One of the priorities of the Trump administration has been to aggressively pursue the death penalty for capital crimes, especially for those involving the murder of a law enforcement officer or capital crimes committed by illegal aliens.  In line with this policy, a recent memorandum directed the attorney general to “fully enforce Federal law with respect to capital punishment in the District of Columbia by seeking the death penalty in all appropriate cases.”

This renewed federal push comes at a time when public opinion on the death penalty is shifting.  Although a majority of Americans — about 55 percent — still support it, that level of support is the lowest in more than three decades.  In 1994, nearly 80 percent of the public backed capital punishment, showing just how much attitudes have changed. 

These trends are alarming — not because punishment should track public opinion, but because they suggest that we are forgetting what justice demands.  The point of punishment is not to manage behavior or improve character, but to answer the moral debt created by crime.  Before we can judge the death penalty, we must first understand this basic truth about punishment.

What Punishment Is Not

Debates about capital punishment often are framed in terms of its future effects.  Does it deter crime?  Does it reform offenders?  These are important questions, but they miss the central point.  Punishment is backwards-looking.  It is concerned first with answering the wrong that has already been done rather than the benefits that might come later.  Thus, deterrence cannot be the core of punishment because it looks only to the future.  A crime that has already been committed still needs to be answered, even if no one else is deterred by the response. 

Rehabilitation also cannot serve as the foundation.  Reforming someone’s character is a good thing, but it addresses who the offender may become, not the wrong he has already done.  Neither deterrence nor reform alone explains why we punish those who have committed crimes.

If punishment were only about deterrence or rehabilitation, then justice would become secondary to utility.  It would mean that whether or not someone deserves punishment depends on how useful punishing him might be for society at large.  That view erases the offender’s moral responsibility and reduces him to a means for producing good outcomes.  But justice requires more than social engineering.  It requires holding people accountable for the wrongs they have actually done, not just for the effects their punishment might have on others.

Punishment Must Be Retributive

The real purpose of punishment is retributive: to answer wrongdoing with a deprivation equal in seriousness to the offense.  Crime unsettles the moral order by letting someone place his will above the rules that bind us all.  Punishment restores that order by imposing a real loss, forcing the offender back within proper bounds.  From this perspective, the death penalty is not mainly about deterrence or correction, but about giving the offender a deserved harm.  That harm is a deliberate setback to his interests.  It requires taking away something good that cancels the unfair advantage he gave himself and shows that no one is above the standards of justice. 

Put another way, the offender must lose something that parallels the severity of his crime.  This brings us to the ancient and much misunderstood idea of the lex talionis, often summarized by the phrase “an eye for an eye.”  Popular imagination treats it as a crude formula for vengeance: Whatever someone does to you, you do it to him.  This reading has been used to dismiss the lex talionis as barbaric and incompatible with “modern justice.”  But that is not what the principle means.  Properly understood, “an eye for an eye” is about proportionality.  It demands that punishment fit the crime in weight and seriousness, not that it mimics the crime in its particulars.

Civilization depends on ordered liberty.  To commit a crime is to create an imbalance in this order.  The offender elevates himself over his victim, taking what he has no right to take or inflicting harm he has no right to cause.  Justice requires restoring this imbalance by imposing a fitting deprivation that answers the wrong.  This deprivation must carry a weight equal to the offense.  What matters is not that the deprivation resembles the crime in outward appearance, but that it matches it in seriousness. 

This distinction helps make sense of why different crimes can be punished in very different ways while still being just.  A thief, for example, does not need to be robbed in turn.  What is required is that he lose something of comparable value to what he unlawfully gained, whether by fine, community service, imprisonment, or even corporal punishment.  Likewise, someone guilty of battery need not be beaten up.  The law may impose incarceration, restitution, or some other penalty that expresses the gravity of his violation.  In each case, the principle of equivalence, not mimicry, is what counts.

From this we see that the lex talionis is an essential part of punishment.  Without proportionality, there is nothing inherently wrong with over-punishing or under-punishing, and punishment collapses into a mere tool for control rather than an act of justice. 

Thus, retribution is not vengeance, but justice.  Vengeance is personal, driven by anger.  Retribution is impartial, restrained, and rooted in the duty to restore justice, not indulge passion.  It restores the balance that wrongdoing disturbs.  And without restoring that balance, there can be no justice.

Indeed, deterrence and rehabilitation must presuppose retribution.  We deter only by threatening what offenders deserve, and we rehabilitate only because they have already earned punishment.  Strip away retribution, and deterrence becomes manipulation while rehabilitation becomes therapy.  Both are intelligible only in light of deeper truth that crime creates a debt that must be repaid, and only retribution pays it.

The Logic of Execution

Murder stands apart as a crime that warrants the highest penalty.  Taking an innocent life destroys the greatest good a person has.  By doing so, the murderer acts as if he alone decides who gets to live, placing himself above the most basic rule of justice.  Lesser penalties can impose real loss, but they cannot match the gravity of what has been taken.  Because death is the greatest deprivation, it remains a fitting option for the greatest wrong.  Executing a murderer shows that human life is so valuable that its deliberate destruction deserves the most serious response.

To give up on the death penalty would be to weaken our commitment to punishment in general.  Retribution is the heart of justice.  It is the principle that wrongs must be met with consequences equal to their gravity.  We must uphold that principle in its fullest form by keeping capital punishment available and using it judiciously. 

Tim Hsiao is a college professor and law enforcement officer.  He is a research fellow at the University of Wyoming Firearms Research Center. 

Image via Flickr, public domain.