We did not deal with all of van den Haag's article, and these notes will not do so either. Instead, we will focus on two points.

The first is van den Haag's discussion of the relationship between the justice of capital punishment and the equality of its distribution.

The argument we focussed on most closely dealt with the issue of the distribution of capital punishment. Van den Haag's first point -- quite plausible, surely -- is that if capital punishment is immoral in itself, no distribution of capital punishment -- no facts about who was and wasn't executed -- could make it moral. He adds, by way of apparent symmetry, that if capital punishment is moral, no distribution could make it immoral. On its face, this may not sound right. After all, opponents of capital punishment often point to facts about its distribution in objecting to it. Why does van den Haag think this is a mistake?

The answer has two parts. The major point is that "improper distribution cannot affect the quality of what is distributed." Or to come at it in a different way, guilt is individual, as van den Haag points out. Van den Haag also makes another point: capital punishment is not alone in being ill-distributed, but no one seriously thinks we should stop punishing criminals. This point would not do by itself. It would be open to the objection that in obvious and important ways, capital punishment is not like other punishments. Therefore, what goes for punishment in general might well not go for capital punishment. So the major premise becomes more important. And to repeat, the major premise is that distribution doesn't affect the quality of the thing distributed.

This seems plausible on its face. If I am giving out chocolate cakes, the fact that I have somehow been less than even-handed in choosing who gets them doesn't make the cakes any worse. We can note, however, that this hardly settles the issue. The good of an action is not like the good of a chocolate cake. Whether or not a cake is good depends only on the cake. Whether or not an action is good depends on the context of the action. Even an action that is prima facie good or just or appropriate might be wrong if the context were altered sufficiently. Plato has an example. Suppose I have something that belongs to John. If he asks me to return it, then on the face of it, I ought to: it's his, and he is entitled to have it back. But suppose that John is a madman in a state of rage, and suppose that what I have of his is a weapon. In the context it would be wrong to give him the weapon, even though in some narrow sense of "justice" it would be the "right" thing to do.

For now, however, we will leave this point aside. Van den Haag goes on to say that "maldistribution between the guilty and the innocent is, by definition, unjust." In particular, if some of the innocent are then we have injustice. But it is unjust to those innocent people who are punished. Now the usual complaint that the distribution of the death penalty is unjust has nothing to do with the innocent. What is usually claimed is that capital punishment is distributed unequally among the guilty, and is therefore unjust. But van den Haag insists: that can't be right if we assume that capital punishment is an appropriate punishment for murder. The ones who are executed are simply getting what they deserve. No injustice there. Van den Haag doesn't claim that maldistribution is simply neutral. What he says is "a more equal distribution, however desirable, would simply be more equal. It would not be more just to the convicts under sentence of death." We are thus given a distinction between justice and equality. Both are valuable, but they are different, and should not be confused.

All of this leads to an obvious question: might a sufficiently gross inequality be a good enough reason not to distribute a certain kind of punishment at all? Clearly, van den Haag doesn't think so. Why not? He reiterates his basic claim: "The only relevant question is: does the person to be executed deserve the punishment?" But that is not an argument; it's just an assertion. It begs the question against those who disagree. As near as I can tell, van den Haag does not actually give an argument for this claim. In addition to the assertion, however, he also has an illustration:

To put the issue starkly, if the death penalty were imposed on guilty blacks but not on guilty whites, or, it it were imposed by a lottery among the guilty, this irrationaly discriminatory or capricious distribution would neither make the penalty unjust, nor cause anyone to be unjustly punished, despite the undue impunity imposed on others. [i.e., despite the fact that others ended up not getting the punishment they deserved. A.S.]

But again, this is not likely to convince anyone who doesn't already agree. To use an example somewhat like the one we used in class, suppose ten people have earned a car. John is in charge of distributing cars, and as it turns out, he only has five cars to give away. If he chooses by lottery among the ten deserving people, I think we are inclined to say that that would be a fair way to proceed, or at least waould be as fair as anything he could do in the circumstances. But if he simply decided that he would give the cars to the two white members of the group just because they are white, I think we would be inclined to use rather strong moral language to condemn what he did. Van den Haag might persuade us (or he might not!) that "unjust" is the wrong term. But even if we agree about the word, I think we would find "unequal" too mild. Something seriously wrong would be going on.

In fact, "unjust" is at least a plausible word, depending on the circumstances. Suppose a society (e.g., the United States at an earlier time in its history) had laws or practices that systematically excluded certain groups from receiving certain benefits. There is a long history of calling such practices unjust. Van den Haag focusses on individual justice, but in assessing the death penalty, we are assessing a social institution. There is no obvious reason why questions of individual justice should take priority over distributive justice in deciding whether to retain a social institution. And part of the reason is that in particular cases, failures of what we might call distributive justice (or in the distribution of justice) create failures of individual justice. Suppose there are 10 condemned convicts on death row. Suppose the governor decides to grant clemency to five of them. And suppose she makes her decision not by lottery, nor by assessing the merits of the individuals' cases, but on the basis of racial prejudice. It does not sound wrong to say that those who are executed have been treated unjustly in a certain clear respect: they were denied an opportunity for a certain benefit to which they had the same degree of entitlement as those who received it, and they were denied the benefit for morally unacceptable reasons. This has all the appearances of a failure of individual justice.

Let's be clear. The point of this example is not to say that our system of capital punishment actually works in the particular way described. The point of the example is to say that, contrary to van den Haag, certain failures of equality can amount to failures of individual justice.

At this point, two sorts of replies would be possible. One would be to say that if our system worked in this sort of way, this would be a reason to alter the system, but not a reason to eliminate capital punishment altogether.

To this the critics would reply that racial and economic prejudice are too deeply embedded in society for any legal fix to work. Here the advocate of capital punishment could reply that if this is really true, it is also true for non-capital punishment. The critic would no doubt agree, but might insist that for the ultimae punishment -- van den Haag's own term, the highest standards are called for.

The advocate of capital punishment has another line of defense at this point: s/he can argue that the facts don't support the opponent's claims of systematic discrimination. Van den Haag in effect argues as much. This is not a question that philosophical analysis can settle. But what does seem plausible is that van den Haag has not established his central moral claim: that arguments based on the distribution of capital punishment can't provide good reasons for not carrying out executions.

The other issue we considered will be dealt with much more briefly here. Many people object to capital punishment on the grounds that it will inevitably involve the execution of innocent people. Van den Haag's reply is simple: many social institutionms and practices involve risks. Letting people fly airplances, for example, involves a risk. Some people will die because we let them fly in airplanes. But ven den Haag points out: even though this is true, we think that "the advantages, moral or material, outweigh the unintended losses."

It may be true that the advantages of the death penalty in terms of public safety or carrying out of justice really do outweigh this disadvantages, but there is a serious difference betwen this case and the cases that van den Haag cites. If someone dies in a plane crash, no injustice was done to that person. If we execute innocent people, we are doing injustice to those people; they are not just injured but wronged. There is an obvious reply, of course. Other punishments are like capital punishment in this respect. So long as we have legal punishment, it is inevitable that we will punish some people who are innocent, and thereby do them wrong. So even when this difference is taken into account, it isn't clear where it leaves us. We presumably don't want to argue that we should stop punishing criminals just because we are bound to make some mistakes. Still, there is a difference. With other forms of punishment, there is at least a chance that mistakes can be corrected. With capital punishment, there is no such chance. All of us, I think, would be very troubled at the prospect of being sent to prison for a crime we didn't commit. But it is possible, even if difficult, to lead a meaningful life in prison. And it is possible that we might be able to prove our innocence and be released. However, I suspect that all of us have a reaction of complete horror at the prospect of being executed for a crime we didn't commit. We probably regard the difference between the two cases as a difference in kind and not just of degree.

This doesn't settle the issue. All it does is two things (1) it points out that van den Haag's initial analogy misses an important difference, and (2) that it overlooks what most of us take to be a very significant difference between being wrongly imprisoned and wrongly exeuted. It could still be argued that the institution of capital punishment is worth the cost. However, we do need to keep in mind: it is an institution that we are considering. There may be people who deserve to die. And it may be that the state should be in the business of killing them. But the two questions are not the same because we need to decide whether an institution of capital punishment, with all of its risks and inequities, is worth it on the whole, whatever we may think about particular individuals.

Allen Stairs