Chapter 11: The Death Penalty

 Two Main Questions Concerning the Morality of the Death Penalty 1. Is the death penalty ever a morally permissible form of punishment?

2. If it is ever morally permitted, what best explains why such killing is permissible?

 Abolition vs. Retention  Abolitionists answer “no” to the first question.

 Retentionists think that the death penalty is or could be morally justified.

Chapter 11: The Death Penalty

 Two Theories About the Morality of Punishment 1. The Retributive Theory  R1: What morally justifies punishment of wrongdoers is that those who break the law deserve to be punished.  R2: The punishment for a particular offense against the law should “fit” the crime.

  The Law of Retribution (

lex taliones):

For a punishment to fit the crime, the same kind of action must be done to the wrongdoer that he or she did to the victim(s). The Principle of Proportionality: The punishment should be in proportion to the crime.

Chapter 11: The Death Penalty

2. The Consequentialist Theory  C1: Punishment as a response to crime is morally justified if and only if this practice, compared to any other response to crime, will likely produce as much overall intrinsic value as would any other response.  C2: A specific punishment for a certain crime is morally justified if and only if it would likely produce as much overall intrinsic value as would any other alternative punishment.

Chapter 11: The Death Penalty

Immanuel Kant, “Punishment and the Principle of Equality”  Overview   Using the Principle of Equality, Kant argues that criminals who commit murder are required to receive the death penalty.

Clarification of relevant terms   “Crime”: “...any transgression of the public law that makes a perpetrator incapable of being a citizen”  Private crimes are dealt with by a civil court and are committed by a criminal who has a base character.

 Public crimes are dealt with by a criminal court and are committed by a criminal who has a violent character. “Natural punishment”: crime as a vice punishes itself

Chapter 11: The Death Penalty

Immanuel Kant, “Punishment and the Principle of Equality”  “Judicial punishment”: This type of punishment “can never be administered merely as a means for promoting another good...” and must be imposed because the person has committed a crime.  The Principle of Equality  Kant's definition: “ ...the undeserved evil which anyone commits on another is to be regarded as perpetrated on himself.”   This principle entails that a person who commits murder must suffer the death penalty. Kant specifies that the death of a murderer must be free of maltreatment.

Chapter 11: The Death Penalty

 Stephen Nathanson, “An Eye for an Eye?” Overview  Nathanson criticizes arguments in support of the death penalty that rely on the “eye for an eye” principle and proposes the idea of Proportional Retributivism. He goes on to suggest that there are two messages that we can send by abolishing the death penalty.  Two Problems for the Equal Punishment Principle 1. Does not provide a measure of moral desert 2. Does not provide an adequate criterion for determining appropriate levels of punishment

Chapter 11: The Death Penalty

Stephen Nathanson, “An Eye for an Eye?”  Proportional Retributivism  The punishment should be proportional to the crime.

 The worst crimes require the worst punishment.

 This view does not require that murderers receive the death penalty.

 Abolishing the Death Penalty: Two Messages 1. Respect for the dignity of human life 2. Restraint shows the impermissibility of killing and reinforces that killing should only be used as a defense.

Chapter 11: The Death Penalty

Ernest van den Haag, “A Defense of the Death Penalty”  Overview   Argues in favor of the death penalty on consequentialist grounds and responds to six common objections Six Objections to the Death Penalty 1. Distribution: the death penalty is discriminatory 2. Miscarriages of justice and irreversibility: innocent people have received the death penalty 3. Deterrence: the death penalty is not a better deterrent than a punishment such as life imprisonment

Chapter 11: The Death Penalty

Ernest van den Haag, “A Defense of the Death Penalty” 4. Cost: the death penalty is more costly than life imprisonment 5. Suffering: the imposition of the death penalty may encourage and endorse unlawful killing, in addition to the worry that murderers who receive the death penalty suffer more than their victims 6. Degradation: the penalty of death is excessive and always morally degrading

Chapter 11: The Death Penalty

 Jeffrey Reiman, “Civilization, Safety, and Deterrence” Overview  Reiman claims that van den Haag's arguments in favor of the death penalty follow our common-sense intuitions -- but argues that there are reasons to doubt common sense.  Four Reasons 1. One penalty that is feared more than another is not necessarily a better deterrent.

 Criminals are not usually deterred by the likelihood of death.

 Life imprisonment is as much of a deterrent as the death penalty.

Chapter 11: The Death Penalty

Jeffrey Reiman, “Civilization, Safety, and Deterrence” 2. Criminals already face the risk of death.

 500 to 700 criminals are killed by the police every year.

 Public citizens own guns. 3. Refusal to execute has a civilizing effect and teaches the wrongfulness of murder.  Accounts for the failure to show that the death penalty has an increased deterrent effect  There is a deterrent effect from

not

executing criminals.

4. van den Haag's argument proves more than it seems.   We must assume that if one punishment is more feared than another, it will deter criminals that are not deterred by a less fearful punishment.

van den Haag's arguments implies that we should institute death by torture if it is a more fearful punishment.

Chapter 11: The Death Penalty

 J.S. Liebman, J. Fagan, V. West, and J. Lloyd, “Capital Attrition: Error Rates in Capital Cases, 1973 1995” Overview   The authors of this paper report the findings of studies that have investigated the error rates in capital cases and find that 68 percent of the death sentences between 1975 and 1995 have been overturned.

Summary of Central Findings  Types of Errors  “Serious error”: an error that substantially undermines the reliability of the guilt finding or the death sentence imposed at a trial  Common Errors 1. Incompetent defense lawyer in 37 percent of cases 2. Suppression of evidence by the prosecution in 19 percent of cases

Chapter 11: The Death Penalty

J.S. Liebman, J. Fagan, V. West, and J. Lloyd, “Capital Attrition: Error Rates in Capital Cases, 1973 1995”   Relevant Statistics (1975-1995)     4578 cases underwent a three-stage judicial review 5760 death sentences, 313 executions “Overall error rate”: frequency with which cases were overturned at one of the three review stages, 68 percent Average time for a decision about whether or not a case is error-free, 7 years Implications   Costly reversals indicate a misuse of financial resources.

Public faith in the courts is a casualty.