TOPICS IN LEGAL & POLITICAL PHILOSOPHY

CAPITAL PUNISHMENT

I. Five rationales: deterrence-oriented, retributivist, incapacitative, denunciatory, purgative II. Minimal Invasion Principle: a side-constraint on the use of punitive techniques. [G]iven a compelling state interest as the goal or purpose, the government must use the least restrictive means sufficient to achieve that goal or purpose. III. Deterrence-oriented rationale A. Key Thesis: Executions are more effective than are any gentler sanctions in lowering the incidence of murders by inducing people to fear the consequences of perpetrating such crimes. B. General awareness, rather than explicit or detailed calculations, on the part of the people who are to be deterred C. Marginal deterrence versus absolute deterrence D. General deterrence versus specific deterrence E. The psychological reaction on which the deterrence-oriented rationale trades is that of fear. People are to be frightened into compliance with legal requirements. F. Communicative dimension of punishment

G. Approvable (at least conditionally) within a Rawlsian Original Position on the basis of maximin reasoning H. Doesnt use people solely as means IV. Shortcomings of deterrence-oriented rationale A. Empirically dubious: conflicting results, tendentious methodological restrictions, and heavy model-dependence of results B. Some general empirical doubts 1. Prospects versus certainties 2. Undeterrable wrongdoers 3. Marginal deterrence versus absolute deterrence

4. Felons killed by police offers in line of duty (and by private citizens) 5. Convicts killed in prison 6. Possible brutalization C. Moral shortcomings 1. The analogy of Ghoulishia and the involuntary harvesting of organs a. Can the analogy be blocked by an appeal to the innocence of the involuntary donors of organs? (No, because utilitarianism is entirely prospective in its orientation.) Can the analogy be blocked if the deterrence-oriented rationale is supplemented by the retributivist rationale (requiring guilt as a necessary condition for legitimate punishment)? (i) No, because the Ghoulishian practice of organ harvesting is not punitive (ii) No, because the Ghoulishian practice would be illegitimate even if the only involuntary donors of organs were criminals 2. Massacre of the innocents a. Would executions of innocents be counterproductive (in utilitarian terms)? (i) Not all legal powers of officials are explicitly conferred; because the power to order executions of innocents need not be explicitly conferred, its existence and exercise will not be widely recognized. (ii) The objection is focused on a matter of principle rather than a matter of empirical contingencies. (iii) The officials might be deluded along with everyone else. b. Can retributivistic side-constraints disallow any executions of innocents? (i) Close relatives of criminals can be executed in order to punish the criminals; hence, no innocent person is thereby being punished. (ii) Failing to prevent a close relative from committing a serious criminal act can itself be criminalized; hence, if the execution of the person who fails to prevent the perpetration of the act is classified as a punishment, it is not the punishment of an innocent person. c. Can executions of innocents be morally justified in extreme situations? (Moral permissibility versus moral optimality.)

b.

3. Barbarous punishments a. The principle of proportionality cannot overcome this problem; it cannot specify an upper limit of punitive severity. b. The utilitarian underpinnings of deterrence-oriented theories cant overcome this problem, since they treat an issue of principle as a highly contingent empirical matter. Note that my reliance here on the illegitimacy of torture will not undermine the legitimacy of capital punishment by enabling opponents of such punishment to draw an analogy to torture; any such analogy is untenable. Whereas torture involves the deliberate exploitation of a persons capacity to experience intense pain, capital punishment (properly administered) does not. Retributivistic side-constraints will not overcome this problem, since retributivists also are unable to specify a determinate upper limit of severity. The argument here is not that deterrence-oriented officials inevitably will resort to gruesome punitive techniques; the argument is that deterrence-oriented considerations will often call for them to do so.

c.

d.

e.

V. The retributivistic rationale A. General themes 1. Basic values of retributivism: human equality, moral responsibility (desert) 2. 3. 4. Derivative principles: commensurateness, proportionality, lex talionis Negative thesis: Guilt is a necessary condition for the legitimacy of punishment. Affirmative thesis: Guilt incurred in circumstances where punishments for breaches of the law have been publicly announced is normally a sufficient condition for the legitimacy of punishment. Equality: For nearly every version of retributivism, the essence of the wrong perpetrated by criminal conduct lies in the elevation of the criminal over his immediate victim(s) and over the public at large. Punishment as communication: primarily to offenders (with reprobation) and secondarily to the public at large (with reassurance) Retribution is not revenge; it is a doctrine of impersonal justice rather than a doctrine of private retaliation. Its concern is to uphold certain fundamental moral principles rather than to marshal vindictive sentiments. 3

5.

6. 7.

B. Competing versions of retributivism 1. Desert-focused retributivism: Nearly every theory that can correctly be classified as a specimen of retributivism is concerned with the negative deserts of people who have engaged in wrongdoing. Here, however, the epithet desert-focused will be reserved for retributivistic theories that devote attention chiefly to the ways in which any malefactors gain through their self-indulgent noncompliance with the legitimate criminal-law mandates of their community. Vindicatory retributivism: Instead of concentrating on the unfair gains that have been amassed by criminals through their wrongdoing, the vindicatory retributivists concentrate on the deprivations undergone by the victims of the wrongdoing. For these latter theorists, institutions of punishment are the mechanisms whereby the rights and dignity of victims are publicly reaffirmed. Those institutions are pari passu mechanisms of communication that forcefully convey to criminals the wrongness of what they have done and the contents of the fundamental moral principles which they have violated.

2.

C.

Does retributivism in itself disallow capital punishment? 1. 2. Is the communicative-reformative dimension of retributivism rendered pointless by capital punishment? Is capital punishment on a par with torture as a practice that violates the human dignity of the victim and sullies the moral integrity of the perpetrator? a. b. No exploitation of the capacity to experience intense pain Upholds rather than negates the moral responsibility of capital defendants

D.

Does retributivism render capital punishment morally obligatory? No. 1. 2. Given the Minimal Invasion Principle, executions on retributivistic grounds are permissible only if they are morally obligatory. Many retributivists believe that their doctrine does not single out specific types or levels of punishments as uniquely appropriate for specific types of crimes. Because we can never be epistemically justified in singling out some level of punitive severity as uniquely commensurate in its severity with the seriousness of some specific type of crime, no such level is uniquely commensurate in its severity with the seriousness of any type of crime.

3.

4. 5.

The requirement of proportionality cant in itself fix an upper limit of punitive severity. The lex talionis leaves open the level of abstraction or specificity with which the wrong-making properties of a crime are to be distilled for the purpose of effecting a qualitative correspondence between the crime and the punishment.

VI. The incapacitative rationale A. The central idea is that people guilty of savage murders are too dangerous to be kept alive. Even if such people are apprehended and convicted and incarcerated, the likelihood of their continuing to commit mayhem (or of their inspiring others to commit mayhem) is unacceptably high. They can slaughter their fellow convicts or the guards in their prison, and through communications carried to people outside they can direct nefarious doings far beyond the confines of the walls that immure them. Only if they are executed will they cease to pose a clear and present danger to everyone around them and to the broader community. B. Incapacitative theorists maintain that, even if the executions of murderous thugs will not deter anyone else from indulging in criminal activity, the executed thugs themselves will no longer be around to prey on their fellow human beings. Pro tanto, the world will be a safer place; the numerous innocent lives spared will more than offset the relatively few lives extinguished. C. Differences from the deterrence-oriented rationale 1. Focused on eliminating the danger posed by the continued existence of an offender rather than on evoking fear in others. Both approaches seek to avert serious crimes, but the incapacitative rationale pursues that aim through prevention, whereas the deterrence-oriented rationale pursues that aim through the alteration of behavioral dispositions. 2. Deterrence-oriented rationale puts aside specific deterrence because executed criminals wont be in a position to comply with the law through fear, whereas the incapacitative rationale puts aside specific deterrence because it doesnt pursue deterrence of any type (though of course deterrence might occur as a byproduct of incapacitative executions). 3. Whereas the deterrence-oriented approach lowers the incidence of criminal activity by frightening would-be wrongdoers, the incapacitative approach lowers the incidence of criminal activity by disabling actual wrongdoers. D. Differences from the retributivistic and denunciatory rationales 1. Though both retributivism and the incapacitative rationale are egalitarian, the egalitarianism of the former is thicker than that of the latter (which extends only to the inclusion of everyone in a weighing of interests).

2. 3.

The incapacitative rationale is consequentialist, whereas retributivism is deontological. Unlike the denunciatory rationale, the incapacitative rationale does not ascribe any communicative role to executions. It does not seek to purify the moral sentiments of the general public, and it does not seek to defuse vindictive passions (though it is of course compatible with the pursuit of such aims).

E.

One major problem with this rationale is that on its own terms it is unconcerned with moral responsibility. It deals with dangerously violent people as if those people were rabid animals rather than agents responsible for their misdeeds.

F. A closely related problem is that the incapacitative justification for capital punishment does not even condition its applicability on the occurrence of misdeeds. If there is a solid basis for the claim that someone is strongly disposed to engage in murder and mayhem, then under the incapacitative rationale there is a solid basis for executing him regardless of whether he has yet committed any crimes. G. A further weakness of the incapacitative account of punishment is that it calls for the complete exoneration of anyone who has committed vile crimes, so long as he poses no threat of future lawbreaking. Even more damaging is that the incapacitative justification cannot determinately call for executions in preference to alternative sanctions (such as lifelong imprisonment in solitary confinement) that effectively deprive savage criminals of opportunities to harm others. Thus, the incapacitative rationale runs aground on the Minimal Invasion Principle. Yet another shortcoming is that the incapacitative account countenances appalling methods of punishment in circumstances where those methods will best enhance public security and thereby maximize utility. For example, amputating the legs of a prolific burglar may be the most cost-effective way to remove the danger which he poses to the public

H.

I.

VII. The denunciatory rationale A. According to this rationale, punishments give expression to a communitys detestation of the misdeeds for which the punishments are levied. This expressive role of punishment is said to be salutary for two main reasons. 1. The manifestation of the communitys attitude of revulsion toward serious crimes will help to solidify peoples sentiments against the commission of those crimes. Like the deterrence-oriented rationale, the denunciatory theory maintains that a key function of punishment lies in the reduction of criminal activity. However, whereas the advocates of the deterrenceoriented approach contend that the reduction will occur through the evocation of fear in people, the advocates of the denunciatory rationale

contend that the crime-diminishing effect of punishment derives instead from the reinforcement and purification of peoples moral sentiments. 2. A second valuable consequence of the expressive role of punishment consists in the defusing of peoples vindictive impulses. By giving vent to peoples feelings of hatred and resentment, punitive measures satisfy their instincts for revenge and thereby greatly lower the likelihood of their resorting to private acts of retaliation. When private vengeance and vendettas are thus obviated, the increase in public order and individual security is beneficial for everybody. Although retributivism is often associated by its critics with a lust for revenge, the denunciatory conception of punishment is in fact the rationale that accords a central place to vindictive feelings. Of course, in so doing, the denunciatory conception is not crassly pandering to peoples baser impulses. It portrays punishment as the optimal means of channeling and allaying peoples vengeful sentiments, rather than as a means of untrammeling those sentiments to roam freely. One problem is that the evidence concerning the empirical claims of the denunciatory theorists is at least as murky as the evidence for the empirical claims of the deterrence-oriented theorists. Another problem is that, like the deterrence-oriented approach, the denunciatory theory does not in itself provide any basis for confining the death penalty to malefactors who have actually committed crimes. If someone is very widely and firmly thought to be responsible for an atrocious murder, and if there is no significant prospect of the emergence of any exculpatory evidence that will persuade people to the contrary, then the denunciatory rationale countenances the execution of the suspect regardless of whether he has actually carried out any misdeed. Yet another problem (which again parallels a problem in the deterrenceoriented theory) is that punishments much more severe than the ordinary death penalty such as the infliction of savage torture followed by death through dismemberment are highly likely to be even more efficacious as reinforcers of morally upright sentiments. A further problem is that some especially gruesome crimes (such as cannibalistic murder) would be punished especially lightly in a system of criminal justice that seeks to solidify the moral sentiments of ordinary people, since peoples feelings of revulsion toward such crimes will not need to be strengthened through the imposition of legal sanctions. (To be sure, the objective of defusing peoples impulses toward private acts of vengeance will point in the direction of imposing harsh punishments. However, the point here is that the goals of the denunciatory theorists are often not mutually reinforcing.) An additional problem is that the denunciatory theory is committed to the proposition that the impunity enjoyed by evildoers who succeed in concealing 7

B.

C.

D.

E.

F.

G.

their vile crimes is entirely proper. In other words, a corollary of the denunciatory theory is that the complete absence of any punishment will be morally justified whenever a crime has been kept hidden skillfully. Through sufficient craftiness in concealment, a malefactor can avoid giving rise to any of the sorts of harms which a denunciatory system of criminal justice seeks to remedy through punishments. Consequently, the fact that such a malefactor has escaped any punishment is fully appropriate by the lights of the denunciatory theory. H. Like the other standardly proposed rationales for the death penalty, the denunciatory rationale transgresses the Minimal Invasion Principle. Denunciatory objectives can be fulfilled through sanctions that are somewhat less severe.

VIII. The purgative rationale A. B. Biblical (So you shall purge the evil from the midst of you) and Hellenistic in origin, but unremittingly secular in its status as a moral justification The purgative rationale maintains that some misdeeds are so monstrously evil as to render defiling the lives of their perpetrators. The continued existence of the perpetrator of any such misdeed(s) will have sullied the moral character of the community in whose control he or she abides. Though the community may well not have been complicit in the original commission of the misdeed(s) since the misdeed(s) in question may have been thoroughly at odds with the mores of the community rather than in furtherance thereof it becomes and remains complicit in the continued existence of the person who is responsible, insofar as that culprit has been brought or should have been brought under the control of the community. By failing or refusing to execute such a person, a community defiles itself. Unlike the commonly invoked rationales for capital punishment, the purgative justification calls uniquely for the death penalty not only in the sense that it deals exclusively with the most heinous crimes, but also in the sense that the sole remedy which it ever prescribes is the termination of a defilingly evil persons life. The purgative rationale has to draw upon a thoroughly secular account of evil and a thoroughly secular account of defilement. Whereas the former topic has received extensive attention from philosophers in recent years, the latter topic has been neglected.

C.

D.