Stephen Nathanson Does it Matter if the Death Penalty is Arbitrarily Administered

1. Stephen Nathanson��Does it Matter if the Death Penalty is Arbitrarily Administered?� Nathanson is directly tackling van den Haag�s argument that arbitrariness doesn�t matter, so long as those executed deserve to die. In Feinberg�s terms the question is whether the justice of C.P. is �comparative� or �noncompartive.� I.E.�does the justice of the punishment depend on how others are treated, or only on how each case is treated.

2. The Eight Amendment The 8th prohibits �cruel and unusual punishment.� The term �unusual� suggests that comparative considerations are relevant. But how much weight does this carry? If a punishment isn�t cruel, does it really matter if it�s �usual� or not? The �unusual� condition seems to aspire to uniformity, a desire to treat like cases the same. But this may ultimately prove impossible.

3. The Supreme Court and Arbitrariness Nathanson says that the Court found the arbitrariness argument persuasive in Furman v. Georgia in 1972 and they outlawed C.P. In Gregg v. Georgia in 1976 the Court was convinced that �guided discretion� would minimize arbitrariness and C.P. was reinstated. As always, the legal question needs to be separated from the moral question. Constitutionality aside, does arbitrariness make C.P. immoral or unjust?

4. Sometimes Justice is Clearly Non-Comparative A. A driver is gets a speeding ticket. The percentage of speeders who are actually punished is extremely small. But we would reject the defense that the driver was treated unjustly because others get away with it. �B. A person performs a heroic act and receives a substantial reward. We think he deserves the reward simply because he was heroic. That other heroes go unsung isn�t a reason to not reward this particular hero.

5. �But Sometimes Justice is Clearly Comparative C. I have a policy that anyone who plagiarizes will fail this course. 3 students plagiarize but only 1 is failed for it. The other two, in describing their circumstances, win my sympathy, and I give them passing grades. �D. At my child's birthday party, I offer a prize to the child who can solve a particular puzzle. Three children, including my own, solve the puzzle. I cannot reward them all so I give the prize to my own child. Is C.P. more like (A & B), or more like (C & D)?

6. Many Arguments from Arbitrariness Class of all people punished