Lecture 19: The Death Penalty II
Lecture 19
Punishment and the Death Penalty II
19.1 References:
The handout today is from Victor Grassian Moral Reasoning: Ethical Theory and Some Contemporary Moral Problems (New Jersey: Prentice Hall, 1992). It is a little more complex than Rachels, but I think it is a much better book.
19.2 Preliminary questions
۞ Define the following terms: retributive justice, rehabilitation, lex talionis.
۞ What are the Utilitarian arguments in favour of the death penalty?
۞ What are the Utilitarian arguments against the death penalty?
۞ What, for Beccaria, is the purpose of the justice system?
۞ What, for Kant, is the purpose of the justice system?
19.3 Utilitarian Arguments for the Death Penalty: Analysis
19.4 The Death Penalty Saves Money
19.5The Self- Defense Argument
19.6 Arguments Against the Death Penalty
19.7 The Death Penalty is Inhumane and Anachronistic
19.8 The Death Penalty is Unjustified Retribution
19.9 The Death Penalty is Not a Deterrent
19.10 The Death Penalty is Internationally Reviled
19.11 The Death Penalty is Unfairly Applied
19.12 The Death Penalty is Irreversible, and Miscarriages of Justice are Morally Unacceptable
19.13 The Death Penalty is Barbaric
19.14 Response to 19.8: To reject the death penalty as ‘unjustified’ is a matter of faith
19.15 Response to 19.9: a). not clear either way b). biased sample fallacy? C). beside the point, if you are not a Utilitarian
19.16 Response to 19.11: Fairness is beside the point- the argument appears to presuppose that, ideally, the death penalty could be applied.
19.17 Response to 19.12: This is an acceptable loss
19.18 Response to 19.13: The Death Penalty is not all that degrading; in any case, being nice is less important than seeing Justice Served
19.3 Utilitarian Arguments for the Death Penalty: Analysis
Again, the basic idea of Utilitarianism is the maximization of happiness. Defenders of capital punishment argue that executions benefit society more than not executing them. Whether or not this is true is not a question for philosophers but for those that study society (sociologists or economists). There is no conclusive evidence either way. The question may even be too complex to be answered.
19.4 The Death Penalty Saves Money
It has been argued that the death penalty saves money, as the cost of the trial required is less than the cost of keeping someone in jail for decades. In the United States, at least, this is not the case- the cost of the trial is far greater than that of imprisonment. In countries without such a cautious legal system (China) this argument would not apply.
19.5 The Self- Defense Argument
It has been argued that society is justified in executing murderers in the name of self- defense. “The reasoning is that, in dangerous circumstances, the individual is justified in using deadly force through capital punishment. However, for this analogy to be successful, it must parallel the accepted principle that self- defense with deadly force is justified only when there is no alternative open to us (such as fleeing). This means we must see whether any alternative to capital punishment is open (such as long term imprisonment).” (Stanford Article, “Punishment”). In any case, the idea that stopping the death penalty will destroy a whole country is preposterous.
19.6 Arguments Against the Death Penalty
In the words of Justice Brennan (cited by Bedau), the death penalty is “uncivilized,”, “inhuman,” inconsistent with “human dignity” and with “the sanctity of life,” that it “treats members of the human race as non-humans, as objects to be with toyed with and discarded,” that it is “uniquely degrading to human nature” and “by its very nature, [involves] a denial of the executed person’s humanity.” Let’s look at these arguments in detail.
19.7 The Death Penalty is Widely Considered Inhumane and Anachronistic
(Bedau, in Rachels RTTD: 240). Of all the democracies, Japan and the United States alone still have the death penalty. It was stopped in France in 1981; in the UK in 1971. Bedau argues that this fact alone makes it morally wrong. Bedau also argues that the death penalty is ‘old- fashioned.’
Discussion: Is this a sufficiently good reason to ban the practice?
19.8 The Death Penalty is Unjustified Retribution
Retribution does not alone justify the death sentence.
Bedau argues that, because all punishment is retributive anyway, a life sentence should be a sufficiently high punishment. (Rachels TRTTD: 238-239).
The Death Penalty is just Revenge
In the words of the Death Penalty Information Center website, “retribution is another word for revenge. Although our first instinct may be to inflict immediate pain on someone who wrongs us, the standards of a mature society demand a more measured response.” This is, as discussed in the Nietzsche lectures, the position of Nietzsche.
۞Is all retribution just revenge? According to this logic, even lifelong imprisonment for murderers is ‘just revenge.’ So should all retributive justice be scrapped?
۞ What exactly is the problem with revenge? (Is there a Utilitarian argument against revenge? What about a deontological argument against revenge? Could there be a Christian origin of this notion of love over revenge?).
۞What does ‘mature society’ mean? We practically inherited our entire Western legal system from the Romans- and they would have people killed for the fun of it.
Victor Grassian gives a sharper critique of this idea that justice is ‘just revenge.’
Those with liberal political leanings often dismiss retributivism as nothing but a rationalization for revenge. This is a mistake […] the retributive model may be the only protection a criminal can have against a Utilitarianism gone mad, for this model, unlike the utilitarian one, treats criminals as free agents who have rights protecting them from being completely at the mercy of someone else’s conception of the common good or of what it is to be an adequate human being. Grassian p.353.
That is, imagine someone who is imprisoned for stealing a sports car. The justice system thinks that ‘punishment’ is just ‘revenge,’ and so the court decides to treat the thief with a drug that makes the person, in effect, a different person. Note that this is totally different to the idea of ‘punishment.’ Is it better, or worse? (Anthony Burgess’s novel Clockwork Orange concerns this idea).
The death Penalty is Excessively Cruel
French philosopher Albert Camus[1] argued that execution is in fact a greater crime than the murder itself.
For there to be an equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months.
In the same spirit, Bedau states that the Government should not use “premeditated, violent homicide as an instrument of social policy” (Rachels RTTD: 239).
Discussion:
a). Do you agree with Camus? Why, or why not?
b). Suppose that a sadistic killer imprisoned a victim, and told him or her that
they would be killed at dawn in exactly six months. Suppose also that the killer
did in fact kill their victim, and was later arrested and sentenced by a court.
According to Camus’s logic, would they deserve the death penalty?
c). Which is the worse fate? Being killed by a stranger on the street at night, without
even the opportunity to say goodbye to the people you love, or finish your projects,
or being killed by a prison system after several months of waiting?
d). Is there a moral difference between killing a stranger in the street for his wallet,
and the upcoming hanging of Shōkō Asahara? If so, what is it? Are Camus and
Bedau just wrong, then?
Van den Haag’s response: “The difference between murder and execution, or between kidnapping and imprisonment, is that the first is unlawful and undeserved, the second a lawful and deserved punishment for an unlawful act. The physical similarities of the punishment to the crime are irrelevant.” (RTTD:245).
The Families of the Victims Sometime Oppose the Death Penalty
Bedau makes this point (Rachels p.239). There are in fact societies of the families of murder victims who oppose the death penalty. But this is only a small group; in any case, in Japan and the United States many people (including the families of victims) are in favour of the death penalty.
19.9 The Death Penalty is Not a Deterrent
Bedau does not think that the death penalty acts as a deterrent. He gives two reasons.
a). A Punishment must be consistently and promptly employed
(Recall that Beccaria had made this point). Bedau notes that only 3 per cent of people sentenced for murder actually get executed. It also takes a long time to be executed, as capital trials are more expensive and complex. It is not possible to speed up the trial process without removing the safeguards necessary.
b). People who commit murder and other crimes do not premeditate their crimes.
Writes Bedau, “persons who commit murder and other crimes of personal violence either may or may not premeditate their crimes…
-When crime is planned, the criminal ordinarily concentrates on escaping detection, arrest and conviction.” Hence, the criminal thinks that he or she is too smart to get caught.
-Most crimes are committed in the heat of the moment. Bedau: “Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended.” Texas Attorney General Jim Mattox: “It is my own experience that those executed in Texas were not deterred by the existence of the death penalty law. I think in most cases you’ll find that the murder was committed under severe drug and alcohol abuse.”
c). Lifelong imprisonment appears to be just as good a deterrent.
The murder rate in the United States without the death penalty are actually lower than in states with the death penalty.
19.11 The Death Penalty is Unfairly Applied
Racism
See Rachels TRTTD: pp.233-235
It has been noted that the proportion of blacks (African Americans) executed in the United States is out of proportion to the total number of executed murderers. Notes Bedau, since the death penalty was reintroduced in the United States in the 1970’s, about half the people on death row have been black. He concedes [admits, without wanting to] that “the rate is not so obviously unfair if one considers that roughly 50 per cent of all those arrested for murder were also black.” Yet “when those under death sentence are examined more closely, it turns out that race is a decisive factor after all” (TRTTD: 235). He goes on to cite some striking examples of racism in the courts. According to some studies, one is four times more likely to be executed if one is black. Further, if the victim is white, the killer is more likely to be executed than if the victim was black (Rachels RTTD: 235). According to another set of statistics, since 1976, 202 black murderers have been executed for killing a white person, yet only 12 white murderers have been executed for killing a black victim.
Sexism
Women make up 15% of all criminal homicides, but only 1% of people on death row (Rachels RTTD: 235).
Economic Inequality
People on death row are typically poor and cannot afford a good legal defense. The corollary is that wealthy people (O.J. Simpson perhaps?) can get the best lawyers. According to Bedau, 90 per cent of people on death row could afford a lawyer, and not a single case exists of a wealthy person being executed for the crime of murder in the United States. A poorly defended murderer is far more likely to be sentenced to death.
Discussion: What is the real problem here: racism and poverty, or the death penalty? If the racism simply disappeared, and everyone could get a decent legal defense, could the death penalty be fair?
19.12 The Death Penalty is Irreversible, and Miscarriages of Justice are Morally Unacceptable
If someone is executed by a court, and the court has made a mistake, then obviously the mistake cannot be reversed. Bedau states that there have been about four innocent people per year convicted of murder. (He does not state that four people per year have been executed, however). Another source states that 121 people have been released from Death Row since 1973. During the same period, 982 people in the USA have been executed. As one commentator has concluded, that suggests that one executed person in eight was wrongly punished. With the emergence of DNA testing, a number of people have been released for crimes they apparently did not commit, although many people have been found to be innocent because of the work of journalists, not the justice system itself.
Bedau gives several reasons for erroneous judgments: “overzealous prosecution, mistaken or perjured testimony, faulty police work, coerced confessions, seemingly conclusive circumstantial evidence, and community pressure for a conviction [] (Rachels RTTD: 238).
See Rachels TRTTD: 236-237.
19.13 The Death Penalty is Barbaric
William Bowers of Northeastern University argues that the death penalty increases the murder rate, by ‘normalizing’ killing. (Beccaria had made this argument).
19.15 Response to 19.9: The Deterrence Argument
a). Biased Sample Fallacy
If there was a death sentence for smoking on the footpath in Shinjuku, chances are people would not smoke. So why do people think that the death penalty does not work as a deterrent? Victor Grassian criticizes this argument, noting that it may commit a Biased Sample Fallacy. Biased Sample fallacy is an erroneous argument where you base an argument on a sample size that is too small. Example: “ Can I have a cat for a pet?” “No.” “Why not?” “Tigers are cats, and lions are cats, and panthers are cats, and cheetahs are cats. All of these cats are dangerous. So you can’t have a cat, as all cats are dangerous.” The argument does not consider the cats that are not dangerous. Bedau and others who think that the death penalty is not a deterrent seem to make this argument. Murderers typically are either too sure of themselves, or too illogical, to consider the risks of getting caught at the moment of the crime. But what of everyone else? The non- deterrence argument only considers those criminals that were actually caught. Further, if we should stop using the death penalty, on the grounds that it does not work as a deterrent, why not stop using life imprisonment for killers? (See Grassian p.356). Using the same logic, we would stop all punishment, as clearly they did not work on the people that get arrested for those crimes. That’s just absurd.
b). Deterrence does seem to work on even crazy people, or people high on drugs
Grassian notes that deterrence apparently works even on insane people in psychiatric wards (Grassian p.356). As for being drunk, the philosopher Simone de Beauvoir made the following point: alcohol does not make you say or do bad thinks- it merely allows you to do or say what you wanted to say or do. Experiments with vodka have shown that merely thinking that you are drunk will make you more aggressive.[2] In any case, does one not morally responsible for getting inebriated in the first place? If the ‘drunkenness defense’ were universally accepted, if someone commits a crime, it would be advisable to get drunk immediately afterwards.
c). To emphasize the right to life of the murderer seems to neglect the importance of deterring other potential murderers.
Van den Haag makes this point.” Abolitionists appear to value the life of a convicted murderer or, at least, his non- execution, more highly than they value the lives of the innocent victims who might be spared by deterring prospective murderers…[] Sparing the lives of even a few prospective victims by deterring their murderers is more important than preserving the lives of convicted murderers because of the possibility, or even the probability, that executing them would not deter others” (TRTTD: 244)
19.16 Response to 19.11 (DP is not fair):
Fairness is beside the point-
Ernst van den Haag calls this the Distribution problem. He argues that it just is not relevant to the argument as to the fairness of how the death penalty is given. To make the argument at all presupposes that there could be an ideal, fair administration of the death sentence.
If capital punishment is immoral in se, no distribution among the guilty could make it moral. If capital punishment is moral, no distribution would make it moral. Improper distribution cannot affect the quality of what is distributed.” Van den Haag concludes that the ‘fairness argument’ is a Straw Man.’ (Straw Man fallacy is merely when a falsely bad version of the target argument is offered, for example “Darwin says our grandparents are monkeys!.” It is not really a straw man fallacy here, but a fallacy of relevance).
Only murderers are executed- the fact that not all murderers are in fact executed does not make executing some of them any less deserving. If the justice system was more fairly applied, the problem would not arise. That is, the argument appears to presuppose that, ideally, the death penalty could be fair. In the words of an Illinois black senator, himself black, who rejected pleas to stop using the death penalty: “I realize that most of those who face the death penalty are poor and black…I also realize that most of their victims are poor and black…and dead.” Cited in Grassian p. 384.
19.17 Response to 19.12: This is an acceptable loss
Ernst van den Haag bites the bullet on this one, even mentioning by name several people who may well have been executed in error. In the words of another commentator, “ we build bridges, knowing that statistically some builders will be killed during construction; we take great precautions to reduce the number of unintended fatalities. But wrongful executions are a preventable risk.” Van den Haag: “for those who think the death penalty just, miscarriages of justice are offset by the moral benefits and the usefulness of doing justice.” (Note that van den Haag combines Utilitarian and Deontological reasoning in a way that is not always clear- cut.
Discussion: Is this analogy valid?
19.18 Response to 19.13: The Death Penalty is not all that degrading; in any case, being nice is less important than seeing Justice Served
Arguably, (if one is a Kantian, of course), execution may be more dignified than being imprisoned for life, in particular if one has freely, rationally chosen to commit murder. Writes Van den Haag, “Does not life imprisonment violate human dignity more than execution, by keeping alive a prisoner deprived of all autonomy?” Of course the problem here is that this presupposes that the murderer is, in fact, rational. But admitting that murdering someone could in fact be rational ought to fly in the face of Kant’s whole scheme. If only drunken, violent idiots commit murder, on the other hand, why would we be respecting their ‘dignity? In killing them’? I have no idea which way to go on this.
19.19 Punishment and the Death Penalty in Japan
I strongly suggest that you look into how the death penalty is implemented in Japan if you are going to write an essay on it. Pure philosophy is pretty useless without some facts about what goes on in the world.
Amnesty International makes several observations concerning the implementation of the death penalty in Japan. 1). The actual implementation of the death penalty is in total secrecy, with not even family members told of when someone is actually killed. 2). The date of execution is not known to the prisoner, who can remain on death row for decades, only to be taken from their cell at a moments’ notice to be hung. This is enough to drive people insane. 3). Many Japanese on death row were apparently insane before the trial. 4). Death is by hanging, which is not typically instantaneous. The longest time to die between 1948 and 1952 was 37 minutes; the shortest was 4 and a half minutes. The average was 14 minutes. Accidental decapitation is not unknown. 4). The conditions for prisoners on death row are extremely harsh- solitary confinement, and nothing to do in a cell too small to lie down in.
Amnesty International report, “Will this day be my last? The Death Penalty in Japan.”
http://news.amnesty.org/library/Index/ENGASA220062006?open&of=ENG-JPN
Amnesty International Report on Prison Abuse in Japan
http://news.amnesty.org/library/Index/ENGASA220041998?open&of=ENG-JPN
Japan File
http://www.japanfile.com/culture_and_society/social_issues/death_penalty.shtml
Charles Lane “Why Japan Still Has the Death Penalty”, Sunday, January 16, 2005; Page B01
http://www.washingtonpost.com/wp-dyn/articles/A11306-2005Jan15.html
19.20 Filmography
The following films deal with issues covered in these lectures:
Stanley Kubrick, director, Clockwork Orange (discretion advised: this is difficult to watch, and is very violent).
Lars von Trier, director, Dogville (The final scene has a brilliant dialogue concerning retributive justice vs. pitying the criminal).
Marc Forster Monster’s Ball (2001)
Tim Robbins Dead Man Walking (1995)
Discussion Questions.
1). Do you think the death penalty is justified? Why?
WHAT YOU NEED TO KNOW
You should know the strongest arguments for, and against, the death penalty.
You should know the counterarguments for these arguments. ]
You should be able to articulate a response to the question “should Japan retain the death penalty?”
Homework: the Non- Medical Use of Drugs
Read the essays on the drug debate in the Rachels text, and identify the main arguments presented. Are they deontological, or Utilitarian? Or is another principle at play?
Also,
-What are some lethal, but fun activities?
-Which ones are illegal, and which ones are illegal, in Japan?
-Which ones do you think ought to be illegal, which aren’t, or vice versa?
-Which ones should have an age limit? And why would you place an age limit on them?
-Look up the terms ‘autonomy’ and ‘paternalism.’
-What does the word ‘drug’ mean?
-What is the distinction between legal and illegal recreational drugs (besides, obviously, being divided into ‘legal’ and ‘illegal’?)
posted by G. Roche at 5:56 PM
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