Justice, Punishment, Ethics: Philosophy and the Law I

Philosophy of Law at Waseda University Law School, 2007

Sunday, May 06, 2007

Week 12: The Death Penalty

Lectures 12 Capital Punishment I

Arguments Against the Death Penalty

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.


Lecture 19: The Death Penalty II

Lecture 19
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 Simply 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[1] 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). 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.[2] 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?”
[1] I hesitate to call Camus a real philosopher, but then I’d say this about a lot of French philosophers.
[2] 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

Friday, May 04, 2007

Introduction: Philosophy of Law

Law and Philosophy
Waseda School of Law

1.1 Introduction to the Philosophy of Law

What is Philosophy?
The question “what is philosophy?” is itself a philosophical question. The etymology of the term philosophy sheds a little light: it is a Greek term meaning “love of wisdom” ( philos means love, sophia means wisdom) . This does not mean that to love wisdom makes you wise, of course.
Robert Lane, professor of philosophy at the University of West Georgia, defines philosophy as follows:

Philosophy (definition) the area of inquiry that attempts to discover truths involving fundamental concepts, such as concepts of God, knowledge, truth, reality, the mind and consciousness, free will, right and wrong. (Lecture notes, PHIL:4110).


I find this too ambitious. Whenever philosophy hits upon actual evidence (a requisite of truth), it ceases to be philosophy. It becomes science. I would say that philosophy is the analysis of any issue worth discussing that cannot be answered through science alone. The best we can do with philosophy is to clarify any given debate.

In this course we will be considering a number of philosophical questions pertinent to law, in particular issues in ethics and politics. I will not assume that there is a single answer to these questions, but this is not to say that all answers are equally valid. We need to think of the various standard philosophical answers to these questions, and we need to have some way of assessing them.

Philosophy of Law concerns the following questions . I have included the names of some thinkers who have attempted to answer these questions.

•Why is law important?
•Wouldn’t we be better off without any laws? (Anarchy) . Ian Hinckfuss
•What would society be like without laws?
•Could there be a society without law? (Thomas Hobbes).
•Does anyone have an obligation to obey the law? If so, what is the source of this
obligation? (Plato’s Socrates).
•In the absence of a world government, is international law possible? (Kant).
•What is the nature of law itself, and in particular, what is the relationship between law
and morality? (Natural Law Theory vs. Legal Positivists).
•What is the nature of legal reasoning? (Legal Formalists vs. Legal Realists vs.
Constructivists).
•What are the different types of freedom and liberty? (Isaiah Berlin).
•How might freedom of speech be defended? (Mill).
•How might religious freedom be defended? (Locke).
•What is a right?
•What is the correct scope of the right to privacy? Does it cover abortion?