Death Penalty

Before discussing capital punishment, we must determine what punishment is and what the main theories of punishment are.

  • Punishment is harm inflicted by a person in a position of authority upon another person who is judged to have violated the law.

NOTES:

    1. Since typically harming people is wrong, punishment is guilty utile proven innocent, as it were.  So, the burden of proof is on its proponents.
    2. The notion of authority is crucial.
  • The main theories of punishment are:
    1. Retributivist, which aim at the balance justice: by the punishment proportionally fitting the crime justice is done. 

NOTES:

      • There is empirical evidence that applying retribution even at a cost to oneself is innate; whether it is justified is another issue.
      • When punishing, parts of the brain associated with pleasure become activated
    1. Utilitarian, which aim at incapacitation, amelioration, and deterrence

 

1. The constitutionality issue

The 5th (and the 14th) amendment state that “no person shall be deprived of life, liberty or property without due process of law”, while the 8th amendment prohibits ‘cruel and unusual punishment”.  Since 5th and 8th amendements were passed at the same time it seems that:

  • The Constitution allows the death penalty.
  • The Constitution, at least as understood by its proponents, does not consider the death penalty cruel and unusual punishment.

Notes:

The Constitution only allows capital punishment and does not require it.

The issue of interpreting the Constitution:

  1. Originalism
    • Textualist approach
    • Purposivist approach
  2. Non-originalism: the idea of evolving standards.

 

 

Some constitutional problems for the death penalty

  • Evolving standards of morality make the death penalty impinge on the cruel and unusual punishment clause

Answer:

    1. An originalist would say that then one should amend the Constitution
    2. Who decides what the present standards of morality are?  The issue is complicated because there is a substantial percentage of the population that is in favor of the death penalty.
  • Unequal distribution of the death penalty, e.g. blacks who kill whites are more likely to get the death penalty than blacks who kill blacks.

Answer:

    1. this discriminates against black victims, not black perpretators
    2. there’s no clear evidence that capital punishment is inherently discriminatory, and consequently its administration can be, and has been, improved.

 

2. Moral problems for capital punishment:

  • It’s unclear whether capital punishment is, in our system of justice, more deterrent than other punishments such as life imprisonement, especially given the fact that
    • good lawyers can lower one’s chances of being executed.
    • some, when committing crimes, might think little about getting caught.
  • Capital punishment is discriminatory, and discrimination is morally wrong (it’s against equal justice).

Answer: even if the death penalty were inherently discriminatory (which it isn’t), as long as imposed only on the guilty it would be morally justified: unequal justice is still justice.  Because we fall short of perfection we should not renounce the good.

  • Some innocents will be executed

Answer: society foresees but does not intend the execution of the innocent.  For example, driving trucks produces innocent deaths, but it would be absurd to forbid state-owned trucks from circulating.

Duplication: but we intend to kill the person convicted, and therefore we do take the moral responsibility of the action upon ourselves.

  • Capital punishment damages human dignity.

Answer: what’s the argument, assuming that capital punishment is carried out in a dignified manner?  Indeed, Kant has argued the reverse.  Waiting to die is unpleasant but, unfortunately, often part of the human condition.

  • The sanctity of life prohibits the death penalty.

Answer:

    1. What’s meant by “the sanctity of life”?
    2. Appeals to the extreme value of human life has traditionally been used to justify capital punishment; see Kant, for example.
  • Capital punishment is too severe.

Answer: The death penalty merely hastens one’s natural end.  Compare with torture.  Moreover, the nature of some crimes demands a most severe punishment.

  • The role of the environment in determining behavior should deter us from inflicting the death penalty.

Answer: people are responsible for what they do.  At most this shows that mitigating circumstances must be seriously considered.

  • Capital punishment involves revenge, which makes it immoral.

Answer:

    1. The balance of justice has nothing to do with revenge.
    2. In the US, the criminal prosecution is by the state, not the family of the victim.
  • The death penalty is too expensive compared to long term, or life, imprisonemnt NOTE: retributivists are less impressed than consequentialists by this objection.

Answer: It depends on what one believes the deterrent effect is.