First off, the idea that this has anything to do with the mass/count distinction is pretty implausible on its face: Both the relevant nouns are countable by the familiar tests.
I do think that morphosyntax (and it's relation to semantics) must play a role, though.
Nominalizations like 'punishment' often have this abstract reading in which they seem to be the *name* of a certain kind of action ('punishment,' 'destruction,' 'failure'), so while you can talk about instances ('3 failures'), you can also refer to the action by name ('failure is not an option'). Here, the absence of the definite article has to do with the name-y quality, which, in turn, is connected to uniqueness presuppositions, etc. You see this behavior very clearly in gerunds ('running is a healthy activity').
'Penalty,' on the other hand, is not one of these kinds of nominalizations. In fact, it's not a nominalization of a verb at all--both 'penalty' and 'penalize' are synchronically related to a base adjective 'penal.'
Maybe this is more of a description than an explanation, but I lean towards attributing the absence of the definite article in 'capital punishment' to the semantics of a class of derivational suffixes.
I do think that morphosyntax (and it's relation to semantics) must play a role, though.
Nominalizations like 'punishment' often have this abstract reading in which they seem to be the *name* of a certain kind of action ('punishment,' 'destruction,' 'failure'), so while you can talk about instances ('3 failures'), you can also refer to the action by name ('failure is not an option'). Here, the absence of the definite article has to do with the name-y quality, which, in turn, is connected to uniqueness presuppositions, etc. You see this behavior very clearly in gerunds ('running is a healthy activity').
'Penalty,' on the other hand, is not one of these kinds of nominalizations. In fact, it's not a nominalization of a verb at all--both 'penalty' and 'penalize' are synchronically related to a base adjective 'penal.'
Maybe this is more of a description than an explanation, but I lean towards attributing the absence of the definite article in 'capital punishment' to the semantics of a class of derivational suffixes.
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