Killing in Good Conscience: What's Wrong with Sunstein and Vermeule's Lesser Evil Argument for Capital Punishment and Other Human Rights Violations?
Document Type
Article
Publication Title
New Criminal Law Review
Abstract
In a recent article, Cass Sunstein and Adrian Vermeule argue that capital punishment is morally required if it will deter more killings than it inflicts. They claim that the state's duty is to minimize the incidence of murder, and that recent deterrence research shows that state executions, even if deemed murders themselves, can do so. If these findings are true, they argue, the state is morally obligated to undertake such life-life tradeoffs.
The logic of Sunstein and Vermeule's argument justifies not only state executions, but any state-perpetrated injustice that promises to reduce the incidence of similar injustices overall, as the authors acknowledge in a comment about torture. Recently such lesser evil arguments have indeed been invoked to justify state torture, detention without trial, and other human rights violations. In this essay, I identify problems that are common to all of these arguments, as illustrated by the well-developed example Sunstein and Vermeule have provided. My aim is to demonstrate that, however valid the lesser evil approach may be in some domains, it fails when invoked to defend state violations of the right to life and other fundamental human rights.
First Page
210
Last Page
238
Publication Date
Spring 2007
Recommended Citation
Eric Blumenson, Killing in Good Conscience: What's Wrong with Sunstein and Vermeule's Lesser Evil Argument for Capital Punishment and Other Human Rights Violations?, 10 New Crim. L. Rev. 209 (2007).