Online research in philosophy

Derrida's purpose in ‘Death Penalties’ (2004), is to show how both arguments in favour of capital punishment, exemplified by Kant's, and arguments for its abolition, such as those of Beccaria, are deconstructible. He claims that ‘never, to my knowledge, has any philosopher as a philosopher, in his or her own strictly and systematically philosophical discourse, never has any philosophy as such contested the legitimacy of the death penalty.’ (2004, 146) Derrida also asks how it is possible ‘to abolish the death penalty in a way that is based on principle, that is universal and unconditional, and not because it has become not only cruel but useless, insufficiently exemplary?’ (2004, 137) In my paper, I examine Derrida's claim about the lack of systematic opposition to the death penalty on the part of philosophers and suggest an answer to his question concerning the possibility of a universal and unconditional opposition to capital punishment.

The paper is an application of the principle of just deserts (that is, retribution) to the setting of statutory penalties. The conclusion is that there should be no separate penalty for rape but that rape should be punished under the ordinary battery statutes. The argument has four parts. First, there is a description of the place of rape in a typical statutory scheme. Second, there is a consideration of possible justifications for giving rape the status it has in such a typical scheme. All justifications appear to fail for one reason or another. Third, rape is analyzed as battery and the analysis is justified. This analysis includes an explanation of why it would be unjust to punish rape more severely than ordinary batteries. Last, there is a catalogue of some practical advantages to treating rape as battery (for example, simplifying proof of the crime). The paper takes the principle of just deserts (in the form I have elsewhere defended it) for granted, but does add substantially to the understanding of how to apply it.

We will consider alternative ways that Kant’s philosophical views on ethics generally and on punishment more particularly could be brought into harmony with the present near consensus of opposition to the death penalty. We will make use of the notion of the contemporary consensus about certain issues, particularly equality of the sexes and the death penalty, found in widespread agreement, though not unanimity. Of course, it is always possible that some consensuses are wrong, or misguided, or mistaken. We should not put too much philosophical weight on the notion of a consensus here. If there is a consensus for the equality of women as citizens, and against the death penalty, this will simply suggest to us that we will want to reconsider Kant’s views on such topics. In both instances mentioned, his views lie outside the current consensus. We will consider how to revise Kant’s views to bring them into accord with these current consensuses, within a theory that is still, in as significant a sense as possible, Kantian. Since the use of the idea of a consensus is a sort of short-cut, there will not be much direct discussion of arguments for or against the equality of women as citizens, or for or against the advisability of using the death penalty. Yet the discussions of these issues will illuminate certain facts about the structure of Kant’s moral and political theories, and about how the basic principles within those theories relate to particular moral applications or topics. If we can still end up with a thoroughly Kantian view on the death penalty, that also will tell us something about the relation of Kantian ethical and legal principles to the death penalty as that issue is discussed today. Opposition to the death penalty in present day circumstances is not at variance with the basic principles of Kantian ethical, political, and legal theory, including his retributivism in the justification of punishment. Indeed, there is a way of revising Kant’s views to bring them into harmony with abolition.

The 1995 film, Dead Man Walking, concerns the life and execution of a convicted murderer in Louisiana. It is based on the experiences of Sister Helen Prejean, a Catholic nun who found herself caught up in the case. The film is not really an anti-death penalty piece: the convict’s protestations to the contrary notwithstanding, no mistaken identity or extenuating circumstances relieve the prisoner of responsibility. The viewer is told that the convict committed the brutal double rape and murder for which he was sentenced to die. If anyone deserved the death penalty, this man did, and the film captures this horrible truth. And yet the humanity and compassion of Sister Prejean in her dealings with this man still raise questions about the justifiability of the death penalty. Only a remarkable piece of art can convey both sides of a passionate debate with such a clear-eyed sense of the truth.

Despite the international trend towards the abolition of capital punishment, 23 countries still carried out executions in 2010. In many cases the death penalty is imposed after unfair trials and for non-lethal crimes, such as: drug-related offences, economic crimes, sexual relations between consenting adults and blasphemy. Nevertheless, non-abolitionist countries claim that their use of the punishment is consistent with international human rights law. Sophistry knows no limits when it comes to defending the death penalty: legal, economic, even religious and moral arguments have been used to defend what in reality is an atrocious crime. We shall take a look at the various arguments in support of the capital punishment and see if they can stand their ground upon a more thorough analysis.

The debate about the future of the death penalty often focuses on whether its supporters are animated by instrumental or expressive values, and if the latter, what values the penalty does in fact express, where those values originated, and how deeply entrenched they are. In this article I argue that a more explicit recognition of the emotional sources of support for and opposition to the death penalty will contribute to the clarity of the debate. The focus on emotional variables reveals that the boundary between instrumental and expressive values is porous; both types of values are informed (or uninformed) by fear, outrage, compassion, selective empathy and other emotional attitudes. More fundamentally, though history, culture and politics are essential aspects of the discussion, the resilience of the death penalty cannot be adequately understood when the affect is stripped from explanations for its support. Ultimately, the death penalty will not die without a societal change of heart.

The 1995 film, Dead Man Walking, concerns the life and execution of a convicted murderer in Louisiana. It is based on the experiences of Sister Helen Prejean, a Catholic nun who found herself caught up in the case. The film is not really an anti-death penalty piece: the convict’s protestations to the contrary notwithstanding, no mistaken identity or extenuating circumstances relieve the prisoner of responsibility. The viewer is told that the convict committed the brutal double rape and murder for which he was sentenced to die. If anyone deserved the death penalty, this man did, and the film captures this horrible truth. And yet the humanity and compassion of Sister Prejean in her dealings with this man still raise questions about the justifiability of the death penalty. Only a remarkable piece of art can convey both sides of a passionate debate with such a clear-eyed sense of the truth.

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.

The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child rape may be even stronger than for adult murders, contrary to what newspaper editorials are suggesting. Finally, we suggest ways in which death-penalty abolitionists can stop pooh-poohing emotions' role and instead fight the death penalty on emotional terrain, particularly by harnessing the language of mercy and human fallibility.