Passage
There is a temptation, in arguing against the death penalty, to rest the whole case on the spectre of the innocent executed, and the temptation should be resisted, not because the argument is weak but because it is too strong. If the only objection to capital punishment were the risk of executing the innocent, then a method of trial that reduced that risk to zero would answer the objection, and the abolitionist would be committed to supporting the death penalty in any system that achieved certainty of guilt. Few abolitionists believe this. The persistence of their opposition even in the face of clear guilt suggests that the real objection lies elsewhere, and an honest argument must say where.
Hugo Bedau, whose decades of work shaped the modern abolitionist case, located the objection in the relationship between punishment and the person punished. A punishment, on Bedau's account, must leave intact the possibility of the offender's continued existence as a moral agent, however degraded that existence has become. The death penalty does not punish the agent; it abolishes her. It does not say 'you have done a terrible thing and must bear the consequences'; it says 'you have forfeited your standing as a being to whom consequences can be addressed at all'. This, Bedau argued, is not a difference of degree from imprisonment, however long. It is a difference of kind, and it is the difference that matters.
The retributivist replies that some crimes are so grave that nothing short of death is proportionate, and the reply cannot simply be waved away. Carol Steiker and Jordan Steiker, who have examined the American machinery of capital punishment more closely than anyone, do not deny that the retributive intuition is genuine. What they deny is that any actual institution can administer the penalty in a way that honours it. The death penalty as retributivism imagines it (reserved for the worst offenders, imposed without regard to race or wealth, after a process beyond reproach) does not exist and, on the evidence of every system that has tried, cannot be built. The penalty that exists is imposed erratically, falls more heavily on the poor and on racial minorities, and turns on the quality of defence counsel as much as on the gravity of the crime. The retributive ideal is used to justify an institution that betrays it.
Roger Hood's comparative survey of abolition across jurisdictions adds a further observation that the retentionist must confront. The states that have abolished the death penalty have not, on the evidence, suffered the surge in the most serious crimes that the deterrence argument predicts. If execution deterred murder more effectively than long imprisonment, abolition should be followed by more murder, and it is not. The deterrence case, which once carried much of the retentionist argument, has quietly receded as the evidence has accumulated, leaving retribution to bear a weight that, for the reasons the Steikers give, it cannot in practice carry.
The case against the death penalty, then, does not stand or fall with the innocent. It rests on three propositions that the slogan about wrongful execution tends to obscure: that death is a punishment different in kind, not degree, because it abolishes rather than burdens the agent; that no actual institution can administer it in the way the retributive justification requires; and that the deterrence rationale, once the evidence is examined, does not survive. The risk to the innocent is real and is a further reason, but it is not the foundation. A retentionist who answers only the innocence argument has answered the least of the abolitionist's reasons, and a debate conducted entirely on that ground does a disservice to both sides.