No, capital punishment is not morally required: deterrence, deontology, and the death penalty

Cass Sunstein and Adrian Vermeule argue that, if recent empirical studies finding that capital punishment has a substantial deterrent effect are valid, consequentialists and deontologists alike should conclude that capital punishment is not merely morally permissible but actually morally required. While the empirical studies are highly suspect (as John Donohue and Justin Wolfers elaborate in a separate article in this Issue), this Article directly critiques Sunstein and Vermeule's moral argument. Acknowledging that the government has special moral duties does not render inadequately deterred private murders the moral equivalent of government executions. Rather, executions constitute a distinctive moral wrong (purposeful as opposed to nonpurposeful killing) and a distinctive kind of injustice (unjustified punishment). Moreover, acceptance of "threshold" deontology in no way requires a commitment to capital punishment even if substantial deterrence is proven. Rather, arguments about catastrophic "thresholds" face special challenges in the context of criminal punishment. This Article also explains how Sunstein and Vermeule' s argument necessarily commits us to accepting other brutal or disproportionate punishments and concludes by suggesting that even consequentialists should not be convinced by the argument.
INTRODUCTION I. PRIVATE MURDERS ARE NOT EQUIVALENT TO EXECUTIONS AS A MORAL MATTER: NONPURPOSEFUL VERSUS PURPOSEFUL KILLINGS II. PRIVATE MURDERS ARE NOT EQUIVALENT TO EXECUTIONS AS A MATTER OF JUSTICE: […]