79 Mich. L. Rev. 1177 (1980-1981)
Issue 6

handle is hein.journals/mlr79 and id is 1199 raw text is: DESERT AND DETERRENCE: AN
Richard 0. Lempert *
The controversy over the death penalty has generated arguments
of two types. The first argument appeals to moral intuitions; the sec-
ond concerns deterrence. Although both types of argument speak to
the morality of systems of capital punishment, the first debate has
been dominated by moral philosophers and the second by empirical
social scientists. For convenience I shall at times refer to the ap-
proach of the moral philosophers as the moral case for (or against)
capital punishment or as the argument from morality.
Those who make out a moral case for the death penalty argue in
a variety of ways that those who kill others deserve to die.' Indeed,
to some it is our willingness to execute the murderer which affirms
the high value that all participants in the debate place on human
life.2 This is the essence of what is usually called the retributivist
position. The moral argument against the death penalty starts with
the principle that it is wrong intentionally to take human life. For
those who regard this principle as an absolute, the fact that it is
wrong to kill does not make it right to take the murderer's life. Op-
ponents of the death penalty correctly point out that in an era when
the eye for an eye approach to punishment has been abandoned
for almost every crime, no self-evident principle demands that it be
* Professor of Law, University of Michigan. A.B. 1964, Oberlin College; J.D. 1968, Ph.D.
1971, University of Michigan. - Ed.
A number of people have read this manuscript in draft and have offered valuable com-
ments. I would like to thank Cynthia Lempert, Colin Loftin, Dan Rubinfeld and Frank Zim-
ring. I am also grateful to Jerold Israel, Jo6 Sax and Philip Soper, whose disagreement with
some of the arguments in the draft manuscript forced me to think further about some difficult
issues. An earlier version of this paper was part of a longer paper presented at the Chief
Justice Earl Warren Conference on Advocacy of the Roscoe Pound-American Trial Lawyers
Foundation and published privately by the Foundation as part of the Conference Proceedings.
CRIMINALS (1975); Gerstein, Capital Punishment - Cruel and Unusual? A Retributivist Re-
sponse, 85 ETHICS 75 (1974); van den Haag, In Defense of the Death Penalty: 4 Legal-Political-
MoralAnalysis, 14 CRIM. L. BULL. 51 (1978); Vellenga, Christianity and the Death Penalty, in
THE DEATH PENALTY IN AMERICA 123 (H. Bedau ed. 1967); Weiler, Why Do We Punish? The
Casefor Retributive Justice, 12 U. BRIT. COLUM. L. REv. 295 (1978).
2. See, eg., W. BERNS, supra note 1; Weiler, supra note 1.


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