Commentary Nathanson vs Van Den Haag Arbitrary Nature Death Penalty

Stephen Nathanson and Ernest Van den Haag differ in their views on the argument of whether or not arbitrariness matters in the sentencing and administration of the death penalty. For clarity, arbitrariness refers to the inclusion of irrelevant factors, such as race or social or economic standing, in the decision of who does and does not receive the death penalty. Is the death penalty fair and equal if only a small percentage of those who deserve to die based on their crime, actually are executed? Nathanson is opposed to the death penalty because he believes that the arbitrary manner in which it is distributed is unfair. Van den Haag supports the death penalty because he feels that if the criminals who are executed are deserving of their punishment, it should not matter if similar criminals receive different punishments.
Van den Haag believes that the arbitrary distribution of the death penalty is not a valid objection to it. In general, the point of any punishment is to penalize the criminals who deserve retribution for their actions and to deter further crimes by discouraging potential criminals. If a criminal is guilty of a crime that deserves the death penalty, then it is fair that he be executed for his crime. If murderer A receives a life sentence in jail for manslaughter, murderer B, also guilty of manslaughter, is no less deserving of the death penalty solely because murderer A received a lesser punishment. If guilt and desert are adequate and present to receive the death penalty, it does not matter what other similar criminals receive as punishment.
Nathanson responds to Van den Haag’s argument by giving the example of plagiarism in a class. If it were the teacher’s policy to fail any student who plagiarizes and three students plagiarize, then it would be unjust to fail one student and to pass the other two students who explained their motivation and gained sympathy from the teacher. Nathanson believes that if the crime is the same in all three cases, all three students should receive the same grade, whether it is pass or fail. It would be better if everyone was treated equally unjustly than if only one was treated unjustly. A punishment does not depend solely on desert; it is only just if others who committed the same crime receive the same punishment. Nathanson’s argument against the death penalty is clear: if there is no reliable way to determine who deserves to die due to arbitrariness, then some people who do not deserve to die are executed; therefore, our legal system of execution treats some people unjustly.
Van den Haag rebuts Nathanson’s argument by declaring that the justness of a punishment is derived solely from desert and guilt, and not from how others in similar cases are punished. Furthermore, just because our legal system may execute some people unjustly, it does not make execution unjust. Similarly, unequal punishments do not make those punishments unjust so long as the recipients are guilty and deserve them. Nathanson’s theory, when applied to the death penalty, shows that he would prefer “equal injustice” where no murderers receive the death penalty although they deserve it to “unequal justice” where a few who deserve it, but not all who deserve it, receive the death penalty. Van den Haag reassures that he does not support the unjust distribution of the death penalty to criminals who do not deserve it. He asserts that the unjustness lies in those who do not receive the death penalty when they deserve it, not in those who get the death penalty when others do not.
Nathanson’s theory works in some applications but not in that of the death penalty. I agree the teacher should give all three of the students the same pass or fail grade because they all deserve the same. If I were the one student who failed, I would feel that I had been wronged and treated unjustly; I would feel as though my punishment should be the same, and therefore dependent upon, what punishment the other students receive. But, when applied to the death penalty, the theory disintegrates. Nathanson himself states that “not every person who kills another is guilty of the same crime.” So then why should we give them all the same punishment? Rarely is it the case that two crimes, especially murders, are exactly alike; motives and extenuating circumstances will almost always differ. If all murderers are deserving of receiving the death sentence, it is just that at least some of them receive it and are executed rather than none at all. I agree with Van den Haag that if desert and guilt are present, then the punishment is just because guilt and desert will remain present no matter what others receive as punishments. We might not be able to determine which murderers are worse than others, and therefore we cannot choose who deserves to be executed most, but we do know that those who are executed are deserving of their punishment.
Nathanson also argues that it would be ludicrous for punishments to be based upon factors such as race, gender, or social and economic status because, in general, people cannot help these things. I agree completely that these are the irrelevant factors that should not be considered when establishing a punishment for a crime. We should not punish people for things that they cannot control or change; what should be considered in trials are the extenuating circumstances, brutality, and motives of each case. These do have reason to be considered because they show something about the moral character of the criminal and how he reacted in the situation.
There is no logical reason not to punish those who are guilty based on the reasoning that not everyone who is guilty receives equal punishments. If they are guilty of a crime, desert is present and they should be brought to justice for it. I concur with Van den Haag’s statement that “unequal justice is the only justice we have, and certainly better than equal injustice-giving no murderer the punishment his crime deserves.”
In a perfect world, there would be no discrimination and therefore no arbitrariness in the distribution of the death penalty. In the real world, discrimination is widespread and no judge or jury can make a completely objective decision. Also, every case has subtleties that contribute to differing outcomes and inconsistency in rulings and punishments in similar cases. In this case, we should judge each individual murder case on the circumstances surrounding that crime alone, without considering the punishments that other similar cases received. There are certain base qualifications for specific punishments, including the death penalty, outlined by the government. If each judge and jury follow these qualifications as closely as possible, the punishment should be as objective as possible, even though discrimination will always be present.
The death penalty will continue to propagate long and tedious debates concerning the morality and justness of execution. Discrimination and inconsistency in judgment will always cause objections to the social and moral acceptability of this type of punishment. I believe that factors that the criminal can control should be considered when judging, and prejudice and arbitrariness should be avoided. But, in the end, I agree with Van den Haag that the importance of administering “unequal justice”-giving punishment to those who deserve it despite what similar criminals receive-overrides that of administering “equal injustice”-giving no punishment to those who deserve it.