Caveats on Readings and PowerPoint Presentations

1. Caveats on Readings and PowerPoint Presentations • The readings in Matters of Life and Death do not straightforwardly argue for one position or another because they are survey articles. • When you argue for one position, you should not mimic these readings. You should rather state your position first, and write only what you need to say in order to establish your position. • PowerPoint Presentations in the course generally do not try to follow and summarize what the authors of readings say. Presentations cover the same topics in a different organization and perspective from the readings do. They selectively engage with the readings and sometimes add new materials.

2. Assignments for Thursday • Read: • Hugo Adam Bedau, “§30 Equal Justice and Capital Punishment”, 188-190 of the text • McCleskey v. Kemp in Library Reserve • Randall Kennedy, “Homicide, Race, and Capital Punishment” in Library Reserve • The Diagnostic Paper is due on Thursday. (See instructions on our website.)

3. Capital Punishment 2006 Makoto Suzuki Some of the materials are adapted from Prof. Donald Hubin’s handouts and presentations. The copy rights of them belongs to him.

4. Aims of Day 3 • Introduce theoretical frameworks of death penalty disputes, and consider whether the state should give death penalty for certain individuals. • We proceed in the following order: • Death penalty as a form of punishment • Moral rights and death penalty • Utilitarianism and death penalty • Retributivism and death penalty • The dignity of a person and death penalty

5. 1. Death penalty as a form of punishment

6. Death Penalty as a Form of Punishment • Death penalty is a form of punishment. Thus, a promising approach to assessing capital punishment is to ask the following two questions: “Do the considerations that justify punishment in general support death penalty?” “Do the considerations that disqualify ways of punishment apply to death penalty?” • If one takes this approach, then, as Bedau says on pp.169-70, “We are not likely to assess the morality of capital punishment correctly unless we understand the morality of punishment in general.” • Thus, we start with considering what considerations are relevant to assessment of punishment in general.

7. The Need for Justification (Bedau, §10, p.170) • Punishment stands in need of justification because: • By definition, it involves the intentional infliction of pain or some other consequence normally considered unpleasant. • These undesirable consequences are typically inflicted against the wishes of the person punished.

8. Philosophical Problems in the Justification of Punishment • General Justification: • Is any system of punishment by the state morally justified? If so, upon what basis? (This involves considering alternative responses to crime—e.g., therapeutic rehabilitation, reparation to victims etc.) • There are arguments for alternative responses over punishment, but we won’t examine them. This is not because they are silly. Check the links above. • The Distribution of Punishment: • Whom should we punish? Why? (This is sometimes called the question of ‘title’.) • How much should we punish and in what ways? Why? (This is sometimes called the question of ‘severity’.)

9. 2. Moral rights and death penalty

10. Justifying Punishment: Why Not Appeal to Moral Rights? • Arguing for a moral claim, people often defend it on the basis of having or losing certain rights. • Ex: “Ray should pay money to Cathy because she has a right to be compensated for the damage he made.” • So, justifying punishment, some might say: “Criminals should be punished because they have forfeited their rights” (Bedau, 162); or “Criminals should be punished because the society has a right to punish the guilty” (Bedau, 170)

11. Legal v. Moral Rights • The question is whether punishment is morally justified. So charity requires that we NOT interpret “rights” justifying (legal) punishment as legal rights. • If they are legal rights, it begs the question. Legal rights are determined by laws, and it is the moral justifiability of the (criminal) laws that is questioned. • Plausibly “rights” in this context are moral rights, which exist independently of laws.

12. Problems Specific to Using Moral Rights in Justifying Punishment • Even if one of these claims is correct, it does not settle the question: “Should the state punish the guilty?” • As Bedau points out (on 164-5), even if the guilty have forfeited their rights, taken alone, it does not imply (by sheer logic) that someone should punish them. • It just means that the guilty cannot claim to be entitled to certain things. • Even if the state has the right to punish the guilty, it does not entail that the state should punish them. • It just means that the state may punish them. • Even if one of these claims is correct, it does not settle the questions of severity: “How much should we punish and in what ways? Why?”

13. Appeal to Rights: General Problems • Many things about moral rights are controversial. Ex.: • What kinds of rights there are? (Are there privacy rights, property or copy rights, rights to non-interference from others, rights to education, rights to clean air etc.?) • Whether the state has the right to punish is also controversial. • Can one transfer rights to others by consent, or forfeit them by doing certain things (like wrongs)? If so, can one lose any kind of rights, even the right to life? • So if you claim the guilty forfeit rights (including the right to life), you need an argument for the claim. • This is also true of the opponent’s claim that death penalty is prohibited because one can’t lose the right to life. • Are all rights natural, i.e., does everyone has them merely being a person? Or are some or all rights non-natural, i.e., does the possession depend on social system (e.g., capitalism), personal merits, benefits it produces, etc.?

14. Continued • Who have rights? (Do fetuses or animals have rights?) • When two rights conflict, which right must prevail? • Are rights unlimited? (Can a person do anything to what she has rights to, e.g., her life, body, property, liberty? Are the rights valid beyond time and space? ) • It seems that we cannot rationally settle these questions by appealing to moral rights. • Because of the general problems, we need to consider (1) the considerations that can justify claims of rights, and (2) the consideration that can limit claims of rights. • In the question of justifying punishment, (1) are primarily utility and desert. (2) is dignity as a person. So we will examine these considerations.

15. 3. Utilitarianism and death penalty

16. Utilitarianism • Utilitarianism recommends an action, including punishment, if and only if it has the best effects on the well-being of the affected individuals.

17. Utilitarian Approach: The General Justification • All punishment is, according to the utilitarian, intrinsically bad because it involves the infliction of pain or some other consequence normally considered unpleasant. Nevertheless, punishment by the state may be justified because of its effects — that is, its instrumental benefits might outweigh the intrinsic badness. • According to utilitarians, the good consequences of punishment are the promotion of utility (happiness/pleasure/desire satisfaction).

18. Reduction in Crime • The consequences largely come through the reduction in crime. • The justification will only work for systems where reducing behavior classified as criminal will promote utility. Societies that criminalize behavior that is not harmful will have difficulty establishing that reducing the incidence of these sorts of be actions will produce utility. • Systems of punishment are usually claimed to reduce crime by three means: • Deterrence • Incapacitation • Rehabilitation

19. Deterrence: ‘Deterrence’ refers to the reduction in crime as a result of making crime too costly to the would-be criminal—“pricing” crime too high. • (a) Special: The tendency of the punishment to deter the person punished from criminal acts. • (b) General: The tendency of the punishment of one person to deter others from committing criminal acts. • Incapacitation: ‘Incapacitation’ refers to removal of the opportunity or ability of the potential criminal to commit criminal acts (sometimes only of a certain sort). • Rehabilitation (Reform): Rehabilitation takes place when the character of the person punished is altered so that he or she no longer desires to commit the sort of act for which he or she was punished.

20. Possible Effects Other than Reduction of Crimes • Through deterrence etc., the practice of punishment might tend to prevent crimes and hence the loss in people’s well-being. • Further, the practice of punishment might have other effects. For example: • Punishment might make people feel safer (even if it actually does not do so). • Punishment might also satisfy the feelings of vengeance, resentment and indignation. • Whether satisfying feeling of vengeance etc. would have good consequences might be questionable. If so, it does not provide utilitarians with a reason for punishment.

21. Utilitarian Approach: Distribution • 1. Title: We should punish all and only those who it gives the best effects on utility to punish. • 2. Severity: We should punish to the extent that produces the best effects on utility and no more.

22. Is Death Penalty Justified from the Utilitarian Perspective? • Remember that from utilitarian perspective, a punishment must have the effects better than any other alternative has. • Thus, the question is: does capital punishment have the effects better than any other alternative, e.g., life imprisonment without the possibility of parole, has? • How about deterrence? (Bedau, 181-2) • Special: No effect, because the criminal does not survive. • General: ? (Some statistical and clinical studies indicate death penalty has “brutalization effects”: it incites certain unstable minds to murder others. Bedau, 182)

23. How about incapacitation? (Bedau, 179-80) • Perfect, but compare w/ life imprisonment. (cf, 192.9) • How about rehabilitation? • No effect, because the criminal does not survive. Other punishment might have good or bad effects. • How about the sense of security? • How about satisfying the feelings of vengeance etc.? • How about the cost of practicing death penalty? • The cost of executing a person is not expensive. (I do not know about life imprisonment: letting a person play will cost much, but making her work might cut the cost.) • However, a study suggests that in the US, the legal system w/ court trials and appeals on death penalty costs far more than the legal system w/o them. (Richard Dieter, Millions Misspent, 1994) • Other costs or benefits?

24. Alleged Problems of the Utilitarian Justification of Punishment A. Because the utilitarian answers the question of severity as she does, she may allow for more or less punishment than is deserved—no punishment even for severe crimes if it does not have the best effects; severe punishment for trivial crimes if we could get a lot of benefit from it. B. Because the utilitarian answers the question of title as she does, she may justify punishing an innocent person as easily as a guilty person. If the effect on crime prevention is equal, actual guilt or innocence is irrelevant.

25. Continued • C. Because the utilitarian offers the general justification of punishment she does, even where she gives the right answer about title and severity, she gives it for what is arguably the wrong reason. “… a utilitarian theory of punishment … must involve justifying punishment in terms of its social results—e.g., deterrence, incapacitation, and rehabilitation. And thus even a guilty man is, on this theory, being punished because of the instrumental value the action of punishment will have in the future. He is being used as a means to some future good — e.g., the deterrence of others. Thus those of a Kantian persuasion, who see the importance of worrying about the treatment of persons as mere means, must, it would seem, object just as strenuously to the punishment of the guilty on utilitarian grounds as to the punishment of the innocent.” (Jeffrie, G. Murphy, “Marxism and Retribution”)

26. 4. Retributivism and death penalty

27. Retributivism • Retributivism justifies actions, including punishment, in terms of the desert of the criminal based on his or her past behavior, intention etc. • Retributive theories differ on what makes an agent deserves a bad result like punishment: the harm the agent causes, her wickedness, the fact that she unfairly exploit other members of her society, etc. • Retributive theories thus differ on two questions of distribution: (1) title: who should be punished; and (2) severity: how much should a person be punished, and why.

28. Pure Retributive Approach: The General Justification and Distribution • However, there are folliwng agreements among pure retributivists, who take desert as the only factor in justifying punishment. • Desert is the sole general justification of punishment by the state. • Distribution: Title: One should punish only those who are guilty, i.e., who deserve punishement. Severity: One should punish the guilty to the extent they deserve.

29. A Standard of the Distribution of Punishment: lex talionis (Bedau, 186-8) • lex talionis is the standard of both title and severity: • Title: the agent who caused harm is guilty and should be punished. • Severity: the agent should be given the punishment that provides the same type of harm that he or she caused. • A problem as the standard of title: there are some cases where an agent causes harm, but he should not be punished. • Ex.: Certain cases of self- or other- defense; harms for which the agents cannot be responsible

30. The Problems of lex tarionis as the Standard of Severity • lex tarionis does not take into account the intention or motive of the suspect. E.g.: Even if deliberate or planned killing justifies death penalty for the suspect, non-deliberate killing, particularly unintentional killing, might not justify it. (Cf. Bedau, §27, 186) • Giving exactly the same harm is impossible. (Bedau, §28) Even giving roughly the same harm is frequently impossible or makes no sense and sometimes is repugnant. • E.g.: What punishment should be given to child molesters? To speeders and drunk drivers? To embezzlers and forgers? To prostitutes and their customers? To rapists? To T.V. ministers who violate their trust by defrauding their flock out of millions of dollars?

31. Which Standards of Title? • As is mentioned earlier, retributivists differ on the standard of title: (1) the harm the agent causes – lex tarionis takes this view –, (2) her wickedness, (3) the fact that she unfairly exploit other members of her society, or (4) some combination of them etc. • Settling this point is important when one considers who, if any, should deserve death penalty. • Bedau favors the third option. (§11, pp.170-1) However, unless you are interested in his argument for the option, we will not examine it. For our focus is a prior question: should death penalty be given (to whatever person)?

32. An Alternative Standard of Severity to lex tarionis: Well-Being • While Bedau criticizes lex tarionis as a theory of severity (186-8), he does provides no alternative. • An alternative is the well-being standard of severity. • Its rough idea is as follows: the more guilty a person is, the more loss of well-being does the person deserve. • Pure retributivism with this standard holds that a guilty person should be given the punishment that makes the person’s life proportionally worse-off. • One complaint might be that it gives no reason to choose among punishments giving the loss of well-being the guilty deserves. (E.g., why imprisonment rather than slave labor, removing the penis, raping, maiming, beating etc.?) • But it is at least better than lex tarionis, which requires things impossible (child molesting for child molesting, drunk driving for drunk driving etc.) or repugnant (torture for torture etc.).

33. Pure Retributivism and Death Penalty • Does death penalty give the guilty what he or she deserves? • This question can of course depend on what the guilty is guilty of. • lex tarionis is often used to justify death penalty for murderers. (As Bedau points out on p.186, it disqualifies death penalty for other actions.) However, for the reasons mentioned above, this standard of severity is problematic. • If the standard of severity is how much punishment lowers the level of well-being, does death penalty (rather than life imprisonment etc.) fit the crime in some cases?

34. Is Death Penalty Particularly Severe? • This partly depends on the way it is executed. • From stoning, crucifixion, impalement, beheading, hanging, shooting, gas chamber, electrocution to painless lethal injection • However, death penalty essentially involves shortening of life. (Bedau, §14, 173) • Bedau says the shortening of life is particularly severe. Why?

35. Bedau on the particularly severity of death penalty • Once death penalty is executed, it is interminable while it is possible to interrupt the execution of some (though not all) other punishments, e.g. imprisonment. (Bedau, §16, 176) • Death penalty makes compensation for the proven innocent impossible. (ibid.) • But compensation for her friends and families is possible. • People punished by other means might die before proven innocent. • Also consider whether the proven innocent can be fully compensated for other punishments, such as imprisonment.

36. Continued • Death does not permit of no concurrent experiences or activities. (ibid.) • True, but can’t the experiences or activities possible under other modes of punishment be worse than nothing? • All in all, is death penalty severer than other modes of punishment?

37. Should We Accept Pure Retributivism? One Thought Experiment • Imagine that each of the nearly five billion humans were to exit Earth in solo spacecraft, which goes in different directions and never meets any sentient creature again. There are the guilty in prisons, and people wonder what to do with them. • Assuming that other things are equal—i.e., that there is no effect on the happiness of others, should all of the guilty be punished? • If you answers “no”, the response is inconsistent with pure retributivism. Are utilitarians correct to the extent that punishment is partly justified by effects on people’s well-being?

38. Interlude: Whythink of bizarrecases? • We would like to check one feature (in this case, desert) makes difference independently of other factors (e.g., social defense). We cannot check this thinking about ordinary cases because they involve not only the feature in question but also other factors. • The unrealistic example is made to include only the feature in question (in this case, desert). • Our views about ordinary examples are likely to reflect what we were taught. Because the views different people were taught conflicts with each other and can be suspicious, we probably can’t settle our dispute rationally by thinking about ordinary cases. • Our responses about somewhat bizarre cases are less likely to be the mere reflection of what we were taught. We might find agreement in our responses and settle our dispute rationally.

39. Other Problems of Pure Retributivism • About the general justification of punishment: 1. pure retributivism gives no good reason why the state, rather than other individuals or organs, should punish the guilty. 2. related to the above, pure retributivism excludes the state’s apparently legitimate interest in preventing criminal actions through administrating the system of punishment, e.g., jail system.

40. About the severity of punishment: 1.pure retributivism excludes several considerations that juries and prosecutors appeal to: e.g., the possibility of a second offense and reform, effects on crime prevention, security or how people will regard the allegedly criminal actions, the suspect and the court, and so on. 2.pure retributivism invalidates many legal practices, e.g., commutation based on rehabilitation, clemency and plea bargaining (in which a person charged with a crime pleads guilty and cooperate with prosecutors in exchange for a less severe sentence than he might have received if his case went to trial and he was found guilty).

41. Unifying Utilitarian and Retributive Elements? • Thus, theories w/ both elements might be appealing. For example: • Retributive Consequentialism (RC): On this theory, retribution (as well as increasing people’s well-being) is a good consequence. RC recommends an action, including punishment, if and only if it has the best effects, taking into both kinds of value. • Unless you are interested in RC, we do not discuss the merits of the theory. • For theories w/ both elements, both utilitarian issues (deterrence etc.) and issues about desert are relevant to assessing actions like punishment.

42. Retributive Theory and Punishing the Innocent • For any theory w/ the factor of desert, punishing the innocent is particularly bad, i.e., worse than punishing the guilty. • If a criminal justice system is unfair or ineffective at punishing only the real criminals, it (with the system of punishment) can be unjustified. • Because human beings are often partial and uninformed, any criminal justice system operated by human beings will punish some innocent.

43. Killing the Innocent v. Having Them by Punished Other Means • According to Bedau and Radelet 1987, in the 20th century US, out of over 7,000 executions, only a few hundred have been carefully examined, and of these .3 percents (24 cases) seem to have executed the innocent. (Note on §22 on 194) • Since 1973, more than 90 have been released from death rows. • The use of DNA testing can help avoiding punishing the innocent. As of June 2002, 12 death row inmates have been exonerated by use of DNA tests. But it is not free of problems. • Then, should death penalty be abolished? • Remember, even if death penalty is abolished, the innocent might well be ‘found’ guilty and punished by other means. • The answer depends on whether there is a reason to have the innocent punished by other admissible means than death. • What are other admissible means? To see this point, we need to consider another consideration possibly relevant to justification of punishment: the dignity of a person.

44. 5. The dignity of a person and death penalty

45. Why We May Not Abuse the Guilty: Appeal to the Dignity of a Person? • To many it seems that if a form of punishment disfigures a body, is cruel or humiliating, then it is morally unjustified. • Pure retributivists have trouble justifying this judgment. • How about utilitarians? Does the negative effects exist? • Getting people used to cruelty, brutalization effects etc.? • If you think the form of punishment is unjustified and these two cannot support the judgment, you might appeal to the dignity of a person: because the form of punishment offends the dignity, it is unjustified. • Caution: If you use this reasoning, some forms of punishment had better not offend the dignity. Otherwise, all forms of punishments will be unjustified. (Don’t follow Bedau saying, “Punishment by its nature pays back an offender…by inflicting suffering and indignity…” (171))

46. What the Heck “Dignity” Mean? • The big problem of appealing to the dignity of a person is that it is not clear what it means, and accordingly why it is important and whether cruel or humiliating punishment really offends it. • If you can explain these points, try. • To many dignity sounds like a mere rhetoric. They thus avoid talking about dignity. • Immanuel Kant tried explicating this difficult idea.

47. Kant on the Dignity of a Person • According to Kant, the dignity of a person consists in her being a rational and autonomous agent. • If one treats the person in the way a person, as a rational and autonomous agent, can never consent to, then he uses her merely as a means, i.e., offends the dignity of the person. • Kant holds that a person, as a rational and autonomous agent, can consent to being punished for what she has done because such an agent takes responsibility for her action and consequences. • However, Kant also holds that a person, as a rational and autonomous agent, cannot consent to certain forms of punishment. For example, she cannot consent to being punished merely for future benefits and not for her wrong actions. • So Kant has a reason to reject utilitarianism.

48. Questions • Can a person, as a rational and autonomous agent, really consent to his or her punishment? • This question depends on what rationality and autonomy involves. If, e.g., as economists say, rational and autonomous agents are maximizers of their desires, then they cannot consent to their punishment. • Suppose a person, as a rational and autonomous agent, can consent to her punishment of certain sort – say, imprisonment – because they are responsible. Can’t she also consent to the punishment that disfigures her body, is cruel, or humiliating for what she has done? • Many criminals have mental problems and neither fully rational nor autonomous. (Bedau, §6 & 7, 167-8) What does Kant’s view of dignity say about punishing them? • Does Kant’s view of dignity prohibit death penalty?

49. Bedau on Kant on Appeal to Utility • Bedau might be mistaken in taking Kant’s view on dignity (i.e., the view that one should not be used merely as a means) excludes any theory involving appeal to effect on people’s well-being. (p.166, 2nd paragraph) • The view clearly excludes punishing a person merely for people’s well-being, but it is perhaps consistent with punishing her not only for it but also for what she has done. • So, it is inconsistent with utilitarianism, but perhaps not with certain theories that have utilitarian elements.

50. The Problem of Killing the Innocent, again • Should death penalty be abolished for this problem? • If you think that brutal, cruel or humiliating punishments are permissible, do you think there is a reason to let the innocent punished that way? • If you think, for the considerations of dignity etc., that these punishments are not permissible, do you think there is a reason to let the innocent punished by, say, life imprisonment w/o parole?