The Death Penalty and the Way We Think Now

Abstract

The death penalty is a matter of continuing fascination. Critics of the death penalty in contemporary American jurisprudence have claimed the inevitability of caprice and mistake and have pointed to racial and other biases in the imposition of the death penalty. Currently, the death penalty in principle seems acceptable to the Supreme Court and to the general populace. The death penalty remains, however, controversial in many respects. This Article focuses on the questions that are most central to the basic moral justifiability of the death penalty in a society like our own. We will thus assume, heroically, that the judicial process of deciding to impose the death penalty could somehow be made morally sound. Our concern will instead be for basic principle, rather than process. If the death penalty process were flawless, could the death penalty itself, under our social circumstances, be morally objectionable?