CONTEMPORARY MORAL PROBLEMS LECTURE 14 CAPITAL PUNISHMENT PART 2 1 THE ISSUES: REVIEW Is the death penalty (capital punishment) justifiable in principle? Why or why not? Is the death penalty justifiable in our actual conditions? Why or why not? What is the justification, if any, for state enforced punishment of any kind? What sorts of punishments are justified and under what conditions? 2 THE RETRIBUTIVIST VIEW: REVIEW General Idea: The point of punishment is to give criminals what they deserve for the evils they have done. Whether the suffering of punishment produces good or bad consequences is, though perhaps relevant, not the primary justification for punishment. 3 1
REIMAN S THESES [1] Murderers deserve the death penalty (when fully responsible for their actions) but since, [2] we have no reason to think that the death penalty deters future murderers, and [3] we have good moral reasons not to give murderers what they deserve, it follows that [4] we should not use the death penalty. 4 REIMAN S CONCESSIONS [a] If people ever deserve anything, then what the deserve is something commensurate to what they have done. [b] We can be justified in killing (even the innocent?) in order to save innocent lives. So, [1] Some crimes really deserve the death penalty. [2] Evidence that the death penalty was a substantially better deterrent than a life sentence would probably justify imposing it. 5 EXACT VS. PROPORTIONAL RETRIBUTION Literal lex talionis: Punishment ought to be exactly what the criminal has done. Non-Literal lex talionis: Punishment ought to consist of an equivalent amount of harm or suffering as the amount of harm or suffering inflicted. Proportional retributivism: Punishment ought to be proportional to the harm or injury caused but need not be equal in amount. 6 2
REIMAN S RETRIBUTIVIST PRINCIPLE (RP) THE RP: "The equality and rationality of persons implies that an offender deserves and his victim has the right to impose suffering on the offender equal to that which he imposed on the victim." RP shows that [1] non-literal lex talionis is a correct account of what an offender deserves. [2] the point of punishment is to affirm the equality and rationality of all persons. 7 HEGELIAN ARGUMENT FOR RP Hegel: Crime undoes the equality between persons by implicitly asserting a right to treat another in a way that the other has no right to treat you. Retributive punishment restores equality by asserting that we all have the same rights with respect to each other. Reiman: This establishes a right to punish but not a duty because the victim has the right to forgive without punishment. 8 KANTIAN ARGUMENT FOR RP Kant: When one acts a certain way towards others, one implicitly authorizes the same action by others. To punish a person in kind is to respect them as rational beings because one treats them in ways they have implicitly authorized. Reiman: This authorizing of such response establishes a right to punish and not (as Kant thought) a duty to punish. 9 3
TWO WAYS TO THE RP The Hegelian starts with the victim's equality and infers the victim's right to do the same to the criminal in order to "reassert" equality. The Kantian starts with the criminal's nature as a rational creature and infers from it the criminal's implicit authorization of the victim's right to do the same to the criminal. Two routes to the same retributivist view. 10 DESERT AND PUNISHMENT: THE GAP 1 Reiman: The RP supports a right to punish but not a duty to do so the truth of the RP "does not settle the question whether or to what extent" the victim or the state should exercise the right. Alternative to Reiman: Even if one thinks that the arguments support a duty to punish in kind, the duty is a prima facie duty and might be overridden by other moral considerations. 11 DESERT AND PUNISHMENT: THE GAP 2 Reiman claims that there are some crimes we ought not try to match in kind even if that is the only way to impose an equal amount of suffering on the criminal. Rape. Torture the rack, etc. Burning at the stake. So, even if (non-literal) lex talionis is correct as an account of what criminals deserve, sometimes we (morally) ought not give them what they deserve! 12 4
AN ANALOGY One can accept that promises are morally binding and still think that their force can be "overridden." One can accept that some deserve death or torture for their crimes but that this desert claim can be "overridden." Our Earlier Terminology: One can accept a prima facie duty to keep promises and a prima facie right to punish without holding that duties or rights are absolute. 13 REIMAN S PROPORTIONAL RETRIBUTIVISM While we can be just in not inflicting the same amount of suffering on the criminal, there is a threshold of severity we ought not fall below or we will commit "an injustice to the victim." We must punish in a way which is severe enough to be "compatible with believing" that the criminal genuinely deserves the same amount of suffering. 14 REIMAN ON CAPITAL PUNISHMENT The View: As (real) life imprisonment is sufficient to respect the victim, we ought not inflict deserved but horrible death in the absence of evidence of substantial deterrent force. Reiman seeks to show that the death penalty is like torture in that it is the kind of thing we ought not do to criminals even though they deserve the same amount of suffering and these punishments might be the only way to inflict deserved suffering. 15 5
CAPITAL PUNISHMENT AND THE PUNISHED Torture is especially horrible or barbaric because [a] it involves intense physical pain, and [b] it involves total subjugation of the person tortured. State execution is also especially horrible and barbaric because [a] it involves an especially intense psychological pain for the person who will be executed, and [b] it enacts the total subjugation of a person to his fellows. 16 CAPITAL PUNISHMENT AND THE PUNISHERS Reiman claims that another reason not to use torture and capital punishment is that we thereby send the message that there are some things which are too horrible and barbaric for us to be capable of doing unless we are forced to do so in order to save lives. 17 MORAL REASONS AGAINST CP CP is like torture in that we ought not carry out either (in the absence of necessity as deterrent) because [a] they are especially brutal to the punished. [b] they exhibit that we are willing to be brutal. So, while CP is sometimes deserved, we still should not use CP. 18 6
DETERRENCE AND NONCONSEQUENTIALISM A deterrence theorist CAN be a nonconsequentialist. They may hold that the right to punish comes from the right to self-defense or, more specifically, the right to prevent attack by threat of credible response. Remember, Reiman admits that if CP has a substantial deterrent effect, then it might be morally permissible (or even required) in spite of its barbaric nature. 19 DETERRENCE AND INTUITIVE REASONING Reiman claims that there is no good statistical evidence for a deterrent effect of death sentences over life sentences. Some respond to this fact with The Intuitive Argument for Deterrence: Isn t it obvious that the higher the cost of something, the fewer people will choose it? Also, prisoners given a choice prefer life imprisonment to execution. 20 REIMAN S REPLIES 1 [1] From the fact that penalty X is more feared than penalty Y, it doesn t follow that X will deter more than Y. [2] Given the number of people killed by police and the number of privately owned guns, anyone contemplating crime already stands a risk of ending up dead. 21 7
REIMAN S REPLIES 2 [3] Even if capital punishment prevents murder partly by educating citizens about the wrongfulness of murder, abolishing capital punishment might also prevent by teaching a moral lesson about what civilized people do. [4] If this argument worked, then it would also show that we ought to use death-by-torture instead of plain death since people surely fear the former more than the latter! 22 PRINCIPLE VS. PRACTICE In other writings, Reiman claims that while [a] in principle, murderers deserve the death penalty, [b] in practice, the use and application of CP in America is unjust "according to the very values underlying the retributive justification" of punishment, so [c] even if one thinks that CP is not so horrible and barbaric that it ought not be used unless necessary, one should still have serious worries about our actual use of CP. 23 UNJUST IN PRACTICE? 1 The following may give us reason to think actual contemporary administration of the death penalty is unjust: [1] There is discrimination in the application of the death penalty to convicted murderers. Not all lives are treated as having equal worth. [2] There is discrimination in the definition of murder. Not all lives are treated as having equal worth. 24 8
UNJUST IN PRACTICE? 2 [3] Our society is unjust and so many murderers are not fully morally responsible for their actions. The murderer is not deserving of death since they are not fully responsible for death. [4] Life on death row is torture. Ordinary murderers are, according to lex talionis, getting more punishment (torture until death) than they deserve (death). 25 9