Punishment and the Death Penalty

In order for an act to constitute an act of legal punishment, it must fulfill the following criteria:

(1) It must involve consequences normally considered to be unpleasant, such as pain or loss of freedom.

(2) It must be for an offense against a law.

(3) It must be of an actual or supposed offender for his offence (i.e. not someone supposed innocent).

(4) It must be intentionally administered by human beings other than the offender.

(5) It must be imposed and administered by a legal system.

Is there a difference between a punishment and a penalty? For example, am I punished when I have to pay a parking fine? Some philosophers have argued that a punishment, as distinct from a mere penalty, must involve a sixth criterion:

(6) Punishment expresses the community's moral judgment that what the criminal did was wrong.

Criterion (1) does not require that the individual person in each case not want the punishment, in order for it to be punishment. (Although it is difficult to understand how a person would want the loss of freedom per se, one can imagine a person preferring imprisonment, with its loss of freedom, to, e.g., a life on the run from hit-men, or Christmas night alone in an alleyway. But even he or she would prefer freedom without being on the run from hit-men, or Christmas alone in an alleyway, to either option.) However, criterion (1) does require that the punishment be such that, in general, people do not want it.

(2) The wrong in question must be the wrong of breaking the law, and does not necessarily entail any moral wrong; nor is it sufficient to do something morally wrong to be legally punished (e.g. if you lie to me, and you are imprisoned for it, then you are not being legally punished, since you have not broken any law).

(4)-(5) Stops legal punishment from being something that can be carried out by anyone else, including the offender himself/herself, who is not part of the legal system. (One's neighbors imprisoning one for a crime one has committed does not constitute punishment; one's whipping oneself for a crime one has committed does not constitute punishment).

There is controversy about (3). Why not limit punishment to actual offenders? One problem here is that if the criterion is restricted to actual offenders, then an innocent person who is believed guilty and who is "punished" by mistake is not punished.

However, if it is accepted that an innocent but supposed guilty person may be punished, then why can't a supposed guilty person be punished? That is to say, why can't a scapegoat be punished?

Justifications for punishment:

(a) Consequentialist justification:

(1) To prevent the criminal from breaking the law again

(2) To deter the criminal from breaking the law again

(3) To deter potential law-breakers

(4) To rehabilitate the criminal

(5) To morally educate the public

These may be understood as goals to be achieved, where punishment is the means to achieve these goals. It is directed towards the future.

Jeremy Bentham argued that punishment is only justified when its benefits outweigh its costs, and when it outweighs any alternatives to punishment. Bentham argues that punishment is not justified when it is:

(a) Groundless

(b) Inefficacious

(c) Unprofitable

(d) Needless

Bentham also argues that the extent of the punishment should be relative to the expected profit of the offense divided by the perceived probability of the punishment:

Harm of Punishment > Expected profit of each offense \ Perceived probability of punishment

Q. Should a kleptomaniac be punished? Should a drug-addict who steals to get money for drugs be punished (that is, as opposed to being counselled/medicated/institutionalized)?

Q. If this principle relies upon merely the perceived probability of punishment, then is it open to the objection that this could diverge from the actual probability of punishment, with the result that false perception could lead to an increase in the harm of the punishment?

Q. Does this consequentialist justification justify punishing a believed innocent person if this would work as a deterrent?

There is a milder form of consequentialism, according to which the institution of punishment is justified in terms of prevention, deterrence, rehabilitation, and moral education, even if there are some individual acts of punishment that do not prevent, deter or rehabilitate. (For those acts of punishment, we must carry them out, because overall the institution does prevent, deter or rehabilitate). (See John Rawls, "Two Concepts of Rules", 1955). However, even this form of consequentialism holds that it must be the case, in order to justify the existence of punishment, that punishment in general prevents, and/or deters, and/or rehabilitates, and/or morally educates. Otherwise, it is an unjustified institution.

(b) Retributivist justification

(6) To give the criminal what the criminal deserves, which is punishment, because he/she has committed a crime.

This may be understood as quite unconcerned with goals, and as simply concerned with doing to an offender what one ought to do.

Normally, retributivists do hold that the institution of punishment does happen to prevent, deter , rehabilitate and morally educate. However, this forms no part of the justification for the institution of punishment as such. The institution may be justified regardless of this, even if there were never a single case in which punishment prevented, deterred or rehabilitated.

There are three different kinds of retributivisms. One tells says when we may not punish, one says when we may punish, and the other says when we must punish.

(1) Minimal Retributivism: It is always morally wrong to punish someone who has not broken the law (i.e. it is always morally impermissible to punish someone who has not broken the law).

(2) Permissive Retributivism: It is never morally wrong to punish someone who has broken the law (i.e. it is always morally permissible to punish someone who has broken the law).

(3) Maximal Retributivism: It is always morally wrong not to punish someone who has broken the law (i.e. it is morally obligatory punish someone who has broken the law).

In each case, with the addition of the proportionality of punishment, the punishment is the punishment that anyone who breaks the law normally receives.

In general it is maximal retributivism that makes retributivism notorious. Minimal retributivism is accepted by most, and even permissive retributivism is accepted by many. However, permissive retributivism is a stronger position than it may seem. It claims, for example, that there is nothing morally wrong with, e.g. punishing a person with a prison sentence for theft, even if the person stole in order to save her own life or those of her family. One is always morally entitled to punish.

Lex Talionis

Retributivism is normally aligned with some theory about the proportionality of punishment to an offence, e.g. the lex talionis (law of repayment) of "an eye for an eye, a tooth for a tooth". The idea is that the guilty party's punishment should be proportional to the gravity of the crime. It also has three versions:

(1*) It is always morally wrong to punish someone more than is proportionate to that person's guilt.

(2*) It is not morally wrong to punish a person as much as is proportionate to that person's guilt.

(3*) It is morally wrong to punish a person less than is proportionate to that person's guilt.

Q. Imagine that a burglar falls mid-robbery and is paralysed from the neck down. Assuming that the burglar is equally guilty of burglary to any other burglar, must the burglar be punished? Must the burglar receive the same punishment as any other burglar?

Q. Imagine that a parent shoplifts food and clothing for his/her children. Must he/she be punished? Must he/she be punished the same as any other shoplifter?

Q. Imagine that a drug-dealer agrees to testity against a drug-supplier in return for a reduced sentence. Must his/her offer be denied?

Q. Imagine that a criminal agrees (in consultation with legal counsel) to enter a plea of "guilty" or "no contest" in return for a reduction in the severity of the sentence, or the dismissal of some or all of the charges, or the prosecutor's willingness to recommend a lesser sentence (plea bargaining; note that judge must agree to terms before plea is entered). Must his/her offer be denied?

Equality/Similarity of Crime and Punishment?

"But what kind and what amount of punishment is it that public justice makes its principle and measure? None other than the principle of equality (in the position of the needle on the scale of justice), to incline no more to one side than to the other. Accordingly, whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself. If you insult him, you insult yourself; if you steal from him, you steal from yourself; if you strike him, you strike yourself; if you kill him, you kill yourself. But only the law of retribution (ius taliionis) – it being understood, of course, that this is applied by a court (not by your private judgment) – can specify definitely the quality and the quantity of punishment; all other principles are fluctuating and unsuited for a sentence of pure and strict justice because extraneous considerations are mixed into them."  [...]

"However, if he has committed murder he must die. Here there is no substitute that will satisfy justice. There is similarity between life, however wretched it may be, and death, hence no likeness between the crime and the retribution unless death is judicially carried out upon the wrongdoer, although it must still be freed from any mistreatment that could make the humanity in the person suffering it into something abominable."

-- Immanuel Kant, from The Philosophy of Law (p. 702, p. 703)

However, it is possible to adopt different stances on which kind of proportionality is required by retributivism. Is it merely a case of the most severe punishment for the worst crime, or should it be the case that the punishment is similar to the crime committed? Retributivism is not tied to either position.

Are all crimes equally crimes?

Mala in se          ---- bad (or wrong) in itself (e.g. murder)

Mala prohibitum ---- bad (or wrong) because of the law (e.g. illegal parking)

The Death Penalty

The arguments against the death penalty come in at least three different forms:

(1) The death penalty is unconstitutional

(2) The death penalty fails as a deterrent

(3) The death penalty fails to respect the dignity of the person who is executed

Concerning (1), this argument may be divided into several further arguments:

1(a) The death penalty constitutes "cruel and unusual punishment", which is prohibited by the Eighth Amendment.

One concern here is whether "cruel and unusual" is to be understood as the authors of the Amendment understood it (if indeed that can be known), or as contemporary society understands it. If the former, then they may have tolerated punishments that we would consider to be cruel and unusual. If the latter, then we may possibly come to tolerate punishments that they would consider to be cruel and unusual.

So-called "Scarlet Letter" punishments (after the Hawthorne novel in which the unmarried mother had to have a scarlet "A" on her clothing) have been administered in various states, and are not necessarily deemed unconstitutional. For example, in People v. McDowell (1976), a Californian court ruled that a purse-snatcher be put on probation but that he not leave his house unless he wore shoes with metal taps. In State v. Kirby (1986) an Oregon court ruled that a burglar be put on probation but that he publish a full-page advertisement about himself with a picture. In State v. Bateman, a sex-abuser had his sentence suspended and was put on probation on condition that he put on the door to his house and on the doors of his vehicle, in three inch letters, "DANGEROUS SEX OFFENDER -- NO CHILDREN ALLOWED".

Note that in these cases the normal punishment has been suspended, and the "Scarlet Letter" punishment has been substituted. However, are these "cruel and unusual" punishments, and hence, unconstituional?

1(b) The death penalty violates the "Equal Protection" clause of the Fourteenth Amendment; those who receive it are, in the main, poor, uneducated, from a minority, and may not have had expert counsel.

In Furman v. Georgia (1972) the Supreme Court ruled in favor of Furman that the death penalty, as administered then, did violate the 14th Amendment, because it was handed out too easily and because it was largely given to poor, black men for murders of whites. However, in Gregg v. Georgia (1976) the Court ruled that it did not violate the 14th Amendment because things had improved sufficiently. However, they did rule that the death penalty could only be given to those guilty of first-degree murder (so that, for example, it could never be a punishment for e.g. rape), and could never, not matter how terrible the crime, be a mandatory sentence. A separate trial must be carried out to determine the death sentence.

Another argument that may be made against the death penalty is that, unlike any other punishment, it is irrevocable. This may or may not be considered a violation of the "Equal Protection" clause, or merely a distinct moral argument.

Even if the Constitution does not forbid the use of the death penalty, however, it surely does not require it. Hence, there may be moral arguments against the death penalty, even if it is constitutional.

Concerning (2), the argument is that since the principal argument in favor of the death penalty is that it deters other potential offenders, and since in fact it does not, the death penalty is not justified. Note that this argument does rely upon the claim that the principal argument in favor of the death penalty is that it works as a deterrent.

Concerning (3), the argument is that the death penalty is a remnant from an older era in which all sorts of corporeal punishments were inflicted upon people (e.g. whippings, stockades, castration), and that it must be eliminated, as all other forms of corporeal punishment have been. Here the argument is that the state, in executing a person, is failing to respect that person (is "coming down to their level", so to speak). Such an act of violence, when the person is currently presenting no threat, is not self-defense. Since the state has another punishment to administer (i.e. imprisonment), then it cannot claim that it is failing to give the criminal what he/she deserves if it does not execute them. Finally, the argument goes, only a primitive understanding of proportionality would require that the only proportional punishment for murder is death. Why is similarity of punishment required here, if it is not also required in other crimes such as rape or theft? Such crimes may be terrible crimes, yet we do not rape or castrate rapists. If we inflict no such similar punishments, and in general inflict no corporeal punishments, why inflict this one?

As against this, some strict retributivists argue that the only appropriate punishment for taking another innocent life (i.e. murder) is taking a guilty life (i.e. not murder). No other crime is as irrevocable as murder; hence the only punishment that fits the crime is the death penalty.

Consequentialists may argue that only the punishment of death will act as a deterrent, but they may also argue that only the punishment of death will bring "closure" to the lives of those affected by the murder and to society.

Murder

1st degree murder: a premeditated killing, or killing with "malice aforethought"; also (sometimes) killing in conjunction with a felony (arson, burglary, robbery, rape).

2nd degree murder: a non-premeditated killing, resulting from an assault in which death of the victim was a distinct possibility (e.g. firing into a crowd).

For it to be murder, the victim must die within a year of attack.

The victim may be fetus which is "quick" (i.e. moving).

Someone may be convicted of murder who has only assisted someone else in killing, e.g. the getaway driver.

Manslaughter

Voluntary manslaughter: non-premeditated killing without intent to create a deadly situation but with intent to harm only and without a deadly weapon (e.g. hitting someone with a bottle in a bar fight, pushing a security guard down a stairwell).

Involuntary manslaughter: death caused by violation of a non-felony (e.g. vehicular manslaughter).

"aggravating circumstances":

(a) Person killed is a police officer

(b) The killer has a prior felony conviction

(c) The circumstances are horrible

Death Penalty in the U.S., state by state:

http://www.deathpenaltyinfo.org/article.php?scid=10&did=144

Laws that allow for the death penalty:

http://www.deathpenaltyinfo.org/article.php?scid=29&did=192

Methods of Execution

http://www.deathpenaltyinfo.org/article.php?scid=8&did=245

General information about the death penalty:

http://www.deathpenaltyinfo.org/article.php?scid=29&did=147

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