deters would-be offenders from capital crimes: Principle of Equality (principle of “an eye for an eye”)

PHI130 Applied Ethics: Death Penalty 1  Issue  Capital punishment Officially sanctioned punishment by death for (very grievous) capital crimes?   Positions  justified  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 a s part of system of l egal 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 ha s 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 k illing  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 a s an end.) October 8, 2012

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Applied Ethics: Death Penalty 2 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 a rsonists. • 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 i s 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 tha n 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 t hen 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  October 8, 2012

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Applied Ethics: Death Penalty

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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 hav e 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 na tural 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 e nough; 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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Applied Ethics: Death Penalty 4  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 a nalogously 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.

October 8, 2012