CPHL406 Contemporary Moral Issues II

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CPHL406Contemporary Moral Issues II

• Crime and Punishment

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• Possible Justifications of Punishment
• 1. Retribution
• 2. Deterrence
• 3. Rehabilitation
• 4. Protection
• Retribution is usually thought to be a
  backwards-looking (e.g. Rossian) approach to
  punishment.
• 2 through 4 are forward-looking, and seem
  amenable to a utilitarian reasoning.

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H.J. McCloskey, A Non-Utilitarian Approach to
Punishment

• McCloskeys Thesis
• The utilitarian justification of punishment is
  inadequate because it allows for injustice.

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McCloskey, Punishment

• Ms notion of just punishment
• To be just, punishment must be merited by the
  committing of an offence.

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McCloskey, Punishment

• But utilitarianism seems to allow for (even to
  demand) forms of punishment that are unjust,
  whenever such punishment is likely to be useful
  (i.e. to maximize human happiness)
• Examples
• Scapegoat punishment
• Collective punishment
• Punishment under secret and retroactive laws
• Punishment of those not responsible for their
  actions (e.g. the mentally incompetent)

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McCloskey, Punishment

• How does the rule-utilitarian respond to the
  objection from justice?
• How does McCloskey respond?

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McCloskey, Punishment

• McCloskey argues that retributivism provides a
  more plausible account of punishment, because it
  is more in line with our fundamental intuitions
  about justice.
• He defines retributivism as the theory that,
  simply, the vicious deserve to suffer.
• He notes that it is an instantiation of the
  general principle of justice, that equals should
  be treated equally and unequals unequally.

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McCloskey, Punishment

• Retributivism does not imply that we have a duty
  to punish fully and whenever it is deserved.
• Also, utilitarian (and other) considerations
  might rightly lead us to punish more than is
  strictly deserved.

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E. Van Den Haag, The Ultimate Punishment

• Van Den Haag considers various objections to
  capital punishment, and critically responds to
  them.

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E. Van Den Haag, The Ultimate Punishment

• O1 In practice, capital punishment
• is distributed in a
• discriminatory or capricious way.
• R1O1 If capital punishment is moral, no
• distribution among the guilty could
• make it immoral.
• R2O1 All punishments are to some extent
  maldistributed.

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E. Van Den Haag, The Ultimate Punishment

• O2 The death penalty is sometimes given to the
  innocent.
• R1O2 Many human activities cost
• innocent lives.

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E. Van Den Haag, The Ultimate Punishment

• O3 Studies have not shown that the death
  penalty is a better deterrent
• than other penalties such as
• imprisonment.
• R1O3 The death penalty probably does deter
  some criminals from murdering, and in the
  long run it increases societys negative
  attitude to murder.
• R2O3 Even if the death penalty does not have a
  deterrent effect, the death penalty is still
  just.

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E. Van Den Haag, The Ultimate Punishment

• O4 Society endorses unlawful killing by
  instituting the death penalty.
• R1O4 All punishments are meant to be
  unpleasant, but they seldom are thought to
  endorse the illegal version of that
  unpleasantness (e.g. imprisonment does
  not endorse kidnapping).

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E. Van Den Haag, The Ultimate Punishment

• O5 The death penalty is dehumanizing.
• R1O5 The criminal is dehumanized by his own
  crime the punishment is simply the social
  recognition of this degradation, not the cause
  of it.
• R2O5 The death penalty seems no more
  dehumanizing than, e.g., life imprisonment.