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Abstract:
Cass Sunstein and Adrian Vermeule have argued that, if recent empirical studies claiming to find a substantial deterrent effect from capital punishment are valid, consequentialists and deontologists alike should conclude that capital punishment is not merely morally permissible, but actually morally required. While there is ample reason to reject this argument on the ground that the empirical studies are deeply flawed (as economists John Donohue and Justin Wolfers elaborate in a separate essay), this response directly addresses Sunstein and Vermeule's moral argument. Sunstein and Vermeule contend that recognition of the distinctive moral agency of the government and acceptance of "threshold" deontology (by which categorical prohibitions may be overridden to avoid catastrophic harm) should lead both consequentialists and deontologists to accept the necessity of capital punishment. This response demonstrates that neither premise leads to the proposed conclusion. Acknowledging that the government has special moral duties does not render inadequately deterred private murders the moral equivalent of government executions. Rather, executions constitute a distinctive moral wrong (purposeful as opposed to non-purposeful killing), and a distinctive kind of injustice (unjustified punishment). Moreover, acceptance of "threshold" deontology in no way requires a commitment to capital punishment even if substantial deterrence is proven; rather, arguments about catastrophic "thresholds" face special challenges in the context of criminal punishment. This response also explains how Sunstein and Vermeule's argument necessarily commits us to accepting other brutal or disproportionate punishments, and concludes by suggesting that even consequentialists should not be convinced by the argument.

Abstract:
A growing number of cases in the United States Supreme Court and the lower federal and state courts pose versions of the same general question: when do governmental actions which are denominated "civil" by legislature but which deprive citizens of liberty or property count as "punishment" so as to implicate some or all of the special procedural regime reserved for the imposition of criminal punishment? The article begins by considering two recent cases in the Supreme Court which pose quite different versions of the question: United States v. Ursery, which posed a double jeopardy challenge to in rem civil forfeiture actions in light of Halper, Austin, and Kurth Ranch; and Kansas v. Hendricks (currently pending), which poses an ex post facto and double jeopardy challenge to Kansas' "sexually violent predator" law, which authorizes long-term civil commitment for those, inter alia, who have been convicted of sexually violent crimes and who suffer from a "mental abnormality" which renders them likely to offend again. Before offering an analysis of the problems posed by Ursery and Hendricks, the article first explores some of the intellectual, institutional, and socio-cultural causes of the de-stabilization of the criminal-civil distinction in modern American law. It then turns to the work of moral philosophers on punishment theory to attempt to develop an account of punishment that distinguishes it from non-punitive takings of money and property and from non-punitive restrictions on liberty AND that explains how these distinguishing features relate to the separate procedural apparatus we have established for its imposition. Finally, it returns to the Ursery and Hendricks cases to apply the insights developed from moral theory.