Test #5 (Capital Punishment)

(Proposition #4) Regarding discrimination in the practice of the death penalty:

"Numerous studies show that killers of whites are more likely to get the death penalty than killers of blacks, and that black killers of whites are far more likely to be sentenced to death than white killers of blacks. Moreover, ... poor people are more likely to be sentenced to death and to have those sentences carried out than well-off people"

(Proposition #4) Regarding the psychological effects of being on death row:

"Since [the inmate's] guards know they are essentially warehousing him until his death, they treat him as something less than human—and so he is brutalized, taunted, powerless and constantly reminded of it. The effect of this on the death row inmate, as Johnson reports it, is quite literally the breaking down of the structures of the ego—a process not unlike that caused by brainwashing"

How do utilitarians determine the value of a law?

"Utilitarians justify punishment by appealing to good consequences . . . Of course, capital punishment does not rehabilitate the person killed, and imprisonment would do the job of protecting society from criminals."

Reiman concludes:

"[I]t must be admitted that the death penalty is in practice not merely a penalty of death—it is a penalty of torture until death. [Consequently,] the sentence of death is more than the lex talionis allows as a just penalty for murder—and thus it is unjust in practice" (227).

the only way that an "equalization of punishment with crime" can be achieved

"whoever has committed murder, must die. There is, in this case, no juridical substitute or surrogate, that can be given or taken for the satisfaction of justice"

Objection #3: There is "no conclusive statistical demonstration that the death penalty is a better deterrent than are alternative punishments" (217). Therefore, the death penalty should be abolished.

- "I would favor retention of the death penalty as retribution even if it were shown" that the death penalty doesn't add a deterrent effect (217). (van den Haag appears to hold to the principle of retributive justice even if that principle were to have no independent utility.) - "Still, I believe the death penalty, because of its finality, is more feared than imprisonment, and deters some prospective murderers" - ("best-bet argument." "Instead of risking innocent lives by not executing, we should end the worthless lives of murderers, and bet that this will save some innocent lives")

(Weak Arguments) Crappy Anti-Death-Penalty Argument #1:

- "If murder is wrong, then the death penalty is wrong as well" (221). - This argument can be defeated by reductio ad absurdum: If the above claim is true, then it will also be the case that all punishments are wrong. - Example, if kidnapping is wrong, then imprisonment is wrong. If taking someone's money against their will is wrong, then fines are wrong. And so forth.

Proposition #2: "[T]hough the death penalty would be justified if needed to deter future murders, we have no good reason to believe that it is needed to deter future murders" (221).

- "The evidence we have strongly supports the idea that we get the same level of deterrence from life imprisonment, and even from substantial prison terms, such as twenty years without parole". - (Reiman's Evidence) "the available studies provide no useful evidence on the deterrent effect of capital punishment". (a 1978 commentary by the editors of a National Academy of Sciences' study) - "research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates". - "The evidence we have strongly supports the idea that we get the same level of deterrence from life imprisonment, and even from substantial prison terms, such as twenty years without parole.")

Relatively Crappy Anti-Death-Penalty Argument #2:

- "[I]nnocents are sometimes wrongly convicted and if they receive the death penalty there is no way to correct the wrong done to them" (221). - this argument only has "relative" force; that is, "all punishments are irrevocable though the death penalty is ... relatively more irrevocable than the rest" - "miscarriages of justice" (to use van den Haag's phrase) are "quite rare," and the harm they bring does not plausibly "outweigh all other considerations"

Objection #4: The "monetary cost of appealing a capital sentence is excessive".

- "[M]ost comparisons of the cost of life imprisonment with the cost of execution . . . Are flawed at least by the implied assumption that life prisoners will generate no judicial costs during their imprisonment." And, "[a]t any rate, the actual monetary costs are trumped by the importance of doing justice" (the second comment, van den Haag makes clear that, for him, the principle of retributive justice overrides considerations of utility.)

White's problems with each of these principles

- (Principle of Proportionality) "The trouble with the principle of proportionality is that it does not tell us which punishments fit which crimes" - (Lex Tailonis) Critics claim that lex talionis "does not justify capital punishment because of the simple fact that most murderers are sent to prison, not executed" - Another objection [to lex talionis] is that we do have the death sentence for non homicidal crimes such as treason"

Objection #5: "[A] person sentenced to death suffers more than his victim suffered, and ... this (excess) suffering is undue according to the lex talionis (rule of retaliation)"

- Regardless the ratios of suffering, "unlike the murderer, the victim deserved none of the suffering inflicted" (218). - Also, "[p]unishment is to vindicate the law and the social order undermined by the crime"—not "to revenge, offset, or compensate for the victim's suffering, or to be measured by it" - Here, van den Haag seems to suggest that lex talionis does not dictate how much suffering a punishment entails, only that justice be served.

Proposition #1: "[T]hough the death penalty is a just punishment for some murderers, it is not unjust to punish murderers less harshly (down to a certain limit)"

- Reiman points out that "the justice of the lex talionis implies also the justice of torturing torturers and raping rapists," yet everyone agrees that justice does not require such extremes. "It follows that justice can be served with lesser punishments" - The part about "down to a certain limit" refers to the fact the justice of any alternative punishment (e.g., a prison sentence) would be compromised if either (1) the punishment were so light that it "trivializes the harm done by the murderer" (223) or (2) if it turned out to be the case that the death penalty functions as a necessary deterrent to future murders

Objection #2: Capital punishment should be abolished because there are "miscarriages of justice" that occur when an innocent person is executed for a crime he didn't commit. Van den Haag himself concedes that "the most grievous maldistribution occurs when [the death penalty] is imposed on the innocent".

- The benefits of capital punishment outweigh this harm: "miscarriages of justice are offset by the moral benefits and the usefulness of doing justice". (utilitarian response here, which is curious given his emphasis on retributive justice.) - "For those who think the death penalty unjust even when it does not miscarry, miscarriages can hardly be decisive" (that if you already have other reasons to oppose the death penalty, your case isn't strengthened by adding yet one more reason.)

Objection #8: The death penalty "degrades" the murderer and is a threat to "human dignity".

- The famous philosophers Kant and Hegel argued that execution of the murderer "affirms his humanity by affirming his rationality and his responsibility for his actions" (ibid.). Van den Haag adds that the only degradation involved is "self-inflicted." "By murdering, the murderer has so dehumanized himself that he cannot remain among the living. The social recognition of his self-degradation is the punitive essence of execution" - (Van den Haag's assertion here that "the murderer has so dehumanized himself that he cannot remain among the living" might be considered just as much an "article of faith" as the one for which he earlier criticized his opponents.)

Objection #7: The death penalty is "always excessive" because either (1) "no crime—no matter how heinous—could possibly justify capital punishment," and/or (2) "everybody ... has an imprescriptible (natural?) right to life".

- The first reason above is, by itself, "a belief [that] can be neither corroborated nor refuted; it is an article of faith" - •Regarding the second reason above, van den Haag considers the notion "natural and inprescriptible rights" (ibid.) to be simply nonsense.

Proposition #3: "[I]n refraining from imposing the death penalty, the state, by its vivid and impressive example, contributes to reducing our tolerance for cruelty and thereby fosters the advance of human civilization as we understand it" (221).

- This proposition depends on the premise that the death penalty involves "cruelty" or is otherwise comparable to torture. - Reiman argues that "[t]orture is horrible because of two of its features, which also characterize execution: intense pain and the spectacle of one person being completely subject to the power of another" - He reminds us that even physically painless execution involves the peculiar psychological pain of a death that is both foreseen and that "lacks the consolation of unavoidability"

Objection #6: "by killing a murderer, we encourage, endorse, or legitimize unlawful killing".

- We don't make this argument with other forms of punishment. "Imprisonment is not thought to legitimize kidnapping; neither are fines thought to legitimize robbery" (218). Besides, van den Haag argues, the murder of an innocent victim is "unlawful and undeserved" whereas execution of the murderer is "lawful and deserved" - (Van den Haag's first point here is a variety of reductio ad absurdum argument. The second point once again prioritizes the principle of retributive justice.)

Proposition #4: "[T]hough the death penalty is in principle a just penalty for murder, it is unjust in practice in America because it is applied in arbitrary and discriminatory ways, and this is likely to continue into the foreseeable future" (221).

- asserts that abolition of the death penalty is not merely allowable but is necessary because the practice of capital punishment does significant harm by: (1) being irremediably discriminatory (2) entailing psychological torture of the death row inmate

what Reiman feels he has demonstrated so far with his first three propositions

1) The first proposition essentially provides a reason that the death penalty is not necessary (i.e., less extreme punishments are allowable). 2) The second proposition assures us that abolition of the death penalty would not entail the loss of an important good (i.e., loss of a deterrent effect), because the death penalty doesn't promote that good anyway. 3) Reiman's third proposition suggests that abolition of the death would entail or bring with it a new good, namely, a reduced tolerance for cruelty among the members of society. Reiman is, in effect, arguing that it is the abolition of the death penalty that would have a deterrent effect.

Van den Haag's Objection #1: There is a "maldistribution" of capital punishment that is either "discriminatory or capricious." Therefore, capital punishment should be abolished.

Don't confuse justice with equality: "The only relevant question is, does the person to be executed deserve the punishment? Whether or not others who deserved the same punishment, whatever their economic or racial group, have avoided execution is irrelevant. . . . Justice requires [only] that as many of the guilty as possible be punished, regardless whether others have avoided punishment" (Van den Haag assumes that "[e]quality ... [is] morally less important than justice" (216). Not everyone would accept this premise.)

(Part 2) Reiman - "Against the Death Penalty"

Reiman presents and defends four propositions, together which lead to the conclusion that "it is good in principle to avoid the death penalty and bad in practice to impose it".

(Example) A crime upsets the balance of justice to the degree determined by the nature and severity of the crime.

The scales of justice can be brought back to balance only by an equal action back upon the criminal.

Kant - "The Retributive Theory of Punishment"

This principle-based approach is related to Kant's belief that morality in general would be irrational and absurd apart from a just God who will in the end right all wrongs and ensure absolute justice. (The need for a rational ground for morality is, in fact, at the heart of his argument for the existence of God.)

"retributive"

White mentions two basic retributive principles: (1) the principle of proportionality (2) lex talionis (one particular version or application of the principle of proportionality)

Kant's version of the lex talionis interpretation of proportionality:

justice can only be brought back into "balance" by a punishment that is exactly equal to the evil of the crime itself.

(Part 1) capital punishment

the legally authorized killing of someone as punishment for a crime.

How do we justify capital punishment?

two basic approaches: Utilitarian and Retributive