Online research in philosophy

Hugo Adam Bedau, Death is Different: Studies in the Morality, Law, and Politics of Capital Punishment Boston: Northeastern University Press, 1987; xii, 307pp.

It a mistake to think that opponents of the death penalty are invariably sentimentalists, motivated by tenderness to those convicted of deliberate murder. They might, quite rightly, often be motivated by compassion for others branded as criminals, who in more rational, more just, or kinder dispensations would not be criminals at all – for example, soliciting prostitutes and drug addicts. They might also understand, although (a different thing) neither condone nor forgive, murder committed in the unmeditated grip of passion. Such attitudes are prompted by sympathy for the difficulties that can divert a life into making a hell for itself and others – or just for the frailties of the human spirit, so numerous and sometimes so final that they seem to be its destiny.

The Case Against the Death Penalty, authored by capital punishment scholar Hugo Adam Bedau and published by the American Civil Liberties Union, is a leading publication on capital punishment and in particular on the abolition of the practice. In this seminal work, Bedau offers eight arguments as to why capital punishment is inconsistent with the Constitution and the fundamental principles undergirding the American criminal justice system. Specifically, Bedau argues that capital punishment does not deter capital crimes, is unfair, is irreversible, is barbarous, is unjustified retribution, costs more than incarceration, is less popular than alternative punishments, and is internationally viewed as inhumane and anachronistic.Despite its continuing influence, The Case Against the Death Penalty, has not been directly or comprehensively challenged in any academic legal journal. This Article attempts, for the first time, to fully examine the eight objections to capital punishment advanced by Bedau. In doing so, this Article draws upon Supreme Court jurisprudence, including the landmark Furman v. Georgia decision, government studies, legal and philosophical commentary, and other contemporary sources.The Article provides a brief historical overview of the development of capital punishment in the United States. It finds that the barbarity, cost, domestic popularity, and global attitudes claims are irrelevant to a determination of whether capital punishment is compatible with American laws and principles. It further finds that the arbitrary imposition, killing of the innocent, and deterrence arguments are inconclusive. As a result, the Article concludes with the observation that Bedau's final argument, that capital punishment is unjustified retribution, is the only one that is ultimately salient. It further argues that this argument amounts to a moral determination as to whether the death penalty is a just form of punishment and it is this inherently value-based judgment that will decide the fate of capital punishment in this nation.

In the Metaphysics of Morals Kant clearly, and indeed ardently, upholds the state's right to impose the death penalty in accordance with the law of retribution (ius talionis). The “principle of equality” as between crime and punishment demands that those who wrongfully kill another should be put to death, for, in having inflicted such an evil upon another, the murderer has effectively killed himself. Kant is quite emphatic on this point: those who have committed murder “must die”. Here, he argues, “there is no substitute that will satisfy justice”, for there “is no similarity between life, however wretched it may be, and death, hence no likeness between the crime and the retribution unless death is judicially carried out upon the wrongdoer […]”. The ius talionis is, for Kant, the basic principle and measure in accordance with which criminal justice functions. Since the ius talionis entails a strict equality between crime and punishment, Kant's insistence that only the death penalty serves as the appropriate response to murder (or to any other equally egregious crime) is fairly straightforward.

The goal of this discussion is to use Pontius Pilate's sentencing of Jesus as a metaphor for our imperfect criminal justice system as it relates to capital punishment. There are few injustices that are more unacceptable than when an innocent defendant is convicted of a crime he did not commit. Such injustices are especially egregious when the defendant is wrongfully convicted of capital murder and faces execution. Such wrongful convictions can be attributed to a variety of reasons with one single denominator; we as humans are imperfect and the way we administer criminal justice is imperfect, Pilate, the Roman Governor of Judea sentenced an innocent Jesus to execution on the cross. The arrest, trial and sentencing of Jesus is instructive for 21st Century capital punishment jurisprudence. First, Jesus was innocent. Second, Jesus represented himself pro se with no legal representation. The trial of Jesus was less a trial and more a murder motivated by greed, ambition and dishonesty. Characteristics that are so inherently human. New Jersey's cutting edge decision to abolish capital punishment was a result of a report filed by the New Jersey Death Penalty study Commission. The Commission was very concerned with the very real possibility of executing an innocent capital defendant, in part because of the fact that simply, we as humans are as imperfect as our criminal justice system.

In *Engaging Capital Emotions,* Douglas Berman and Stephanos Bibas argue that emotion is central to understanding and evaluating the death penalty, and that the emotional case for the death penalty for child rape may be even stronger than for adult murder. Both the Berman and Bibas article and the subsequent Supreme Court decision in Kennedy v. Louisiana (striking down the death penalty for child rape) raise difficult questions about how to measure the heinousness of crimes other than murder, and about the role the pain suffered by victims and victims' families should play in this inquiry. In this Reply, I agree with the authors on the importance of confronting emotion's role in capital punishment, for reasons I discuss in Part A. However, I disagree with their claim that the moral outrage evoked by child rape supports making it a capital crime. Part B explores the difficulties of using the existence of moral outrage as a measure of appropriate punishment. Part C argues that the penal system should not merely reflect moral outrage, but channel and educate it. It suggests that the availability of the death penalty may create an anchoring effect, communicating the message that the death penalty is the proper way to express moral outrage and to honor the worth of murder victims. It explores the consequences of this message. Section II focuses on the role of emotion in deciding whether child rape should be a capital crime. Part A considers the problematic role of victim harm in determining whether the death penalty is appropriate. It explores the question, raised in Kennedy v Louisiana, of whether the effect of a capital trial on child rape victims ought to be part of the calculus. Part B argues that there are three particular problems with allowing juries to sentence child rapists to death: the deleterious effect of anger and empathy, the problem of generic prejudice, and the issue of race.

This is a critical discussion of the Baldus study of capital sentencing in Georgia. It concludes that the Baldus finding of a "race-of-the-victim" effect is less robust than capital-punishment abolitionists have claimed. But the flaws in the Baldus study should not comfort death-penalty advocates, for they reveal an epistemological barrier to the US Supreme Court's ever being able to satisfy itself both that the sentence reflects particularized consideration of the circumstances and character of the defendant (mandated by Woodson v North Carolina) and that it is not the product of racial bias (condemned in Furman v Georgia and Gregg v Georgia).

Our purpose in this paper is to consider a procedural objection to the death penalty. According to this objection, even if the death penalty is deemed, substantively speaking, a morally acceptable punishment for at least some murderers, since only a small proportion of those guilty of aggravated murder are sentenced to death and executed, while the majority of murderers escape capital punishment as a result of arbitrariness and discrimination, capital punishment should be abolished. Our targets in this paper are two recent attempts, by Thomas Hurka and Michael Cholbi respectively, to defend the view that ‘levelling down’ (that is, reducing the punishment imposed on a criminal from the punishment he absolutely deserves to a less severe punishment in order to achieve proportionality relative to the criminals who have escaped the punishment they absolutely deserve) is, in the context of capital punishment, morally permissible. We argue that both Hurka and Cholbi fail to show why the arbitrariness and discrimination objection impugns the death penalty.

This article argues that even if we grant that murderers may deserve death in principle, retributivists should still oppose capital punishment. The reason? Our inability to know with certainty whether or not individuals possess the necessary level of desert. In large part due to advances in science, we can only be sure that no matter how well the trial is administered or how many appeals are allowed or how many years we let elapse, we will continue to execute innocent persons for as long as we legalize capital punishment. Thus, on grounds of desert, this article argues that retributivists should oppose capital punishment.