STEIKER 58 STAN. L. REV. 751 1/13/2006 7:46:31 PM
December 2005] DETERRENCE, DEONTOLOGY, AND DEATH PENALTY 763
Of course, Sunstein and Vermeule could (and do, briefly) claim that the
government’s purposeful killings are independently morally justified because
the lives that it takes by executions are (usually) those of guilty murderers,
while the lives that it knowingly or recklessly cedes to private murder are by
definition those of innocents.
39
But when they switch to this kind of moral
justification for the state’s purposeful killing, Sunstein and Vermeule have
switched to the language of deontological moral theory (retributivism) and thus
acknowledge the nonequivalence of the state’s actions in taking life through
execution and through suboptimal deterrence of private murder: they are no
longer on the terrain of life-life tradeoffs at all.
40
Yes, of course there are
of rights violations. Such a direct approach is taken, for example, by noted consequentialist
theorists Louis Kaplow and Steven Shavell. See L
OUIS KAPLOW & STEVEN SHAVELL,
FAIRNESS VERSUS WELFARE 47 (2002) (criticizing nonconsequentialists for failing “to pay
attention to the effects of legal rules even when such effects concern the incidence of
unfairness itself”). Rather, Sunstein and Vermeule assume that recognition of the distinctive
moral agency of the government will lead to acceptance of a narrower version of this point—
namely, that the government as moral agent is uniquely free from deontological restrictions
that take this form, what philosophers call “agent-centered restrictions.” See Samuel
Scheffler, Agent-Centered Restrictions, Rationality, and the Virtues, in C
ONSEQUENTIALISM
AND
ITS CRITICS 243, 243 (Samuel Scheffler ed., 1988) (“An agent-centered restriction is,
roughly, a restriction which it is at least sometimes impermissible to violate in circumstances
where a violation would serve to minimize total overall violations of the very same
restriction, and would have no other morally relevant consequences.”). But Sunstein and
Vermeule are simply wrong that recognition of the government’s distinctive moral agency—
its multitude of affirmative duties to act that private citizens do not share individually—gets
them to their desired conclusion. Rather, I have shown that Sunstein and Vermeule cannot
get from here to there (from recognizing the government’s distinctive moral agency to
accepting the government’s duty to execute in order to prevent murders) without directly
defending the consequentialist position that they seek to bracket.
39. They make this claim very briefly in their rejoinder to Bernard Williams. See
Sunstein & Vermeule, supra note 1, at 744 (“Those who are subject to capital punishment
are (almost always) egregious wrongdoers, not innocents.”).
40. Sunstein and Vermeule’s running analogy of capital punishment to shooting a
hostage taker, see, e.g., id. at 716, 719, 735, 737, 740, runs into a similar problem, as the
justifiability of shooting hostage takers is not based on its being a “life-life tradeoff” at all.
Hostages, other citizens, and law enforcement agents alike are universally considered
justified in killing hostage takers even when they kill more hostage takers than there are
hostages, or even when the threat to the hostage is less than death. Indeed, in some
jurisdictions, one can use deadly force to protect oneself or another not only from murder,
but also from rape, robbery, or even burglary. See, e.g., C
OLO. REV. STAT. ANN. § 18-1-704.5
(West 2005) (permitting any occupant of a dwelling to use deadly force “against another
person when that other person has made an unlawful entry, . . . and when the occupant has a
reasonable belief that such other person has committed [or intends to commit] a crime in the
dwelling in addition to the uninvited entry, . . . and when the occupant reasonably believes
that such other person might use any physical force, no matter how slight, against any
occupant”); N.Y. P
ENAL LAW § 35.15(2) (McKinney 2005) (permitting the use of deadly
force on another person when the actor “reasonably believes that such other person is
committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act
or robbery”). The justification of self-defense (and defense of others) obviously cannot
proceed on the grounds that it is a “life-life tradeoff,” but must call on some other sort of
justification, different from the kind that Sunstein and Vermeule purport to be making for