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1983 U. Ill. L. Rev. 555 (1983)
The Problem of Capital Punishment

handle is hein.journals/unilllr1983 and id is 567 raw text is: THE PROBLEM OF CAPITAL PUNISHMENTt John Kaplan * I. INTRODUCTION Civil libertarians have long taken as their primary mission the lim- itation of the power of the state, not only in terms of the proper proce- dures and safeguards necessary before that power may properly be invoked, but also with respect to the magnitude of the power itself. The issue of cipital punishment, whereby the state asserts the right to take the lives of its own citizens, is therefore at the very heart of civil liberties concern. In this article, I will direct my attention toward the policy issue of whether the state may properly claim the right to punish by deprivation of life, rather than toward the procedural requirements for the appropriate imposition of such a punishment. As we will see, however, the latter problem will influence the correct decision on the former. Moreover, in this brief article, I will consider only part of the equation. Though the arguments for capital punishment have been re- hearsed on many occasions, I would like to try here to look with more care than usual at them, recognizing that the balance will properly be determined by the weight not only of these arguments, but, insofar as they are separable, by the power of the arguments against capital pun- ishment. However strong they may be, the arguments against capital punishment must be put off to another day. II. DETERRENCE: THE TRADITIONAL JUSTIFICATION FOR CAPITAL PUNISHMENT Let us begin, then, with the traditional beginning. The usual justi- fication given for capital punishment is that it deters.' Now, that state- ment is not quite enough because it is important that we ask: what is it that capital punishment is supposed to deter? The issue is not whether t An abbreviated version of this article was delivered at the University of Illinois College of Law, February 21, 1983, as the second 1982-1983 lecture of the David C. Baum Lectures on Civil Rights and Civil Liberties. * Jackson Eli Reynolds Professor of Law, Stanford Law School AB. 1951, J.D. 1954, Harvard University Professor Kaplan is the author of various articles and books, the latest of which is THE HARDEST DRUG: HEROIN AND PUBLIC POLICY. I. See Allen, Capital Punishment. Your Protection and Mine, POLICE CHIEF, June 1960, at 22, 22-28.

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