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 society—specifically 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 isn’t 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 doesn’t 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 Kant’s 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 isn’t 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 isn’t for greater happiness for a society. ♦ “Even if a civil society resolved to dissolve itself with the consent of all its members…the 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 shouldn’t 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 isn’t 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 person’s 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 Willingham—convicted for arson deaths of three young children—is 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 don’t generally calculate when act Therefore, punishments don’t generally deter us from acting immorally. Response—how deterrence works

• Deterrence depends on human’s responsiveness to danger • Natural dangers (external)

♦ Ex: People don’t 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.

• Response—the 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 doesn’t 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 Response—the statistics aren’t 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 don’t show that there’s 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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October 8, 2012

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, it’s not worth it. Hence it’s 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. It’s 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.