Death Penalty

Before discussing capital punishment, we must determine what punishment is and what the main theories of punishment are.

  • Punishment is harm inflicted by a person in a position of authority upon another person who is judged to have violated the law.

NOTES:

    1. Since typically harming people is wrong, punishment is guilty utile proven innocent, as it were.  So, the burden of proof is on its proponents.
    2. The notion of authority is crucial.
  • The main theories of punishment are:
    1. Retributivist, which aim at the balance justice: by the punishment proportionally fitting the crime justice is done. 

NOTES:

      • There is empirical evidence that applying retribution even at a cost to oneself is innate; whether it is justified is another issue.
      • When punishing, parts of the brain associated with pleasure become activated
    1. Utilitarian, which aim at incapacitation, amelioration, and deterrence

 

Some figures:

·       From 1973 to 2009 there have been 1,188 executions in the US. 

·       In 2009 there were 3,279 people on death row: 1,364 blacks, 370 Hispanics, 1457 whites, and 77 classified as ‘other’.

·       In 2005 the highest number of executions was in China (by far the most), Iran (94), Saudi Arabia (86), and the US (60).

·       In the US the most common method of execution is lethal injection.  Sometimes people take a long time (over 30 minutes) to die.

·       Executing people is very expensive because of the need of a second trial, extra security, etc.  Costs vary from $ 2.16 million to many millions for each execution.  It’s much more expensive than the cost of life without parole.

·       Since 1973 more than 100 death row inmates have been released because they were innocent.

 

1. The constitutionality issue

The 5th (and the 14th) amendment state that “no person shall be deprived of life, liberty, or property without due process of law”, while the 8th amendment prohibits ‘cruel and unusual punishment.”  Since 5th and 8th amendments were passed at the same time it seems that:

  • The Constitution allows the death penalty.
  • The Constitution, at least as understood by its proponents, does not consider the death penalty cruel and unusual punishment.

Notes:

The Constitution only allows capital punishment and does not require it.

The issue of interpreting the Constitution:

  1. Originalism
    • Textualist approach
    • Purposivist approach
  2. Non-originalism: the idea of evolving standards.

 

The common reading of the “cruel and unusual punishment” clause renders a punishment cruel and unusual if it is severe and at least one of

·       Degrading

·       Inflicted arbitrarily

·       Clearly rejected by society

·       Patently unnecessary.

 

 

The Supreme Court has given different answers to the issue of the constitutionality of the death penalty.

Furman v. Georgia (1972): By 5-4 majority the Court decided that the death penalty was unconstitutional because it was administered in an arbitrary and capricious manner due to the lack of explicit guidelines for juries, and this rendered it “unusual.”  Some Justices went as far as claiming that the death penalty itself was cruel and unusual.

After this decision, some stated introduced mandatory death penalty for certain crimes and some provided guidelines for juries.

 

Woodson v. North Carolina (1976): By a 5-4 majority, the Court decided that mandatory death sentences are unconstitutional because they fail to allow the consideration of special circumstances.

 

Gregg v. Georgia (1976): the death penalty is not unconstitutional for the crime of murder, provided that there are safeguards against arbitrary or capricious impositions by juries.  However, the minority opinion claimed that the death penalty itself is cruel and unusual punishment.

 

Atkins v. Virginia (2002): In the case of mental retardation, the death penalty is cruel and unusual punishment incompatible with the Eighth Amendment.

 

Some constitutional problems for the death penalty

  • Evolving standards of morality make the death penalty impinge on the cruel and unusual punishment clause

Answer:

    1. An originalist would say that then one should amend the Constitution
    2. Who decides what the present standards of morality are?  The issue is complicated because there is a substantial percentage of the population that is in favor of the death penalty.
  • Unequal distribution of the death penalty, e.g. blacks who kill whites are more likely to get the death penalty than blacks who kill blacks.

Answer:

    1. this discriminates against black victims, not black perpetrators
    2. there’s no clear evidence that capital punishment is inherently discriminatory, and consequently its administration can be, and has been, improved.

 

2. Moral problems for capital punishment:

  • The state is as wrong to execute a murderer as the murderer was in killing his victim.

Answer: there’s no parity.  The murderer just harms; the judge punishes; the murderer kills the innocent; the judge orders the killing of the guilty.  The killing of a man need not be murder.

  • Mill was in favor of capital punishment because he thought it was a powerful deterrent.  However, it’s unclear whether capital punishment is, in our system of justice, more deterrent than other punishments such as life imprisonment, especially given the fact that
    • good lawyers can lower one’s chances of being executed.
    • some, when committing crimes, might think little about getting caught.
    • 12 states in the US have abolished the death penalty and in none has the murder rate increased as supporters of capital punishment expected.
  • Capital punishment is discriminatory. Killers of whites are more likely to get the death penalty than killers of blacks.  But discrimination is morally wrong (it’s against equal justice).

Answers:

·       Even if the death penalty were inherently discriminatory (which it isn’t), as long as imposed only on the guilty it would be morally justified: unequal justice is still justice. 

·       The people who have been discriminated against are the blacks whose murderers have escaped death. 

·       Because we fall short of perfection we should not renounce the good.

However, one of the reasons that lead Governor Ryan of Illinois to commute all death penalties in Illinois was that the overwhelming majority of those executed in the state were psychotic, or alcoholic, or drug-addicts, or mentally ill.  Almost all were poor.

  • Some innocents will be executed

Answer: society foresees but does not intend the execution of the innocent.  For example, driving trucks produces innocent deaths, but it would be absurd to forbid state-owned trucks from circulating.

Duplication: but we intend to kill the person convicted, and therefore we do take the moral responsibility of the action upon ourselves.

Thought Question: Is the death penalty permissible if we are reasonably sure that we’ll kill someone who is innocent?

·       The justice system is capitalist, and therefore it replicates the class divisions of society.  If you’re rich, you get very good lawyers, and the chances of being put to death diminish dramatically; by contrast, if you’re poor, your lawyers are likely not to be nearly as good, and your chances of getting the death penalty increase.  The very structure of the justice system makes it, and its decisions, inherently discriminatory.

  • Capital punishment damages human dignity.

Answer: what’s the argument, assuming that capital punishment is carried out in a dignified manner?  Indeed, Kant has argued the reverse.  Waiting to die is unpleasant but, unfortunately, often part of the human condition.

Thought Question: some claim that the death penalty involves dehumanization, total subjugation of the inmate, and extreme psychological pain.  What do you think?

  • The sanctity of life prohibits the death penalty.

Answer:

    1. What’s meant by “the sanctity of life”?  If it means that human life can never be taken, then self-defense would be wrong, which is unreasonable.  Note that self-defense extends to severe bodily or psychological harm.
    2. Appeals to the extreme value of human life has traditionally been used to justify capital punishment; see Kant, for example, who argues that the only way to do justice is to execute the murderer.

·       Capital punishment is too severe.  In the US the most common method of execution is lethal injection.  Sometimes people take a long time (over 30 minutes) to die and doctors refuse to administer it because it violates their professional code of conduct.

Answer: The death penalty merely hastens one’s natural end.  Compare with torture.  Moreover, the nature of some crimes demands a most severe punishment.

Thought Question: Do you think that as currently practiced lethal injection violates the Eighth Amendment?

  • The role of the environment in determining behavior should deter us from inflicting the death penalty.

Answer: people are responsible for what they do.  At most this shows that mitigating circumstances must be seriously considered.

  • Capital punishment involves revenge, which makes it immoral.

Answer:

    1. The balance of justice has nothing to do with revenge.
    2. In the US, the criminal prosecution is by the state, not the family of the victim.
  • The death penalty is too expensive compared to long term, or life, imprisonment NOTE: Retributivists are less impressed than Consequentialists by this objection.

Answer: It depends on what one believes the deterrent effect is.