Transcript THE ETHICS OF CAPITAL PUNISHMENT

THE ETHICS OF CAPITAL PUNISHMENT
Source: www.ipfw.edu/phil/faculty/Strayer/Ethics%2010%20Capital%20Punishment.ppt
Electric Chair, Andy Warhol, 1971
“How to Argue About the Death Penalty”
Hugo Adam Bedau
FACTUAL ISSUES
• Bedau begins his paper by noting that the death penalty
controversy in the U. S. has largely considered certain questions
of fact, and has not really concentrated on “the normative
propositions crucial to the dispute” which are of greater
importance.
• The questions of fact are four:
•
1. Is the death penalty a greater deterrent to murder than
life imprisonment without parole?
•
2. Is the death penalty applied in a discriminatory way?
•
3. What is the risk that an innocent person will be
executed?
•
4. What is the risk that a convicted murderer who is not
executed will kill again in or out of jail, if not given life without
parole ?
ANSWERS TO THE FACTUAL QUESTIONS
• For Bedau the answers to these four questions are:
•
1. There is no evidence that the death penalty is a
better deterrent to murder than life in prison. Both life in
prison and execution seem about equally ineffective.
•
2. There is good evidence that the death penalty is
not applied to everyone equally but race makes a
difference.
•
3. The risk to an innocent person cannot be
calculated but the risk is not zero.
•
4. There is recidivism amongst murders, and so there
is that risk that they will kill again.
THE ETHICAL RELEVANCE
OF FACTS I
• Bedau says that the important thing to see here is
that the answers to the questions cannot by
themselves answer the question of the morality of
the death penalty.
• Even though Bedau thinks that the death penalty
should be abolished, he says that the facts as they
stand cannot show that the death penalty ought to
be eliminated.
• The facts also do not show that life imprisonment
is better than the death penalty.
THE ETHICAL RELEVANCE
OF FACTS II
• The death penalty is not the only form of
punishment in which discrimination occurs, but
discrimination is found in other kinds of
punishment as well.
• In addition, and as far as the facts are concerned, it
can always be argued that such discrimination will
decrease over time, and, if that were the case then
one could not use the former fact of discrimination
as an argument against the morality of the death
penalty.
THE ETHICAL RELEVANCE
OF FACTS III
• Bedau says that the important point when we
consider facts which concern the death penalty is
that “the empirical evidence is not the major
factor in explaining why settling disputes over
matters of fact cannot settle the larger controversy
about the death penalty itself.”
• Rather, the larger controversy concerns the
morality of the death penalty. That is, whether the
death penalty should be legal or not is a moral
question which cannot be argued from facts.
THE ETHICAL RELEVANCE
OF FACTS IV
• Arguments in favor of or in opposition to
the death penalty will have to be moral
arguments. They will have to be normative
and not just practical.
• That is, we have to look at what standard to
adopt, and not what uses or abuses may
follow from the adoption of that standard.
THE ETHICAL RELEVANCE
OF FACTS V
• Bedau: “As a matter of sheer logic, it is not
possible to deduce a policy conclusion (such as the
desirability of abolishing the death penalty) from
any set of factual premises, however general and
well supported.”
• Bedau: “Any argument intended to recommend
continuing or reforming current policy on the
death penalty must include among its premises
one or more normative propositions.”
NORM AND NORMATIVE
• The term ‘normative’ means “of, relating to, or
determining norms or standards,” and a ‘norm’ is “a
principle of right action binding upon the members
of a group and serving to guide, control, or regulate
proper and acceptable behavior.” (Both definitions
from the tenth edition of Merriam-Webster’s
Collegiate Dictionary.)
• And Simon Blackburn says that “A norm is a rule for
behavior, or a definite pattern of behavior, departure
from which renders a person liable to some kind of
censure.” (The Oxford Dictionary of Philosophy.)
NORMATIVE STATEMENTS
AND THE DEATH PENALTY
• Bedau says that normative statements which concern the death
penalty can be divided into two groups:
•
1. Those which focus on relevant and desirable social
goals or purposes.
•
2. Those which express relevant and respectable moral
principles.
• An example of a social goal is reduction of crime, and the
question here would be to what extent does the death penalty
meet the goal of reducing crime?
• An example of a respected moral principle is that everyone
should receive a fair trial.
GOALS, PRINCIPLES, AND FACTS
• Bedau thinks that the way to argue about the death penalty is
to look at the social goals relevant to punishment in general,
and to look at the moral principles which are relevant to
correct management of the social goals.
• Once we have looked at the social goals which are relevant to
punishment in general and have identified and evaluated the
moral principles relevant to punishment, then we can consider
whatever facts are relevant to the issue.
• Thus Bedau says that the issue of the death penalty can be
resolved in theory by first looking at what our social goals are,
how these should be constrained by our moral principles, and
then by looking at whatever facts are relevant to the use of the
death penalty as a kind of punishment.
PUNISHMENT AND
RELEVANT SOCIAL GOALS I
• Goal 1: “Punishment should contribute to the
reduction of crime; accordingly, the punishment
for a crime should not be so idle a threat or so
slight a deprivation that it has no deterrent or
incapacitative effects; and it should not contribute
to an increase in crime.”
• Goal 2: “Punishments should be ‘economical’ they should not waste valuable social resources in
futile or unnecessarily costly endeavors.”
CONSIDERATION OF THE
FIRST TWO GOALS
• The goals of reducing crime and doing so cheaply
have been seen by many as arguments in favor of the
death penalty.
• However, Bedau says that “opponents of capital
punishment need not reject these goals, and its
defenders cannot argue that accepting these goals
vindicates their preferred policy.”
• Bedau thinks then that thinking that capital
punishment is the best means of reducing crime and
doing so in the cheapest way can be questioned.
THE JUSTIFICATION OF PUNISHMENT
AS A MEANS TO AN END
• The justification of a particular punishment, such as capital
punishment, as a means to an end or ends, such as reducing
crime and being economical, must involve two steps:
•
1. It must be shown that an end or ends which a
punishment is a means of reaching is desirable. For instance,
if an end is a reduction in crime, then it must be shown that a
reduction in crime is a good thing.
•
2. It must be shown that punishment is “the best means”
to that end or ends. Thus it must be shown that the end cannot
be better achieved without punishment, that there is no better
means of reducing crime apart from punishment. For the death
penalty, this would mean that it would have to be shown that a
reduction in the murder rate cannot be achieved without capital
punishment.
PUNISHMENT AND RELEVANT
SOCIAL GOALS II
• Goal 3: “Punishment should rectify the
harm and injustice caused by crime.”
• Goal 4: “Punishment should serve as a
recognized channel for the release of public
indignation and anger at the offender.”
• Goal 5: “Punishment should make
convicted offenders into better persons
rather than leave them as they are or make
them worse.”
CONSIDERATION OF THE
LAST THREE GOALS I
• As Bedau says, if you accept goal 5 you must
object to the death penalty since you cannot
improve a person by killing him.
• He also says that he will not try to argue against
the death penalty on this goal, and notes that many
who are in favor of the death penalty will not be
persuaded by it.
• Bedau recognizes that one can object to the third
goal that it is not really a goal of punishment to
rectify an injustice.
CONSIDERATION OF THE
LAST THREE GOALS II
• The problem with rectifying the crime of murder,
either through imprisonment or through the death
penalty, is that “there is no possible way to rectify
the crime of murder.” The only way to rectify
murder would be to bring the victim back.
• Because that is the case, Bedau says that it may
make the fourth goal of punishment being an
outlet for anger even more important.
CONSIDERATION OF THE
LAST THREE GOALS III
• In fact, Bedau recognizes that some people think that this
fourth goal of punishment is the best argument for the
death penalty. They think that it is important because it
is necessary to have a punishment which can express the
outrage that citizens – perhaps especially the family and
friends of the victim – feel towards a murderer.
• That is, punishment appropriate to the expression of
anger is necessary for a mentally healthy society, and the
death penalty is the best means of expressing that anger.
POSSIBLE RESPONSES TO GOAL 4 AS A
DEFENSE OF CAPITAL PUNISHMENT I
• How might we respond to the fourth goal as an
argument for the death penalty - that it provides for
the release of public anger directed to the murderer?
• Bedau mentions three possible responses:
•
1. Reject as false the view that the death penalty
provides for the release of public anger, and is
necessary for the mental health of a just society.
•
2. Concede that the death penalty does function
as a means of dealing with public anger, but argue that
it is only justified in a small number of cases, such as
for the likes of Timothy McVeigh.
POSSIBLE RESPONSES TO GOAL 4 AS A
DEFENSE OF CAPITAL PUNISHMENT II
•
3. Concede that it is legitimate and
important to have some form of punishment
which is an outlet for public anger directed
towards a murderer, but that the death
penalty is not the right punishment since it
is ruled out on grounds of morality.
• For Bedau, both the second and third
responses are sound.
ANGER I
• For Bedau, simple anger at the crime of murder is
not enough by itself to justify the death penalty in
any case.
• We need to know more details about the particular
crime including the context in which it occurred
and what caused it.
• Bedau says that we rarely know enough about the
particulars in a crime to know whether to know to
what extent our anger is justified, and whether we
are justified in putting the person to death.
ANGER II
• Bedau thinks that it is curious that those who
argue for the death penalty on the basis that it is
needed as an outlet for public outrage nevertheless
reject some forms of execution which are true
expressions of hatred and anger at murderers.
• We no longer behead, crucify, torture, or
dismember murderers, and the preferred method
of execution now is lethal injection, which Bedau
says seems too calm a form of execution to be an
expression of outrage at the crime.
CONSEQUENCES, DUTY,
AND PUNISHMENT
• Bedau: “If the purposes or goals of punishment lend a
utilitarian quality to the practice of punishment, the
moral principles relevant to the death penalty operate
as deontological constraints on their pursuit.”
• Thus, the purposes or goals of punishment are to be
valued in terms of the positive consequences which
their implementation has for society, but kinds of
punishment utilized are constrained by moral
principles which we have a duty to recognize.
MORAL PRINCIPLES RELEVANT TO
THE DEATH PENALTY I
• Principle 1: “No one should deliberately and intentionally
take another’s life where there is a feasible alternative.”
– (How does this pertain to the issue of euthanasia? Should
other language be added here to make this first principle
relevant to that issue?)
• Principle 2: “The more severe a penalty is, the more
important it is that it be imposed only on those who truly
deserve it.”
• Principle 3: “The more severe a penalty is, the weightier
the justification required to warrant its imposition on
anyone.”
MORAL PRINCIPLES RELEVANT TO
THE DEATH PENALTY II
• Principle 4: “Whatever the criminal offense, the accused
and convicted offender does not forfeit all his rights and
dignity as a person. Accordingly, there is an upper limit
to the severity - cruelty, destructiveness, finality - of
permissible punishments, regardless of the offense.”
• Principle 5: “Fairness requires that punishments should be
graded in their severity according to the gravity of the
offense.”
• Principle 6: “If human lives are to be risked, the risk
should fall more heavily on wrong-doers (the guilty) than
on others (the innocent).”
MORAL PRINCIPLES RELEVANT TO
THE DEATH PENALTY III
• Bedau says that these principles are either implicitly or explicitly
recognized by society in practice.
• And these principles put limits on what we can and cannot do to
someone who has committed a crime.
• Bedau says that these principles are “corollaries or theorems of
the general proposition that life, limb, and security of person - of
all persons - are of paramount value.”
• Because of this general principle, it follows that we can only
interfere in the life of another to the extent to which this is
necessary to protect the rights of others.
• This is why principle 5 outlaws torture - only minimal
interference in the life of another, even a criminal, is morally
permissible.
MORAL PRINCIPLES RELEVANT TO
THE DEATH PENALTY IV
• Bedau recognizes that none of these principles rules out
the death penalty.
• In fact, he says that he knows of no moral principle which
by itself would rule out the death penalty
• Even so, these principles do place a heavy burden on
anyone who advocates the death penalty to show that it is
necessary when locking up a criminal will just as well
protect society.
• Imprisoning someone for life is less intrusive then, and is
more in conformity with the principles, than capital
punishment.
MORAL PRINCIPLES RELEVANT TO
THE DEATH PENALTY V
• Perhaps the principle which would seem to argue
most favorably for the death penalty is number 5
that the punishment should fit the crime. Thus, if
murder is the worst crime, which it is, then it
should have the severest penalty.
• But even so, Bedau says that it does not follow
from this that the punishment has to be death. The
severest punishment could be life without parole.
LEX TALIONIS
• It does not follow, Bedau says, unless you accept
lex talionis - an eye for an eye, a tooth for a tooth,
a life for a life - that the punishment should be the
same as the crime, so that if a person kills he
should be killed.
• But Bedau says that lex talionis is not a sound
principle on which to base punishment in general.
• He does not say why, but the reason is that not all
crimes can be repaid with the same kind of
punishment - child abuse and rape for instance.
PRINCIPLE SIX I
• Bedau says that the principle of greater interest is
number 6 - that if humans lives are to be risked, better
to risk the lives of the guilty than the innocent which is what van den Haag will say.
• The idea is that it is better to execute all murderers so
that none of them can kill again than it is to execute
none of them so that we avoid the risk of executing
an innocent person.
PRINCIPLE SIX II
• For van den Haag, if we do not have capital
punishment then there is a risk to innocent people
that a convicted murderer released from prison
may kill again, and if we do have capital
punishment, the risk is that an innocent person
may be put to death.
• But for van den Haag it is clear that it is better to
place the risk of the killing of the innocent on the
lives of convicted felons than it is to place the risk
of being killed on the innocent population.
PRINCIPLE SIX III
• Bedau says that this argument is not as conclusive as it
may seem, and it is not enough to outweigh other
arguments against the death penalty.
• And he says that it is really a disguised version of the
first policy goal of punishment which is that it should
reduce crime.
• Thus this principle argues that reducing crime is more
important than anything else.
• Bedau also objects that we cannot really compare the two
risks discussed - the risk that an innocent person will be
executed as opposed to the risk to the innocent given no
death penalty.
BEDAU’S CONCLUSIONS ABOUT THE
DEATH PENALTY
• 1. The death penalty is primarily a means to one or more
goals, but is probably not the best means of reaching
those goals.
• 2. Several principles favor abolition of the death penalty.
• 3. However, there is no conclusive argument either for or
against the death penalty. (An argument which seems
conclusive to one side, such as lex talionis, the other side
does not have to accept.)
• 4. The goals and principles which Bedau has looked at
have “no obvious rank or relative weighting” - it is hard
to say which are more important than others.
GOVERNMENT POWER
• Bedau’s first argument against the death penalty is that
the power which the government has over the lives of
individuals should be decreased and not increased.
• Of course, some government power is necessary to have a
civil society, but the government’s power should be
constructive not destructive.
• A government’s power should enhance liberty not
decrease it.
• The government’s use of the death penalty is a destructive
not a constructive use of power.
• For Bedau, it is the ultimate symbol of government
power.
PAST AND FUTURE I
• Bedau’s second argument against the death penalty is
that the goals and principles of punishment should be
directed towards the future, not the past.
• “We cannot do anything to benefit the dead victims of
crime.” This is the idea that reality is such that some
problems may have no solutions, at least not the kind
we would wish.
• As Bedau himself wonders: how many people would
be opposed to the death penalty if executing a
murderer would bring back his victim? Would we not
owe it to the victim?
PAST AND FUTURE II
• The point of looking to the future is that we can try to do
something for the living in the time ahead of them even if
we cannot go back to the past to help the victim.
• What we do is try to protect the innocent, try to console
those affected by crime, and try to prevent future crimes.
• And Bedau thinks that none of these future-directed
constructive goals demands capital punishment.
• For Bedau the death penalty, in being vindictive and
retributive and expressing our outrage at the murder of an
innocent person, are all directed towards the past.
FALSE PICTURES
• Bedau’s third argument against the death penalty
is that the death penalty gives a false picture of
man and society.
• Bedau: “Far from being a symbol of justice it is a
symbol of brutality and stupidity.”
• Bedau thinks that the common conception of the
criminal is as an autonomous Kantian moral agent
who freely and knowingly acts deliberately to kill
another.
• But Bedau says that the killers actually on death
row do not resemble Kant’s rational moral agents.
CONCLUSION
• For Bedau, the death penalty question concerns
how controversial social goals, controversial
moral principles, and disputed general facts are to
be balanced and reasonably assessed.
• Bedau thinks that deeper rational argument can
decide the matter against the death penalty, but in
this paper he has only attempted to sort out what
the difficulties are.
“The Ultimate Punishment: a Defense”
Ernest van den Haag
PRELIMINARY CONSIDERATIONS
• van den Haag notes that, on average, there are about 20,000
homicides a year in the U. S., but fewer than 300 convicted
murderers are sentenced to death - about 1.5.%. Accordingly,
“most convicts sentenced to death are likely to die of old age.”
• It is interesting to note here that van den Haag finds “death
row as a semipermanent [or permanent if they are never
executed] residence [to be] cruel, because convicts are denied
the amenities of [normal] prison life,” such as contact with
other prisoners. (Cf. Kant.)
• Even though the execution rate is so small, van den Haag says
that the death penalty “raises important moral questions
independent of the number of executions.”
DISCRIMINATION AND CAPRICIOUS
DISTRIBUTION I
• van den Haag notes that some people object to the death
penalty because it is not evenly applied.
• This can be for reason of discrimination, where minority
murderers may be more likely to be sentenced to death
and executed than murderers who form part of the
majority population, or for reason of caprice, as when
one person is executed and another not for no
predictable or clearly understandable reason.
• In addition, money may make a difference, so that of
two equally guilty people one is executed and another
not based on the affordable quality of his or her legal
defense.
DISCRIMINATION AND CAPRICIOUS
DISTRIBUTION II
• However, van den Haag says that how the death
penalty is in fact applied - whether or not it is evenly
and so fairly applied - is irrelevant to the morality of
the punishment.
• The death penalty is either moral or immoral in itself.
• You cannot make it moral if it is immoral by applying
it equally, and you cannot make it immoral if it is
moral by only applying it to some convicted
murderers and not to others, for whatever reason or
reasons. (Its uneven application would be a separate
moral issue.)
DISCRIMINATION AND CAPRICIOUS
DISTRIBUTION III
• Further, in being applied unevenly, the death
penalty is the same as every other punishment, in
that every punishment is also unevenly applied.
• And van den Haag says that “Maldistribution of
any punishment among those who deserve it is
irrelevant to its justice or morality.”
• The only relevant question for van den Haag
concerning the death penalty is: does the convicted
murderer deserve to be executed?
DISCRIMINATION AND CAPRICIOUS
DISTRIBUTION IV
• If the death penalty is morally justified for convicted
murderers, then it does not matter to the morality of
the punishment whether one murderer gets executed
and another does not.
• van den Haag: “Even if poor or black convicts guilty
of capital offenses suffer capital punishment, and other
convicts equally guilty of the same crimes do not, a
more equal distribution, however desirable, would
merely be more equal. It would not be more just to
the convicts under the sentence of death.”
DISCRIMINATION AND CAPRICIOUS
DISTRIBUTION V
• Even if a guilty person is not executed, he still
deserves to be executed if capital punishment is
morally justified.
• van den Haag’s way of putting this is to say that
equality is less important morally than justice.
• And he says that “Punishments are imposed on
persons, not on racial or economic groups. Guilt
is personal. The only relevant question is: does
the person to be executed deserve the
punishment?”
DISCRIMINATION AND CAPRICIOUS
DISTRIBUTION VI
• According to van den Haag, what is a just punishment
for an offense is just no matter whether it is evenly or
unevenly distributed amongst the guilty.
• van den Haag: “Whether or not others who deserve the
same punishment, whatever their economic or racial
group, have avoided execution is irrelevant.”
• van den Haag: “Justice requires that as many of the
guilty as possible be punished, regardless of whether
others have avoided punishment.”
DISCRIMINATION AND CAPRICIOUS
DISTRIBUTION VII
• For van den Haag, it is not just to let people escape
punishment who deserve to be punished, but that does
not make punishment unjust for those who are punished.
• And van den Haag notes that some inequality of
punishment is unavoidable in any legal system as a
practical matter. People are not perfect, and so their legal
and penal systems are not going to be perfect either.
• But, for van den Haag, unequal justice is better than
injustice, and injustice is what we have when anyone
escapes punishment which he deserves.
RISK TO THE INNOCENT I
• van den Haag says that there seems little doubt that
innocent people have been executed, and that such
people will also be unjustly executed in the future.
• But he says that nearly all human activities, and not just
punishment, carry some risk to the innocent. In this
sense then punishment, including capital punishment, is
not unusual.
• Innocent people can be killed in driving accidents or
from construction, for instance, but we do not give these
things up because we think that the benefits of travel and
construction outweigh the risks to the innocent.
RISK TO THE INNOCENT II
• Analogously, van den Haag says that the
occasional execution of an innocent person is
outweighed by the benefits to society of the death
penalty.
• The chief benefit of the death penalty to society,
for van den Haag, is its justness or its morality.
• This is because, for van den Haag, the death
penalty is the only appropriate punishment for the
crime of murder, and not to punish murderers by
executing them would be unjust, and so not a
benefit to society.
RISK TO THE INNOCENT III
• van den Haag also maintains that, for
people who think that the death penalty is
immoral in any case - whether evenly
applied or not, or whether or not an
innocent person is executed - the occasional
miscarriage of justice which happens from
executing an innocent person “can hardly be
[the] decisive” reason for finding it
immoral.
DETERRENCE I
• van den Haag admits that there is no conclusive
evidence that the death penalty is a better deterrent
to crime than other kinds of punishment.
• However, he does not think that the issue of
deterrence argues either for or against the death
penalty.
• He thinks that those people who are opposed to
the death penalty would be opposed to it even if it
were shown to be a better deterrent than some
other form of punishment, say life in prison
without parole.
DETERRENCE II
• van den Haag says that opponents of the death penalty “appear
to value the life of a convicted murder or, at least, his nonexecution, more highly than they value the lives of the innocent
victims who might be spared by [using the death penalty to
deter] prospective murderers.”
• van den Haag also says that he would still favor the death
penalty for murder even if it were shown that capital
punishment is not a better deterrent than other forms of
punishment, and would only favor its abolition if evidence
showed that executions increased rather than decreased the
murder rate by functioning as a deterrent.
• But van den Haag does think that the threat of capital
punishment is a better deterrent to crime than other forms of
punishment because of its finality.
DETERRENCE III
• van den Haag thinks that saving the lives of innocent
people by using the threat of capital punishment is
more important than preserving the lives of convicted
murderers by thinking that the death penalty is not a
deterrent.
• For van den Haag, the important point is that the
lives of innocent people are valuable, whereas the
lives of convicted murderers are not due to their
crimes.
• van den Haag says that it is the purpose of the law to
protect the innocent, not the guilty.
DETERRENCE IV
• van den Haag recognizes that “murder rates are
determined by many factors,” and recognizes that we
cannot be sure that by threatening execution for a
convicted murderer that the murder rate will thereby be
lower than it would if we did not have that form of
threatened punishment.
• Even so he maintains that the threat of execution does
deter at least some people from murdering others, and
this deterrence is an argument in favor of the death
penalty in addition to his fundamental argument that
there is no justice for the crime of murder without it.
DETERRENCE V
• Thus whether it is a deterrent or not, van den Haag
says that “The severity and finality of the death
penalty is appropriate to the seriousness and
finality of murder.” And this appropriateness is
moral appropriateness.
COST
• Some people object to the death penalty because they
maintain that it is more expensive than life
imprisonment. This is because of the legal costs
which must be born by the state in the lengthy appeals
process.
• van den Haag says that this argument is flawed “by
the implied assumption that life prisoners will
generate no judicial costs during their imprisonment.”
• This cannot be assumed, and so the issue of expense
can be questioned, but even if the cost of pursuing the
death penalty is more expensive than life
imprisonment, still the death penalty is justified on
grounds of justice.
SUFFERING I
• Some people object to the death penalty on the grounds that
it makes the murderer on death row suffer more than his
victim did - for instance, isolation and anxiety from
anticipating execution - and no punishment ought to inflict
more suffering on the criminal than the victim.
• This view is related to lex talionis, or the law of retaliation
which says that the punishment should fit the crime.
According to this principle, what the criminal took from his
victim society should take from the criminal. In the case of
murder this would be a life for a life. And it would follow
from considering suffering as just punishment in relation to
lex talionis that the criminal should suffer at least as much
as his victim, but not more than his victim.
SUFFERING II
• van den Haag’s first response to this objection to the
excessive suffering caused by capital punishment is
that we cannot really know if the murderer suffers
more than the victim.
• However, whether he does or not is irrelevant since,
for van den Haag, the crucial point here is that the
victim did not deserve to suffer whatever she suffered.
• van den Haag’s second response is that “the limitations
of the lex talionis were meant to restrain private
vengeance, not the social retribution which has taken
its place.”
SUFFERING III
• van den Haag: “Punishment - regardless of the motivation
- is not intended to revenge, offset, or compensate for the
victim’s suffering, or to be measured by it.”
• van den Haag: “Punishment is to vindicate the law and the
social order undermined by the crime.”
• van den Haag: “This is why a kidnapper’s penal
confinement is not limited to the period for which he
imprisoned his victim; not is a burglar’s confinement
meant merely to offset the suffering or harm he caused his
victim; nor is it meant only to offset the advantage he
gained.”
THE LEGITIMIZATION OF
UNLAWFUL KILLING I
• van den Haag: “Another argument, heard at least
since Beccaria is that, by killing a murderer, we
encourage, endorse, or legitimize unlawful killing.”
• Yet van den Haag says that “although all punishments
are meant to be unpleasant, it is seldom argued that
they legitimize the unlawful imposition of identical
unpleasantness.” For instance, “imprisonment is not
thought to legitimize kidnapping.”
THE LEGITIMIZATION OF
UNLAWFUL KILLING II
• For van den Haag, “The difference between
murder and execution is that the first is unlawful
and undeserved, the second a lawful and deserved
punishment for an unlawful act.”
• van den Haag: “The physical similarities of the
punishment to the crime are irrelevant. The
relevant difference is not physical, but social.”
WHY DOES SOCIETY PUNISH?
• van den Haag notes that society threatens punishment in
order to deter crime, and society imposes punishment in
order to make the threats credible. Thus the threat of
punishment for a crime committed is of no use unless the
punishment is enforced.
• van den Haag says that both the threat of punishment and
actual punishment are necessary to deter crime. And the
fact that they function as deterrents is “sufficient practical
justification for them.”
• Societies also punish as retribution for the crimes actually
committed. And this retribution “is an independent moral
justification.”
THE JUSTIFICATION OF PUNISHMENT
• van den Haag says that “An explicit threat of punitive action
is necessary to the justification of any legal punishment.”
Thus, a punishment is not just if there is no prior law which
threatens the punishment as a consequence for committing a
particular crime.
• But van den Haag notes that a prior law “legitimizes the
threatened punishment only if the threat is warranted.” To
that end, “To be sufficiently justified, the threat [of
punishment] must have a rational and legitimate purpose.”
• Thus, van den Haag says that “‘Your money or your life’
does not qualify; nor does the threat of an unjust law; nor,
finally, does a threat that is altogether disproportionate to
the importance of its purpose.”
JUST PUNISHMENT OF
CRIMINAL ACTION I
• For van den Haag, punishment is not only practically
justified but it is morally justified, and is so justified
independently of its practical justification.
• That punishment is morally justified means that “the
infliction of legal punishment on a guilty person
cannot be unjust.”
• It cannot be unjust because when a criminal commits
a crime he volunteers to assume the risk of being
punished for the crime which he commits.
JUST PUNISHMENT OF
CRIMINAL ACTION II
• Because the punishment which a criminal receives is
the one which he risked suffering, it is not unjust.
• In the case of the death penalty, since a murderer
voluntarily risks the death penalty in deliberately
killing an innocent person, the punishment of death for
him is not unjust.
• Further, there is a disparity of volunteering to risk
something here between criminal and victim since,
whereas the criminal voluntarily risks being punished
in committing his crime, his victim volunteered to risk
nothing.
JUST PUNISHMENT OF
CRIMINAL ACTION III
• For van den Haag, because:
• A) a murderer voluntarily risks execution in
murdering;
• B) his victim did not voluntarily risked being
killed; and
• C) because we have the advance threat of
execution for murder,
• It follows that capital punishment is just.
IS THE DEATH PENALTY EXCESSIVE?
• However, van den Haag recognizes that, although capital
punishment cannot be unjust in this sense, still people might
object that it is overly punitive and is morally degrading.
• To view the death penalty as overly punitive one would think
that no crime, not even first degree murder, warranted this
punishment.
• And here van den Haag says that “Such a belief can be neither
corroborated nor refuted; it is an article of faith.”
• van den Haag thinks that the murderer does not have the same
right to life which everyone else has. Rather, he forfeits his
right to life because of his crime. Not only is it not excessive,
but it is the only just punishment for the crime of murder.
IS THE DEATH PENALTY
MORALLY DEGRADING? I
• Some objectors to the death penalty might argue that it is
immoral because “everybody, the murderer no less than
the victim, has an imprescriptible (natural?) right to life.”
• (An imprescriptible right is one that cannot in any
circumstances be taken away or abandoned. Thus if there
is an imprescriptible right to life then the murderer has it
as much as his or her victim and so cannot for this reason
be executed.)
• van den Haag says that he agrees here with “Jeremy
Bentham’s view that any such ‘natural and
imprescriptible rights’ are ‘nonsense upon stilts.’”
IS THE DEATH PENALTY
MORALLY DEGRADING? II
• Further, van den Haag cites both Kant and Hegel who thought
that, “far from degrading the executed convict, [the death
penalty] affirms his humanity by affirming his rationality and
his responsibility for his actions.”
• This of course assumes that all adults, including murderers,
are rational, and do not act irrationally when killing, and it
assumes that they are capable of taking responsibility for their
actions.
• We have already seen that Bedau does not think that the
average person on death row much resembles a Kantian
rational moral agent, and so would find van den Haag’s
argument here unconvincing.
IS THE DEATH PENALTY
MORALLY DEGRADING? III
• Both Kant and Hegel thought that execution is
required to preserve the convicted murderer’s
dignity as a rational moral agent.
• As van den Haag puts it: “They thought that
execution, when deserved, is required for the
sake of the convict’s dignity. (Does not life
imprisonment violate human dignity more than
execution, by keeping alive a prisoner
deprived of all [?] autonomy?)”
IS THE DEATH PENALTY
MORALLY DEGRADING? IV
• One might question the use of the term “all” in the
preceding quote since in fact it is death which
deprives a person of all autonomy. The incarcerated
individual still has some autonomy - freedom of
thought for instance.
• If the person did not have this freedom of thought
then he could not be protected by some human rights
theories which say that convicted killers should not
be executed because they still have the right fundamental to all persons - to dialogue, to be a
partner in the search for truth.
DEATH AND THE DEATH PENALTY
• van den Haag thinks that common sense does not see
normal death as inhuman. This is because death is an
essential part of our humanity.
• Therefore, those, such as Justice Brennan, who see the
death penalty as morally degrading must see death as
inhuman when it is neither natural nor accidental.
• van den Haag says that capital punishment tells the
convicted killer that he is not fit to be a member of
society, that his fellow humans have found him
“unworthy of living.”
• Because of his crime, the murderer is being expelled from
the realm of the living.
THE SELF-DEGRADATION OF MURDER
• In deliberately murdering, the killer degrades himself
as a person, and the death penalty is simply society’s
recognition of his self-degradation.
• For van den Haag, the essence of capital punishment
is society’s recognition that the killer has degraded
himself by killing.
• To believe that it is the execution which degrades the
criminal rather than the act of murder is to get things
the wrong way around.
• For van den Haag, capital punishment is the only
punishment which fits the crime of murder.
SHOULD EXECUTIONS BE
TELEVISED? I
• No, according to van den Haag, and this is the case even
if, by televising, it might be thought to be a greater
deterrent than it is without making the execution public.
• The reasons, according to van den Haag, are:
• 1. “The death of even a murderer, however welldeserved, should not serve as public entertainment.”
• 2. “Television would unavoidably trivialize executions.”
This is because they would appear “between game
shows, situation comedies, and the like.”
SHOULD EXECUTIONS BE
TELEVISED? II
• 3. “A televised execution would present the
murderer as the victim of the state.” This is
because “televised executions would focus on the
physical aspects of the punishment, rather than the
nature of the crime and the suffering of the
victim.” As a result, the “moral significance of the
execution” would not be communicated to the
audience. Rather “television would shift the focus
to the pitiable fear of the murderer.”