Lectures 18 Capital Punishment I
Lecture 18
Punishment and the Death Penalty I
Arguments Against the Death Penalty
Errata: Aya Akakubo, not Aya Okubo, should have been cited in Lecture 17
-start- any questions from previous lectures on euthanasia?
18.1 References for these lectures
Hugo Adam Bedau “The Case Against the Death Penalty,” in James Rachels, ed. The Right
Thing To Do 3rd Ed. (Boston: McGraw Hill, 2003): 231- 240
Earnest Van Den Haag “A Defense of the Death Penalty,” in James Rachels, ed. The Right
Thing To Do 3rd Ed. (Boston: McGraw Hill, 2003): 240- 247
Antony Duff “Legal Punishment,” in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/legal-punishment/ (updated Jan 2001).
Hugo Adam Bedau “Punishment,” in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/punishment/
[no author cited] “Arguments For and Against the Death Penalty,” Death Penalty
Information Center http://deathpenaltyinfo.msu.edu/c/about/arguments/contents.htm
(accessed November 8th 2006).
[no author cited] “Cesare Beccaria,” The Internet Encyclopedia of Philosophy,”
http://www.iep.utm.edu/b/beccaria.htm accessed Nov 6th 2006
Cecil Greek “Cesare Beccaria,” in lecture notes, Criminal Theory course, Florida State
University College of Criminology and Criminal Justice archives
http://criminology.fsu.edu/crimtheory/beccaria.htm
18.2 Review
1). The following arguments have been offered in favor of the death penalty. (Yeah yeah I know, we’ve already gone over these…)
a). The death penalty prevents future murders. (That is, the death penalty acts as
a deterrent).
b). In a fair society, if you kill someone, society should kill you.
Do you agree, or disagree? What do your colleagues think?
2). The following arguments have been offered against the death penalty.
c). If the court makes a mistake, an innocent person may be killed.
d). Sometimes the death penalty is used unfairly.
Do you agree, or disagree? Why?
3). Do you think that Japan should retain the death penalty? If so, for which crimes?
4). What do you think a Utilitarian would say about the death penalty, or about punishment in general?
5). What would a Kantian say about the death penalty, or about punishment in general?
Lecture Outline: Lecture 18
Introduction to the Topic
Historical Background
Retribution
Retribution and Kant
The Utilitarian Approach
The Utilitarian Approach: Beccharia
Other Arguments in favour of Punishment and Execution
Other Theories
Introduction
Capital Punishment, or the death penalty, is defined as the execution of a criminal by the state as punishment for crimes known as capital crimes or capital offences. ‘Capital’ here means ‘head,’ so a ‘capital punishment’ is one that involves, literally or figuratively, the loss of your head.
What crimes are capital crimes?
murder, drug smuggling, sexual crimes (in Iran this can just mean having sex with someone of your own gender), insubordination or desertion (disobeying an order, or leaving the Military without permission during battle), or treason still carry the death penalty in various countries.
What countries still have the death penalty?
Sixty – nine countries still have the death penalty. Japan, South Korea, Taiwan, Singapore and the US are the only developed, democratic countries that still have the death penalty.
Where are children executed?
Bangladesh, Iran, Iraq, Nigeria, Pakistan, Saudi Arabia, Yemen.
How is it done?
Drawing and quartering used to be common. The guillotine was widely used in Europe since its invention in the 18th Century. Lethal injection and firing squad and electric chair are more modern methods. Hanging is still widely used. Death may not be instantaneous; the spinal chord can snap, but the punished person may remain conscious and simply bleed to death internally.
Retribution: (Lex talionis)
The traditional justification of punishment, and in particular the death penalty, is retribution. As Rachels puts it, this is simply the idea that we need to ‘pay back’ the harm caused by the murderer. As a ‘theory of punishment,’ the term used is Retributivism.
The earliest known retributive justice code was the Law of Hammurabi, written in the 18th Century BCE (that is, 38 centuries ago)-
If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death. If it kills the son of the owner, then the son of that builder shall be put to death.
The most important expression of this code is in the Torah (Old Testament).
Exodus 21:22 If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine.23 And if any mischief follow, then thou shalt give life for life,24 Eye for eye, tooth for tooth, hand for hand, foot for foot,25 Burning for burning, wound for wound, stripe for stripe.
Leviticus 24:17 And he that killeth any man shall surely be put to death.18 And he that killeth a beast shall make it good; beast for beast.19 And if a man cause a blemish in his neighbour; as he hath done, so shall it be done to him;20 Breach for breach, eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it be done to him again.21 And he that killeth a beast, he shall restore it: and he that killeth a man, he shall be put to death.
Both Christianity and Judaism oppose execution, however, opposed by both Moses Miamonides (a 12th Century Jewish philosopher) and Jesus: “Let he who is without sin cast the first stone…”
Kant is the most important theorist of Retributivism.
When someone who delights in annoying and vexing peace- loving folk receives at last a right good beating, it is certainly an ill, but everyone approves of it and considers it as good in itself even if nothing further results in it. (in Rachels EMP:134).
Here’s Ernst Van den Haag, in Rachels RTTD:245
The punishment [the murderer] suffers is the punishment he voluntarily risked suffering and, therefore, it is no more unjust to him than any other event for which one knowingly volunteers to assume the risk. The death penalty cannot be unjust for the willing criminal.” (RTTD:245).
For a retributivist, the only justification for punishment is to give what the criminal deserves. Hence, it is neither Utilitarian nor consequentialist (as with Kant’s theory in General). Kant again:
Judicial punishment can never be administered merely as a means for promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. (Rachels: EMP: 134).
The second principle of punishment for a retributivist is that the punishment must be proportional to the crime.
But what is the mode and measure of punishment which public justice takes as its principle and standard? It is just the principle of equality, by which the pointer of the scale of justice is made to incline no more to the one side than the other…Hence it may be said: “If you slander another, you slander yourself; if you steal from another, you steal from yourself; if you strike another, you strike yourself; if you kill another, you kill yourself.” This is…the only principle which… can definitely assign both the quality and the quantity of a just penalty. (in Rachels EMPp.137).
Kant went as far as to say that a society, even were it to disband, is morally required to execute whoever is in jail for murder, even if they had no means of escape (Rachels p.137).
Problem: how does one respect a criminal by executing them? Or even putting them in jail?
The attempt to rehabilitate (‘teach’) the criminal insults the dignity and intelligence of the criminal. Rachels: “it is a violation of their rights as an autonomous being to decide for themselves what sort of people they will be.”…”We do not have the right to violate their integrity by trying to manipulate their personalities” [a la Alex in Clockwork Orange, the novel by Anthony Burgess]. Rachels points out that we need to distinguish between two opposing principles here:
a). Treating someone as a responsible being
and b). Treating someone as a being who is not responsible for his conduct
To treat someone as just an animal or a fool, who needs to be coerced or re-educated, (like rubbing a dog’s nose in his excrement, to ‘teach’ him his mistake) is just insulting. We cannot hold imbeciles or dogs ‘accountable’ for their acts. They aren’t stupid; they knew what they were doing; now they must pay the price. (See Rachels p. 137). Kant’s specific twist here: (Rachels p.139). the first formulation of the Categorical Imperative is brought to bear:
…when a rational being decides to treat people in a certain way, he [decides] that this is how people are to be treated. Thus if we treat him the same way in return, we are doing nothing more than treating him as he has decided to be treated. If he treats others badly, and we treat him badly, we are complying with his own decision. (Rachels p.139).
Criticisms: Nietzsche
Nietzsche argued that the notion of retribution was merely a pious gloss over a very basic and natural human reaction- the taste for revenge, or vengeance. Nietzsche (and the 20th Century French philosopher Michel Foucault) think that we get satisfaction from inflicting pain onto others, even if the pleasure is disguised. Others will argue that this pleasure of punishment is merely a perversion of human nature, and that retribution is completely justified. Who is right? And even if punishment is just vengeance, so what? Is vengeance necessarily a bad thing?
Discussion:
1). What is the difference between the Law of Hammurabi and the Laws of Exodus? Or with Kant? Why are these differences important?
2). What are Kant’s assumptions concerning human nature?
3). What are those of Hobbes?
4). Who’s right? Or rather, who is closer to the truth? And what are the implications of the whole idea of ‘retribution?’
5). Is the principle of respecting the dignity and intelligence of the criminal really sound? And even if it were, are we really respecting the intelligence and innate freedom of a criminal by locking him or her up?
6). If a very clever criminal escapes from prison in a very intelligent way, and disappears for good, would we respect them for it?
7). is the principle of equal and opposite punishment without problems?
8). Rationality and Punishment. Kant’s notion of retribution only works for a
particular subset of crimes. Of those crimes punishable by death around the
world today, can retributive justice justify all of them?
The Utilitarian Approach
Note that Utilitarianism, per se, does not necessarily lead to either advocating or condemning the death penalty. The same goes for Kant. Utilitarianism simply endorses whichever option will maximize happiness. As such, there are Utilitarian arguments both opposing and defending the death penalty.
For a Utilitarian, punishment is justified if and only if it creates a greater balance of happiness over unhappiness. So, from the Utilitarian perspective, capital punishment is justified if it 1). prevents the criminal from repeating his crime, of 2). deters crime by discouraging would- be offenders.
a). Argument: the death penalty prevents future murders.
As murder is the greatest crime, then it requires the greatest penalty- the death sentence.
In 1973, one Isaac Ehrlich published a study showing that for every inmate who was executed, seven lives were saved through deterrence (that is, frightening people into not killing). Other studies have yielded similar results.
Ernst van den Haag, a professor of law at Fordham University, argues:
Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most. Hence, the threat of the death penalty may deter some murderers who otherwise might not have been deterred. And surely the death penalty is the only penalty that could deter prisoners already serving a life sentence and tempted to kill a guard, or offenders about to be arrested and facing a life sentence. Perhaps they will not be deterred. But they would certainly not be deterred by anything else. We owe all the protection we can give to law enforcers exposed to special risks.
Discussion:
a). Van den Haag assumes that people fear death more than anything else. Is this true? What about criminals?
b). Van den Haag argues for retaining the death penalty for the protection of a small group. Is this justified?
b). Rehabilitation, not Punishment
For the second half of the 20th Century, many have argued for a criminal justice system that would rehabilitate criminals. Criminals are frequently poorly educated, with emotional problems, and with poor work histories. So why not train them in jail to be better people, instead of punishing them? The implication of this view is that we should stop punishing criminals altogether, and instead treat them. As such, in many Anglo- American countries (Australia, New Zealand, the U.K, the U.S.A ) we no longer hear about prisons but correctional facilities, where correctional officers work. Criminals are not punished but corrected. As such, notes Rachels, in words at least, the Utilitarian Revolution is complete. Of course, it could just be Orwellian Newspeak. [1](See Rachels p.134-135).
Cesare Beccaria (1738-1794).
Cesare Beccaria, in 1764, was an Italian philosopher, wrote the most important book on crime and punishment ever written, On Crimes and Punishments. It was published anonymously (as innovative philosophy often was), but was soon embraced by the government of Milan. The text was a thorough and enlightened attack on the ills of the criminal justice system of 18th Century Italy, in particular the practice of using torture to obtain confessions, the arbitrary power of judges, the inconsistency and inequality of sentencing, using personal connections to get a lighter sentence, and so on. More generally, the primary thesis of the book is that the death sentence and torture are both unjust and futile. His two main philosophical approaches are Social Contract theory and Utilitarianism. He concludes with outlines for the ideal justice system and the ideal state. After reading it, Grand Duke Leopold II of Hapsburg, Emperor of Austria, become the first ruler to permanently end the death penalty. Insofar as his principles were adopted by, among others, the Founding Fathers of the United States of America, as well as all of Western Europe, he is perhaps one of the most important intellectuals in modern history.
Beccaria’s Theory
There are three main principles in Beccaria’s theory: Rationality, the Social Contact, and Utilitarianism. His theory of human nature is an interesting fusion of Kant and Hobbes. He assumes that all individuals have free will, rationality, and manipulability. Everyone makes free, rational choices (including the free, rational choice to commit crimes). Like Hobbes, Beccaria assumes that people will rationally look out for themselves, rather than consider the interests of others. Hence, crime is not in fact irrational. This requires that we have a social contract to prevent crimes. Crime occurs when personal and group interests conflict.
The third principle in Beccharia’s theory is that people are manipulable. People, because they are all rational, and self- interested, are predictable and controllable. We can make generalizations about how they will act in certain situations The job of the criminal justice system is to control all deviant acts that an individual with free will and rational thought might do in the pursuit of personal pleasure. The problem the criminal justice system has is finding the right punishment or threats. The basic principle is that the justice system is merely one of the tools used for the creation of a better society, rather than an instrument of vengeance.
Beccaria expresses not only the need for the criminal justice system, but also the government’s right to have laws and punishments. He believe in the social contract, or the idea that free will and rational individuals made a choice to live in a society instead of living alone. When one chooses to live in a society, then one chooses to give up some personal liberties in exchange for the safety and comfort of a society. Laws are designed as the framework of the society and the rules for which acts are encouraged or prohibited. Laws are the conditions of a society of free and rational individuals. There is a need to have some system set up in order to ensure that the individuals in the society are protected against any individual or groups that want to take back the personal liberties forfeited in the social contract and those who want to also harm the personal liberties of others in the society. In On Crimes and Punishments Beccaria states, "but merely to have established this deposit was not enough; it had to be defended against private usurpation by individuals each of whom always tries not only to withdraw his own share but also to usurp for himself that of others." So there is a need for and a right to have laws and a criminal justice system to ensure that all individuals in society obey or follow the social contract. Being an early Utilitarian, Beccaria held that the laws should be formulated for the maximization of happiness only.
Beccaria on the Death Penalty:
Beccaria rejects the death penalty on two grounds. Firstly, the state does not have the right to take lives. Secondly, capital punishment is neither a useful nor a necessary form of punishment. The death penalty, history showed, (he thought), did not deter criminals from killing. Lifelong imprisonment, he thought, would be sufficiently horrible to make people fear sentencing. (Note that, in Beccaria’s time, this would probably involve heavy labour). Far from reducing homicides, Beccaria felt that the death penalty simply brutalized a community. That is, it reduces a community’s sensitivity to suffering. It normalizes tyranny. He felt that it was simply a contradiction to punish a murderer by, in his view, murdering them: “it seems to me absurd that the laws, which are an expression of the public will, which detest and punish homicide, should themselves commit it, and that to deter citizens from murder they order a public one.” (cited in Greek, lecture notes Beccaria).
Broader proposals: Beccharia, reasoning that crime is committed by uneducated people, recommended that the state have universal and free education, which was a completely new concept in the 18th Century. he also argued in favour of the universal right to bear arms, so if you want to blame a particular thinker for that one, blame him. (Of course, in the 18th Century there were no M-16’s, and it took ten minutes to reload a pistol).
Discussion:
a). Most rehabilitation programs, in particular in California, are disastrous failures. Any ideas why?
b). Who had the better theory of punishment- Kant, or the Utilitarians?
Discussion:
The Deterrence Problem:
-How relevant is it that the death penalty is not a deterrent? Think of another example: Is it relevant whether lethal drunk driving is not premeditated, or that perpetrators think that they will not get caught? If drunk driving is not premeditated, should we just not punish it, because the punishments don’t work?
Eye for an Eye
If equal and opposite damage is ‘barbaric,’ what other standard should be applied to punishment? Maybe rapists should be thrown to the mercy of bullies in prison. What do you think?
Other theories of justice
(These have been included purely for the sake of completion)
Punishment as Communication
For some theorists, punishment is to communicate to offenders the condemnation that they deserve for their crimes. Like retributive justice, this ideal requires that the criminal is a rational and responsible agent who is capable of understanding the ‘message.’
Restorative Justice
On this view, crime must be dealt with through a process of reparation or restoration between the offender, the victim, and any other interested groups of people. On this view, the instrument of justice is not trial and punishment, but mediation or reconciliation programs to discuss what happened and how to deal with it collectively. The South African Truth and Reconciliation Commission could be such a case http://www.doj.gov.za/trc/.
What You Need to Know
You need to know what Retributivism means
You should know what the standard arguments in favour of the death penalty are
You should know the Utilitarian arguments both for and against the death penalty are
You should know what Rehabilitation is
You should know the ways in which Retributivism is inconsistent with Utilitarianism
Outline for Lecture 19.
Arguments against the death Penalty
1). The Death Penalty is not a deterrent (Murder is either not premeditated, or is committed by people who think they are too clever to be caught)
2). It is not fairly applied
3). Capital punishment is irreversible
4). Capital punishment is unjustified retribution
5). Capital punishment is widely viewed as inhumane and anachronistic
6). Capital punishment is brutal, and brutalizes a community
(‘Widely viewed’- is this sufficient? Why is this a good argument? Many people still believe that women are intrinsically inferior to men. Does that make it a good idea? In any case, in Japan the death penalty is still widely held to be a good idea).
Counterarguments to the Above Arguments
Problems in distribution are beside the point
Miscarriages of justice are rare and an acceptable cost
Deterrence- not conclusive either way
Brutalization- argument is simplistic
-Doing justice is more important than being nice
[1] Go read George Orwell’s Nineteen Eighty- Four.
Punishment and the Death Penalty I
Arguments Against the Death Penalty
Errata: Aya Akakubo, not Aya Okubo, should have been cited in Lecture 17
-start- any questions from previous lectures on euthanasia?
18.1 References for these lectures
Hugo Adam Bedau “The Case Against the Death Penalty,” in James Rachels, ed. The Right
Thing To Do 3rd Ed. (Boston: McGraw Hill, 2003): 231- 240
Earnest Van Den Haag “A Defense of the Death Penalty,” in James Rachels, ed. The Right
Thing To Do 3rd Ed. (Boston: McGraw Hill, 2003): 240- 247
Antony Duff “Legal Punishment,” in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/legal-punishment/ (updated Jan 2001).
Hugo Adam Bedau “Punishment,” in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/punishment/
[no author cited] “Arguments For and Against the Death Penalty,” Death Penalty
Information Center http://deathpenaltyinfo.msu.edu/c/about/arguments/contents.htm
(accessed November 8th 2006).
[no author cited] “Cesare Beccaria,” The Internet Encyclopedia of Philosophy,”
http://www.iep.utm.edu/b/beccaria.htm accessed Nov 6th 2006
Cecil Greek “Cesare Beccaria,” in lecture notes, Criminal Theory course, Florida State
University College of Criminology and Criminal Justice archives
http://criminology.fsu.edu/crimtheory/beccaria.htm
18.2 Review
1). The following arguments have been offered in favor of the death penalty. (Yeah yeah I know, we’ve already gone over these…)
a). The death penalty prevents future murders. (That is, the death penalty acts as
a deterrent).
b). In a fair society, if you kill someone, society should kill you.
Do you agree, or disagree? What do your colleagues think?
2). The following arguments have been offered against the death penalty.
c). If the court makes a mistake, an innocent person may be killed.
d). Sometimes the death penalty is used unfairly.
Do you agree, or disagree? Why?
3). Do you think that Japan should retain the death penalty? If so, for which crimes?
4). What do you think a Utilitarian would say about the death penalty, or about punishment in general?
5). What would a Kantian say about the death penalty, or about punishment in general?
Lecture Outline: Lecture 18
Introduction to the Topic
Historical Background
Retribution
Retribution and Kant
The Utilitarian Approach
The Utilitarian Approach: Beccharia
Other Arguments in favour of Punishment and Execution
Other Theories
Introduction
Capital Punishment, or the death penalty, is defined as the execution of a criminal by the state as punishment for crimes known as capital crimes or capital offences. ‘Capital’ here means ‘head,’ so a ‘capital punishment’ is one that involves, literally or figuratively, the loss of your head.
What crimes are capital crimes?
murder, drug smuggling, sexual crimes (in Iran this can just mean having sex with someone of your own gender), insubordination or desertion (disobeying an order, or leaving the Military without permission during battle), or treason still carry the death penalty in various countries.
What countries still have the death penalty?
Sixty – nine countries still have the death penalty. Japan, South Korea, Taiwan, Singapore and the US are the only developed, democratic countries that still have the death penalty.
Where are children executed?
Bangladesh, Iran, Iraq, Nigeria, Pakistan, Saudi Arabia, Yemen.
How is it done?
Drawing and quartering used to be common. The guillotine was widely used in Europe since its invention in the 18th Century. Lethal injection and firing squad and electric chair are more modern methods. Hanging is still widely used. Death may not be instantaneous; the spinal chord can snap, but the punished person may remain conscious and simply bleed to death internally.
Retribution: (Lex talionis)
The traditional justification of punishment, and in particular the death penalty, is retribution. As Rachels puts it, this is simply the idea that we need to ‘pay back’ the harm caused by the murderer. As a ‘theory of punishment,’ the term used is Retributivism.
The earliest known retributive justice code was the Law of Hammurabi, written in the 18th Century BCE (that is, 38 centuries ago)-
If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death. If it kills the son of the owner, then the son of that builder shall be put to death.
The most important expression of this code is in the Torah (Old Testament).
Exodus 21:22 If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine.23 And if any mischief follow, then thou shalt give life for life,24 Eye for eye, tooth for tooth, hand for hand, foot for foot,25 Burning for burning, wound for wound, stripe for stripe.
Leviticus 24:17 And he that killeth any man shall surely be put to death.18 And he that killeth a beast shall make it good; beast for beast.19 And if a man cause a blemish in his neighbour; as he hath done, so shall it be done to him;20 Breach for breach, eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it be done to him again.21 And he that killeth a beast, he shall restore it: and he that killeth a man, he shall be put to death.
Both Christianity and Judaism oppose execution, however, opposed by both Moses Miamonides (a 12th Century Jewish philosopher) and Jesus: “Let he who is without sin cast the first stone…”
Kant is the most important theorist of Retributivism.
When someone who delights in annoying and vexing peace- loving folk receives at last a right good beating, it is certainly an ill, but everyone approves of it and considers it as good in itself even if nothing further results in it. (in Rachels EMP:134).
Here’s Ernst Van den Haag, in Rachels RTTD:245
The punishment [the murderer] suffers is the punishment he voluntarily risked suffering and, therefore, it is no more unjust to him than any other event for which one knowingly volunteers to assume the risk. The death penalty cannot be unjust for the willing criminal.” (RTTD:245).
For a retributivist, the only justification for punishment is to give what the criminal deserves. Hence, it is neither Utilitarian nor consequentialist (as with Kant’s theory in General). Kant again:
Judicial punishment can never be administered merely as a means for promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. (Rachels: EMP: 134).
The second principle of punishment for a retributivist is that the punishment must be proportional to the crime.
But what is the mode and measure of punishment which public justice takes as its principle and standard? It is just the principle of equality, by which the pointer of the scale of justice is made to incline no more to the one side than the other…Hence it may be said: “If you slander another, you slander yourself; if you steal from another, you steal from yourself; if you strike another, you strike yourself; if you kill another, you kill yourself.” This is…the only principle which… can definitely assign both the quality and the quantity of a just penalty. (in Rachels EMPp.137).
Kant went as far as to say that a society, even were it to disband, is morally required to execute whoever is in jail for murder, even if they had no means of escape (Rachels p.137).
Problem: how does one respect a criminal by executing them? Or even putting them in jail?
The attempt to rehabilitate (‘teach’) the criminal insults the dignity and intelligence of the criminal. Rachels: “it is a violation of their rights as an autonomous being to decide for themselves what sort of people they will be.”…”We do not have the right to violate their integrity by trying to manipulate their personalities” [a la Alex in Clockwork Orange, the novel by Anthony Burgess]. Rachels points out that we need to distinguish between two opposing principles here:
a). Treating someone as a responsible being
and b). Treating someone as a being who is not responsible for his conduct
To treat someone as just an animal or a fool, who needs to be coerced or re-educated, (like rubbing a dog’s nose in his excrement, to ‘teach’ him his mistake) is just insulting. We cannot hold imbeciles or dogs ‘accountable’ for their acts. They aren’t stupid; they knew what they were doing; now they must pay the price. (See Rachels p. 137). Kant’s specific twist here: (Rachels p.139). the first formulation of the Categorical Imperative is brought to bear:
…when a rational being decides to treat people in a certain way, he [decides] that this is how people are to be treated. Thus if we treat him the same way in return, we are doing nothing more than treating him as he has decided to be treated. If he treats others badly, and we treat him badly, we are complying with his own decision. (Rachels p.139).
Criticisms: Nietzsche
Nietzsche argued that the notion of retribution was merely a pious gloss over a very basic and natural human reaction- the taste for revenge, or vengeance. Nietzsche (and the 20th Century French philosopher Michel Foucault) think that we get satisfaction from inflicting pain onto others, even if the pleasure is disguised. Others will argue that this pleasure of punishment is merely a perversion of human nature, and that retribution is completely justified. Who is right? And even if punishment is just vengeance, so what? Is vengeance necessarily a bad thing?
Discussion:
1). What is the difference between the Law of Hammurabi and the Laws of Exodus? Or with Kant? Why are these differences important?
2). What are Kant’s assumptions concerning human nature?
3). What are those of Hobbes?
4). Who’s right? Or rather, who is closer to the truth? And what are the implications of the whole idea of ‘retribution?’
5). Is the principle of respecting the dignity and intelligence of the criminal really sound? And even if it were, are we really respecting the intelligence and innate freedom of a criminal by locking him or her up?
6). If a very clever criminal escapes from prison in a very intelligent way, and disappears for good, would we respect them for it?
7). is the principle of equal and opposite punishment without problems?
8). Rationality and Punishment. Kant’s notion of retribution only works for a
particular subset of crimes. Of those crimes punishable by death around the
world today, can retributive justice justify all of them?
The Utilitarian Approach
Note that Utilitarianism, per se, does not necessarily lead to either advocating or condemning the death penalty. The same goes for Kant. Utilitarianism simply endorses whichever option will maximize happiness. As such, there are Utilitarian arguments both opposing and defending the death penalty.
For a Utilitarian, punishment is justified if and only if it creates a greater balance of happiness over unhappiness. So, from the Utilitarian perspective, capital punishment is justified if it 1). prevents the criminal from repeating his crime, of 2). deters crime by discouraging would- be offenders.
a). Argument: the death penalty prevents future murders.
As murder is the greatest crime, then it requires the greatest penalty- the death sentence.
In 1973, one Isaac Ehrlich published a study showing that for every inmate who was executed, seven lives were saved through deterrence (that is, frightening people into not killing). Other studies have yielded similar results.
Ernst van den Haag, a professor of law at Fordham University, argues:
Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most. Hence, the threat of the death penalty may deter some murderers who otherwise might not have been deterred. And surely the death penalty is the only penalty that could deter prisoners already serving a life sentence and tempted to kill a guard, or offenders about to be arrested and facing a life sentence. Perhaps they will not be deterred. But they would certainly not be deterred by anything else. We owe all the protection we can give to law enforcers exposed to special risks.
Discussion:
a). Van den Haag assumes that people fear death more than anything else. Is this true? What about criminals?
b). Van den Haag argues for retaining the death penalty for the protection of a small group. Is this justified?
b). Rehabilitation, not Punishment
For the second half of the 20th Century, many have argued for a criminal justice system that would rehabilitate criminals. Criminals are frequently poorly educated, with emotional problems, and with poor work histories. So why not train them in jail to be better people, instead of punishing them? The implication of this view is that we should stop punishing criminals altogether, and instead treat them. As such, in many Anglo- American countries (Australia, New Zealand, the U.K, the U.S.A ) we no longer hear about prisons but correctional facilities, where correctional officers work. Criminals are not punished but corrected. As such, notes Rachels, in words at least, the Utilitarian Revolution is complete. Of course, it could just be Orwellian Newspeak. [1](See Rachels p.134-135).
Cesare Beccaria (1738-1794).
Cesare Beccaria, in 1764, was an Italian philosopher, wrote the most important book on crime and punishment ever written, On Crimes and Punishments. It was published anonymously (as innovative philosophy often was), but was soon embraced by the government of Milan. The text was a thorough and enlightened attack on the ills of the criminal justice system of 18th Century Italy, in particular the practice of using torture to obtain confessions, the arbitrary power of judges, the inconsistency and inequality of sentencing, using personal connections to get a lighter sentence, and so on. More generally, the primary thesis of the book is that the death sentence and torture are both unjust and futile. His two main philosophical approaches are Social Contract theory and Utilitarianism. He concludes with outlines for the ideal justice system and the ideal state. After reading it, Grand Duke Leopold II of Hapsburg, Emperor of Austria, become the first ruler to permanently end the death penalty. Insofar as his principles were adopted by, among others, the Founding Fathers of the United States of America, as well as all of Western Europe, he is perhaps one of the most important intellectuals in modern history.
Beccaria’s Theory
There are three main principles in Beccaria’s theory: Rationality, the Social Contact, and Utilitarianism. His theory of human nature is an interesting fusion of Kant and Hobbes. He assumes that all individuals have free will, rationality, and manipulability. Everyone makes free, rational choices (including the free, rational choice to commit crimes). Like Hobbes, Beccaria assumes that people will rationally look out for themselves, rather than consider the interests of others. Hence, crime is not in fact irrational. This requires that we have a social contract to prevent crimes. Crime occurs when personal and group interests conflict.
The third principle in Beccharia’s theory is that people are manipulable. People, because they are all rational, and self- interested, are predictable and controllable. We can make generalizations about how they will act in certain situations The job of the criminal justice system is to control all deviant acts that an individual with free will and rational thought might do in the pursuit of personal pleasure. The problem the criminal justice system has is finding the right punishment or threats. The basic principle is that the justice system is merely one of the tools used for the creation of a better society, rather than an instrument of vengeance.
Beccaria expresses not only the need for the criminal justice system, but also the government’s right to have laws and punishments. He believe in the social contract, or the idea that free will and rational individuals made a choice to live in a society instead of living alone. When one chooses to live in a society, then one chooses to give up some personal liberties in exchange for the safety and comfort of a society. Laws are designed as the framework of the society and the rules for which acts are encouraged or prohibited. Laws are the conditions of a society of free and rational individuals. There is a need to have some system set up in order to ensure that the individuals in the society are protected against any individual or groups that want to take back the personal liberties forfeited in the social contract and those who want to also harm the personal liberties of others in the society. In On Crimes and Punishments Beccaria states, "but merely to have established this deposit was not enough; it had to be defended against private usurpation by individuals each of whom always tries not only to withdraw his own share but also to usurp for himself that of others." So there is a need for and a right to have laws and a criminal justice system to ensure that all individuals in society obey or follow the social contract. Being an early Utilitarian, Beccaria held that the laws should be formulated for the maximization of happiness only.
Beccaria on the Death Penalty:
Beccaria rejects the death penalty on two grounds. Firstly, the state does not have the right to take lives. Secondly, capital punishment is neither a useful nor a necessary form of punishment. The death penalty, history showed, (he thought), did not deter criminals from killing. Lifelong imprisonment, he thought, would be sufficiently horrible to make people fear sentencing. (Note that, in Beccaria’s time, this would probably involve heavy labour). Far from reducing homicides, Beccaria felt that the death penalty simply brutalized a community. That is, it reduces a community’s sensitivity to suffering. It normalizes tyranny. He felt that it was simply a contradiction to punish a murderer by, in his view, murdering them: “it seems to me absurd that the laws, which are an expression of the public will, which detest and punish homicide, should themselves commit it, and that to deter citizens from murder they order a public one.” (cited in Greek, lecture notes Beccaria).
Broader proposals: Beccharia, reasoning that crime is committed by uneducated people, recommended that the state have universal and free education, which was a completely new concept in the 18th Century. he also argued in favour of the universal right to bear arms, so if you want to blame a particular thinker for that one, blame him. (Of course, in the 18th Century there were no M-16’s, and it took ten minutes to reload a pistol).
Discussion:
a). Most rehabilitation programs, in particular in California, are disastrous failures. Any ideas why?
b). Who had the better theory of punishment- Kant, or the Utilitarians?
Discussion:
The Deterrence Problem:
-How relevant is it that the death penalty is not a deterrent? Think of another example: Is it relevant whether lethal drunk driving is not premeditated, or that perpetrators think that they will not get caught? If drunk driving is not premeditated, should we just not punish it, because the punishments don’t work?
Eye for an Eye
If equal and opposite damage is ‘barbaric,’ what other standard should be applied to punishment? Maybe rapists should be thrown to the mercy of bullies in prison. What do you think?
Other theories of justice
(These have been included purely for the sake of completion)
Punishment as Communication
For some theorists, punishment is to communicate to offenders the condemnation that they deserve for their crimes. Like retributive justice, this ideal requires that the criminal is a rational and responsible agent who is capable of understanding the ‘message.’
Restorative Justice
On this view, crime must be dealt with through a process of reparation or restoration between the offender, the victim, and any other interested groups of people. On this view, the instrument of justice is not trial and punishment, but mediation or reconciliation programs to discuss what happened and how to deal with it collectively. The South African Truth and Reconciliation Commission could be such a case http://www.doj.gov.za/trc/.
What You Need to Know
You need to know what Retributivism means
You should know what the standard arguments in favour of the death penalty are
You should know the Utilitarian arguments both for and against the death penalty are
You should know what Rehabilitation is
You should know the ways in which Retributivism is inconsistent with Utilitarianism
Outline for Lecture 19.
Arguments against the death Penalty
1). The Death Penalty is not a deterrent (Murder is either not premeditated, or is committed by people who think they are too clever to be caught)
2). It is not fairly applied
3). Capital punishment is irreversible
4). Capital punishment is unjustified retribution
5). Capital punishment is widely viewed as inhumane and anachronistic
6). Capital punishment is brutal, and brutalizes a community
(‘Widely viewed’- is this sufficient? Why is this a good argument? Many people still believe that women are intrinsically inferior to men. Does that make it a good idea? In any case, in Japan the death penalty is still widely held to be a good idea).
Counterarguments to the Above Arguments
Problems in distribution are beside the point
Miscarriages of justice are rare and an acceptable cost
Deterrence- not conclusive either way
Brutalization- argument is simplistic
-Doing justice is more important than being nice
[1] Go read George Orwell’s Nineteen Eighty- Four.
posted by G. Roche at 2:07 PM
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