THE ETHICS OF CAPITAL PUNISHMENT

1
THE ETHICS OF CAPITAL PUNISHMENT
Electric Chair, Andy Warhol, 1971
2
How to Argue About the Death Penalty
Hugo Adam Bedau
3
FACTUAL ISSUES

• Bedau begins his paper by noting that the death
  penalty controversy in the U. S. has largely
  considered certain questions of fact, and has not
  really concentrated on the normative
  propositions crucial to the dispute which are of
  greater importance.
• The questions of fact are four
• 1. Is the death penalty a greater deterrent to
  murder than life imprisonment without parole?
• 2. Is the death penalty applied in a
  discriminatory way?
• 3. What is the risk that an innocent person
  will be executed?
• 4. What is the risk that a convicted murderer
  who is not executed will kill again in or out of
  jail, if not given life without parole ?

4
ANSWERS TO THE FACTUAL QUESTIONS

• For Bedau the answers to these four questions
  are
• 1. There is no evidence that the death penalty
  is a better deterrent to murder than life in
  prison. Both life in prison and execution seem
  about equally ineffective.
• 2. There is good evidence that the death
  penalty is not applied to everyone equally but
  race makes a difference.
• 3. The risk to an innocent person cannot be
  calculated but the risk is not zero.
• 4. There is recidivism amongst murders, and so
  there is that risk that they will kill again.

5
THE ETHICAL RELEVANCE OF FACTS I

• Bedau says that the important thing to see here
  is that the answers to the questions cannot by
  themselves answer the question of the morality of
  the death penalty.
• Even though Bedau thinks that the death penalty
  should be abolished, he says that the facts as
  they stand cannot show that the death penalty
  ought to be eliminated.
• The facts also do not show that life imprisonment
  is better than the death penalty.

6
THE ETHICAL RELEVANCE OF FACTS II

• The death penalty is not the only form of
  punishment in which discrimination occurs, but
  discrimination is found in other kinds of
  punishment as well.
• In addition, and as far as the facts are
  concerned, it can always be argued that such
  discrimination will decrease over time, and, if
  that were the case then one could not use the
  former fact of discrimination as an argument
  against the morality of the death penalty.

7
THE ETHICAL RELEVANCE OF FACTS III

• Bedau says that the important point when we
  consider facts which concern the death penalty is
  that the empirical evidence is not the major
  factor in explaining why settling disputes over
  matters of fact cannot settle the larger
  controversy about the death penalty itself.
• Rather, the larger controversy concerns the
  morality of the death penalty. That is, whether
  the death penalty should be legal or not is a
  moral question which cannot be argued from facts.

8
THE ETHICAL RELEVANCE OF FACTS IV

• Arguments in favor of or in opposition to the
  death penalty will have to be moral arguments.
  They will have to be normative and not just
  practical.
• That is, we have to look at what standard to
  adopt, and not what uses or abuses may follow
  from the adoption of that standard.

9
THE ETHICAL RELEVANCE OF FACTS V

• Bedau As a matter of sheer logic, it is not
  possible to deduce a policy conclusion (such as
  the desirability of abolishing the death penalty)
  from any set of factual premises, however general
  and well supported.
• Bedau Any argument intended to recommend
  continuing or reforming current policy on the
  death penalty must include among its premises one
  or more normative propositions.

10
NORM AND NORMATIVE

• The term normative means of, relating to, or
  determining norms or standards, and a norm is
  a principle of right action binding upon the
  members of a group and serving to guide, control,
  or regulate proper and acceptable behavior.
  (Both definitions from the tenth edition of
  Merriam-Websters Collegiate Dictionary.)
• And Simon Blackburn says that A norm is a rule
  for behavior, or a definite pattern of behavior,
  departure from which renders a person liable to
  some kind of censure. (The Oxford Dictionary of
  Philosophy.)

11
NORMATIVE STATEMENTS AND THE DEATH PENALTY

• Bedau says that normative statements which
  concern the death penalty can be divided into two
  groups
• 1. Those which focus on relevant and desirable
  social goals or purposes.
• 2. Those which express relevant and respectable
  moral principles.
• An example of a social goal is reduction of
  crime, and the question here would be to what
  extent does the death penalty meet the goal of
  reducing crime?
• An example of a respected moral principle is that
  everyone should receive a fair trial.

12
GOALS, PRINCIPLES, AND FACTS

• Bedau thinks that the way to argue about the
  death penalty is to look at the social goals
  relevant to punishment in general, and to look at
  the moral principles which are relevant to
  correct management of the social goals.
• Once we have looked at the social goals which are
  relevant to punishment in general and have
  identified and evaluated the moral principles
  relevant to punishment, then we can consider
  whatever facts are relevant to the issue.
• Thus Bedau says that the issue of the death
  penalty can be resolved in theory by first
  looking at what our social goals are, how these
  should be constrained by our moral principles,
  and then by looking at whatever facts are
  relevant to the use of the death penalty as a
  kind of punishment.

13
PUNISHMENT AND RELEVANT SOCIAL GOALS I

• Goal 1 Punishment should contribute to the
  reduction of crime accordingly, the punishment
  for a crime should not be so idle a threat or so
  slight a deprivation that it has no deterrent or
  incapacitative effects and it should not
  contribute to an increase in crime.
• Goal 2 Punishments should be economical -
  they should not waste valuable social resources
  in futile or unnecessarily costly endeavors.

14
CONSIDERATION OF THE FIRST TWO GOALS

• The goals of reducing crime and doing so cheaply
  have been seen by many as arguments in favor of
  the death penalty.
• However, Bedau says that opponents of capital
  punishment need not reject these goals, and its
  defenders cannot argue that accepting these goals
  vindicates their preferred policy.
• Bedau thinks then that thinking that capital
  punishment is the best means of reducing crime
  and doing so in the cheapest way can be
  questioned.

15
THE JUSTIFICATION OF PUNISHMENT AS A MEANS TO AN
END

• The justification of a particular punishment,
  such as capital punishment, as a means to an end
  or ends, such as reducing crime and being
  economical, must involve two steps
• 1. It must be shown that an end or ends which a
  punishment is a means of reaching is desirable.
  For instance, if an end is a reduction in crime,
  then it must be shown that a reduction in crime
  is a good thing.
• 2. It must be shown that punishment is the
  best means to that end or ends. Thus it must be
  shown that the end cannot be better achieved
  without punishment, that there is no better means
  of reducing crime apart from punishment. For the
  death penalty, this would mean that it would have
  to be shown that a reduction in the murder rate
  cannot be achieved without capital punishment.

16
PUNISHMENT AND RELEVANT SOCIAL GOALS II

• Goal 3 Punishment should rectify the harm and
  injustice caused by crime.
• Goal 4 Punishment should serve as a recognized
  channel for the release of public indignation and
  anger at the offender.
• Goal 5 Punishment should make convicted
  offenders into better persons rather than leave
  them as they are or make them worse.

17
CONSIDERATION OF THE LAST THREE GOALS I

• As Bedau says, if you accept goal 5 you must
  object to the death penalty since you cannot
  improve a person by killing him.
• He also says that he will not try to argue
  against the death penalty on this goal, and notes
  that many who are in favor of the death penalty
  will not be persuaded by it.
• Bedau recognizes that one can object to the third
  goal that it is not really a goal of punishment
  to rectify an injustice.

18
CONSIDERATION OF THE LAST THREE GOALS II

• The problem with rectifying the crime of murder,
  either through imprisonment or through the death
  penalty, is that there is no possible way to
  rectify the crime of murder. The only way to
  rectify murder would be to bring the victim back.
• Because that is the case, Bedau says that it may
  make the fourth goal of punishment being an
  outlet for anger even more important.

19
CONSIDERATION OF THE LAST THREE GOALS III

• In fact, Bedau recognizes that some people think
  that this fourth goal of punishment is the best
  argument for the death penalty. They think that
  it is important because it is necessary to have a
  punishment which can express the outrage that
  citizens perhaps especially the family and
  friends of the victim feel towards a murderer.
• That is, punishment appropriate to the expression
  of anger is necessary for a mentally healthy
  society, and the death penalty is the best means
  of expressing that anger.

20
POSSIBLE RESPONSES TO GOAL 4 AS A DEFENSE OF
CAPITAL PUNISHMENT I

• How might we respond to the fourth goal as an
  argument for the death penalty - that it provides
  for the release of public anger directed to the
  murderer?
• Bedau mentions three possible responses
• 1. Reject as false the view that the death
  penalty provides for the release of public anger,
  and is necessary for the mental health of a just
  society.
• 2. Concede that the death penalty does function
  as a means of dealing with public anger, but
  argue that it is only justified in a small number
  of cases, such as for the likes of Timothy
  McVeigh.

21
POSSIBLE RESPONSES TO GOAL 4 AS A DEFENSE OF
CAPITAL PUNISHMENT II

• 3. Concede that it is legitimate and important
  to have some form of punishment which is an
  outlet for public anger directed towards a
  murderer, but that the death penalty is not the
  right punishment since it is ruled out on grounds
  of morality.
• For Bedau, both the second and third responses
  are sound.

22
ANGER I

• For Bedau, simple anger at the crime of murder is
  not enough by itself to justify the death penalty
  in any case.
• We need to know more details about the particular
  crime including the context in which it occurred
  and what caused it.
• Bedau says that we rarely know enough about the
  particulars in a crime to know whether to know to
  what extent our anger is justified, and whether
  we are justified in putting the person to death.

23
ANGER II

• Bedau thinks that it is curious that those who
  argue for the death penalty on the basis that it
  is needed as an outlet for public outrage
  nevertheless reject some forms of execution which
  are true expressions of hatred and anger at
  murderers.
• We no longer behead, crucify, torture, or
  dismember murderers, and the preferred method of
  execution now is lethal injection, which Bedau
  says seems too calm a form of execution to be an
  expression of outrage at the crime.

24
CONSEQUENCES, DUTY, AND PUNISHMENT

• Bedau If the purposes or goals of punishment
  lend a utilitarian quality to the practice of
  punishment, the moral principles relevant to the
  death penalty operate as deontological
  constraints on their pursuit.
• Thus, the purposes or goals of punishment are to
  be valued in terms of the positive consequences
  which their implementation has for society, but
  kinds of punishment utilized are constrained by
  moral principles which we have a duty to
  recognize.

25
MORAL PRINCIPLES RELEVANT TO THE DEATH PENALTY I

• Principle 1 No one should deliberately and
  intentionally take anothers life where there is
  a feasible alternative.
• (How does this pertain to the issue of
  euthanasia? Should other language be added here
  to make this first principle relevant to that
  issue?)
• Principle 2 The more severe a penalty is, the
  more important it is that it be imposed only on
  those who truly deserve it.
• Principle 3 The more severe a penalty is, the
  weightier the justification required to warrant
  its imposition on anyone.

26
MORAL PRINCIPLES RELEVANT TO THE DEATH PENALTY II

• Principle 4 Whatever the criminal offense, the
  accused and convicted offender does not forfeit
  all his rights and dignity as a person.
  Accordingly, there is an upper limit to the
  severity - cruelty, destructiveness, finality -
  of permissible punishments, regardless of the
  offense.
• Principle 5 Fairness requires that punishments
  should be graded in their severity according to
  the gravity of the offense.
• Principle 6 If human lives are to be risked,
  the risk should fall more heavily on wrong-doers
  (the guilty) than on others (the innocent).

27
MORAL PRINCIPLES RELEVANT TO THE DEATH PENALTY III

• Bedau says that these principles are either
  implicitly or explicitly recognized by society in
  practice.
• And these principles put limits on what we can
  and cannot do to someone who has committed a
  crime.
• Bedau says that these principles are corollaries
  or theorems of the general proposition that life,
  limb, and security of person - of all persons -
  are of paramount value.
• Because of this general principle, it follows
  that we can only interfere in the life of another
  to the extent to which this is necessary to
  protect the rights of others.
• This is why principle 5 outlaws torture - only
  minimal interference in the life of another, even
  a criminal, is morally permissible.

28
MORAL PRINCIPLES RELEVANT TO THE DEATH PENALTY IV

• Bedau recognizes that none of these principles
  rules out the death penalty.
• In fact, he says that he knows of no moral
  principle which by itself would rule out the
  death penalty
• Even so, these principles do place a heavy burden
  on anyone who advocates the death penalty to show
  that it is necessary when locking up a criminal
  will just as well protect society.
• Imprisoning someone for life is less intrusive
  then, and is more in conformity with the
  principles, than capital punishment.

29
MORAL PRINCIPLES RELEVANT TO THE DEATH PENALTY V

• Perhaps the principle which would seem to argue
  most favorably for the death penalty is number 5
  that the punishment should fit the crime. Thus,
  if murder is the worst crime, which it is, then
  it should have the severest penalty.
• But even so, Bedau says that it does not follow
  from this that the punishment has to be death.
  The severest punishment could be life without
  parole.

30
LEX TALIONIS

• It does not follow, Bedau says, unless you accept
  lex talionis - an eye for an eye, a tooth for a
  tooth, a life for a life - that the punishment
  should be the same as the crime, so that if a
  person kills he should be killed.
• But Bedau says that lex talionis is not a sound
  principle on which to base punishment in general.
• He does not say why, but the reason is that not
  all crimes can be repaid with the same kind of
  punishment - child abuse and rape for instance.

31
PRINCIPLE SIX I

• Bedau says that the principle of greater interest
  is number 6 - that if humans lives are to be
  risked, better to risk the lives of the guilty
  than the innocent - which is what van den Haag
  will say.
• The idea is that it is better to execute all
  murderers so that none of them can kill again
  than it is to execute none of them so that we
  avoid the risk of executing an innocent person.

32
PRINCIPLE SIX II

• For van den Haag, if we do not have capital
  punishment then there is a risk to innocent
  people that a convicted murderer released from
  prison may kill again, and if we do have capital
  punishment, the risk is that an innocent person
  may be put to death.
• But for van den Haag it is clear that it is
  better to place the risk of the killing of the
  innocent on the lives of convicted felons than it
  is to place the risk of being killed on the
  innocent population.

33
PRINCIPLE SIX III

• Bedau says that this argument is not as
  conclusive as it may seem, and it is not enough
  to outweigh other arguments against the death
  penalty.
• And he says that it is really a disguised version
  of the first policy goal of punishment which is
  that it should reduce crime.
• Thus this principle argues that reducing crime is
  more important than anything else.
• Bedau also objects that we cannot really compare
  the two risks discussed - the risk that an
  innocent person will be executed as opposed to
  the risk to the innocent given no death penalty.

34
BEDAUS CONCLUSIONS ABOUT THE DEATH PENALTY

• 1. The death penalty is primarily a means to one
  or more goals, but is probably not the best means
  of reaching those goals.
• 2. Several principles favor abolition of the
  death penalty.
• 3. However, there is no conclusive argument
  either for or against the death penalty. (An
  argument which seems conclusive to one side, such
  as lex talionis, the other side does not have to
  accept.)
• 4. The goals and principles which Bedau has
  looked at have no obvious rank or relative
  weighting - it is hard to say which are more
  important than others.

35
GOVERNMENT POWER

• Bedaus first argument against the death penalty
  is that the power which the government has over
  the lives of individuals should be decreased and
  not increased.
• Of course, some government power is necessary to
  have a civil society, but the governments power
  should be constructive not destructive.
• A governments power should enhance liberty not
  decrease it.
• The governments use of the death penalty is a
  destructive not a constructive use of power.
• For Bedau, it is the ultimate symbol of
  government power.

36
PAST AND FUTURE I

• Bedaus second argument against the death penalty
  is that the goals and principles of punishment
  should be directed towards the future, not the
  past.
• We cannot do anything to benefit the dead
  victims of crime. This is the idea that reality
  is such that some problems may have no solutions,
  at least not the kind we would wish.
• As Bedau himself wonders how many people would
  be opposed to the death penalty if executing a
  murderer would bring back his victim? Would we
  not owe it to the victim?

37
PAST AND FUTURE II

• The point of looking to the future is that we can
  try to do something for the living in the time
  ahead of them even if we cannot go back to the
  past to help the victim.
• What we do is try to protect the innocent, try to
  console those affected by crime, and try to
  prevent future crimes.
• And Bedau thinks that none of these
  future-directed constructive goals demands
  capital punishment.
• For Bedau the death penalty, in being vindictive
  and retributive and expressing our outrage at the
  murder of an innocent person, are all directed
  towards the past.

38
FALSE PICTURES

• Bedaus third argument against the death penalty
  is that the death penalty gives a false picture
  of man and society.
• Bedau Far from being a symbol of justice it is
  a symbol of brutality and stupidity.
• Bedau thinks that the common conception of the
  criminal is as an autonomous Kantian moral agent
  who freely and knowingly acts deliberately to
  kill another.
• But Bedau says that the killers actually on death
  row do not resemble Kants rational moral agents.

39
CONCLUSION

• For Bedau, the death penalty question concerns
  how controversial social goals, controversial
  moral principles, and disputed general facts are
  to be balanced and reasonably assessed.
• Bedau thinks that deeper rational argument can
  decide the matter against the death penalty, but
  in this paper he has only attempted to sort out
  what the difficulties are.

40
The Ultimate Punishment a Defense
Ernest van den Haag
41
PRELIMINARY CONSIDERATIONS

• van den Haag notes that, on average, there are
  about 20,000 homicides a year in the U. S., but
  fewer than 300 convicted murderers are sentenced
  to death - about 1.5.. Accordingly, most
  convicts sentenced to death are likely to die of
  old age.
• It is interesting to note here that van den Haag
  finds death row as a semipermanent or permanent
  if they are never executed residence to be
  cruel, because convicts are denied the amenities
  of normal prison life, such as contact with
  other prisoners. (Cf. Kant.)
• Even though the execution rate is so small, van
  den Haag says that the death penalty raises
  important moral questions independent of the
  number of executions.

42
DISCRIMINATION AND CAPRICIOUS DISTRIBUTION I

• van den Haag notes that some people object to the
  death penalty because it is not evenly applied.
• This can be for reason of discrimination, where
  minority murderers may be more likely to be
  sentenced to death and executed than murderers
  who form part of the majority population, or for
  reason of caprice, as when one person is executed
  and another not for no predictable or clearly
  understandable reason.
• In addition, money may make a difference, so that
  of two equally guilty people one is executed and
  another not based on the affordable quality of
  his or her legal defense.

43
DISCRIMINATION AND CAPRICIOUS DISTRIBUTION II

• However, van den Haag says that how the death
  penalty is in fact applied - whether or not it is
  evenly and so fairly applied - is irrelevant to
  the morality of the punishment.
• The death penalty is either moral or immoral in
  itself.
• You cannot make it moral if it is immoral by
  applying it equally, and you cannot make it
  immoral if it is moral by only applying it to
  some convicted murderers and not to others, for
  whatever reason or reasons. (Its uneven
  application would be a separate moral issue.)

44
DISCRIMINATION AND CAPRICIOUS DISTRIBUTION III

• Further, in being applied unevenly, the death
  penalty is the same as every other punishment, in
  that every punishment is also unevenly applied.
• And van den Haag says that Maldistribution of
  any punishment among those who deserve it is
  irrelevant to its justice or morality.
• The only relevant question for van den Haag
  concerning the death penalty is does the
  convicted murderer deserve to be executed?

45
DISCRIMINATION AND CAPRICIOUS DISTRIBUTION IV

• If the death penalty is morally justified for
  convicted murderers, then it does not matter to
  the morality of the punishment whether one
  murderer gets executed and another does not.
• van den Haag Even if poor or black convicts
  guilty of capital offenses suffer capital
  punishment, and other convicts equally guilty of
  the same crimes do not, a more equal
  distribution, however desirable, would merely be
  more equal. It would not be more just to the
  convicts under the sentence of death.

46
DISCRIMINATION AND CAPRICIOUS DISTRIBUTION V

• Even if a guilty person is not executed, he still
  deserves to be executed if capital punishment is
  morally justified.
• van den Haags way of putting this is to say that
  equality is less important morally than justice.
• And he says that Punishments are imposed on
  persons, not on racial or economic groups. Guilt
  is personal. The only relevant question is does
  the person to be executed deserve the
  punishment?

47
DISCRIMINATION AND CAPRICIOUS DISTRIBUTION VI

• According to van den Haag, what is a just
  punishment for an offense is just no matter
  whether it is evenly or unevenly distributed
  amongst the guilty.
• van den Haag Whether or not others who deserve
  the same punishment, whatever their economic or
  racial group, have avoided execution is
  irrelevant.
• van den Haag Justice requires that as many of
  the guilty as possible be punished, regardless of
  whether others have avoided punishment.

48
DISCRIMINATION AND CAPRICIOUS DISTRIBUTION VII

• For van den Haag, it is not just to let people
  escape punishment who deserve to be punished, but
  that does not make punishment unjust for those
  who are punished.
• And van den Haag notes that some inequality of
  punishment is unavoidable in any legal system as
  a practical matter. People are not perfect, and
  so their legal and penal systems are not going to
  be perfect either.
• But, for van den Haag, unequal justice is better
  than injustice, and injustice is what we have
  when anyone escapes punishment which he deserves.

49
RISK TO THE INNOCENT I

• van den Haag says that there seems little doubt
  that innocent people have been executed, and that
  such people will also be unjustly executed in the
  future.
• But he says that nearly all human activities, and
  not just punishment, carry some risk to the
  innocent. In this sense then punishment,
  including capital punishment, is not unusual.
• Innocent people can be killed in driving
  accidents or from construction, for instance, but
  we do not give these things up because we think
  that the benefits of travel and construction
  outweigh the risks to the innocent.

50
RISK TO THE INNOCENT II

• Analogously, van den Haag says that the
  occasional execution of an innocent person is
  outweighed by the benefits to society of the
  death penalty.
• The chief benefit of the death penalty to
  society, for van den Haag, is its justness or its
  morality.
• This is because, for van den Haag, the death
  penalty is the only appropriate punishment for
  the crime of murder, and not to punish murderers
  by executing them would be unjust, and so not a
  benefit to society.

51
RISK TO THE INNOCENT III

• van den Haag also maintains that, for people who
  think that the death penalty is immoral in any
  case - whether evenly applied or not, or whether
  or not an innocent person is executed - the
  occasional miscarriage of justice which happens
  from executing an innocent person can hardly be
  the decisive reason for finding it immoral.

52
DETERRENCE I

• van den Haag admits that there is no conclusive
  evidence that the death penalty is a better
  deterrent to crime than other kinds of
  punishment.
• However, he does not think that the issue of
  deterrence argues either for or against the death
  penalty.
• He thinks that those people who are opposed to
  the death penalty would be opposed to it even if
  it were shown to be a better deterrent than some
  other form of punishment, say life in prison
  without parole.

53
DETERRENCE II

• van den Haag says that opponents of the death
  penalty appear to value the life of a convicted
  murder or, at least, his non-execution, more
  highly than they value the lives of the innocent
  victims who might be spared by using the death
  penalty to deter prospective murderers.
• van den Haag also says that he would still favor
  the death penalty for murder even if it were
  shown that capital punishment is not a better
  deterrent than other forms of punishment, and
  would only favor its abolition if evidence showed
  that executions increased rather than decreased
  the murder rate by functioning as a deterrent.
• But van den Haag does think that the threat of
  capital punishment is a better deterrent to crime
  than other forms of punishment because of its
  finality.

54
DETERRENCE III

• van den Haag thinks that saving the lives of
  innocent people by using the threat of capital
  punishment is more important than preserving the
  lives of convicted murderers by thinking that the
  death penalty is not a deterrent.
• For van den Haag, the important point is that the
  lives of innocent people are valuable, whereas
  the lives of convicted murderers are not due to
  their crimes.
• van den Haag says that it is the purpose of the
  law to protect the innocent, not the guilty.

55
DETERRENCE IV

• van den Haag recognizes that murder rates are
  determined by many factors, and recognizes that
  we cannot be sure that by threatening execution
  for a convicted murderer that the murder rate
  will thereby be lower than it would if we did not
  have that form of threatened punishment.
• Even so he maintains that the threat of execution
  does deter at least some people from murdering
  others, and this deterrence is an argument in
  favor of the death penalty in addition to his
  fundamental argument that there is no justice for
  the crime of murder without it.

56
DETERRENCE V

• Thus whether it is a deterrent or not, van den
  Haag says that The severity and finality of the
  death penalty is appropriate to the seriousness
  and finality of murder. And this
  appropriateness is moral appropriateness.

57
COST

• Some people object to the death penalty because
  they maintain that it is more expensive than life
  imprisonment. This is because of the legal costs
  which must be born by the state in the lengthy
  appeals process.
• van den Haag says that this argument is flawed
  by the implied assumption that life prisoners
  will generate no judicial costs during their
  imprisonment.
• This cannot be assumed, and so the issue of
  expense can be questioned, but even if the cost
  of pursuing the death penalty is more expensive
  than life imprisonment, still the death penalty
  is justified on grounds of justice.

58
SUFFERING I

• Some people object to the death penalty on the
  grounds that it makes the murderer on death row
  suffer more than his victim did - for instance,
  isolation and anxiety from anticipating execution
  - and no punishment ought to inflict more
  suffering on the criminal than the victim.
• This view is related to lex talionis, or the law
  of retaliation which says that the punishment
  should fit the crime. According to this
  principle, what the criminal took from his victim
  society should take from the criminal. In the
  case of murder this would be a life for a life.
  And it would follow from considering suffering as
  just punishment in relation to lex talionis that
  the criminal should suffer at least as much as
  his victim, but not more than his victim.

59
SUFFERING II

• van den Haags first response to this objection
  to the excessive suffering caused by capital
  punishment is that we cannot really know if the
  murderer suffers more than the victim.
• However, whether he does or not is irrelevant
  since, for van den Haag, the crucial point here
  is that the victim did not deserve to suffer
  whatever she suffered.
• van den Haags second response is that the
  limitations of the lex talionis were meant to
  restrain private vengeance, not the social
  retribution which has taken its place.

60
SUFFERING III

• van den Haag Punishment - regardless of the
  motivation - is not intended to revenge, offset,
  or compensate for the victims suffering, or to
  be measured by it.
• van den Haag Punishment is to vindicate the law
  and the social order undermined by the crime.
• van den Haag This is why a kidnappers penal
  confinement is not limited to the period for
  which he imprisoned his victim not is a
  burglars confinement meant merely to offset the
  suffering or harm he caused his victim nor is it
  meant only to offset the advantage he gained.

61
THE LEGITIMIZATION OF UNLAWFUL KILLING I

• van den Haag Another argument, heard at least
  since Beccaria is that, by killing a murderer, we
  encourage, endorse, or legitimize unlawful
  killing.
• Yet van den Haag says that although all
  punishments are meant to be unpleasant, it is
  seldom argued that they legitimize the unlawful
  imposition of identical unpleasantness. For
  instance, imprisonment is not thought to
  legitimize kidnapping.

62
THE LEGITIMIZATION OF UNLAWFUL KILLING II

• For van den Haag, The difference between murder
  and execution is that the first is unlawful and
  undeserved, the second a lawful and deserved
  punishment for an unlawful act.
• van den Haag The physical similarities of the
  punishment to the crime are irrelevant. The
  relevant difference is not physical, but social.

63
WHY DOES SOCIETY PUNISH?

• van den Haag notes that society threatens
  punishment in order to deter crime, and society
  imposes punishment in order to make the threats
  credible. Thus the threat of punishment for a
  crime committed is of no use unless the
  punishment is enforced.
• van den Haag says that both the threat of
  punishment and actual punishment are necessary to
  deter crime. And the fact that they function as
  deterrents is sufficient practical justification
  for them.
• Societies also punish as retribution for the
  crimes actually committed. And this retribution
  is an independent moral justification.

64
THE JUSTIFICATION OF PUNISHMENT

• van den Haag says that An explicit threat of
  punitive action is necessary to the justification
  of any legal punishment. Thus, a punishment is
  not just if there is no prior law which threatens
  the punishment as a consequence for committing a
  particular crime.
• But van den Haag notes that a prior law
  legitimizes the threatened punishment only if
  the threat is warranted. To that end, To be
  sufficiently justified, the threat of
  punishment must have a rational and legitimate
  purpose.
• Thus, van den Haag says that Your money or your
  life does not qualify nor does the threat of an
  unjust law nor, finally, does a threat that is
  altogether disproportionate to the importance of
  its purpose.

65
JUST PUNISHMENT OF CRIMINAL ACTION I

• For van den Haag, punishment is not only
  practically justified but it is morally
  justified, and is so justified independently of
  its practical justification.
• That punishment is morally justified means that
  the infliction of legal punishment on a guilty
  person cannot be unjust.
• It cannot be unjust because when a criminal
  commits a crime he volunteers to assume the risk
  of being punished for the crime which he commits.

66
JUST PUNISHMENT OF CRIMINAL ACTION II

• Because the punishment which a criminal receives
  is the one which he risked suffering, it is not
  unjust.
• In the case of the death penalty, since a
  murderer voluntarily risks the death penalty in
  deliberately killing an innocent person, the
  punishment of death for him is not unjust.
• Further, there is a disparity of volunteering to
  risk something here between criminal and victim
  since, whereas the criminal voluntarily risks
  being punished in committing his crime, his
  victim volunteered to risk nothing.

67
JUST PUNISHMENT OF CRIMINAL ACTION III

• For van den Haag, because
• A) a murderer voluntarily risks execution in
  murdering
• B) his victim did not voluntarily risked being
  killed and
• C) because we have the advance threat of
  execution for murder,
• It follows that capital punishment is just.

68
IS THE DEATH PENALTY EXCESSIVE?

• However, van den Haag recognizes that, although
  capital punishment cannot be unjust in this
  sense, still people might object that it is
  overly punitive and is morally degrading.
• To view the death penalty as overly punitive one
  would think that no crime, not even first degree
  murder, warranted this punishment.
• And here van den Haag says that Such a belief
  can be neither corroborated nor refuted it is an
  article of faith.
• van den Haag thinks that the murderer does not
  have the same right to life which everyone else
  has. Rather, he forfeits his right to life
  because of his crime. Not only is it not
  excessive, but it is the only just punishment for
  the crime of murder.

69
IS THE DEATH PENALTY MORALLY DEGRADING? I

• Some objectors to the death penalty might argue
  that it is immoral because everybody, the
  murderer no less than the victim, has an
  imprescriptible (natural?) right to life.
• (An imprescriptible right is one that cannot in
  any circumstances be taken away or abandoned.
  Thus if there is an imprescriptible right to life
  then the murderer has it as much as his or her
  victim and so cannot for this reason be
  executed.)
• van den Haag says that he agrees here with
  Jeremy Benthams view that any such natural and
  imprescriptible rights are nonsense upon
  stilts.

70
IS THE DEATH PENALTY MORALLY DEGRADING? II

• Further, van den Haag cites both Kant and Hegel
  who thought that, far from degrading the
  executed convict, the death penalty affirms his
  humanity by affirming his rationality and his
  responsibility for his actions.
• This of course assumes that all adults, including
  murderers, are rational, and do not act
  irrationally when killing, and it assumes that
  they are capable of taking responsibility for
  their actions.
• We have already seen that Bedau does not think
  that the average person on death row much
  resembles a Kantian rational moral agent, and so
  would find van den Haags argument here
  unconvincing.

71
IS THE DEATH PENALTY MORALLY DEGRADING? III

• Both Kant and Hegel thought that execution is
  required to preserve the convicted murderers
  dignity as a rational moral agent.
• As van den Haag puts it They thought that
  execution, when deserved, is required for the
  sake of the convicts dignity. (Does not life
  imprisonment violate human dignity more than
  execution, by keeping alive a prisoner deprived
  of all ? autonomy?)

72
IS THE DEATH PENALTY MORALLY DEGRADING? IV

• One might question the use of the term all in
  the preceding quote since in fact it is death
  which deprives a person of all autonomy. The
  incarcerated individual still has some autonomy -
  freedom of thought for instance.
• If the person did not have this freedom of
  thought then he could not be protected by some
  human rights theories which say that convicted
  killers should not be executed because they still
  have the right - fundamental to all persons - to
  dialogue, to be a partner in the search for
  truth.

73
DEATH AND THE DEATH PENALTY

• van den Haag thinks that common sense does not
  see normal death as inhuman. This is because
  death is an essential part of our humanity.
• Therefore, those, such as Justice Brennan, who
  see the death penalty as morally degrading must
  see death as inhuman when it is neither natural
  nor accidental.
• van den Haag says that capital punishment tells
  the convicted killer that he is not fit to be a
  member of society, that his fellow humans have
  found him unworthy of living.
• Because of his crime, the murderer is being
  expelled from the realm of the living.

74
THE SELF-DEGRADATION OF MURDER

• In deliberately murdering, the killer degrades
  himself as a person, and the death penalty is
  simply societys recognition of his
  self-degradation.
• For van den Haag, the essence of capital
  punishment is societys recognition that the
  killer has degraded himself by killing.
• To believe that it is the execution which
  degrades the criminal rather than the act of
  murder is to get things the wrong way around.
• For van den Haag, capital punishment is the only
  punishment which fits the crime of murder.

75
SHOULD EXECUTIONS BE TELEVISED? I

• No, according to van den Haag, and this is the
  case even if, by televising, it might be thought
  to be a greater deterrent than it is without
  making the execution public.
• The reasons, according to van den Haag, are
• 1. The death of even a murderer, however
  well-deserved, should not serve as public
  entertainment.
• 2. Television would unavoidably trivialize
  executions. This is because they would appear
  between game shows, situation comedies, and the
  like.

76
SHOULD EXECUTIONS BE TELEVISED? II

• 3. A televised execution would present the
  murderer as the victim of the state. This is
  because televised executions would focus on the
  physical aspects of the punishment, rather than
  the nature of the crime and the suffering of the
  victim. As a result, the moral significance of
  the execution would not be communicated to the
  audience. Rather television would shift the
  focus to the pitiable fear of the murderer.