Week 9: Kant and Capital Punishment

Week 9:

Kant and Capital Punishment I

Kant lectures- lectures 7 and 8

Lectures 7 and 8

Immanuel Kant ( 1724- 1804)



7.1 Main features of Kant’s Ethics:



Kant formulates ethical principles that respect the dignity and equality of human beings;



§ without presupposing theological claims



§ without presupposing a metaphysical concept of the good.





Kant felt that consequentialist ethics (in particular Utilitarianism)- is basically immoral.(He would refer to the “ serpent-windings of Utilitarianism”). This is because consequentialism not merely permits but requires that persons be used as mere means if this will produce good results. Kant's view is that the consequences of actions are simply not relevant to deciding whether an act is moral.



§ Kant’s ethical thought is deontological. (Etymology: from the Greek, deon, ‘obligation' or 'duty').This is simply the view that there are certain duties that one must do.



§ Kant attempted to codify some key aspects of Jewish - Christian notions of ethics and justice, in a clear and rational way.



7.2 Some central claims in Kant’s moral thought:



? Theological and Metaphysical grounds for Morality are not available to us. (This is based on Kant's theories of what we can and can't know, that is, his epistemology. This is a huge and complex topic in itself, but we don't have time to go into it in an ethics course. If you are interested, try looking at Kant's central work The Critique of Pure Reason).



?Reasons for action must be reasons for all. Ethical claims must be universalized.

? No- one must be used as a means to an end

?A person’s freedom and rationality must be respected.

? In universalizing ethical decision making, the theory (like any true morality) insists on impartiality.



( Note the assumption: people are essentially free and rational. Animals are not; therefore, they are not considered ethically relevant) .



7.3 The Categorical Imperative.



This is a more precise variant of the ‘Golden Rule’ principle as expressed in Confucius, Jesus, Rabbi Akiba, etc. The Golden Rule is ' do as to others as you would have done to yourself.’



Two famous formulations in Kant:(Both are in Rachels TRTTD:76-82 )



“Act only on that maxim (principle) through which you can at the same time will that it become a universal law”RTTD:78









“...treat humanity...never simply as a means, but always at the same time as an end.” RTTD:81





How does the Categorical Imperative work?



7.4 The Universalizability Test.



Kant has a test that we can use tocheck if a decision is moral. A simple version it is: If you want to know what you are doing is right, turn your intention to act into a rule for everyone. This is called "universalising", because we are considering whether we can accept that our intention be acted on by everyone, universally. The result is that we will always act consistently, treating people and situations the same, and not making exceptions for ourselves. Kant thinks this follows from the application of reason. You know what a rule is (something that applies to everyone) therefore, you can "rule" yourself, by making sure that you act only in ways that everyone can act. According to Kant, all moral rules are of this form - they command categorically - no one can escape them by saying that they don't have a particular goal or desire. All moral rules are categorical imperatives - Kant's test is THE categorical imperative that grounds and justifies all the others. Notice that he seems to have succeeded in his "enlightenment project" of basing ordinary (Christian) moral rules on reason.



Another way of seeing how the categorical imperative is based on reason is to see that if we apply the same rule to everyone, we are free from inconsistency. Treating two people differently is like saying that they are the same (they are both rational beings) and they are not the same (we are treating them differently). This is a contradiction - like saying that right here and now it is both raining and not raining. (Formally, "P and not-P are both true.")



The full formal version of Kant's test is "Act only on that maxim which you can at the same time will that it should become a universal law." This is the first formulation of his Categorical Imperative. To be clear about what Kant is asking us to do here, we can rephrase the formulation as "Act only on that maxim which you can at the same time CONSISTENTLY OR RATIONALLY will to be a universal law."

The second formulation is "Act in such a way that you always treat humanity, whether in your own person, or in the person of another, never simply as a means, but always at the same times as an end". A simple way of seeing the connection between the two is to see that we do not want others to treat us as "means" or tools for their purposes, (or slaves, for example) so, to be consistent, we can not treat others in this way either. This formulation of Kant's test reminds us what is (in his view) the only thing of ultimate value in the world - rational and free agents - and requires us to respect them and their self determination.



What does the first formulation mean? We will look at Kant's 4 examples of the use of the Categorical Imperative, and see that in each case, Kant means something slightly different by "consistently or rationally will".(In Rachels The Right Thing To Do pp.76-81).



1). The suicide example. p..78. (Perhaps there is a naturalistic fallacy here).

2). The false promise example p. 79

3). The talent neglect example. p.79 (this one is tricky. Would it really be a better world if everyone cultivated their talents?)

4). The helping others example. p.79



Is what Kant is saying here really an improvement on the Golden Rule? How has Kant made the obligation to help "inescapable?". The worry is that I might still be such a rugged individualist that I would never want or accept help in any form at all. Can the obligation to help others be escaped after all?





To recap- To use the test . . .

1.Identify your maxim (your intention for action)

2.Universalise – imagine the world in which everyone acts that way, as a “law”

3.Ask – are any contradictions generated?



7.5 Kant on Justice.



In Week 10 we will look at the issue of punishment. Their are two basic approaches to punishment; one is essentially Utilitarian, and the other is essentially deontological.Utilitarian philosophy tends to see all punishment as bad.Why? Because punishment causes pain. By contrast, Kant is a retributivist.. That is, he believes in the justice of retribution. He does not care that punishment increases, rather than decreases, the amount of suffering in the world. Nor does Kant care for rehabilitation ( which he would see as merely manipulative). Rehabilitation (that is, trying to correct, or reeducate the criminal) merely insults the criminal's intelligence, and treats him or her like a child.



According to Kant, Juridical punishment can never be administered merely as a means for promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. (You could think of what happens to Alex in the Stanley Kubrick film A Clockwork Orange, based on the novel by Anthony Burgess. Instead of merely punishing Alex for rape, the penal system uses brain surgery and drugs to alter his brain. After this 'therapy,' he feels sick whenever he thinks of being violent). Secondly, it is important to punish the criminal proportionately to the crime. Kant has this to say about punishment.





Even if a civil society resolved to dissolve itself with the consent of all its members- as might be supposed in the case of a people inhabiting an island resolving to separate and scatter throughout the whole world- the last murderer lying in prison ought to be executed before the resolution was carried out. This ought to be done in order that every one may realize the desert of his deeds, and that bloodguiltiness may not remain on the people; for otherwise they will all be regarded as participants in the murder as a public violation of justice. (Rachels EMP:137).



Kant’s theory of justice treats criminals as rational beings. That is, as a being capable of reasoning about his conduct and who freely decides what he will do, on the basis of his rational conception of what is best. Hence, a rational being is responsible for his actions. Punishment ( as opposed to ‘correction’) assumes that one not treat criminals as dumb animals.



To execute a murderer, for Kant, is to turn the murderer’s own Categorical Imperative upon themselves- their maxim being something like “ this is how one treats other people.” “ ...thus if we treat him in the same way in return, we are doing nothing more than treating him as he has decided people are to be treated” (Rachels p. 137).



What You Need to Know



You should be able to identify the main assumptions and principles of Kant's ethics

You should be able to explain the Categorical Imperative

You should be able to explain how to use the Universalizability Test

You should be able to understand the Kantian attitude towards capital punishment

For homework: please read the Kant excerpt at the end of this handout, and the Kant sections in the two Rachels books. If you're very keen, Robert Johnson's encyclopedia on Kant's ethics, 'Kant's Moral Philosophy," is available on the Stanford Encyclopedia of Philosophy website.

On Thursday I will give you a handout for writing philosophy essays, and will tell you what topics will be covered in the first test.





Lecture 8



Kant's Notion of the Good Person / Problems with Kant's Ethics



8.1 Kant's Conception of the Good Person



Kant's theory presupposes that the only way to be a moral person is to have the motive of duty. The good person, for Kant, is the person with the "good will" - i.e. having good motives or good intentions. A motive is only good if it is a motive to do the right action - to do your duty. Therefore, you have to know what the right action is ― what your duty is ― before you can say what a good person is. Duty is not what you are told to do by your parents or commanding officer, but what you work out yourself by universalising. For Kant, having the motive of duty is both necessary and sufficient for being a good person.(That is- Kant thinks that the motive of duty is all you need to be a good person). Is this true? We will look at some of Kant's counterexamples. (The text here is

Groundwork of the Metaphysics of Morals, published in 1794. (available for free from Project Gutenberg; www.gutenberg.org/etext/5682). The relevant pages are reproduced at the end of this handout.



8.2 Counterexamples to the claim that the motive of duty is necessary for being a good person.





Kant considers, and rejects, four possible counter examples to this claim. If any of the people listed below turn out to be good people, though they lack the motive of duty, that would show Kant is wrong in his claim that the motive of duty is necessary for being a good person. These cases are very important, as Kant thinks that only duty is necessary to be moral. But is this true?



8.3 The virtuous person:



Kant claims that a person who has virtues is not a good person. The Greeks thought that a person was good if she had developed certain talents of mind and a character that disposed her to act well. The virtues that Kant mentions are intelligence, wit, judgment, courage, resolution, and constancy of purpose. But, Kant argues, having these virtues does not make you a good person, because they can be used for bad purposes. We could use our intelligence and courage and judgment to help us hold up banks and do all kinds of other evil things.



8.4 The person who produces good consequences:



Kant says that the intention to do your duty is good in itself, not because of what it produces. He argues that we value the good will more than we value good consequences by pointing out that we still esteem those who have good intentions but are unable to carry them out.



8.5 The person who acts out of self-interest:



Kant gives two examples of this kind of person: a shopkeeper who deals with his customers honestly because they will shop elsewhere if he doesn't and someone who preserves their life out of a natural interest in doing so, rather than because it is their duty. Kant doesn't give an argument for why acting from self-interest is not morally worthy. He thinks that we will all agree that self-interest is not a good motive for doing the right action.

Note: Some ethicists, such as Thomas Hobbes, or Robert Nozick, seem to have thought that ethics is only coordinated self- interest. Hence, Kant would say that this is not morality. Kant actually said that even devils would agree to a social contract if it was useful to them.





8.6 The naturally kind-hearted person:



For Kant, any action that proceeds from an emotion like natural sympathy or kindness cannot have any special moral worth. The act can be in accordance with duty, but unless it is also motivated by reason, it does not make you a good person. Kant thinks that the naturally kind person has no moral worth for two reasons. First, she is unreliable, second, she is not free. Let's think about this idea.



1) The "fickle or unreliable" objection.



Kant thinks that people motivated by feelings are unreliable, because their feelings are not reliable - they might lead them in the opposite direction. Kind-hearted people might be less than perfectly kind, firstly, when they have some problem of their own overshadowing their lives - like a death in the family. In this situation they might fail to be kind and loving when duty requires them to, because the emotion that underlies kind action would be blocked by feelings of mental or physical pain. Secondly, they may be less than perfectly kind when they are faced both with the needs of their own family and the needs of strangers. In this situation, the kind-hearted person would probably be partial, for their kind actions are based on emotion and this would be stronger for their own family than for others. Duty, however, which is based on reason and not emotion, would dictate impartiality. If we are following duty, then no matter what happens in our emotional life, reason will tell us to do the right thing. Emotions fluctuate but reason is constant. Reason, therefore, is the only thing on which we can base moral obligations that must always be obeyed.



2) The "not free" objection.



A person who is naturally kind is just lucky, according to Kant. They are kind because of the way they were brought up; because of their conditioning, we would now say. If this is true, then they have not chosen to be kind-hearted but have been determined to be so by external factors, for instance, their childhood environment. If one has not freely and consciously chosen to be kind, then being kind has no special moral worth. There is an interesting implication here: only people who could be bad can be truly good.

(a possible response: very dutiful people themselves might be culturally or genetically predisposed to duty).

It is important to note that Kant does NOT think that being kind hearted disqualifies you from being a good person - he merely claims that it is not enough on its own. A person who acts from kind heartedness may be a good person, if it is true that, in cases where their emotions do not lead them to act in accordance with duty, their reason “comes to the rescue” and leads them to act appropriately.



Discussion: Counter examples to the claim that the motive of duty is sufficient for being a good person



If we can argue that the people mentioned below do have the motive of duty, but are not good people, then we have shown that the motive of duty is not sufficient to make you a good person.



1) The cold hearted person. Kant uses the example of a man who has a cold temperament, has little sympathy for others and is indifferent to their sufferings. This man might be cold hearted, but he does his duty when required. Is he a good person? We might not call him a nice person, but mustn't we admit that at least he is a good person? Perhaps Kant is right, and having the motive of duty is sufficient.



(If we have any lingering doubts about this person being a good person, it might be because we mean something different than Kant by "good". We might mean not "a morally good person" but "a good example of a person".)



2) The person who makes mistakes about what their duty is.



First case. Imagine a man who whips his children for every little mistake they make. He firmly believes that he is doing the best for them because ‘sparing the rod will spoil the child ’ But he universalizes, and asks himself: " Can I accept that my intention to whip my children for their own good is a rule for everyone?" Now clearly this man would be perfectly happy for everyone else to whip their children, because it is best for them. He would even accept it being done to him as well. It seems he is acting from the motive of duty. He thinks he is doing his duty by his children and he has succeeded in universalizing his intention.



The person who chooses the wrong intention to universalize.





Imagine a member of Al Qaeda whose job is to blow up aeroplanes. Is he doing his duty? Well, it is his duty to Al qaeda to follow orders. But of course this is not what Kant means by duty. So can the terrorist universalise his intention? He asks himself if his intention to blow up this plane to further the cause of Al Qaeda could be a rule for everyone. Lets imagine that he would be quite happy for everyone in to world to blow up planes for Al Qaeda, even if that meant he or her family might be blown up too. If we accept the way he has conducted the universalisability test, we have to say that this person is a counter-example to the claim that acting from duty is sufficient to make you a good person.



But perhaps something has gone wrong in the test. He has chosen the wrong intention to universalize. The intention he used was the intention to blow up the plane to further the cause of Al Qaeda. Now the whole point of the universalisability test is to see if you are making exceptions for yourself. What he should be asking herself is "can I accept that everybody blows up planes in their own causes." He has posed the test in that way he then has to ask himself "can I accept that my family and I be blown up in the cause of, for instance, the State of Israel or the Aum Shinrikyo Cult." And the answer to that will probably be no. In this case it seems that he has not really acted from the motive of duty, and therefore his being a bad person does not challenge Kant’s claim that the motive of duty is sufficient for goodness.





If it is possible to make mistakes though, does that show that reason is not infallible? Do we need emotions to save us from mistakes in reasoning? Or would we be able to trust our reason if our negative emotions did not get in the way? Could emotion play some important role in detecting morally significant situations?

This is the basic question : what is more important in ethical decision making: reason, or the emotions? Kant's belief is that the emotions have no importance. Is this correct?



8.7 Criticisms of Kant's Ethics



?It's too formulaic, or rigidly uniform



?As it emphasises rights and justice, it neglects other ethical categories, such

as virtue, good character or good lives



?There is no guidance as to how to deal with conflicts amongst the duties. There is no acknowledgement for moral perplexity.





More specific problems:



?People may have different notions of the good, or which principles ought to be universalized.

(We have a split even within Utilitarian thinking concerning the good).



?The Universalizability maxim may lead to absurd consequences. A masochist, or nihilist, could will the end of the Human Race; the universalization of the maxim “do banking at precisely 3pm on Tuesdays” would cause frustration and chaos; paying off your credit card; ditto. This is called the The problem of trivial duties. Say you wanted to take all your money out of the bank this Friday, but wondered if it was moral to do so. Universalising your maxim would lead to a world where everyone took their money out of the bank at the same time, thus causing the banking system to collapse. You would be willing to use the banking system, and also that it collapses and becomes unusable - and this is a clear inconsistency. Is taking my money out of the bank then immoral? Surely not.



?A rugged and selfish individualist may prefer maxims that Kant would find disagreeable; ditto the suicidal person, or the person who prefers not to develop special talents. Kant assumes that such people are irrational. (Imagine what sorts of principles Mike Tyson, or Friedrich Nietzsche, or a Yakuza boss, might universalize). Is this necessarily true?



? Certain assumptions in Kant are open to question. Socialists might think that the notion of stealing is merely grounded on the rationalization of the self- interest of a privileged class. ( Why would the desperately poor not want to universalize a maxim of theft?)



?The issue of exceptionless rules. Kant thought that moral rules had to be exceptionless in order to be valid at all. His thought was, that if there was any situation in which a rule was not valid, then that showed that the rule was not a rule at all - because rule just means something that applies universally. So if there are any rules, then they must, by definition, be exceptionless. See The Case of the Inquiring Murderer (Rachels pp.124-125). (What could we add to the theory to fix this problem?)





What You Need To Know



You should be able to explain Kant's ideas concerning the qualities of the Good Person, who has the Motive of Duty

You should be able to explain some problems with Kant's scheme.

You should be able to explain Kant's notion of justice and retributivism.

You should be able to explain some problems with Kant's ethics in general.



NB: Kant is incredibly difficult to read, so don't worry if reading Kant isn't easy. Try reading a Japanese translation side by side with the English if you can find one.



The text below is just the first three pages of a 70- page book. (available for free from Project Gutenberg; www.gutenberg.org/etext/5682).



Fundamental Principles of the Metaphysics of Morals (1794)





FIRST SECTION



TRANSITION FROM THE COMMON RATIONAL KNOWLEDGE



OF MORALITY TO THE PHILOSOPHICAL





[virtues can make a person a better villain, so cannot be the basis of morality].



Nothing can possibly be conceived in the world, or even out of it, which can be called good, without qualification, except a good will. Intelligence, wit, judgement, and the other talents of the mind, however they may be named, or courage, resolution, perseverance, as qualities of temperament, are undoubtedly good and desirable in many respects; but these gifts of nature may also become extremely bad and mischievous if the will which is to make use of them, and which, therefore, constitutes what is called character, is not good. It is the same with the gifts of fortune. Power, riches, honour, even health, and the general well-being and contentment with one's condition which is called happiness, inspire pride, and often presumption, if there is not a good will to correct the influence of these on the mind, and with this also to rectify the whole principle of acting and adapt it to its end. The sight of a being who is not adorned with a single feature of a pure and good will, enjoying unbroken prosperity, can never give pleasure to an impartial rational spectator. Thus a good will appears to constitute the indispensable condition even of being worthy of happiness.



[Kant seems to be saying here that you can't be truly happy unless you have a good will, but is this true?]



There are even some qualities which are of service to this good will itself and may facilitate its action, yet which have no intrinsic unconditional value, but always presuppose a good will, and this qualifies the esteem that we justly have for them and does not permit us to regard them as absolutely good. Moderation in the affections and passions, self-control, and calm deliberation are not only good in many respects, but even seem to constitute part of the intrinsic worth of the person; but they are far from deserving to be called good without qualification, although they have been so unconditionally praised by the ancients. For without the principles of a good will, they may become extremely bad, and the coolness of a villain not only makes him far more dangerous, but also directly makes him more abominable in our eyes than he would have been without it.



[Why a good will is good even if a person is too powerless to actually help anyone]



A good will is good not because of what it performs or effects, not by its aptness for the attainment of some proposed end, but simply by virtue of the volition; that is, it is good in itself, and considered by itself is to be esteemed much higher than all that can be brought about by it in favour of any inclination, nay even of the sum total of all inclinations. Even if it should happen that, owing to special disfavour of fortune, or the niggardly provision of a step-motherly nature, this will should wholly lack power to accomplish its purpose, if with its greatest efforts it should yet achieve

nothing, and there should remain only the good will (not, to be sure, a mere wish, but the summoning of all means in our power), then, like a jewel, it would still shine by its own light, as a thing which has its whole value in itself. Its usefulness or fruitfulness can neither add nor take away anything from this value. It would be, as it were, only the setting to enable us to handle it the more conveniently in common commerce, or to attract to it the attention of those who are not yet connoisseurs, but not to recommend it to true connoisseurs, or to determine its value.



There is, however, something so strange in this idea of the absolute value of the mere will, in which no account is taken of its utility, that notwithstanding the thorough assent of even common reason to the idea, yet a suspicion must arise that it may perhaps really be the product of mere high-flown fancy, and that we may have misunderstood the purpose of nature in assigning reason as the governor of our will. Therefore we will examine this idea from this point of view.



In the physical constitution of an organized being, that is, a being adapted suitably to the purposes of life, we assume it as a fundamental principle that no organ for any purpose will be found but what is also the fittest and best adapted for that purpose. Now in a being which has reason and a will, if the proper object of nature were its conservation, its welfare, in a word, its happiness, then nature would have hit upon a very bad arrangement in selecting the reason of the creature to carry out this purpose. For all the actions which the creature has to perform with a view to this purpose,



and the whole rule of its conduct, would be far more surely prescribed to it by instinct, and that end would have been attained thereby much more certainly than it ever can be by reason. Should reason have been communicated to this favoured creature over and above, it must only have served it to contemplate the happy constitution of its nature, to admire it, to congratulate itself thereon, and to feel thankful for it to the beneficent cause, but not that it should subject its desires to that weak and delusive guidance and meddle bunglingly with the purpose of nature. In a word, nature would have taken care that reason should not break forth into practical exercise, nor have the presumption, with its weak insight, to think out for itself the plan of happiness, and of the means of attaining it. Nature would not only have taken on herself the choice of the ends, but also of the means, and with wise foresight would have entrusted both to instinct.







[Reason does not make us happy- so reason must be for some other purpose, such as helping us to be good people].



And, in fact, we find that the more a cultivated reason applies itself with deliberate purpose to the enjoyment of life and happiness, so much the more does the man fail of true satisfaction. And from this circumstance there arises in many, if they are candid enough to confess it, a certain degree of misology, that is, hatred of reason, especially in the case of those who are most experienced in the use of it, because after calculating all the advantages they derive, I do not say from the invention of all the arts of common luxury, but even from the sciences (which seem to them to be after all only a luxury of the understanding), they find that they have, in fact, only brought more trouble on their shoulders, rather than gained in happiness; and they end by envying, rather than despising, the more common stamp of men who keep closer to the guidance of mere instinct and do not allow their reason much influence on their conduct. And this we must admit, that the judgement of those who would very much lower the lofty eulogies of the advantages which reason gives us in regard to the happiness and satisfaction of life, or who would even reduce them below zero, is by no means morose or ungrateful to the goodness with which the world is governed, but that there lies at the root of these judgements the idea that our existence has a different and far nobler end, for which, and not for happiness, reason is properly intended, and which must, therefore, be regarded as the supreme condition to which the private ends of man must, for the most part, be postponed.



For as reason is not competent to guide the will with certainty in regard to its objects and the satisfaction of all our wants (which it to some extent even multiplies), this being an end to which an implanted instinct would have led with much greater certainty; and since, nevertheless, reason is imparted to us as a practical faculty, i.e., as one which is to have influence on the will, therefore, admitting that nature generally in the distribution of her capacities has adapted the means to the end, its true destination must be to produce a will, not merely good as a means to something else, but good in itself, for which reason was absolutely necessary. This will then, though not indeed the sole and complete good, must be the supreme good and the condition of every other, even of the desire of happiness. Under these circumstances, there is nothing inconsistent with the wisdom of nature in the fact that the cultivation of the reason, which is requisite for the first and unconditional purpose, does in many ways interfere, at least in this life, with the attainment of the second, which is always conditional, namely, happiness. Nay, it may even reduce it to nothing, without nature thereby failing of her purpose. For reason recognizes the establishment of a good will as its highest practical destination, and in attaining this purpose is capable only of a satisfaction of its own proper kind, namely that from the attainment of an end, which end again is determined by reason only, notwithstanding that this may involve many a disappointment to the ends of inclination.



We have then to develop the notion of a will which deserves to be highly esteemed for itself and is good without a view to anything further, a notion which exists already in the sound natural understanding, requiring rather to be cleared up than to be taught, and which in estimating the value of our actions always takes the first place and constitutes the condition of all the rest. In order to do this, we will take the notion of duty, which includes that of a good will, although implying certain subjective restrictions and hindrances. These, however, far from concealing it, or rendering it unrecognizable, rather bring it out by contrast and make it shine forth so much the brighter.

Punishment and the Death Penalty I
Arguments Against the Death Penalty

-start- any questions from previous lectures?

18.1 References for these lectures

Hugo Adam Bedau “The Case Against the Death Penalty,” in James Rachels, ed. The Right
Thing To Do 3rd Ed. (Boston: McGraw Hill, 2003): 231- 240
Earnest Van Den Haag “A Defense of the Death Penalty,” in James Rachels, ed. The Right
Thing To Do 3rd Ed. (Boston: McGraw Hill, 2003): 240- 247
Antony Duff “Legal Punishment,” in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/legal-punishment/ (updated Jan 2001).
Hugo Adam Bedau “Punishment,” in Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/punishment/
[no author cited] “Arguments For and Against the Death Penalty,” Death Penalty
Information Center http://deathpenaltyinfo.msu.edu/c/about/arguments/contents.htm
(accessed November 8th 2006).
[no author cited] “Cesare Beccaria,” The Internet Encyclopedia of Philosophy,”
http://www.iep.utm.edu/b/beccaria.htm accessed Nov 6th 2006
Cecil Greek “Cesare Beccaria,” in lecture notes, Criminal Theory course, Florida State
University College of Criminology and Criminal Justice archives
http://criminology.fsu.edu/crimtheory/beccaria.htm


18.2 Review
1). The following arguments have been offered in favor of the death penalty. (Yeah yeah I know, we’ve already gone over these…)
a). The death penalty prevents future murders. (That is, the death penalty acts as
a deterrent).
b). In a fair society, if you kill someone, society should kill you.
Do you agree, or disagree? What do your colleagues think?
2). The following arguments have been offered against the death penalty.
c). If the court makes a mistake, an innocent person may be killed.
d). Sometimes the death penalty is used unfairly.
Do you agree, or disagree? Why?
3). Do you think that Japan should retain the death penalty? If so, for which crimes?
4). What do you think a Utilitarian would say about the death penalty, or about punishment in general?
5). What would a Kantian say about the death penalty, or about punishment in general?









Lecture Outline: Lecture 18
Introduction to the Topic
Historical Background
Retribution
Retribution and Kant
The Utilitarian Approach
The Utilitarian Approach: Beccharia
Other Arguments in favour of Punishment and Execution
Other Theories

Introduction

Capital Punishment, or the death penalty, is defined as the execution of a criminal by the state as punishment for crimes known as capital crimes or capital offences. ‘Capital’ here means ‘head,’ so a ‘capital punishment’ is one that involves, literally or figuratively, the loss of your head.

What crimes are capital crimes?
murder, drug smuggling, sexual crimes (in Iran this can just mean having sex with someone of your own gender), insubordination or desertion (disobeying an order, or leaving the Military without permission during battle), or treason still carry the death penalty in various countries.
What countries still have the death penalty?
Sixty – nine countries still have the death penalty. Japan, South Korea, Taiwan, Singapore and the US are the only developed, democratic countries that still have the death penalty.

Where are children executed?
Bangladesh, Iran, Iraq, Nigeria, Pakistan, Saudi Arabia, Yemen.


How is it done?
Drawing and quartering used to be common. The guillotine was widely used in Europe since its invention in the 18th Century. Lethal injection and firing squad and electric chair are more modern methods. Hanging is still widely used. Death may not be instantaneous; the spinal chord can snap, but the punished person may remain conscious and simply bleed to death internally.


Retribution: (Lex talionis)

The traditional justification of punishment, and in particular the death penalty, is retribution. As Rachels puts it, this is simply the idea that we need to ‘pay back’ the harm caused by the murderer. As a ‘theory of punishment,’ the term used is Retributivism.
The earliest known retributive justice code was the Law of Hammurabi, written in the 18th Century BCE (that is, 38 centuries ago)-

If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death. If it kills the son of the owner, then the son of that builder shall be put to death.


The most important expression of this code is in the Torah (Old Testament).

Exodus 21:22 If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine.23 And if any mischief follow, then thou shalt give life for life,24 Eye for eye, tooth for tooth, hand for hand, foot for foot,25 Burning for burning, wound for wound, stripe for stripe.
Leviticus 24:17 And he that killeth any man shall surely be put to death.18 And he that killeth a beast shall make it good; beast for beast.19 And if a man cause a blemish in his neighbour; as he hath done, so shall it be done to him;20 Breach for breach, eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it be done to him again.21 And he that killeth a beast, he shall restore it: and he that killeth a man, he shall be put to death.
Both Christianity and Judaism oppose execution, however, opposed by both Moses Miamonides (a 12th Century Jewish philosopher) and Jesus: “Let he who is without sin cast the first stone…”
Kant is the most important theorist of Retributivism.

When someone who delights in annoying and vexing peace- loving folk receives at last a right good beating, it is certainly an ill, but everyone approves of it and considers it as good in itself even if nothing further results in it. (in Rachels EMP:134).


Here’s Ernst Van den Haag, in Rachels RTTD:245

The punishment [the murderer] suffers is the punishment he voluntarily risked suffering and, therefore, it is no more unjust to him than any other event for which one knowingly volunteers to assume the risk. The death penalty cannot be unjust for the willing criminal.” (RTTD:245).


For a retributivist, the only justification for punishment is to give what the criminal deserves. Hence, it is neither Utilitarian nor consequentialist (as with Kant’s theory in General). Kant again:
Judicial punishment can never be administered merely as a means for promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. (Rachels: EMP: 134).

The second principle of punishment for a retributivist is that the punishment must be proportional to the crime.

But what is the mode and measure of punishment which public justice takes as its principle and standard? It is just the principle of equality, by which the pointer of the scale of justice is made to incline no more to the one side than the other…Hence it may be said: “If you slander another, you slander yourself; if you steal from another, you steal from yourself; if you strike another, you strike yourself; if you kill another, you kill yourself.” This is…the only principle which… can definitely assign both the quality and the quantity of a just penalty. (in Rachels EMPp.137).


Kant went as far as to say that a society, even were it to disband, is morally required to execute whoever is in jail for murder, even if they had no means of escape (Rachels p.137).

Problem: how does one respect a criminal by executing them? Or even putting them in jail?
The attempt to rehabilitate (‘teach’) the criminal insults the dignity and intelligence of the criminal. Rachels: “it is a violation of their rights as an autonomous being to decide for themselves what sort of people they will be.”…”We do not have the right to violate their integrity by trying to manipulate their personalities” [a la Alex in Clockwork Orange, the novel by Anthony Burgess]. Rachels points out that we need to distinguish between two opposing principles here:

a). Treating someone as a responsible being
and b). Treating someone as a being who is not responsible for his conduct

To treat someone as just an animal or a fool, who needs to be coerced or re-educated, (like rubbing a dog’s nose in his excrement, to ‘teach’ him his mistake) is just insulting. We cannot hold imbeciles or dogs ‘accountable’ for their acts. They aren’t stupid; they knew what they were doing; now they must pay the price. (See Rachels p. 137). Kant’s specific twist here: (Rachels p.139). the first formulation of the Categorical Imperative is brought to bear:

…when a rational being decides to treat people in a certain way, he [decides] that this is how people are to be treated. Thus if we treat him the same way in return, we are doing nothing more than treating him as he has decided to be treated. If he treats others badly, and we treat him badly, we are complying with his own decision. (Rachels p.139).

Criticisms: Nietzsche

Nietzsche argued that the notion of retribution was merely a pious gloss over a very basic and natural human reaction- the taste for revenge, or vengeance. Nietzsche (and the 20th Century French philosopher Michel Foucault) think that we get satisfaction from inflicting pain onto others, even if the pleasure is disguised. Others will argue that this pleasure of punishment is merely a perversion of human nature, and that retribution is completely justified. Who is right? And even if punishment is just vengeance, so what? Is vengeance necessarily a bad thing?

Discussion:
1). What is the difference between the Law of Hammurabi and the Laws of Exodus? Or with Kant? Why are these differences important?
2). What are Kant’s assumptions concerning human nature?
3). What are those of Hobbes?
4). Who’s right? Or rather, who is closer to the truth? And what are the implications of the whole idea of ‘retribution?’
5). Is the principle of respecting the dignity and intelligence of the criminal really sound? And even if it were, are we really respecting the intelligence and innate freedom of a criminal by locking him or her up?
6). If a very clever criminal escapes from prison in a very intelligent way, and disappears for good, would we respect them for it?
7). is the principle of equal and opposite punishment without problems?
8). Rationality and Punishment. Kant’s notion of retribution only works for a
particular subset of crimes. Of those crimes punishable by death around the
world today, can retributive justice justify all of them?




The Utilitarian Approach
Note that Utilitarianism, per se, does not necessarily lead to either advocating or condemning the death penalty. The same goes for Kant. Utilitarianism simply endorses whichever option will maximize happiness. As such, there are Utilitarian arguments both opposing and defending the death penalty.

For a Utilitarian, punishment is justified if and only if it creates a greater balance of happiness over unhappiness. So, from the Utilitarian perspective, capital punishment is justified if it 1). prevents the criminal from repeating his crime, of 2). deters crime by discouraging would- be offenders.

a). Argument: the death penalty prevents future murders.

As murder is the greatest crime, then it requires the greatest penalty- the death sentence.
In 1973, one Isaac Ehrlich published a study showing that for every inmate who was executed, seven lives were saved through deterrence (that is, frightening people into not killing). Other studies have yielded similar results.
Ernst van den Haag, a professor of law at Fordham University, argues:

Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most. Hence, the threat of the death penalty may deter some murderers who otherwise might not have been deterred. And surely the death penalty is the only penalty that could deter prisoners already serving a life sentence and tempted to kill a guard, or offenders about to be arrested and facing a life sentence. Perhaps they will not be deterred. But they would certainly not be deterred by anything else. We owe all the protection we can give to law enforcers exposed to special risks.

Discussion:
a). Van den Haag assumes that people fear death more than anything else. Is this true? What about criminals?
b). Van den Haag argues for retaining the death penalty for the protection of a small group. Is this justified?

b). Rehabilitation, not Punishment

For the second half of the 20th Century, many have argued for a criminal justice system that would rehabilitate criminals. Criminals are frequently poorly educated, with emotional problems, and with poor work histories. So why not train them in jail to be better people, instead of punishing them? The implication of this view is that we should stop punishing criminals altogether, and instead treat them. As such, in many Anglo- American countries (Australia, New Zealand, the U.K, the U.S.A ) we no longer hear about prisons but correctional facilities, where correctional officers work. Criminals are not punished but corrected. As such, notes Rachels, in words at least, the Utilitarian Revolution is complete. Of course, it could just be Orwellian Newspeak. [1](See Rachels p.134-135).

Cesare Beccaria (1738-1794).

Cesare Beccaria, in 1764, was an Italian philosopher, wrote the most important book on crime and punishment ever written, On Crimes and Punishments. It was published anonymously (as innovative philosophy often was), but was soon embraced by the government of Milan. The text was a thorough and enlightened attack on the ills of the criminal justice system of 18th Century Italy, in particular the practice of using torture to obtain confessions, the arbitrary power of judges, the inconsistency and inequality of sentencing, using personal connections to get a lighter sentence, and so on. More generally, the primary thesis of the book is that the death sentence and torture are both unjust and futile. His two main philosophical approaches are Social Contract theory and Utilitarianism. He concludes with outlines for the ideal justice system and the ideal state. After reading it, Grand Duke Leopold II of Hapsburg, Emperor of Austria, become the first ruler to permanently end the death penalty. Insofar as his principles were adopted by, among others, the Founding Fathers of the United States of America, as well as all of Western Europe, he is perhaps one of the most important intellectuals in modern history.

Beccaria’s Theory
There are three main principles in Beccaria’s theory: Rationality, the Social Contact, and Utilitarianism. His theory of human nature is an interesting fusion of Kant and Hobbes. He assumes that all individuals have free will, rationality, and manipulability. Everyone makes free, rational choices (including the free, rational choice to commit crimes). Like Hobbes, Beccaria assumes that people will rationally look out for themselves, rather than consider the interests of others. Hence, crime is not in fact irrational. This requires that we have a social contract to prevent crimes. Crime occurs when personal and group interests conflict.
The third principle in Beccharia’s theory is that people are manipulable. People, because they are all rational, and self- interested, are predictable and controllable. We can make generalizations about how they will act in certain situations The job of the criminal justice system is to control all deviant acts that an individual with free will and rational thought might do in the pursuit of personal pleasure. The problem the criminal justice system has is finding the right punishment or threats. The basic principle is that the justice system is merely one of the tools used for the creation of a better society, rather than an instrument of vengeance.
Beccaria expresses not only the need for the criminal justice system, but also the government’s right to have laws and punishments. He believe in the social contract, or the idea that free will and rational individuals made a choice to live in a society instead of living alone. When one chooses to live in a society, then one chooses to give up some personal liberties in exchange for the safety and comfort of a society. Laws are designed as the framework of the society and the rules for which acts are encouraged or prohibited. Laws are the conditions of a society of free and rational individuals. There is a need to have some system set up in order to ensure that the individuals in the society are protected against any individual or groups that want to take back the personal liberties forfeited in the social contract and those who want to also harm the personal liberties of others in the society. In On Crimes and Punishments Beccaria states, "but merely to have established this deposit was not enough; it had to be defended against private usurpation by individuals each of whom always tries not only to withdraw his own share but also to usurp for himself that of others." So there is a need for and a right to have laws and a criminal justice system to ensure that all individuals in society obey or follow the social contract. Being an early Utilitarian, Beccaria held that the laws should be formulated for the maximization of happiness only.
Beccaria on the Death Penalty:
Beccaria rejects the death penalty on two grounds. Firstly, the state does not have the right to take lives. Secondly, capital punishment is neither a useful nor a necessary form of punishment. The death penalty, history showed, (he thought), did not deter criminals from killing. Lifelong imprisonment, he thought, would be sufficiently horrible to make people fear sentencing. (Note that, in Beccaria’s time, this would probably involve heavy labour). Far from reducing homicides, Beccaria felt that the death penalty simply brutalized a community. That is, it reduces a community’s sensitivity to suffering. It normalizes tyranny. He felt that it was simply a contradiction to punish a murderer by, in his view, murdering them: “it seems to me absurd that the laws, which are an expression of the public will, which detest and punish homicide, should themselves commit it, and that to deter citizens from murder they order a public one.” (cited in Greek, lecture notes Beccaria).
Broader proposals: Beccharia, reasoning that crime is committed by uneducated people, recommended that the state have universal and free education, which was a completely new concept in the 18th Century. he also argued in favour of the universal right to bear arms, so if you want to blame a particular thinker for that one, blame him. (Of course, in the 18th Century there were no M-16’s, and it took ten minutes to reload a pistol).

Discussion:
a). Most rehabilitation programs, in particular in California, are disastrous failures. Any ideas why?
b). Who had the better theory of punishment- Kant, or the Utilitarians?


Discussion:
The Deterrence Problem:
-How relevant is it that the death penalty is not a deterrent? Think of another example: Is it relevant whether lethal drunk driving is not premeditated, or that perpetrators think that they will not get caught? If drunk driving is not premeditated, should we just not punish it, because the punishments don’t work?

Eye for an Eye
If equal and opposite damage is ‘barbaric,’ what other standard should be applied to punishment? Maybe rapists should be thrown to the mercy of bullies in prison. What do you think?


Other theories of justice
(These have been included purely for the sake of completion)

Punishment as Communication
For some theorists, punishment is to communicate to offenders the condemnation that they deserve for their crimes. Like retributive justice, this ideal requires that the criminal is a rational and responsible agent who is capable of understanding the ‘message.’

Restorative Justice
On this view, crime must be dealt with through a process of reparation or restoration between the offender, the victim, and any other interested groups of people. On this view, the instrument of justice is not trial and punishment, but mediation or reconciliation programs to discuss what happened and how to deal with it collectively. The South African Truth and Reconciliation Commission could be such a case http://www.doj.gov.za/trc/.



What You Need to Know
You need to know what Retributivism means
You should know what the standard arguments in favour of the death penalty are
You should know the Utilitarian arguments both for and against the death penalty are
You should know what Rehabilitation is
You should know the ways in which Retributivism is inconsistent with Utilitarianism


Outline for Lecture 19.
Arguments against the death Penalty
1). The Death Penalty is not a deterrent (Murder is either not premeditated, or is committed by people who think they are too clever to be caught)
2). It is not fairly applied
3). Capital punishment is irreversible
4). Capital punishment is unjustified retribution
5). Capital punishment is widely viewed as inhumane and anachronistic
6). Capital punishment is brutal, and brutalizes a community
(‘Widely viewed’- is this sufficient? Why is this a good argument? Many people still believe that women are intrinsically inferior to men. Does that make it a good idea? In any case, in Japan the death penalty is still widely held to be a good idea).

Counterarguments to the Above Arguments
Problems in distribution are beside the point
Miscarriages of justice are rare and an acceptable cost
Deterrence- not conclusive either way
Brutalization- argument is simplistic
-Doing justice is more important than being nice
[1] Go read George Orwell’s Nineteen Eighty- Four.

The Death Penalty II

Punishment and the Death Penalty II

19.1 References:

The handout today is from Victor Grassian Moral Reasoning: Ethical Theory and Some Contemporary Moral Problems (New Jersey: Prentice Hall, 1992). It is a little more complex than Rachels, but I think it is a much better book.

19.2 Preliminary questions

۞ Define the following terms: retributive justice, rehabilitation, lex talionis.

۞ What are the Utilitarian arguments in favour of the death penalty?

۞ What are the Utilitarian arguments against the death penalty?

۞ What, for Beccaria, is the purpose of the justice system?

۞ What, for Kant, is the purpose of the justice system?

19.3 Utilitarian Arguments for the Death Penalty: Analysis

19.4 The Death Penalty Saves Money

19.5The Self- Defense Argument

19.6 Arguments Against the Death Penalty

19.7 The Death Penalty is Inhumane and Anachronistic

19.8 The Death Penalty is Unjustified Retribution

19.9 The Death Penalty is Not a Deterrent

19.10 The Death Penalty is Internationally Reviled

19.11 The Death Penalty is Unfairly Applied

19.12 The Death Penalty is Irreversible, and Miscarriages of Justice are Morally Unacceptable

19.13 The Death Penalty is Barbaric

19.14 Response to 19.8: To reject the death penalty as ‘unjustified’ is a matter of faith

19.15 Response to 19.9: a). not clear either way b). biased sample fallacy? C). beside the point, if you are not a Utilitarian

19.16 Response to 19.11: Fairness is beside the point- the argument appears to presuppose that, ideally, the death penalty could be applied.

19.17 Response to 19.12: This is an acceptable loss

19.18 Response to 19.13: The Death Penalty is not all that degrading; in any case, being nice is less important than seeing Justice Served

19.3 Utilitarian Arguments for the Death Penalty: Analysis

Again, the basic idea of Utilitarianism is the maximization of happiness. Defenders of capital punishment argue that executions benefit society more than not executing them. Whether or not this is true is not a question for philosophers but for those that study society (sociologists or economists). There is no conclusive evidence either way. The question may even be too complex to be answered.

19.4 The Death Penalty Saves Money

It has been argued that the death penalty saves money, as the cost of the trial required is less than the cost of keeping someone in jail for decades. In the United States, at least, this is not the case- the cost of the trial is far greater than that of imprisonment. In countries without such a cautious legal system (China) this argument would not apply.

19.5 The Self- Defense Argument

It has been argued that society is justified in executing murderers in the name of self- defense. “The reasoning is that, in dangerous circumstances, the individual is justified in using deadly force through capital punishment. However, for this analogy to be successful, it must parallel the accepted principle that self- defense with deadly force is justified only when there is no alternative open to us (such as fleeing). This means we must see whether any alternative to capital punishment is open (such as long term imprisonment).” (Stanford Article, “Punishment”). In any case, the idea that stopping the death penalty will destroy a whole country is preposterous.

19.6 Arguments Against the Death Penalty

In the words of Justice Brennan (cited by Bedau), the death penalty is “uncivilized,”, “inhuman,” inconsistent with “human dignity” and with “the sanctity of life,” that it “treats members of the human race as non-humans, as objects to be with toyed with and discarded,” that it is “uniquely degrading to human nature” and “by its very nature, [involves] a denial of the executed person’s humanity.” Let’s look at these arguments in detail.

19.7 The Death Penalty is Widely Considered Inhumane and Anachronistic

(Bedau, in Rachels RTTD: 240). Of all the democracies, Japan and the United States alone still have the death penalty. It was stopped in France in 1981; in the UK in 1971. Bedau argues that this fact alone makes it morally wrong. Bedau also argues that the death penalty is ‘old- fashioned.’

Discussion: Is this a sufficiently good reason to ban the practice?

19.8 The Death Penalty is Unjustified Retribution

Retribution does not alone justify the death sentence.

Bedau argues that, because all punishment is retributive anyway, a life sentence should be a sufficiently high punishment. (Rachels TRTTD: 238-239).

The Death Penalty is just Revenge

In the words of the Death Penalty Information Center website, “retribution is another word for revenge. Although our first instinct may be to inflict immediate pain on someone who wrongs us, the standards of a mature society demand a more measured response.” This is, as discussed in the Nietzsche lectures, the position of Nietzsche.

۞Is all retribution just revenge? According to this logic, even lifelong imprisonment for murderers is ‘just revenge.’ So should all retributive justice be scrapped?

۞ What exactly is the problem with revenge? (Is there a Utilitarian argument against revenge? What about a deontological argument against revenge? Could there be a Christian origin of this notion of love over revenge?).

۞What does ‘mature society’ mean? We practically inherited our entire Western legal system from the Romans- and they would have people killed for the fun of it.

Victor Grassian gives a sharper critique of this idea that justice is ‘just revenge.’

Those with liberal political leanings often dismiss retributivism as nothing but a rationalization for revenge. This is a mistake […] the retributive model may be the only protection a criminal can have against a Utilitarianism gone mad, for this model, unlike the utilitarian one, treats criminals as free agents who have rights protecting them from being completely at the mercy of someone else’s conception of the common good or of what it is to be an adequate human being. Grassian p.353.

That is, imagine someone who is imprisoned for stealing a sports car. The justice system thinks that ‘punishment’ is just ‘revenge,’ and so the court decides to treat the thief with a drug that makes the person, in effect, a different person. Note that this is totally different to the idea of ‘punishment.’ Is it better, or worse? (Anthony Burgess’s novel Clockwork Orange concerns this idea).

The death Penalty is Excessively Cruel

French philosopher Albert Camus argued that execution is in fact a greater crime than the murder itself.

For there to be an equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months.

In the same spirit, Bedau states that the Government should not use “premeditated, violent homicide as an instrument of social policy” (Rachels RTTD: 239).

Discussion:

a). Do you agree with Camus? Why, or why not?

b). Suppose that a sadistic killer imprisoned a victim, and told him or her that

they would be killed at dawn in exactly six months. Suppose also that the killer

did in fact kill their victim, and was later arrested and sentenced by a court.

According to Camus’s logic, would they deserve the death penalty?

c). Which is the worse fate? Being killed by a stranger on the street at night, without

even the opportunity to say goodbye to the people you love, or finish your projects,

or being killed by a prison system after several months of waiting?

d). Is there a moral difference between killing a stranger in the street for his wallet,

and the upcoming hanging of Shōkō Asahara? If so, what is it? Are Camus and

Bedau just wrong, then?

Van den Haag’s response: “The difference between murder and execution, or between kidnapping and imprisonment, is that the first is unlawful and undeserved, the second a lawful and deserved punishment for an unlawful act. The physical similarities of the punishment to the crime are irrelevant.” (RTTD:245).

The Families of the Victims Sometime Oppose the Death Penalty

Bedau makes this point (Rachels p.239). There are in fact societies of the families of murder victims who oppose the death penalty. But this is only a small group; in any case, in Japan and the United States many people (including the families of victims) are in favour of the death penalty.

19.9 The Death Penalty is Not a Deterrent

Bedau does not think that the death penalty acts as a deterrent. He gives two reasons.

a). A Punishment must be consistently and promptly employed

(Recall that Beccaria had made this point). Bedau notes that only 3 per cent of people sentenced for murder actually get executed. It also takes a long time to be executed, as capital trials are more expensive and complex. It is not possible to speed up the trial process without removing the safeguards necessary.

b). People who commit murder and other crimes do not premeditate their crimes.

Writes Bedau, “persons who commit murder and other crimes of personal violence either may or may not premeditate their crimes…

-When crime is planned, the criminal ordinarily concentrates on escaping detection, arrest and conviction.” Hence, the criminal thinks that he or she is too smart to get caught.

-Most crimes are committed in the heat of the moment. Bedau: “Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended.” Texas Attorney General Jim Mattox: “It is my own experience that those executed in Texas were not deterred by the existence of the death penalty law. I think in most cases you’ll find that the murder was committed under severe drug and alcohol abuse.”

c). Lifelong imprisonment appears to be just as good a deterrent.

The murder rate in the United States without the death penalty are actually lower than in states with the death penalty.

19.11 The Death Penalty is Unfairly Applied

Racism

See Rachels TRTTD: pp.233-235

It has been noted that the proportion of blacks (African Americans) executed in the United States is out of proportion to the total number of executed murderers. Notes Bedau, since the death penalty was reintroduced in the United States in the 1970’s, about half the people on death row have been black. He concedes [admits, without wanting to] that “the rate is not so obviously unfair if one considers that roughly 50 per cent of all those arrested for murder were also black.” Yet “when those under death sentence are examined more closely, it turns out that race is a decisive factor after all” (TRTTD: 235). He goes on to cite some striking examples of racism in the courts. According to some studies, one is four times more likely to be executed if one is black. Further, if the victim is white, the killer is more likely to be executed than if the victim was black (Rachels RTTD: 235). According to another set of statistics, since 1976, 202 black murderers have been executed for killing a white person, yet only 12 white murderers have been executed for killing a black victim.

Sexism

Women make up 15% of all criminal homicides, but only 1% of people on death row (Rachels RTTD: 235).

Economic Inequality

People on death row are typically poor and cannot afford a good legal defense. The corollary is that wealthy people (O.J. Simpson perhaps?) can get the best lawyers. According to Bedau, 90 per cent of people on death row could afford a lawyer, and not a single case exists of a wealthy person being executed for the crime of murder in the United States. A poorly defended murderer is far more likely to be sentenced to death.

Discussion: What is the real problem here: racism and poverty, or the death penalty? If the racism simply disappeared, and everyone could get a decent legal defense, could the death penalty be fair?

19.12 The Death Penalty is Irreversible, and Miscarriages of Justice are Morally Unacceptable

If someone is executed by a court, and the court has made a mistake, then obviously the mistake cannot be reversed. Bedau states that there have been about four innocent people per year convicted of murder. (He does not state that four people per year have been executed, however). Another source states that 121 people have been released from Death Row since 1973. During the same period, 982 people in the USA have been executed. As one commentator has concluded, that suggests that one executed person in eight was wrongly punished. With the emergence of DNA testing, a number of people have been released for crimes they apparently did not commit, although many people have been found to be innocent because of the work of journalists, not the justice system itself.

Bedau gives several reasons for erroneous judgments: “overzealous prosecution, mistaken or perjured testimony, faulty police work, coerced confessions, seemingly conclusive circumstantial evidence, and community pressure for a conviction [] (Rachels RTTD: 238).

See Rachels TRTTD: 236-237.

19.13 The Death Penalty is Barbaric

William Bowers of Northeastern University argues that the death penalty increases the murder rate, by ‘normalizing’ killing. (Beccaria had made this argument).

19.15 Response to 19.9: The Deterrence Argument

a). Biased Sample Fallacy

If there was a death sentence for smoking on the footpath in Shinjuku, chances are people would not smoke. So why do people think that the death penalty does not work as a deterrent? Victor Grassian criticizes this argument, noting that it may commit a Biased Sample Fallacy. Biased Sample fallacy is an erroneous argument where you base an argument on a sample size that is too small. Example: “ Can I have a cat for a pet?” “No.” “Why not?” “Tigers are cats, and lions are cats, and panthers are cats, and cheetahs are cats. All of these cats are dangerous. So you can’t have a cat, as all cats are dangerous.” The argument does not consider the cats that are not dangerous. Bedau and others who think that the death penalty is not a deterrent seem to make this argument. Murderers typically are either too sure of themselves, or too illogical, to consider the risks of getting caught at the moment of the crime. But what of everyone else? The non- deterrence argument only considers those criminals that were actually caught. Further, if we should stop using the death penalty, on the grounds that it does not work as a deterrent, why not stop using life imprisonment for killers? (See Grassian p.356). Using the same logic, we would stop all punishment, as clearly they did not work on the people that get arrested for those crimes. That’s just absurd.

b). Deterrence does seem to work on even crazy people, or people high on drugs

Grassian notes that deterrence apparently works even on insane people in psychiatric wards (Grassian p.356). As for being drunk, the philosopher Simone de Beauvoir made the following point: alcohol does not make you say or do bad thinks- it merely allows you to do or say what you wanted to say or do. Experiments with vodka have shown that merely thinking that you are drunk will make you more aggressive. In any case, does one not morally responsible for getting inebriated in the first place? If the ‘drunkenness defense’ were universally accepted, if someone commits a crime, it would be advisable to get drunk immediately afterwards.

c). To emphasize the right to life of the murderer seems to neglect the importance of deterring other potential murderers.

Van den Haag makes this point.” Abolitionists appear to value the life of a convicted murderer or, at least, his non- execution, more highly than they value the lives of the innocent victims who might be spared by deterring prospective murderers…[] Sparing the lives of even a few prospective victims by deterring their murderers is more important than preserving the lives of convicted murderers because of the possibility, or even the probability, that executing them would not deter others” (TRTTD: 244)

19.16 Response to 19.11 (DP is not fair):

Fairness is beside the point-

Ernst van den Haag calls this the Distribution problem. He argues that it just is not relevant to the argument as to the fairness of how the death penalty is given. To make the argument at all presupposes that there could be an ideal, fair administration of the death sentence.

If capital punishment is immoral in se, no distribution among the guilty could make it moral. If capital punishment is moral, no distribution would make it moral. Improper distribution cannot affect the quality of what is distributed.” Van den Haag concludes that the ‘fairness argument’ is a Straw Man.’ (Straw Man fallacy is merely when a falsely bad version of the target argument is offered, for example “Darwin says our grandparents are monkeys!.” It is not really a straw man fallacy here, but a fallacy of relevance).

Only murderers are executed- the fact that not all murderers are in fact executed does not make executing some of them any less deserving. If the justice system was more fairly applied, the problem would not arise. That is, the argument appears to presuppose that, ideally, the death penalty could be fair. In the words of an Illinois black senator, himself black, who rejected pleas to stop using the death penalty: “I realize that most of those who face the death penalty are poor and black…I also realize that most of their victims are poor and black…and dead.” Cited in Grassian p. 384.

19.17 Response to 19.12: This is an acceptable loss

Ernst van den Haag bites the bullet on this one, even mentioning by name several people who may well have been executed in error. In the words of another commentator, “ we build bridges, knowing that statistically some builders will be killed during construction; we take great precautions to reduce the number of unintended fatalities. But wrongful executions are a preventable risk.” Van den Haag: “for those who think the death penalty just, miscarriages of justice are offset by the moral benefits and the usefulness of doing justice.” (Note that van den Haag combines Utilitarian and Deontological reasoning in a way that is not always clear- cut.

Discussion: Is this analogy valid?

19.18 Response to 19.13: The Death Penalty is not all that degrading; in any case, being nice is less important than seeing Justice Served

Arguably, (if one is a Kantian, of course), execution may be more dignified than being imprisoned for life, in particular if one has freely, rationally chosen to commit murder. Writes Van den Haag, “Does not life imprisonment violate human dignity more than execution, by keeping alive a prisoner deprived of all autonomy?” Of course the problem here is that this presupposes that the murderer is, in fact, rational. But admitting that murdering someone could in fact be rational ought to fly in the face of Kant’s whole scheme. If only drunken, violent idiots commit murder, on the other hand, why would we be respecting their ‘dignity? In killing them’? I have no idea which way to go on this.

19.19 Punishment and the Death Penalty in Japan

I strongly suggest that you look into how the death penalty is implemented in Japan if you are going to write an essay on it. Pure philosophy is pretty useless without some facts about what goes on in the world.

Amnesty International makes several observations concerning the implementation of the death penalty in Japan. 1). The actual implementation of the death penalty is in total secrecy, with not even family members told of when someone is actually killed. 2). The date of execution is not known to the prisoner, who can remain on death row for decades, only to be taken from their cell at a moments’ notice to be hung. This is enough to drive people insane. 3). Many Japanese on death row were apparently insane before the trial. 4). Death is by hanging, which is not typically instantaneous. The longest time to die between 1948 and 1952 was 37 minutes; the shortest was 4 and a half minutes. The average was 14 minutes. Accidental decapitation is not unknown. 4). The conditions for prisoners on death row are extremely harsh- solitary confinement, and nothing to do in a cell too small to lie down in.

Amnesty International report, “Will this day be my last? The Death Penalty in Japan.”

http://news.amnesty.org/library/Index/ENGASA220062006?open&of=ENG-JPN

Amnesty International Report on Prison Abuse in Japan

http://news.amnesty.org/library/Index/ENGASA220041998?open&of=ENG-JPN

Japan File

http://www.japanfile.com/culture_and_society/social_issues/death_penalty.shtml

Charles Lane “Why Japan Still Has the Death Penalty”, Sunday, January 16, 2005; Page B01

http://www.washingtonpost.com/wp-dyn/articles/A11306-2005Jan15.html

19.20 Filmography

The following films deal with issues covered in these lectures:

Stanley Kubrick, director, Clockwork Orange (discretion advised: this is difficult to watch, and is very violent).

Lars von Trier, director, Dogville (The final scene has a brilliant dialogue concerning retributive justice vs. pitying the criminal).

Marc Forster Monster’s Ball (2001)

Tim Robbins Dead Man Walking (1995)

Discussion Questions.

1). Do you think the death penalty is justified? Why?

WHAT YOU NEED TO KNOW

You should know the strongest arguments for, and against, the death penalty.

You should know the counterarguments for these arguments. ]

You should be able to articulate a response to the question “should Japan retain the death penalty?”

Homework: the Non- Medical Use of Drugs

Read the essays on the drug debate in the Rachels text, and identify the main arguments presented. Are they deontological, or Utilitarian? Or is another principle at play?

Also,

-What are some lethal, but fun activities?

-Which ones are illegal, and which ones are illegal, in Japan?

-Which ones do you think ought to be illegal, which aren’t, or vice versa?

-Which ones should have an age limit? And why would you place an age limit on them?

-Look up the terms ‘autonomy’ and ‘paternalism.’

-What does the word ‘drug’ mean?

-What is the distinction between legal and illegal recreational drugs (besides, obviously, being divided into ‘legal’ and ‘illegal’?)

I hesitate to call Camus a real philosopher, but then I’d say this about a lot of French philosophers.

Dr David Whitehouse 'Fake alcohol' can make you tipsy Tuesday, 1 July, 2003, 17:46 GMT 18:46 UK. BBC News Online science editor http://news.bbc.co.uk/2/low/science/nature/3035442.stm