PHI130 Applied Ethics: Death Penalty 1

October 8, 2012
Issue
Capital punishment
Officially sanctioned punishment by death for (very grievous) capital crimes?
Positions
Abolitionists: those who want to do away with capital punishment, who believe the death penalty is never justified
Retentionists: those who want to retain death penalty as part of system of legal punishment, who believe that sometimes
capital punishment is warranted
What they share in common
Both sides likely to agree that legal punishment is legitimate f(x) of society
Also generally concur on importance of preserving life, respecting inherent value of persons, and ensuring that punishment
is fair and reasonable
Background
Percentage of Americans who supported death penalty has decreased
Percentages dropped steeply when alternative punishments e.g. life in prison without parole were included
2/3 of world had eliminated death penalty by law or practice by December 2008
Five countries account for 88% of known executions: China, Iran, Saudi Arabia, Pakistan, US
Ethical relativism: it depends on acceptance of the society
Arguments for the death penalty
Consequentialist approach
Death penalty has positive effects on societyspecifically that it either prevents criminals from harming others again or
deters would-be offenders from capital crimes
Executing hardened murderers is the best way to prevent them from killing other inmates or escaping and killing
innocent people
Deontological approach (retributivism)
People should be punished simply because they deserve it. And, the punishment should be proportional to the crime.
Retributivism isnt revenge: revenge arises from a desire to retaliate by inflicting suffering; retributivism is about justice.
Arguments against the death penalty
Consequentialist approach
Life in prison without parole is as effective as execution in preventing inmates from repeating their crimes, and it
results in greater overall happiness or goodness for society
Chances of unintentionally executing the innocent are great. In that case, happiness for society is diminished
Deontological approach
Human beings have inherent value, dignity, and right to life
Punishment should fit the crime, and death penalty is unjust because it doesnt fit the crime
Reason for retributivism
Principle of Equality (principle of an eye for an eye)
What people deserve as recipients of rewards or punishments is determined by what they do as agents
If you slander another, you slander yourself.
If you steal from another, you steal from yourself.
If you kill another, you kill yourself.
Can it pass Kants criteria?
Categorical imperative: Equally treat everyone!
You can consistently wish it to be a universal law.
Never treat others merely as a means.
Application
Agent side story: Equally slander everyone!
Agent slanders others so he deserves slander
Judge side story: Help others!
Someone deserves help, so we help.
Agent deserves slander so we slander that person
Deontological conception of punishment
Retributivism isnt revenge.
Revenge arises from desire to retaliate by inflicting suffering. (Treating others as a means, bad will.)
Retributivism is respect for others.
We give full recognition to the criminal as a person, as a rational, moral agent who chooses freely and can be
held responsible for his or her actions. (Treating others as an end.)
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October 8, 2012
Retributivism isnt for greater happiness for a society.
Even if a civil society resolved to dissolve itself with the consent of all its membersthe last murderer lying in
prison ought to be executed before the resolution was carried out. (Never treat others merely as a means.)
Objection
If the punishment must resemble the crime, then we should rape rapists, torture torturers, and burn arsonists.
We shouldnt rape rapists because it is no respect for humanity.
Hence the principle of equality cannot be a general measure of punishment.
Hence it is unjustified that murderers deserve death penalty
Proportional Retributivism (Andrew von Hirsch)
Principle of Proportionality (commensurate deserts)
Severity of punishment should be commensurate with (or proportional to) the seriousness of the crime.
Same as Kant: criminals deserve punishment
Different from Kant: quality and quantity of punishment
Implementing a punishment system
Make a list of crimes, ranking them in order of seriousness: from parking meter violations to murder
Construct a corresponding scale of punishments
Hence the more serious the crime was, the higher on the punishment scale was the punishment administered.
Advantage and Disadvantage
Advantage: ???
Disadvantage:
Therefore, both of the equality retributivism and the proportional retributivism fail justifying the death
penalty
Conclusion
There isnt direct connection between what a person does and his or her degree of moral desert.
To make judgments of moral desert, we need to know about a persons intentions, motivations, and circumstances,
not just about the action and its result
It is ironic that Kant overlooks this aspect
Execution of Innocents
Argument against the death penalty
A convicted man may be found to have been innocent.
If he was executed, the penalty is irrevocable.
Hence the death penalty is unjust
The inconsistency problem
If the death of innocents because of judicial error is unjust, so is the death of innocents by murder.
Hence the death penalty is justified
However, if the death of innocents is unjust by murder, so is the death of innocents because of judicial error.
If judicial error is always possible, then the death penalty is unjustified.
The utilitarian way out
It is not the (death) penalty that is unjust when inflicted on the innocent, but its imposition on the innocent.
The death penalty can deter enough murders to reduce the total number of innocents killed (by crime and by judicial
error) so that fewer are lost than would be lost without it.
Hence, deterrence can justify the possibility of irrevocable injustice.
Hence the death penalty is justified.
Empirical support for possibility of judicial error
2004 execution of Cameron Todd Willinghamconvicted for arson deaths of three young childrenis now at center of
national debate
Video examines evidence used to convict Willingham, offers in-depth portrait of those most impacted by case, and
explores explosive implications of execution of possibly innocent man
Utilitarian way out
It is not the (death) penalty that is unjust when inflicted on the innocent, but its imposition on the innocent.
The death penalty can deter enough murders to reduce the total number of innocents killed (by crime and by judicial
error) so that fewer are lost then would be lost without it.
Hence, deterrence can justify the possibility of irrevocable injustice.
Hence the death penalty is justified.
Question 1: Does any punishment deter others at all?
Deterrence depend on rational calculation of risks vs. rewards
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We dont generally calculate when act
Therefore, punishments dont generally deter us from acting immorally.
Responsehow deterrence works
Deterrence depends on humans responsiveness to danger
Natural dangers (external)
Ex: People dont jump from high mountain cliffs, however tempted to fly through the air. The mere risk of
injury often restrains us from doing what is otherwise attractive.
We refrain even when we have no direct experience of injury, and usually without explicit computation of
probabilities of injury.
Internal dangers
Ex: Legal threats are constructed by legislators to restrain actions. Most people further transform this external
danger into internal danger: they acquire a sense of moral obligation, a conscience, which threatens them if
they do immorally
Punishments (external)
Punishments deter people in the same way as natural dangers do.
Where (in the absence of natural danger) the threatened punishment is so heavy that the disadvantage of being
punished tends to exceed the advantage of violating rules, the rule is obeyed.
Legislation should be rational, subjects need only be responsive
Question 2: elimination of the causes of crime?
Possible causes of crime: poverty, personality disorders
Only the elimination of the causes of crime can make a significant and lasting difference in the incidence of crime.
Hence we should eliminate the causes of crime rather than punish the criminal.
Question 3: Does death penalty deter more than life in prison?
Does the death penalty deter more than life in prison (without parole) so that the difference exceeds the cost of
possible execution of the innocent?
Response
In some circumstances (rebels, treason in wartime): it is fact that the death penalty is the only possible deterrent
In case of acute substantial attempts to overthrow the government, prospective rebels would not be deterred
by any prison sentence b/c they believe the victory of revolution will invalidate it. Execution would be the only
deterrent b/c it cannot be revoked by victorious rebels.
Responsethe statistics are not conclusive
The similar areas are not similar enough; the periods are not long enough; many social
Empirical objection
Some statistics show that the homicide rate doesnt vary greatly between similar areas with or without the death
penalty, and in the same area before and after abolition.
Hence there is no deterrent effect of the death penalty
Responsethe statistics arent conclusive
Similar areas are not similar enough; the periods are not long enough; many social differences and changes may
account for the supposed variation
That there be less homicide after abolition can be consistent with the postulated deterrent effect of the death
penalty: with retention there might have been still less
To favor capital punishment, it is enough to affirm that the severity of the death penalty may deter some potential
criminals. However, such a deterrent effect may easily be offset by non-penal factors.
Hence the statistics show only that there is no statistical proof for the deterrent effect of the death penalty, but
they dont show that theres no deterrent effect.
Burden of proof
Irrevocability may support a demand for more proof to expect more deterrent effect of the death penalty than
revocable penalties might produce.
Utilitarian argument
If we impose the death penalty and achieve no deterrent effect thereby, the life of a convicted murderer has been
expended in vain (from utility viewpoint)net loss
If we impose the death sentence and thereby deter some future murderers, we spared the lives of some future victims (and
prospective murderers too)net gain
Just like when we invest, we must risk something certain (death of a convicted man) for something uncertain (life of the
future victims of murderers who may be deterred), for it seems more important to spare victims than to spare murderers
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Hence the burden of proving that the greater severity of the death penalty adds nothing to the deterrence lies on
abolitionists
Retentionist conclusion
We have no right to risk additional future victims of murder for the sake of sparing convicted murders
On the contrary, our moral obligation is to risk the possible ineffectiveness of executions
Objection: how many guilty lives is one innocent life worth?
Conditions
Condition 1: executing the murderer would invariably restore the murder victim to life, whole and intact, as though no
murder had ever occurred.
Condition 2: at the level of a hundred executions per year, each additional execution of a convicted murderer reduces
the number of murder victims by ten.
Condition 3: at the level of a hundred executions per year, each additional execution of a convicted murderer reduces
the number of murder victims by 0.5.
Condition 4: executing every convicted murderer reduces the murder rate no more than does executing one in a
hundred.
Guilty lives are not worthless.
When executing so many convicted murderers can obtain only a slight decrease in the number of murders, its not worth it.
Hence its not always true that we must risk the death of the convicted man for the life of the future victims of murderers
who may be deterred.
Thoroughgoing utilitarian analysis
Clinical psychologists have presented evidence to suggest that the death penalty actually incites some persons of unstable
mind to murder others because they fancy that they are killing with justification analogously to the lawful and presumably
justified killing involved in capital punishment.
Abolitionism
The deterrence achieved by the death penalty for murder is not measurably any greater than the deterrence achieved
by long-term imprisonment.
The death penalty may incite murders.
Its always possible to execute the innocent.
Hence, more innocent lives would be threatened and lost by using the death penalty than would be risked by
abolishing it.