Caveats on Readings and PowerPoint Presentations

1
Caveats on Readings and PowerPoint Presentations

• The readings in Matters of Life and Death do not
  straightforwardly argue for one position or
  another because they are survey articles.
• When you argue for one position, you should not
  mimic these readings. You should rather state
  your position first, and write only what you need
  to say in order to establish your position.
• PowerPoint Presentations in the course generally
  do not try to follow and summarize what the
  authors of readings say. Presentations cover the
  same topics in a different organization and
  perspective from the readings do. They
  selectively engage with the readings and
  sometimes add new materials.

2
Assignments for Thursday

• Read
• Hugo Adam Bedau, 30 Equal Justice and Capital
  Punishment, 188-190 of the text
• McCleskey v. Kemp in Library Reserve
• Randall Kennedy, Homicide, Race, and Capital
  Punishment in Library Reserve
• The Diagnostic Paper is due on Thursday. (See
  instructions on our website.)

3
Capital Punishment

• 2006 Makoto Suzuki
• Some of the materials are adapted from Prof.
  Donald Hubins handouts and presentations. The
  copy rights of them belongs to him.

4
Aims of Day 3

• Introduce theoretical frameworks of death penalty
  disputes, and consider whether the state should
  give death penalty for certain individuals.
• We proceed in the following order
• Death penalty as a form of punishment
• Moral rights and death penalty
• Utilitarianism and death penalty
• Retributivism and death penalty
• The dignity of a person and death penalty

5
1. Death penalty as a form of punishment
6
Death Penalty as a Form of Punishment

• Death penalty is a form of punishment. Thus, a
  promising approach to assessing capital
  punishment is to ask the following two questions
• Do the considerations that justify punishment
  in general support death penalty?
• Do the considerations that disqualify ways of
  punishment apply to death penalty?
• If one takes this approach, then, as Bedau says
  on pp.169-70, We are not likely to assess the
  morality of capital punishment correctly unless
  we understand the morality of punishment in
  general.
• Thus, we start with considering what
  considerations are relevant to assessment of
  punishment in general.

7
The Need for Justification (Bedau, 10, p.170)

• Punishment stands in need of justification
  because
• By definition, it involves the intentional
  infliction of pain or some other consequence
  normally considered unpleasant.
• These undesirable consequences are typically
  inflicted against the wishes of the person
  punished.

8
Philosophical Problems in the Justification of
Punishment

• General Justification
• Is any system of punishment by the state morally
  justified? If so, upon what basis? (This
  involves considering alternative responses to
  crimee.g., therapeutic rehabilitation,
  reparation to victims etc.)
• There are arguments for alternative responses
  over punishment, but we wont examine them. This
  is not because they are silly. Check the links
  above.
• The Distribution of Punishment
• Whom should we punish? Why? (This is sometimes
  called the question of title.)
• How much should we punish and in what ways? Why?
  (This is sometimes called the question of
  severity.)

9
2. Moral rights and death penalty
10
Justifying Punishment Why Not Appeal to Moral
Rights?

• Arguing for a moral claim, people often defend it
  on the basis of having or losing certain rights.
• Ex Ray should pay money to Cathy because she
  has a right to be compensated for the damage he
  made.
• So, justifying punishment, some might say
• Criminals should be punished because they have
  forfeited their rights (Bedau, 162) or
• Criminals should be punished because the
  society has a right to punish the guilty (Bedau,
  170)

11
Legal v. Moral Rights

• The question is whether punishment is morally
  justified. So charity requires that we NOT
  interpret rights justifying (legal) punishment
  as legal rights.
• If they are legal rights, it begs the question.
  Legal rights are determined by laws, and it is
  the moral justifiability of the (criminal) laws
  that is questioned.
• Plausibly rights in this context are moral
  rights, which exist independently of laws.

12
Problems Specific to Using Moral Rights in
Justifying Punishment

• Even if one of these claims is correct, it does
  not settle the question Should the state punish
  the guilty?
• As Bedau points out (on 164-5), even if the
  guilty have forfeited their rights, taken alone,
  it does not imply (by sheer logic) that someone
  should punish them.
• It just means that the guilty cannot claim to be
  entitled to certain things.
• Even if the state has the right to punish the
  guilty, it does not entail that the state should
  punish them.
• It just means that the state may punish them.
• Even if one of these claims is correct, it does
  not settle the questions of severity How much
  should we punish and in what ways? Why?

13
Appeal to Rights General Problems

• Many things about moral rights are controversial.
  Ex.
• What kinds of rights there are? (Are there
  privacy rights, property or copy rights, rights
  to non-interference from others, rights to
  education, rights to clean air etc.?)
• Whether the state has the right to punish is also
  controversial.
• Can one transfer rights to others by consent, or
  forfeit them by doing certain things (like
  wrongs)? If so, can one lose any kind of rights,
  even the right to life?
• So if you claim the guilty forfeit rights
  (including the right to life), you need an
  argument for the claim.
• This is also true of the opponents claim that
  death penalty is prohibited because one cant
  lose the right to life.
• Are all rights natural, i.e., does everyone has
  them merely being a person? Or are some or all
  rights non-natural, i.e., does the possession
  depend on social system (e.g., capitalism),
  personal merits, benefits it produces, etc.?

14
Continued

• Who have rights? (Do fetuses or animals have
  rights?)
• When two rights conflict, which right must
  prevail?
• Are rights unlimited? (Can a person do anything
  to what she has rights to, e.g., her life, body,
  property, liberty? Are the rights valid beyond
  time and space? )
• It seems that we cannot rationally settle these
  questions by appealing to moral rights.
• Because of the general problems, we need to
  consider (1) the considerations that can justify
  claims of rights, and (2) the consideration that
  can limit claims of rights.
• In the question of justifying punishment, (1) are
  primarily utility and desert. (2) is dignity as a
  person. So we will examine these considerations.

15
3. Utilitarianism and death penalty
16
Utilitarianism

• Utilitarianism recommends an action, including
  punishment, if and only if it has the best
  effects on the well-being of the affected
  individuals.

17
Utilitarian Approach The General Justification

• All punishment is, according to the utilitarian,
  intrinsically bad because it involves the
  infliction of pain or some other consequence
  normally considered unpleasant. Nevertheless,
  punishment by the state may be justified because
  of its effects that is, its instrumental
  benefits might outweigh the intrinsic badness.
• According to utilitarians, the good consequences
  of punishment are the promotion of utility
  (happiness/pleasure/desire satisfaction).

18
Reduction in Crime

• The consequences largely come through the
  reduction in crime.
• The justification will only work for systems
  where reducing behavior classified as criminal
  will promote utility. Societies that criminalize
  behavior that is not harmful will have difficulty
  establishing that reducing the incidence of these
  sorts of be actions will produce utility.
• Systems of punishment are usually claimed to
  reduce crime by three means
• Deterrence
• Incapacitation
• Rehabilitation

19

• Deterrence Deterrence refers to the reduction
  in crime as a result of making crime too costly
  to the would-be criminalpricing crime too
  high.
• (a) Special The tendency of the punishment to
  deter the person punished from criminal acts.
• (b) General The tendency of the punishment of
  one person to deter others from committing
  criminal acts.
• Incapacitation Incapacitation refers to
  removal of the opportunity or ability of the
  potential criminal to commit criminal acts
  (sometimes only of a certain sort).
• Rehabilitation (Reform) Rehabilitation takes
  place when the character of the person punished
  is altered so that he or she no longer desires to
  commit the sort of act for which he or she was
  punished.

20
Possible Effects Other than Reduction of Crimes

• Through deterrence etc., the practice of
  punishment might tend to prevent crimes and hence
  the loss in peoples well-being.
• Further, the practice of punishment might have
  other effects. For example
• Punishment might make people feel safer (even if
  it actually does not do so).
• Punishment might also satisfy the feelings of
  vengeance, resentment and indignation.
• Whether satisfying feeling of vengeance etc.
  would have good consequences might be
  questionable. If so, it does not provide
  utilitarians with a reason for punishment.

21
Utilitarian Approach Distribution

• 1. Title We should punish all and only those who
  it gives the best effects on utility to punish.
• 2. Severity We should punish to the extent that
  produces the best effects on utility and no more.

22
Is Death Penalty Justified from the Utilitarian
Perspective?

• Remember that from utilitarian perspective, a
  punishment must have the effects better than any
  other alternative has.
• Thus, the question is does capital punishment
  have the effects better than any other
  alternative, e.g., life imprisonment without the
  possibility of parole, has?
• How about deterrence? (Bedau, 181-2)
• Special No effect, because the criminal does not
  survive.
• General ? (Some statistical and clinical studies
  indicate death penalty has brutalization
  effects it incites certain unstable minds to
  murder others. Bedau, 182)

23

• How about incapacitation? (Bedau, 179-80)
• Perfect, but compare w/ life imprisonment. (cf,
  192.9)
• How about rehabilitation?
• No effect, because the criminal does not survive.
  Other punishment might have good or bad effects.
• How about the sense of security?
• How about satisfying the feelings of vengeance
  etc.?
• How about the cost of practicing death penalty?
• The cost of executing a person is not expensive.
  (I do not know about life imprisonment letting a
  person play will cost much, but making her work
  might cut the cost.)
• However, a study suggests that in the US, the
  legal system w/ court trials and appeals on death
  penalty costs far more than the legal system w/o
  them. (Richard Dieter, Millions Misspent, 1994)
• Other costs or benefits?

24
Alleged Problems of the Utilitarian Justification
of Punishment

• A. Because the utilitarian answers the question
  of severity as she does, she may allow for more
  or less punishment than is deservedno punishment
  even for severe crimes if it does not have the
  best effects severe punishment for trivial
  crimes if we could get a lot of benefit from it.
• B. Because the utilitarian answers the question
  of title as she does, she may justify punishing
  an innocent person as easily as a guilty person.
  If the effect on crime prevention is equal,
  actual guilt or innocence is irrelevant.

25
Continued

• C. Because the utilitarian offers the general
  justification of punishment she does, even where
  she gives the right answer about title and
  severity, she gives it for what is arguably the
  wrong reason.
• a utilitarian theory of punishment must
  involve justifying punishment in terms of its
  social resultse.g., deterrence, incapacitation,
  and rehabilitation. And thus even a guilty man
  is, on this theory, being punished because of the
  instrumental value the action of punishment will
  have in the future. He is being used as a means
  to some future good e.g., the deterrence of
  others. Thus those of a Kantian persuasion, who
  see the importance of worrying about the
  treatment of persons as mere means, must, it
  would seem, object just as strenuously to the
  punishment of the guilty on utilitarian grounds
  as to the punishment of the innocent. (Jeffrie,
  G. Murphy, Marxism and Retribution)

26
4. Retributivism and death penalty
27
Retributivism

• Retributivism justifies actions, including
  punishment, in terms of the desert of the
  criminal based on his or her past behavior,
  intention etc.
• Retributive theories differ on what makes an
  agent deserves a bad result like punishment the
  harm the agent causes, her wickedness, the fact
  that she unfairly exploit other members of her
  society, etc.
• Retributive theories thus differ on two questions
  of distribution (1) title who should be
  punished and (2) severity how much should a
  person be punished, and why.

28
Pure Retributive Approach The General
Justification and Distribution

• However, there are folliwng agreements among pure
  retributivists, who take desert as the only
  factor in justifying punishment.
• Desert is the sole general justification of
  punishment by the state.
• Distribution
• Title One should punish only those who are
  guilty, i.e., who deserve punishement.
• Severity One should punish the guilty to the
  extent they deserve.

29
A Standard of the Distribution of Punishment lex
talionis (Bedau, 186-8)

• lex talionis is the standard of both title and
  severity
• Title the agent who caused harm is guilty and
  should be punished.
• Severity the agent should be given the
  punishment that provides the same type of harm
  that he or she caused.
• A problem as the standard of title there are
  some cases where an agent causes harm, but he
  should not be punished.
• Ex. Certain cases of self- or other- defense
  harms for which the agents cannot be responsible

30
The Problems of lex tarionis as the Standard of
Severity

• lex tarionis does not take into account the
  intention or motive of the suspect. E.g. Even if
  deliberate or planned killing justifies death
  penalty for the suspect, non-deliberate killing,
  particularly unintentional killing, might not
  justify it. (Cf. Bedau, 27, 186)
• Giving exactly the same harm is impossible.
  (Bedau, 28) Even giving roughly the same harm is
  frequently impossible or makes no sense and
  sometimes is repugnant.
• E.g. What punishment should be given to child
  molesters? To speeders and drunk drivers? To
  embezzlers and forgers? To prostitutes and their
  customers? To rapists? To T.V. ministers who
  violate their trust by defrauding their flock out
  of millions of dollars?

31
Which Standards of Title?

• As is mentioned earlier, retributivists differ on
  the standard of title (1) the harm the agent
  causes lex tarionis takes this view , (2) her
  wickedness, (3) the fact that she unfairly
  exploit other members of her society, or (4) some
  combination of them etc.
• Settling this point is important when one
  considers who, if any, should deserve death
  penalty.
• Bedau favors the third option. (11, pp.170-1)
  However, unless you are interested in his
  argument for the option, we will not examine it.
  For our focus is a prior question should death
  penalty be given (to whatever person)?

32
An Alternative Standard of Severity to lex
tarionis Well-Being

• While Bedau criticizes lex tarionis as a theory
  of severity (186-8), he does provides no
  alternative.
• An alternative is the well-being standard of
  severity.
• Its rough idea is as follows the more guilty a
  person is, the more loss of well-being does the
  person deserve.
• Pure retributivism with this standard holds that
  a guilty person should be given the punishment
  that makes the persons life proportionally
  worse-off.
• One complaint might be that it gives no reason to
  choose among punishments giving the loss of
  well-being the guilty deserves. (E.g., why
  imprisonment rather than slave labor, removing
  the penis, raping, maiming, beating etc.?)
• But it is at least better than lex tarionis,
  which requires things impossible (child molesting
  for child molesting, drunk driving for drunk
  driving etc.) or repugnant (torture for torture
  etc.).

33
Pure Retributivism and Death Penalty

• Does death penalty give the guilty what he or she
  deserves?
• This question can of course depend on what the
  guilty is guilty of.
• lex tarionis is often used to justify death
  penalty for murderers. (As Bedau points out on
  p.186, it disqualifies death penalty for other
  actions.) However, for the reasons mentioned
  above, this standard of severity is problematic.
• If the standard of severity is how much
  punishment lowers the level of well-being, does
  death penalty (rather than life imprisonment
  etc.) fit the crime in some cases?

34
Is Death Penalty Particularly Severe?

• This partly depends on the way it is executed.
• From stoning, crucifixion, impalement, beheading,
  hanging, shooting, gas chamber, electrocution to
  painless lethal injection
• However, death penalty essentially involves
  shortening of life. (Bedau, 14, 173)
• Bedau says the shortening of life is particularly
  severe. Why?

35
Bedau on the particularly severity of death
penalty

• Once death penalty is executed, it is
  interminable while it is possible to interrupt
  the execution of some (though not all) other
  punishments, e.g. imprisonment. (Bedau, 16, 176)
• Death penalty makes compensation for the proven
  innocent impossible. (ibid.)
• But compensation for her friends and families is
  possible.
• People punished by other means might die before
  proven innocent.
• Also consider whether the proven innocent can be
  fully compensated for other punishments, such as
  imprisonment.

36
Continued

• Death does not permit of no concurrent
  experiences or activities. (ibid.)
• True, but cant the experiences or activities
  possible under other modes of punishment be worse
  than nothing?
• All in all, is death penalty severer than other
  modes of punishment?

37
Should We Accept Pure Retributivism? One Thought
Experiment

• Imagine that each of the nearly five billion
  humans were to exit Earth in solo spacecraft,
  which goes in different directions and never
  meets any sentient creature again. There are the
  guilty in prisons, and people wonder what to do
  with them.
• Assuming that other things are equali.e., that
  there is no effect on the happiness of others,
  should all of the guilty be punished?
• If you answers no, the response is inconsistent
  with pure retributivism. Are utilitarians correct
  to the extent that punishment is partly justified
  by effects on peoples well-being?

38
Interlude Why think of bizarre cases?

• We would like to check one feature (in this case,
  desert) makes difference independently of other
  factors (e.g., social defense). We cannot check
  this thinking about ordinary cases because they
  involve not only the feature in question but also
  other factors.
• The unrealistic example is made to include only
  the feature in question (in this case, desert).
• Our views about ordinary examples are likely to
  reflect what we were taught. Because the views
  different people were taught conflicts with each
  other and can be suspicious, we probably cant
  settle our dispute rationally by thinking about
  ordinary cases.
• Our responses about somewhat bizarre cases are
  less likely to be the mere reflection of what we
  were taught. We might find agreement in our
  responses and settle our dispute rationally.

39
Other Problems of Pure Retributivism

• About the general justification of punishment
• 1. pure retributivism gives no good reason why
  the state, rather than other individuals or
  organs, should punish the guilty.
• 2. related to the above, pure retributivism
  excludes the states apparently legitimate
  interest in preventing criminal actions through
  administrating the system of punishment, e.g.,
  jail system.

40
About the severity of punishment

• 1.pure retributivism excludes several
  considerations that juries and prosecutors appeal
  to e.g., the possibility of a second offense and
  reform, effects on crime prevention, security or
  how people will regard the allegedly criminal
  actions, the suspect and the court, and so on.
• 2.pure retributivism invalidates many legal
  practices, e.g., commutation based on
  rehabilitation, clemency and plea bargaining (in
  which a person charged with a crime pleads guilty
  and cooperate with prosecutors in exchange for a
  less severe sentence than he might have received
  if his case went to trial and he was found
  guilty).

41
Unifying Utilitarian and Retributive Elements?

• Thus, theories w/ both elements might be
  appealing. For example
• Retributive Consequentialism (RC) On this
  theory, retribution (as well as increasing
  peoples well-being) is a good consequence. RC
  recommends an action, including punishment, if
  and only if it has the best effects, taking into
  both kinds of value.
• Unless you are interested in RC, we do not
  discuss the merits of the theory.
• For theories w/ both elements, both utilitarian
  issues (deterrence etc.) and issues about desert
  are relevant to assessing actions like punishment.

42
Retributive Theory and Punishing the Innocent

• For any theory w/ the factor of desert,
  punishing the innocent is particularly bad, i.e.,
  worse than punishing the guilty.
• If a criminal justice system is unfair or
  ineffective at punishing only the real criminals,
  it (with the system of punishment) can be
  unjustified.
• Because human beings are often partial and
  uninformed, any criminal justice system operated
  by human beings will punish some innocent.

43
Killing the Innocent v. Having Them by Punished
Other Means

• According to Bedau and Radelet 1987, in the 20th
  century US, out of over 7,000 executions, only a
  few hundred have been carefully examined, and of
  these .3 percents (24 cases) seem to have
  executed the innocent. (Note on 22 on 194)
• Since 1973, more than 90 have been released from
  death rows.
• The use of DNA testing can help avoiding
  punishing the innocent. As of June 2002, 12 death
  row inmates have been exonerated by use of DNA
  tests. But it is not free of problems.
• Then, should death penalty be abolished?
• Remember, even if death penalty is abolished, the
  innocent might well be found guilty and
  punished by other means.
• The answer depends on whether there is a reason
  to have the innocent punished by other admissible
  means than death.
• What are other admissible means? To see this
  point, we need to consider another consideration
  possibly relevant to justification of punishment
  the dignity of a person.

44
5. The dignity of a person and death penalty
45
Why We May Not Abuse the Guilty Appeal to the
Dignity of a Person?

• To many it seems that if a form of punishment
  disfigures a body, is cruel or humiliating, then
  it is morally unjustified.
• Pure retributivists have trouble justifying this
  judgment.
• How about utilitarians? Does the negative effects
  exist?
• Getting people used to cruelty, brutalization
  effects etc.?
• If you think the form of punishment is
  unjustified and these two cannot support the
  judgment, you might appeal to the dignity of a
  person because the form of punishment offends
  the dignity, it is unjustified.
• Caution If you use this reasoning, some forms of
  punishment had better not offend the dignity.
  Otherwise, all forms of punishments will be
  unjustified. (Dont follow Bedau saying,
  Punishment by its nature pays back an
  offenderby inflicting suffering and indignity
  (171))

46
What the Heck Dignity Mean?

• The big problem of appealing to the dignity of a
  person is that it is not clear what it means, and
  accordingly why it is important and whether cruel
  or humiliating punishment really offends it.
• If you can explain these points, try.
• To many dignity sounds like a mere rhetoric. They
  thus avoid talking about dignity.
• Immanuel Kant tried explicating this difficult
  idea.

47
Kant on the Dignity of a Person

• According to Kant, the dignity of a person
  consists in her being a rational and autonomous
  agent.
• If one treats the person in the way a person, as
  a rational and autonomous agent, can never
  consent to, then he uses her merely as a means,
  i.e., offends the dignity of the person.
• Kant holds that a person, as a rational and
  autonomous agent, can consent to being punished
  for what she has done because such an agent takes
  responsibility for her action and consequences.
• However, Kant also holds that a person, as a
  rational and autonomous agent, cannot consent to
  certain forms of punishment. For example, she
  cannot consent to being punished merely for
  future benefits and not for her wrong actions.
• So Kant has a reason to reject utilitarianism.

48
Questions

• Can a person, as a rational and autonomous agent,
  really consent to his or her punishment?
• This question depends on what rationality and
  autonomy involves. If, e.g., as economists say,
  rational and autonomous agents are maximizers of
  their desires, then they cannot consent to their
  punishment.
• Suppose a person, as a rational and autonomous
  agent, can consent to her punishment of certain
  sort say, imprisonment because they are
  responsible. Cant she also consent to the
  punishment that disfigures her body, is cruel, or
  humiliating for what she has done?
• Many criminals have mental problems and neither
  fully rational nor autonomous. (Bedau, 6 7,
  167-8) What does Kants view of dignity say about
  punishing them?
• Does Kants view of dignity prohibit death
  penalty?

49
Bedau on Kant on Appeal to Utility

• Bedau might be mistaken in taking Kants view on
  dignity (i.e., the view that one should not be
  used merely as a means) excludes any theory
  involving appeal to effect on peoples
  well-being. (p.166, 2nd paragraph)
• The view clearly excludes punishing a person
  merely for peoples well-being, but it is perhaps
  consistent with punishing her not only for it but
  also for what she has done.
• So, it is inconsistent with utilitarianism, but
  perhaps not with certain theories that have
  utilitarian elements.

50
The Problem of Killing the Innocent, again

• Should death penalty be abolished for this
  problem?
• If you think that brutal, cruel or humiliating
  punishments are permissible, do you think there
  is a reason to let the innocent punished that
  way?
• If you think, for the considerations of dignity
  etc., that these punishments are not permissible,
  do you think there is a reason to let the
  innocent punished by, say, life imprisonment w/o
  parole?

51
Finale Unfair Justice and Capital Punishment
52
Alleged Unfairness with which Punishment is
Applied

• There has been a concern about whether the US
  criminal court system passes sentence
  arbitrarily.
• The worry is that the sentence is affected by the
  things that are judged irrelevant by all the
  theories we have studied utilitarianism,
  retributivism and the idea of the dignity of a
  person.
• There are two kinds of worries worries about (1)
  some legal statues and principles and about (2)
  the application of them.

53
1. The Concern about Legal Standards

• Arent some legal standards so hollow and
  prosecutors and juries discretion so large that
  similar suspects are sentenced differently?
  (Bedau, 27, 186-7)
• E.g.1 the distinction between 1st degree and 2nd
  degree murder (In some states, juries are told
  that premeditation can occur in a single instant)
• E.g.2 it is said that no articulate standard
  controls a prosecutors discretionary decision to
  bring capital charges in the first place or to
  reject a plea to a lesser offense.

54
2. Isnt the application of the standards
affected by irrelevant factors?

• In particular, there are worries about two
  factors
• Doesnt the wealth of the suspect affect his or
  her sentence?
• Doesnt race affect the suspects sentence?
• (Other factors, such as the difference of the
  jurisdictions the suspects are tried, might be
  irrelevant but affect the sentence.)

55
How Might Wealth Affect the Ultimate Sentence?

• Wealth might affect whether the suspect can hire
  good, experienced and non-overworked counsel
• Wealth might affect whether the suspect has funds
  to bring sympathetic witnesses to courts
• Wealth might affect whether the suspect has funds
  for an appeal or for a transcript of the trial
  record and so on.

56
How Might Race Affect the Sentence? Typical
Worries

• Isnt there a tendency that the suspect is
  sentenced more severely when the suspect is a
  black than when the suspect is a white?
• Isnt there a tendency that the suspect is
  sentenced more severely when the victim is a
  white than when the victim is a black?
• Or their combination isnt there a tendency that
  the suspect is sentenced more severely when the
  suspect is a black and the victim is a white?
  
• In addition isnt there a tendency that the
  suspect is sentenced more severely when the
  suspect is a black (or a white) and the majority
  of the jury is white (or black). (See the movie
  Time to Kill, 1996 see also p. 498 of Randall
  Kennedys paper on what the Supreme Court did
  about a related issue.)

57
Death Penalty and Race

• As for death penalty, (1) the relation between
  the race of the suspect and the sentence is not
  substantiated. As for (3), see McCleskey v. Kemp
  on the Baldus study (p.491). I dont know about
  (4).
• But a 1990 review of then existing research by
  the US governments General Accounting Office
  reported that In 82 percent of the studies, race
  of victim was found to influence the likelihood
  of being charged with capital murder or receiving
  the death penalty.
• According to Bedau 1997, this finding is
  remarkably consistent across data sets, states,
  data collection methods, and analytic
  techniques.
• Controlling for a variety of legitimate, relevant
  non-racial variables reduced but not eliminate
  the evidence of race-of-victim bias.

58
An Example The Baldus Study

• The Baldus study consists of statistical studies
  that examine over 2,000 murder cases in Georgia
  during the 1970s.
• Baldus subjected his data to an extensive
  analysis, taking account of 230 variables that
  could have explained the disparities on nonracial
  grounds. One of his models concludes that, even
  after taking account of 39 non-racial variables,
  defendants charged with killing white victims
  were 4.3 times as likely to receive a death
  sentence as defendants charged with killing
  blacks. (McCleskey v. Kemp, pp.491-2)
• The race of victim is as strongly correlated with
  giving or not giving death sentence as a prior
  murder conviction or acting as the principal
  planner of the homicide is. (ibid., p.493)
• Racial disparities are greatest in what Baldus
  takes to be the middle range of aggravated
  homicide.

59
What should be done?

• Suppose that (1) the legal principles and (2)
  their applications in the US Justice System have
  been partly arbitrary and unfair.
• There would be an obvious problem of how to make
  the system as a whole more fair.
• However, it is hard to discuss this question
  meaningfully without the sufficient knowledge of
  the current system and of how legislature and the
  court work. So I leave it aside unless someone
  wants to talk about the topic.
• There is another specific question about what to
  do with the practice of death penalty.

60
Should We Abolish Death Penalty for Being
Arbitrary?

• This question partly depends on whether the
  arbitrariness or unfairness is peculiar to the
  legal principles and the application of death
  penalty.
• If the answer is no, even if death penalty is
  abolished, it is likely that the replacement
  (say, life imprisonment w/o parole) will be as
  arbitrarily or unfairly given.
• This does not automatically mean that the
  abolition will be senseless.
• For example, if you hold the view that the
  justification of the severer modes of punishments
  require the more non-arbitrary and fair
  principles or application, and think that death
  penalty is severer than any other admissible
  modes of punishments, you have some reason to
  abolish death penalty.

61
How the Defenders of Death Penalty Respond
(Bedau, 30, 189)

• Summarize concisely what they would say
• The statues that authorize death penalty
  themselves are not unfair only the current
  application might be. So the alleged unfairness
  is not an objection to the morality of death
  penalty itself.
• Is this reply adequate?
• First, this reply does not address the alleged
  problems about legal principles, e.g., the
  distinction between 1st degree murder and 2nd
  degree murder.
• But the defenders can say Why not fix the
  principles and keep death penalty?
• Second, the adequacy of this response depends on
  whether there is a better alternative to the
  abolition of death penalty. So we will consider
  several alternatives Randall Kennedy discusses.

62
Alternatives (Kennedy, 498-500)

• Total Abolition.
• Level-up Solution have the courts execute more
  in the cases where the victims are black (and
  perhaps in the cases where the suspect is rich
  also fix problematic standards, if any).
• Limiting the class of persons eligible for
  execution to those who commit the most aggravated
  homicides. (Also fix problematic standards, if
  any.)
• Introducing the mandatory execution of those
  sentenced for certain crimes.
• (Basically keeping the status quo, fixing
  problematic standards, if any)

63
4. Introducing the mandatory execution of those
sentenced for certain crimes.

• Concisely summaries the reasons why the Supreme
  Court rejected this in 1976. (499)
• It encourages juries to share their verdicts to
  avoid sentencing the suspect to the crimes.
• It fails to takes into account the suspects
  individuality (intentions, motives etc.) for
  committing the crimes.
• Concisely summaries the two reasons why Kennedy
  rejects this alternative. (499)
• The racial disparity might remain, because the
  juries might decline to convict the suspect of
  the crimes when the victim is a black.
• The racial disparity might remain, because the
  prosecutors will keep the same discretion as they
  have now.

64
3. Limiting the class of persons eligible for
execution

• According to Kennedy, what is the problem of this
  approach (suggested by Justice Stevens and
  Blackmun)? (499)
• It is practically impossible to provide objective
  standards or procedures to select all and only
  those who commit the most aggravated homicides.
• Is this correct?
• Not so obviously. For example, consider the
  suggestion that limits death penalty to those who
  kill more than two people.

65
2. Level-up Solution

• Kennedy ultimately recommends this solution (for
  the defenders of death penalty). However, he
  suggests objections. What are they? (499-500)
• It tends to give more than what the suspect
  deserves.
• Kennedy indicates that severity may or should
  reflect the effects on peoples utility, and that
  the level-up solution have the good effects (by
  encouraging officials to take more seriously the
  security of blacks and symbolically showing the
  importance of racial equality to the public.) Is
  he right about this judgment?
• In particular, the severity of death is
  qualitatively different from other modes of
  punishment, so it is too harsh a social sanction
  to impose upon those who deserve lesser sentence.
• Kennedy denies that the severity of death is
  qualitatively different from other modes of
  punishment. Is he right?

66
The Last Question

• All things considered, should the state give
  capital punishment on some occasion?
• If so, how?

67
Assignments

• For Thursday, read
• Onora ONeill, Ending World Hunger, 235-58
  1-8 of Questions for Discussion on p.277
• For Tuesday, write a one-page Argument Paper.
• Give the best possible argument for or against
  the following claim Death penalty should be
  abolished because the criminal justice system is
  unfair.
• (If you think that death penalty should be
  abolished but for other reasons than the
  unfairness of the system, you should argue
  against the above claim.)
• If you argue against this claim, show the
  superiority of some alternative in dealing with
  the unfairness.