yet, of course, this example does not, by itself, prove that death sentences can never be mistaken. Rather, it is simply meant to remind the skeptics that we don't and can't live our lives as dogged skeptics. Why should judgments regarding someone's guilt of a heinous wrongdoing be treated as more likely to be mistaken than our judgment regarding the safety of air travel, the trust we have in our spouse, the competence of our pharmacists or even the loyalty of our beloved Fido?

Last year (2011), according to the Death Penalty Information Center, the total death sentences in the U.S. was 78; 43 inmates were executed. Is it possible that the 43 executed were all equally innocent? Yes, but again, not very probable. But more to the point couldn't our not being mistaken regarding the guilt of one of the 43 executed be sufficient in itself to falsify the claim that the death penalty can never be justified, morally permissible, in view of the possibility of mistaken judgment? I think so, and accordingly I have serious doubt that there can be sufficient reasons and evidence that will establish that a death sentence has a higher degree of probability of being based on a mistaken judgment of guilt than the examples supplied of our common judgments of what is safe, trustworthy, competent or loyal being based on mistakes.

Bringing it together, I will revert to it being conceivable that the theistic deity could, without self-contradiction or the possibility of error, judge someone deserving of execution. With that in place, it is granted that humans can only make decisions based on less than absolute certainty. However, I contend that the latter does not trump the former, making all death sentences by humans mistaken; that the latter, in view of the former, is insufficient in establishing that the possibility of a mistaken death sentence entails that the death penalty is unjustified, morally impermissible.

Nonetheless, I invite arguments from those who still believe that the death penalty can never be justified, morally permissible.