Fifth Question Set

Provide answers to the five essay questions below. (Note: on questions one through four you should   not praise or criticize the authors you discuss. The point of those questions is to explain them, not to state whether you agree or disagree.)      

 – 1. As discussed in the lecture, what are major justifications for punishment in general? Explain each, and explain also how each can or cannot serve to justify capital punishment.     

  – 2. What is Kant’s view of capital punishment? When is it to be used, and why? And what means cannot be used, and why not?      

 – 3. What is van den Haag’s “Best Bet” argument? Explain how this argument works, and what he believes it implies about the moral acceptability or unacceptability of capital punishment.    

   – 4. What is Reiman’s view of capital punishment? Should it be used or not, and why does he think so?    

   – 5. Is capital punishment morally acceptable or not? Explain what you believe about when it is moral and/or immoral to use capital punishment, and explain why your views are correct on this issue. 

Why do we punish people? The topic of this final lecture is the moral status of capital punishment. But in asking this simple question, I don’t have only capital punishment in mind. I don’t even necessarily have legal punishment in mind. For as any parent can tell you, there are plenty of times in a child’s life when punishment is called for, and there’s usually no reason to get the legal system involved. No, my question is entirely general. People do things wrong. They behave illegal or simply immorally. And when we catch them misbehaving, we punish them for it. Why?
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Traditional theories of punishment invoke five main ideas. Four of the five justify punishment according to its consequences. But one of them does not, and that’s the justification we’ll start with. 1) The first justification for punishment is retribution. According to retributive theories of punishment, wrongs are to be punished simply because that’s what the wrongdoers deserve. There is no further goal to be served by punishing them. Punishment is just the right thing to do. So when your son lifts a twenty from your wallet, you punish him. When a man robs a bank, society punishes him. The type and degree of punishment will differ, based the type and severity of the wrong. The goal of retribution is simply to give the wrongdoer his just desserts. You can think of it according to the famous Biblical directive, “an eye for an eye, a tooth for a tooth.” Retribution produces a negative consequence for the wrongdoer, something unpleasant for him – and it doesn’t matter whether any other more positive consequences result. Retribution isn’t about positive consequences, or about any consequences at all, really. It’s about doing what’s right, and that means punishing those who do what’s wrong. The remaining justifications for punishment all differ from retribution in that they aim to achieve goals beyond simply punishing the wrongdoer. These ideas emphasize that there are positive consequences to punishing, and we punish in order to produce those good consequences. The consequences may benefit third parties not directly connected to the wrong being punished, or they may benefit the victims of the act. In some cases, the consequences may even be good for the wrongdoer being punished! Let’s consider these ideas in turn. 2) The second justification is the incapacitation of the wrongdoer. This idea applies more to crime than for little sins, but it’s an important idea nonetheless. In many cases, we punish criminals in the way that we do so that they can’t keep harming society. Put a hardened drug smuggler away for thirty years, and that’s thirty years that we don’t have to worry about how he might make our lives more difficult. 3) The third justification for punishment is related to the second, and it may be the most commonly used of all: deterrence. According to the notion of deterrence, the goal in punishing a wrongdoer is to dissuade people from doing what he did in the first place. Like incapacitation, deterrence is an important consideration in punishing crime. We punish thieves, for example, so that people will think twice about stealing. The idea is that some people who might otherwise steal will fear the punishment for theft and thus won’t do it. They are deterred from doing wrong. And so just as with incapacitation, society is made safer. But deterrence goes beyond just crime, and applies to non-legal contexts, too. If Johnny hits one of his brothers, you punish him so that the other brothers don’t hit, either: they don’t want to experience the punishment that Johnny received. For that matter, you punish Johnny so that he himself will be deterred from hitting anymore: he’s been punished once, and it was unpleasant enough that he doesn’t want to go through it again. All in all, life in the family goes more smoothly when the kids get punished for their occasional failures to live up to moral standards. 4) The fourth justification for punishment is restitution. The idea here is not to produce good consequences for people unconnected to the wrong done, but to help the victims in some way. A child who breaks a neighbor’s window by carelessly throwing a ball through it is made to pay for the replacement. In this way, he rights the wrong that he did. Similarly, in some cases, a criminal may be compelled to make restitution to the victims of his crime, by returning what he stole, for example. We sometimes even say that, insofar as all of us are indirect victims when a crime is committed, their prison terms “pay their debt to society.”  5) The final justification for punishment is rehabilitation. If any idea gives deterrence a run for its money in theories of punishment, this is the one. Here the goal of punishment is to benefit the person being punished. When a child has her privileges revoked for lying, we’re hoping that she will not only be deterred from doing it again, but that she will eventually realize why she shouldn’t do it again: that she will become a better person. When the car thief is put in prison, we hope that the experience will change him in positive ways: in many cases, he can get counseling to address any psychological problems, and even the opportunity for some education so that when he gets out, he’ll have something better to do with his life than steal cars. This is why most state prison systems are officially known as departments of “corrections” (or something to that effect). Whether they are effective at correcting anyone is an open question, and many hardened criminals seem to be incorrigible. But correction is still a major goal of imprisonment (officially, anyway).
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Let’s consider capital punishment for a moment in light of these different ideas. Which of them apply to punishment by death? The one that most clearly does not apply is rehabilitation. Whatever else may be said of capital punishment, killing a criminal certainly doesn’t benefit the criminal himself! But the other four all apply – or may apply – to varying degrees. The criminal is incapacitated, and permanently so: once he is executed, we never have to worry about him again. Other potential criminals may be deterred (in theory, at least): insofar as they are afraid of death, people will not want to risk their lives by committing crimes punishable by execution. Capital punishment may also provide a form of restitution: survivors of murder victims sometimes say that the murderer’s execution brings them “closure” (although what exactly this means is not always clear, and it doesn’t seem to happen in all cases). And finally, for many crimes, capital punishment may be a matter of simple retribution: death might be no less than some criminals deserve.
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Certainly, Kant saw capital punishment as a matter of retribution. The important thing to keep in mind, on any retributive theory of punishment, is that the punishment has to fit the crime. This is known as the principle of proportionality, and it is the reason Kant makes one of the bluntest statements ever seen in the history of ethics: “whoever has committed murder, must die” (214).  Proportionality doesn’t necessarily mean that whatever was done by the criminal must be done to the criminal. As Kant notes, there are punishments that can make roughly equivalent substitutions for what a criminal has done. A thief has taken a set amount of property from others; as punishment, we take a set duration of his liberty from him. But for murder, there is no substitution possible. Liberty for property is one thing. But only life can be taken for life. Now Kant also emphasizes that just because a murderer must die, this doesn’t mean that we can just kill him however we wish. We must not allow ourselves to be ruled by baser instincts (which, if you recall, Kant would consider to be morally irrelevant inclinations). The execution of a killer “must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable” (214). We shouldn’t denigrate the human dignity of the murderer the way that he disregarded that of his victim – indeed, our unwillingness to denigrate his humanity is a big difference between him and us. So the execution should be carried out without cruelty or malice. It is something we do because we must – because it is our duty – and not because we have bloodthirsty desires for revenge. Perhaps, in some respects, Kant’s view of capital punishment is overly harsh. There are murders, and then there are murders. Sometime a person flies off the handle and does something without thinking. Do we really deserve to die for momentary weaknesses, even those with the direst of consequences? Many have thought not, and for that reason, legal systems often introduce a number of distinctions between types of crimes that involve killing human beings. For example, murder involves the intent to kill or at least harm the victim, whereas manslaughter does not (it often results from negligence rather than malice). In some states, first-degree murder is premeditated, while second-degree murder is a crime of passion or rage. So when exactly should a murderer be punished by death? When does this punishment fit the crime?
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The Supreme Court, in its Gregg v. Georgia case, held that retribution is a perfectly legitimate justification for punishment, and that this can be consistent with capital punishment in cases of murder. But in deciding whether execution is truly a punishment proportional to the crime, there are a number of different factors to consider (see the list cited on page 208). When aggravating circumstances are involved, this should weight the punishment of the murderer more heavily in favor of death. Conversely, the mitigating circumstances should tip the scales away from death. The aggravating circumstances generally manifest exceptional depravity on the part of the killer – a real indifference to human life and suffering that can’t be fixed easily, if at all. Mass murder or serial killing, murder for hire or killing by torture – a person who engages in these sorts of activities lives outside the ordinary moral norms the rest of us obey as a matter of course. He may well be beyond correction, so the best option may be to remove him from society – to incapacitate him permanently and totally, rather than trying to rehabilitate him The mitigating circumstances, by contrast, typically indicate a killer to whom we are more sympathetic, even if we can’t condone what he’s done. Emotional disturbances or situations of duress, for example, can push a normal person to do abnormal things. While he may have violated our moral boundaries, he may already realize that what he did was wrong (and in the case of duress, he may have realized it even while he was doing it). He needs to be punished, but he’s not the same sort of depraved threat that a sadistic serial killer is. The court found that when juries decide that any mitigating circumstances are outweighed by aggravating circumstances, they may reasonably recommend a sentence of death. This need not happen in all cases of murder; Kant’s rigidity can be avoided. But consideration of aggravating and mitigating circumstances can allow for capital punishment in at least those cases where people feel that a murder was particularly vicious.
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The question is, can the death penalty ever truly respect the humanity of the killer, as both Kant and the Court want? Leave aside the possibility of mistakes; surely we would all recoil in horror at the prospect of having killed an innocent man for a crime he did not commit. Let’s consider only those cases in which the true murder really has been caught and convicted. What can we say about his humanity if he is sentenced to die? Justice Marshall’s dissent from the majority decision in Gregg v. Georgia concludes with a consideration of this topic. He believes that capital punishment is objectionable, because it “has as its very basis the total denial of the wrongdoer’s dignity and worth” (212). In other words, there is no way to reconcile punishment by death with the humanity of someone thus punished. The response, of course, is to point out that the murderer hardly respected the dignity and worth of his victim. But Marshall has a response of his own in turn, and it is the point of the last couple paragraphs in his dissent. The dignity and worth of another human being is not for human beings to decide. It is not the place of “society” or “the community” to decide the value of another human being’s life, any more than it is the place of an individual to decide it.
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Ernest van den Haag disagrees entirely, and his entire argument in favor of capital punishment is founded upon this disagreement. Instead of justifying capital punishment via retribution, he concentrates on the potential for deterrence. Van den Haag’s appeal to deterrence is trickier than it looks. In a way, deterrence seems like common sense: people don’t want to die, so they won’t do things that might lead to their deaths; if committing murder is punishable by death, this makes it likely that committing murder will lead to their deaths; hence, people won’t commit murder. But in practice, things don’t work out as common sense predicts. In fact, to this very day, there is no conclusive evidence for or against the alleged deterrent effect of capital punishment. Considering the amount of time and effort that has been put into various studies of capital punishment, it may be surprising that they have been so inconclusive. But measuring deterrence is notoriously difficult: How do you count murders that didn’t happen? And how many of those non-murders didn’t happen because their non-perpetrators were deterred by the threat of execution? These are not easy questions to answer. Even so, van den Haag is willing to accept the inconclusiveness and make a bet in favor of deterrence. This is his famous “Best Bet” argument. We don’t know whether capital punishment deters anyone or not. Now, suppose that we punish murder by capital punishment, but it doesn’t actually deter anyone. What have we lost? Only the lives of murderers, who weren’t deterred regardless. But suppose that we don’t use capital punishment, and it would deter people. Then what have we lost? The lives of at least some innocents, whose killers could have been deterred. Given the choice between protecting the lives of actual murderers and possibly protecting the lives of the innocent, van den Haag is clear about which way to go: “Sparing the lives of even a few prospective victims by deterring their murderers is more important than preserving the lives of convicted murders because of the possibility, or even the probability, that executing them would not deter others. Whereas the lives of the victims who might be saved are valuable, that of the murderer has only negative value, because of his crime. Surely the criminal law is meant to protect the lives of potential victims in preference to those of actual murderers.” (217) So given that the innocent matter more than the guilty, so let’s make the bet in favor of deterrence. We don’t know if capital punishment deters anyone. But van den Haag prefers to gamble with the lives of the guilty, not the innocent. And that means he prefers to use capital punishment on the chance that it deters some potential killers, whether it really does or not.
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The main problems with van den Haag’s view are as follows. First, there is a world of difference between “convicted” and “guilty.” Yet van den Haag displays stunning callousness to the possibility that an innocent man might be convicted and executed, comparing it to the possibility of a bystander being killed in automobile or construction accidents. Miscarriages of justice happen, just as do mistakes on the road or by the worksite. But this analogy, it seems to me, is flawed. A driver or worker doesn’t intentionally bring about the death of a bystander, only to find out he got the wrong one: he never intended to kill the bystander at all. By contrast, when the state executes the wrong man, it fully intended to kill him. Eliminating all bystander deaths from driving or construction is probably impossible, because such deaths are truly accidental side-effects of these activities. Eliminating all innocent deaths from capital punishment, however, is quite possible, by eliminating capital punishment itself. But the second problem with van den Haag’s argument is its reliance on the differential value of human beings. He’s willing to go precisely where Justice Marshall wasn’t. And the simple question to ask is, how do we decide the value of human lives? In the eyes of many people, it is very dangerous to allow the government to make that call. Still, perhaps the rewards outweigh the risks. Van den Haag is, after all, a betting man, and he acknowledges that his position is a wager made with imperfect information. He simply casts his lot with the innocent rather than with the guilty.
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Jeffrey Reiman is a somewhat more risk-averse critic of van den Haag. His view is that the outcomes of capital punishment are considerably more predictable than van deg Haag’s wager – and considerably less pleasant. Reiman makes an important analogy with torture. We certainly could engage in torture, for any number of reasons… but we don’t. Certainly, one part of this reluctance involves a degree of concern for the one who is tortured. What might be more important, though, is that we don’t want to become torturers ourselves. We fear that it makes us the sort of people who are indifferent to causing pain. If you’ve ever seen movies or television shows in which torture is depicted, it can be truly disturbing to watch. But what’s most disturbing about it is not just the pain. It’s the look on the face of the torturer. Invariably, he expresses either sadistic enjoyment or cold detachment. What kind of sick individual can do that? You don’t want to be “that guy.” The same sort of thing could be said for us as well, if Reiman is correct. When we kill the killer, it dehumanizes us, not just him. It turns us into people who are less affected by suffering of human beings. And that’s not a good thing. Think of medieval executioners, lopping off heads in public. The man wielding the axe wore a hood for a reason: what he was doing was not something to take pride in. Nobody would seek out the company of a man who decapitates people for a living, because it’s not really a decent living at all. Reiman believes that the modern state could play a more positive role in reducing cruelty, by refraining from both torture and execution: “Now, consider the general repugnance that is attached to the use of torture – even as a punishment for criminals who have tortured their victims. It seems to be that, by refraining from torturing even those who deserve it, our state plays a role in promoting that repugnance. That we will not torture even those who have earned it by their crimes conveys a message about the awfulness of torture, namely, that it is something that civilized people will not do even to give evil people their just deserts. Thus it seems to me that in this case the state advances the cause of human civilization by contributing to a reduction in people’s tolerance for cruelty. …And because the state can do this, it should.” (224-5) The state sends a message about what is good and bad, right and wrong, by refraining from state-sanctioned torture. It should do the same thing by outlawing capital punishment: “I contend that if the state were to put execution in the same category as torture, it would contribute yet further to reducing our tolerance for cruelty and to advancing the cause of human civilization. And because it can do this, it should.” (225) In refusing to kill even murderers – who, according to the retributive theory of justice, deserve to be killed – the state sends a message about the wrongness of killing. Ironically, Reiman thinks that this message itself will have a greater deterrent effect in the long run than any number of executions (225). Ultimately, we dissuade more people from killing by having the state set a clear and consistent example of not killing. Whether Reiman is correct about this is an open question. As already noted, deterrent effects are difficult to prove, even in principle, simply because it’s hard to count crimes that don’t happen. But his position is certainly a direct challenge to van den Haag, whose wager moves in exactly the opposite direction. This is the final topic lecture for the course. I look forward to seeing your views of punishment and capital punishment on the discussion board!
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