INTRODUCTION As an opponent of capital punishment, I have participated in many (and witnessed many more) debates about the morality and wisdom of the death penalty. The debate usually begins with one of two dramatic gambits by the proponent of capital punishment, both of which derive their power from the grievous harms suffered by murder victims and their loved ones. The first gambit is to consider in detail the facts of one or more capital murders and to propose that only the punishment of death is an adequate and proportional response to the terrible suffering of the victim intentionally inflicted by the perpetrator--a predominantly retributive argument. The second gambit--a modified version of which Cass Sunstein and Adrian Vermeule use to begin their provocative article (1)--is predominantly consequentialist. This gambit is to suggest that if the death penalty can prevent--through incapacitation of the offender or general deterrence--the loss to murder of even one innocent life, then it is a morally justified or perhaps even morally required penal response. A common response to both of these gambits is to ask why it is we do not rape rapists, torture torturers, or rape and then murder those who rape and murder in order to provide a proportional response to the suffering they have inflicted or to adequately deter future rapists, torturers, and rapist/murderers. This response suggests that our rejection of such extreme punishments points the way to a categorical, deontological limitation on the kinds of punishments we are justified in imposing, on either retributive or consequentialist grounds. The usual counter to this response is to acknowledge that we do not and should not impose such extreme punishments--that there is some moral limit to what we can justify as punishment--but to deny that the use of the death penalty crosses that line.
