This article argues that even if we grant that murderers may deserve death in principle, retributivists should still oppose capitalpunishment. 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 capitalpunishment. Thus, on grounds of desert, this article argues that retributivists should oppose capitalpunishment. (shrink)
One of the many arguments against capitalpunishment is that execution is irrevocable. At its most simple, the argument has three premises. First, legal institutions should abolish penalties that do not admit correction of error, unless there are no alternative penalties. Second, irrevocable penalties are those that do not admit of correction. Third, execution is irrevocable. It follows that capitalpunishment should be abolished. This paper argues for the third premise. One might think that the truth (...) of this premise is self-evident. But in his paper “Is the Death Penalty Irrevocable?” Mike Davis argues that it is false: the death penalty is not irrevocable. While Davis’ argument is itself somewhat compelling, it receives additional support from work in the metaphysics of death, specifically the literature on posthumous harm. Strengthened in this way, the argument deserves careful consideration. I begin with a quick sketch of Davis’ argument, then show how the Pitcher-Feinberg theory of posthumous harm enables a more robust argument against the irrevocability of capitalpunishment, defending their theory of harm against standard objections in the literature. Having established the coherency of the robust argument, I conclude that it nevertheless fails to make the case against irrevocability. This is because it ignores the full set of practical requirements incumbent on legal institutions that wrongly punish someone. (shrink)
This book examines the extremely important issue of the consistency of medical involvement in ending lives in medicine, law and war. It uses philosophical theory to show why medical doctors may be involved at different stages of the capitalpunishment process. The author uses the theories of Emmanuel Kant and John S. Mill, combined with Gerwith's principle of generic consistency, to concretize ethics in capitalpunishment practice. This book does not discuss the moral justification of (...) class='Hi'>capitalpunishment, but rather looks at the possible forms of involvement and shows why consistency would demand medical involvement. The author takes a general approach, using arguments that may apply universally. The book broaches different academic fields, such as medicine, ethics, business, politics and defense. The Ethics of Medical Involvement in CapitalPunishment is of interest to students, teachers, lecturers and researchers working in the areas of capitalpunishment, medical, legal and business ethics, and political philosophy. (shrink)
Most readers believe that it is difficult, verging on the impossible, to extract concrete prescriptions from the ethics of Emmanuel Levinas. Although this view is largely correct, Levinas’ philosophy can, with some assistance, generate specific duties on the part of legal actors. In this paper, I argue that the fundamental premises of Levinas’ theory of justice can be used to construct a prohibition against capitalpunishment. After analyzing Levinas’ concepts of justice, responsibility, and interruption, I turn toward his (...) scattered remarks on legal institutions, arguing that they enable a sense of interruption specific to the legal domain. It is here that we find the conceptual resources most important to my Levinasian abolition. I argue that the interruption of legal justice by responsibility implies what I call the principle of revisability. The principle of revisability states a necessary condition of just legal institutions: To be just, legal institutions must ensure the possibility of revising any and all of their rules, principles, and judgments. From this, the argument against capitalpunishment easily follows. Execution is a legal act, perhaps the only legal act, that cannot be undone. An application of the principle of revisability to this fact leads to the conclusion that legal institutions cannot justly impose capitalpunishment. After defending these points at length, I conclude with some observations on the consequences of the principle of revisability for law more generally. (shrink)
This paper contributes to the normative debate over capitalpunishment by looking at whether the role of executioner is one in which it is possible and proper to take pride. The answer to the latter question turns on the kind of justification the agent can give for what she does in carrying out the role. So our inquiry concerns whether the justifications available to an executioner could provide him with the kind of justification necessary for him to take (...) pride in what he does. If they cannot, I argue, this sheds some light on their adequacy as justifications. The main argument of the paper is that social control arguments for the death penalty fail to provide an adequate justification. I also give some consideration to retributive justifications. The argument is developed through close attention to the depiction of Albert Pierrepoint in the film, Pierrepoint: The Last Hangman. (shrink)
Numerous studies indicate that racial minorities are both more likely to be executed for murder and that those who murder them are less likely to be executed than if they murder whites. Death penalty opponents have long attempted to use these studies to argue for a moratorium on capitalpunishment. Whatever the merits of such arguments, they overlook the fact that such discrimination alters the costs of murder; racial discrimination imposes higher costs on minorities for murdering through tougher (...) sentences, and it imposes lower costs on whites for murdering minorities by dispensing weaker sentences. These cost differentials constitute an injustice not simply to actual minority defendants in capital cases, nor simply to the actual minority victims of murder, but to all members of minority communities. I here offer two arguments for a moratorium on capitalpunishment: The first draws upon evidence of racial discrimination against minority defendants in capital cases, and claims that such discrimination modifies the costs of murder in such a way that minority individuals do not enjoy equal status under the law. The second draws upon the evidence regarding racial discrimination in relation to the race of victims, and claims that such discrimination modifies the costs of murder in such a way that minority individuals do not enjoy the equal protection of the law. Thus, by not assigning equal costs to murder, the American criminal justice system fails to provide racial minorities the equality under the law and discounts the value of their lives and liberties. A moratorium is the least unjust response to such a social injustice. I also reply to the criticism that a moratorium prevents us from executing deserving murderers. (shrink)
We argue that the dead donor rule, which states that multiple vital organs should only be taken from dead patients, is justified neither in principle nor in practice. We use a thought experiment and a guiding assumption in the literature about the justification of moral principles to undermine the theoretical justification for the rule. We then offer two real world analogues to this thought experiment, voluntary active euthanasia and capitalpunishment, and argue that the moral permissibility of terminating (...) any patient through the removal of vital organs cannot turn on whether or not the practice violates the dead donor rule.Next, we consider practical justifications for the dead donor rule. Specifically, we consider whether there are compelling reasons to promulgate the rule even though its corresponding moral principle is not theoretically justified. We argue that there are no such reasons. In fact, we argue that promulgating the rule may actually decrease public trust in organ procurement procedures and medical institutions generally – even in states that do not permit capitalpunishment or voluntary active euthanasia.Finally, we examine our case against the dead donor rule in the light of common arguments for it. We find that these arguments are often misplaced – they do not support the dead donor rule. Instead, they support the quite different rule that patients should not be killed for their vital organs. (shrink)
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 capitalpunishment as a result of arbitrariness and discrimination, capitalpunishment should be abolished. Our targets (...) in this paper are two recent attempts, by Thomas Hurka and Michael Cholbi respectively, to defend the view that âlevelling downâ (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 capitalpunishment, morally permissible. We argue that both Hurka and Cholbi fail to show why the arbitrariness and discrimination objection impugns the death penalty. (shrink)
Many Christians are split on whether they believe we should endorse or oppose capitalpunishment. Each side claims Biblical support for their professed position. This essay cannot hope to bring this debate to a conclusion. However, it will try to offer a different perspective. The essay recognizes that the Bible itself offers statements in support of each position. The proposed way forward is not to claim there is a contradiction, but to place greater emphasis on understanding these statements (...) in their particular contexts, specifically with reference to their relation to Jesus’ New Covenant. Such a perspective should lead us to oppose capitalpunishment. (shrink)
Many political philosophers today think of justice as fundamentally about fairness, while those who defend capitalpunishment typically hold that justice is fundamentally about desert. In this paper I show that justice as fairness calls for capitalpunishment because the continued existence of murderers increases unfairness between themselves and their victims, increasing the harm to murdered persons. Rescuing murdered persons from increasing harm is prima facie morally required, and so capitalpunishment is a prima (...) facie duty of society and sentencing judges.1. (shrink)
This paper reviews the concept of human dignity as it has evolved in recent decisions by the United States Supreme Court, and the paper then sketches a “rights based” theory of human dignity. Among the principles of human dignity is a principle of compensation for mistakes in the treatment of any person. A broad concept of mistake is outlined, and, in terms of this concept and the principles of dignity, the practice of capitalpunishment is examined. An argument (...) by Jeffrie Murphy against capitalpunishment is stated and criticized and a stronger argument against capitalpunishment is presented. (shrink)
What is the strongest argument grounded in African values, i.e., those salient among indigenous peoples below the Sahara desert, for abolishing capitalpunishment? I defend a particular answer to this question, one that invokes an under-theorized conception of human dignity. Roughly, I maintain that the death penalty is nearly always morally unjustified, and should therefore be abolished, because it degrades people’s special capacity for communal relationships. To defend this claim, I proceed by clarifying what I aim to achieve (...) in this essay, criticizing existing objections to the death penalty that ethicists, jurists and others have proffered on ‘African’ grounds, and, finally, advancing a new, dignity-based objection with a sub-Saharan pedigree that I take to be the most promising. (shrink)
Evidence that some executed prisoners suffered excruciating pain has reinvigorated the ethical debate about physician participation in executions. In widely publicized litigation, death row inmates argue that participation of anesthesiologists in their execution is constitutionally required to minimize the risk of unnecessary suffering. For many years, commentators supported the ethical ban on physician participation reflected in codes of professional medical organizations. However, a recent wave of scholarship concurs with inmate advocates, urging the law to require or permit physician participation. Both (...) the anti- and pro-physician-participation literature share a common premise: the ethics of physician participation should be analyzed independently from the moral status of capitalpunishment. This considerable literature implausibly divorces the ethics of physician participation from the moral status of the death penalty. Any ethical position on physician involvement requires some judgment about the moral status of capitalpunishment. The article examines anti- and pro-participation arguments to show that each one either is unpersuasive without discussion of the death penalty's moral status or implicitly assumes a view on the social worth of the death penalty. The article then articulates the practical implications of its arguments for both lawmakers and professional medical organizations. (shrink)
Debate has long been waged over the morality of capitalpunishment, with standard arguments in its favour being marshalled against familiar arguments that oppose the practice. In The Ethics of CapitalPunishment, Matthew Kramer takes a fresh look at the philosophical arguments on which the legitimacy of the death penalty stands or falls, and he develops a novel justification of that penalty for a limited range of cases. -/- The book pursues both a project of critical (...) debunking of the familiar rationales for capitalpunishment and a project of partial vindication. The critical part presents some accessible and engaging critiques of major arguments that have been offered in support of the death penalty. These chapters, suitable for use in teaching courses on capitalpunishment, valuably take issue with positions at the heart of contemporary debates over the morality of such punishment. -/- The book then presents an original justification for executing truly terrible criminals, a justification that is free-standing rather than an aspect or offshoot of a general theory of punishment. Its purgative rationale, which has not heretofore been propounded in any current philosophical and practical debates over the death penalty, derives from a philosophical reconception of the nature of evil and the nature of defilement. -/- As the book contributes to philosophical discussions of those phenomena, it also contributes importantly to general normative ethics with sustained reflections on the differences between consequentialist approaches to punishment and deontological approaches. Above all, the volume contributes to the philosophy of criminal law with a fresh rationale for the use of the death penalty and with probing assessments of all the major theories of punishment that have been broached by jurists and philosophers for centuries. Although the book is a work of philosophy by a professional philosopher, it is readily accessible to readers who have not studied philosophy. It will stir both philosophers and anyone engaged with the death penalty to reconsider whether the institution of capitalpunishment can be an appropriate response to extreme evil. -/- . (shrink)
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). (shrink)
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. (shrink)
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. (shrink)
In this essay I develop and defend a theory of state punishment within a wider conception of political legitimacy. While many moral theories of punishment focus on what is deserved by criminals, I theorize punishment within the specific context of the state’s relationship to its citizens. Central to my account is Rawls’s “liberal principle of legitimacy,” which requires that all state coercion be justifiable to all citizens. I extend this idea to the justification of political coercion to (...) criminals qua citizens. I argue that the liberal principle of legitimacy implicitly requires states to respect the basic political rights of those who are guilty of committing crimes, thus prohibiting capitalpunishment. (shrink)
This paper argues that Immanuel Kant’s practical philosophy contains a coherent, albeit implicit, defense of the legitimacy of capitalpunishment, one that refutes the most important objections leveled against it. I first show that Kant is consistent in his application of the ius talionis. I then explain how Kant can respond to the claim that death penalty violates the inviolable right to life. To address the most significant objection – the claim that execution violates human dignity – I (...) argue that motives of honor, as Kant conceives it, require a rational person to will her own execution, were she to commit murder. (shrink)
What should be a police department's policies and regulations on the use of deadly force? What is the relevance for this of the state law on capitalpunishment?
In this article I spell out a conception of dignity grounded in African moral thinking that provides a plausible philosophical foundation for human rights, focusing on the particular human right not to be executed by the state. I first demonstrate that the South African Constitutional Court’s sub-Saharan explanations of why the death penalty is degrading all counterintuitively entail that using deadly force against aggressors is degrading as well. Then, I draw on one major strand of Afro-communitarian thought to develop a (...) novel conception of dignity as the view that what is special and inviolable about human nature is our capacity for harmonious relationships. I argue that a principle of respect for the dignity of such a capacity entails that the death penalty is an indignity but that deadly force in self- or other-defense need not be, and I contend that this African- inspired principle promises to do no worse than the more Western, Kantian principle of respect for autonomy at accounting for a broad range of human rights. (shrink)
It is possible to defend the death penalty for aggravated murder in more than one way, and not every defence is equally compelling. The paper takes up arguments put forward by two very distinguished advocates of the death penalty, Mill and Kant. After reviewing Mill's argument and some weaknesses in it, I shall sketch another line of reasoning that combines his conclusion with premisses to be found in Kant. The hybrid argument provides at least the basis for a sound defence (...) of execution for the most serious murders. (shrink)
Proponents and opponents of the death penalty both typically assume that punishment, in some form or other, is justified, somehow or other, and that just punishment must in some sense be proportionate to the crime. These shared assumptions turn out to embarrass both parties. Proponents have to explain why certain prima facie proportionate punishments, such as torture, are off the table, while death remains, so to speak, on it. Opponents have to explain why their favored alternatives to (...) class='Hi'>capitalpunishment, such as life without parole, are both proportionate to the worst crimes and not as bad as death. The commitment to proportionality makes trouble for both sides of the issue, and its resolution is unlikely until there is a satisfactory general account of proportionality in punishing. Such an account is nowhere in sight. (shrink)
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. (shrink)
This is a critical review of Death Penalties by constitutional scholar Raoul Berger. It rebuts Berger's argument that the Eighth Amendment "no cruel and unusual punishments" clause validates capitalpunishment.
Definitions and distinctions -- Classification -- Of the ends of punishment -- Cases unmeet for punishment -- Expense of punishment -- Measure of punishment -- Of the properties to be given to a lot of punishment -- Of analogy between crimes and punishment -- Of retaliation -- Popularity -- Simple afflictive punishments -- Of complex afflictive punishments -- Of restrictive punishments--territorial confinement -- Imprisonment -- Imprisonment--fees -- Imprisonment examined -- General scheme of imprisonment -- (...) Of other species of territorial confinement--quasi-imprisonment--relegation--banishment -- Of simply restrictive punishments -- Of active or laborious punishment -- Capitalpunishment -- Capitalpunishment examined -- Punishment analyzed -- Of the punishments belonging to the moral sanction -- Forfeiture of reputation -- Of pecuniary forfeitures -- Forfeiture of condition -- Forfeiture of the protection of the law -- Naturally extravasting punishment--rules concerning it -- Punishment apparently, but not really, mis-seated--civil responsibility -- Mis-seated punishment, varieties of -- Vicarious punishment -- Transitive punishment -- Disadvantages of this mode of punishment -- Collective punishment -- Random punishment -- Cause of the frequency of mis-seated punishment -- Inconveniences of complex punishments -- Of transportation -- Panopticon penitentiary -- Felony -- Of præmunire -- Outlawry -- Excommunication -- Choice of punishment--latitude to be allowed to the judges -- Of subsidiary punishments -- Of surety for good conduct -- Defeazance of punishment. (shrink)
Punishment is a topic of increasing importance for citizens and policy makers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many others are addressed in this highly engaging guide. Punishment is a critical introduction to the philosophy of punishment offering a new and refreshing approach that will benefit readers of all backgrounds and interests. This is the first critical guide to examine all leading (...) contemporary theories of punishment, including the communicative theory of punishment, restorative justice, and the unified theory of punishment. There are also several case studies examined in detail including capitalpunishment, juvenile offending, and domestic abuse. -/- Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and groundbreaking. -/- Introduction; Retributivism; Deterrence; Rehabilitation; Restorative Justice; Rawls, Hart, and "mixed" theories; Expressivism; The Unified Theory; CapitalPunishment; Juvenile Offending; Domestic Abuse; Sexual Crimes; Conclusion; Index. (shrink)
Based on the author's award-winning and hugely popular undergraduate course at the University of Texas, this book explores these questions and the fundamentally sociological processes which underlie the quest for morality and justice in ...
This collection of new essays aims to address some of the most perplexing issues arising from death and dying, as well as the moral status of persons and animals. Leading scholars, including Peter Singer and Gerald Dworkin, investigate diverse topics such as animal rights, vegetarianism, lethal injection, abortion and euthanasia.
Retributivism is generally thought to forbid the punishment of the innocent, even if such punishment would produce otherwise good results, such as deterrence. It has recently been argued that because capitalpunishment always entails the risk of executing an innocent person, instituting capitalpunishment is tantamount to intentionally taking innocent lives and therefore cannot be justified on retributive grounds. I argue that there are several versions of retributivism, only one of which might categorically forbid (...) risking punishing innocent persons. I also argue that our moral practices reveal either that we do not hold this particular version of retributivism, or that we reject equating risking punishing the innocent with intentionally doing so. *** DIRECT SUPPORT *** A9102008 00005. (shrink)
Kant maintains that retribution is the only morally sound justification for criminal punishment. He claims that all just criminal punishment must conform to the “principle of equality,” an inflexible juridical rule which takes the form of a categorical imperative. Focusing on his further claim that the principle of equality establishes that capitalpunishment is the only suitable punishment for murder, I question Kant’s contention that the principle of equality is a categorical imperative. Following two lines (...) of inquiry drawing upon the nature of a categorical imperative, I suggest that the principle of equality is a principle conditioned by experience, a hypothetical imperative which Kant only shows to be consistent with, not necessarily mandated by, the idea of a just civil state. (shrink)
This essay examines Martha Nussbaum's prescription for tempering retribution with mercy in the capital sentencing process. Nussbaum observes that the operation of retribution in the ancient world resulted in harsh and indiscriminate punishment without regard to the particularities of the offender and his crime. In the interest of mercy, Nussbaum advocates the use of the novel as a model for a more compassionate sentencing process. An examination of Nussbaum's ``novel prescription'' reveals that the retribution that operates in the (...) modern criminal law, and in the Supreme Court's capital sentencing jurisprudence, already accommodates the values of justice –individuation, particularization, and proportionality – that are characteristic of the mercy tradition. Moreover, the rich narrative approach that Nussbaum favors is by no means congenial to merciful punishment. Because the particularistic detail of the novel form is not confined to the sympathetic portrayal of the defendant, the emotionalism that Nussbaum urges encompasses as well emotional details about the characteristics of the defendant's victim. Such victim impact evidence is consistent with the novel form, but is unlikely to promote merciful judgment. Instead, the details of victim impact evidence can be expected to exacerbate a sentencing authority's inclination to judge a capital defendant harshly. The novel thus provides a poor model for the capital sentencing process because it fosters the sort of unchecked emotionalism that undermines the rational decision making that the Supreme Court has sought to achieve. (shrink)
The mystery does not always end when the crime has been solved. Indeed, the most insolvable problems of crime and punishment are not so much who committed the crime, but how to see that justice is done. Now, in this illuminating volume, one of America's great legal thinkers, Norval Morris, addresses some of the most perplexing and controversial questions of justice in a highly singular fashion--by examining them in fictional form, in what he calls "parables of the law." The (...) protagonist of these stories, the figure who must see that justice is done, is Eric Blair, a name familiar to most readers: it's the real name of George Orwell. In fact, Morris has set his tales in the time and place of Orwell's famous essay, "Shooting an Elephant," in Moulmein, Burma, in the 1920s. What might seem a curious strategy at first glance--borrowing Orwell's persona to narrate these tales--is actually a brilliant stroke. For in Eric Blair we have an ideal narrator to highlight the complexities of justice: an untrained police lieutenant and junior magistrate, uncertain of judgement--and all the more likely to anguish over judgement, and to examine every facet of a case before deciding. And in 1920s Moulmein we have a neutral time and space in which to consider--free of our own political, religious, or social prejudices--a set of contemporary legal and moral questions that rarely find so calm an arena. And these stories certainly address some highly charged issues--capitalpunishment, insanity as a murder defense, the "battered wife syndrome" as a murder defense, child custody, "parental neglect" due to religious conviction--to name a few. In each tale, Norval Morris excels at placing Blair at the center of a controversy that has no easy answer, and that he and he alone must decide. In the title story, for instance, a retarded boy, whose only understanding of sex comes from the brothel in which he works, accidentally murders a young girl while raping her, his only defense being "Please sir, I paid her." Blair can see that the boy doesn't realize that he has committed a crime, but both the Burmese and the European community of Moulmein demand the boy's execution. Does capitalpunishment make sense in such an instance? Does it ever make sense? To broaden our understanding of these intricate cases, Morris concludes each story with a perceptive and often provocative commentary on each issue. After "Brothel Boy," for instance, Morris points out that no reputable study has ever shown capitalpunishment to be an effective deterrent to future murders, and more surprisingly, that paroled murderers commit proportionately fewer homicides than paroled felons who used a firearm in the commission of their crime. Norval Morris is one of America's foremost experts on crime and punishment, and the stories collected here represent the culmination of a lifetime of thought on the major criminal law debates of our time. A reader of these tales will come away with a deeper understanding of these debates and with a profound respect for the intricacies of justice and the complexity of the law. (shrink)
This book aims to answer the question of why, and by what right, some people punish others. With a groundbreaking new theory, Matravers argues that the justification of punishment must be embedded in a larger political and moral theory. He also uses the problem of punishment to undermine contemporary accounts of justice.
The most widespread interpretation amongst contemporary theorists of Kant's theory of punishment is that it is retributivist. On the contrary, I will argue there are very different senses in which Kant discusses punishment. He endorses retribution for moral law transgressions and consequentialist considerations for positive law violations. When these standpoints are taken into consideration, Kant's theory of punishment is more coherent and unified than previously thought. This reading uncovers a new problem in Kant's theory of punishment. (...) By assuming a potential offender's intentional disposition as Kant does without knowing it for certain, we further exacerbate the opportunity for misdiagnosis. (shrink)
This chapter examines how advances in nanotechnology might impact criminal sentencing. While many scholars have considered the ethical implications of emerging technologies, such as nanotechnology, few have considered their potential impact on crucial institutions such as our criminal justice system. Specifically, I will discuss the implications of two types of technological advances for criminal sentencing: advanced tracking devices enabled by nanotechnology, and nano-neuroscience, including neural implants. The key justifications for criminal punishment- including incapacitation, deterrence, rehabilitation, and retribution – apply (...) very differently to criminal sentences using these emerging technologies than they do to imprisonment. Further, use of these technologies would represent a shift away from retribution as the primary justification for criminal punishment. In addition, the possibility of nano-neural implants entails a new model of rehabilitation: namely, involuntary rehabilitation aimed at changing an offender’s character, rather than his environment. (shrink)
Christopher Bennett presents a theory of punishment grounded in the practice of apology, and in particular in reactions such as feeling sorry and making amends. He argues that offenders have a 'right to be punished' - that it is part of taking an offender seriously as a member of a normatively demanding relationship (such as friendship or collegiality or citizenship) that she is subject to retributive attitudes when she violates the demands of that relationship. However, while he claims that (...)punishment and the retributive attitudes are the necessary expression of moral condemnation, his account of these reactions has more in common with restorative justice than traditional retributivism. He argues that the most appropriate way to react to crime is to require the offender to make proportionate amends. His book is a rich and original contribution to the debate over punishment and restorative justice. (shrink)
Abstract In The Problem of Punishment, David Boonin offers an analysis of punishment and an account of what he sees as ethically problematic about it. In this essay I make three points. First, pace Boonin's analysis, everyday examples of punishment show that it sometimes isn't harmful, but merely ?discomforting.? Second, intentionally ?discomforting? offenders isn't uniquely problematic, given that we have cases of non-punitive intentional discomforture?and perhaps even harmful discomforture?that seem unobjectionable. Third, a notable fact about both non-harmful (...)punishment and non-punitive intentional discomforture is that they aim at improving the subject. This suggests that, if the prima facie wrongness of intentionally harming another person is the fundamental challenge for punishment, the ?educative defense? is the royal road to justifying the practice. I conclude by outlining one version of the educative defense that exploits this advantage while avoiding some traditional objections to the approach. (shrink)
Why is American punishment so cruel? While in continental Europe great efforts are made to guarantee that prisoners are treated humanely, in America sentences have gotten longer and rehabilitation programs have fallen by the wayside. Western Europe attempts to prepare its criminals for life after prison, whereas many American prisons today leave their inhabitants reduced and debased. In the last quarter of a century, Europe has worked to ensure that the baser human inclination toward vengeance is not reflected by (...) state policy, yet America has shown a systemic drive toward ever increasing levels of harshness in its criminal policies. Why is America so short on mercy? In this deeply researched, comparative work, James Q. Whitman reaches back to the 17th and 18th centuries to trace how and why American and European practices came to diverge. Eschewing the usual historical imprisonment narratives, Whitman focuses instead on intriguing differences in the development of punishment in the age of Western democracy. European traditions of social hierarchy and state power, so consciously rejected by the American colonies, nevertheless supported a more merciful and dignified treatment of offenders. The hierarchical class system on the continent kept alive a tradition of less-degrading "high-status" punishments that eventually became applied across the board in Europe. The distinctly American, draconian regime, on the other hand, grows, Whitman argues, out of America's longstanding distrust of state power and its peculiar, broad-brush sense of egalitarianism. Low-status punishments were evenly meted out to all offenders, regardless of class or standing. America's unrelentingly harsh treatment of trangressors--this "equal opportunity degradation"-- is, in a very real sense, the dark side of the nation's much vaunted individualism. A sobering look at the growing rift between the United States and Europe, Harsh Justice exposes the deep cultural roots of America's degrading punishment practices. (shrink)
The argument between retributivists and consequentialists about what morally justifies the punishment of offenders is incoherent. If we were to discover that all of the contending justifications were mistaken, there is no realistic prospect that this would lead us to abandon legal punishment. Justification of words, beliefs and deeds, can only be intelligible on the assumption that if one's justification were found to be invalid and there were no alternative justification, one would be prepared to stop saying, believing (...) or doing what one has attempted to justify. Therefore, the moral standing or basis of our practices of punishing offenders can not rest on a justification of it. (shrink)
David Boonin has recently argued that although no existing theory of legal punishment provides adequate moral justification for the practice of punishing criminal wrongdoing, compulsory victim restitution (CVR) is a morally justified response to such wrongdoing. Here I argue that Boonin’s thesis is false because CVR is a form of punishment. I first support this claim with an argument that Boonin’s denial that CVR is a form of punishment requires a groundless distinction between a state’s response to (...) a criminal offense and its response to an offender’s failure to comply with the sanctions imposed for that offense. I then suggest that this argument points to a definition of punishment that not only meets Boonin’s own desiderata for a definition of punishment but also implies that CVR is a form of punishment. Finally, I argue that CVR is a form of punishment even under Boonin’s own proposed definition of punishment. -/- . (shrink)
In this journal, Michael Clark defends a "A Non-Retributive Kantian Approach to Punishment". I argue that both Kant's and Rawls's theories of punishment are retributivist to some extent. It may then be slightly misleading to say that by following the views of Kant and Rawls, in particular, as Clark does, we can develop a nonretributivist theory of punishment. This matter is further complicated by the fact Clark nowhere addresses Rawls's views on punishment: Rawls endorses a mixed (...) theory combining retributive and utilitarian features. Of those discussed by Clark, only Scanlon defends the use of nonretributivist punishments. Yet, here too Clark nowhere addresses Scanlon's views on punishment. Thus, Clark's views on retributive punishment are highly problematic. (shrink)
In the latter half of the twentieth century, there has been a sharp decline in confidence in sentencing principles, due to a questioning of the efficacy of punishment. It has been very difficult to develop consistent, fair, and humane criteria for evaluating legislative, judicial and correctional advancements. The Practice of Punishment offers a comprehensive study of punishment that identifies the principles of sentencing and corrections on which modern correctional systems should be built. The theory of punishment (...) that emerges is built on the view that the central function of the law is to reduce the need to use force in the resolutions of disputes. In this text, Wesley Cragg argues that the proper role of sentencing and sentence administration, as well as policing and adjudication, is to sustain public confidence in the capacity of the law to fulfill that function. Cragg believes that sentencing and corrections should be guided by principles of restorative justice, and he contends that inflicting punishment is in itself not a legitimate objective of criminal law. The Practice of Punishment is a philosophical account of punishment, sentencing, and correction which draws strongly on first-hand experience of penal practices, diverse recent studies, government reports, position papers, crime surveys, and victim concerns. It will be of special interest to applied ethicists, those concerned with the theory and practice of punishment and policing, and criminal justice scholars and lawyers. (shrink)
abstract Shame punishments have become an increasingly popular alternative to traditional punishments, often taking the form of convicted criminals holding signs or sweeping streets with a toothbrush. In her Hiding from Humanity, Martha Nussbaum argues against the use of shame punishments because they contribute to an offender's loss of dignity. However, these concerns are shared already by the courts which also have concerns about the possibility that shaming might damage an offender's dignity. This situation has not led the courts to (...) reject all uses of shaming, but only to accept shaming within certain safeguards. Thus, despite Nussbaum's important reservations against shame punishments, it may still be possible for her to accept shaming within specific parameters such as those set out by the courts that protect the dignity of an offender. As a result, she need not be opposed to the use of legitimate shame punishment. (shrink)
This paper attempts to establish that, and explain why, the practice of punishing offenders is in principle morally permissible. My account is a nonstandard version of the fair play view, according to which punishment's permissibility derives from reciprocal obligations shared by members of a political community, understood as a mutually beneficial, cooperative venture. Most fair play views portray punishment as an appropriate means of removing the unfair advantage an offender gains relative to law-abiding members of the community. Such (...) views struggle, however, to provide a plausible account of this unfairly gained benefit. By contrast, on my account punishment's permissibility follows more straightforwardly from the fair play view of political obligation: Specifically, the rule instituting punishment is itself among those rules with which members of the political community are obliged to comply. For criminal offenders, compliance requires submitting to the prospect of punishment. (shrink)
Punishment -- Culpable mind -- Culpable action -- Responsibility for harm -- Liability for public welfare offences -- Justification -- Excuse -- Detention after acquittal -- The unity of the penal law.
Some philosophers defend legal punishment by appealing to a natural right to punish wrongdoers, a right people would have in a state of nature. Many of these philosophers argue that legal punishment can be justified by transferring this right to the state. I’ll argue that such a right may not be transferrable to the state because such a right may not survive the transition out of anarchy. A compelling reason for the natural right claim – that in a (...) state of nature there are few if any viable non-punitive enforcement options – isn’t obviously true in state contexts. (shrink)
In her later writings Jean Hampton develops an expressive theory of punishment she takes to be retributivist. Unlike Feinberg, Hampton claims wrongdoings as well as punishments are expressive. Wrongdoings assert that the victim is less valuable than victimizer. On her view we are obligated to punish because we are obligated to respond to this false assertion. Punishment expresses the moral truth that victim and wrongdoer are equally valuable. We argue that Hampton's argument would work only if she held (...) that exerting power over another provides evidence (albeit defeasible) of one's greater value. This is clearly a premise that neither she nor her readers are likely to accept. (shrink)
In contrast to the vast literature on retributive theories of punishment, discussions of private revenge are rare in moral philosophy. This paper reviews some examples, from both classical and recent writers, finding uncertainty and equivocation over the ethical significance of acts of revenge, and in particular over their possible resemblances, in motive, purpose or justification, to acts of lawful punishment. A key problem for the coherence of our ethical conception of revenge is the consideration that certain acts of (...) revenge may be just (at least in the minimal sense that the victim of revenge has no grounds for complaint against the revenger) and yet be generally agreed to be morally wrong. The challenge of explaining adequately why private revenge is morally wrong poses particular difficulty for purely retributive theories of punishment, since without invoking consequentialist reasons it does not seem possible adequately to motivate an objection to just and proportionate acts of revenge. (shrink)
This paper is concerned with the tensions that arise when one juxtaposes one important liberal understanding of the nature and use of state power in circumstances of pluralism and (broadly) retributive accounts of punishment. The argument is that there are aspects of the liberal theory that seem to be in tension with aspects of retributive punishment, and that these tensions are difficult to avoid because of the attractiveness of precisely those features of each account. However, a proper understanding (...) of both liberalism and retributive punishment allows us to dissolve some of the tensions whilst also bringing each position into sharper relief. The paper begins by introducing the liberal position and outlining the apparent tensions that may arise with retributive punishment. In so doing, there is also a brief discussion of how this debate relates to the more familiar dispute between legal moralists and their opponents. The paper then proceeds by considering each of the areas of tension in turn. (shrink)
The idea that victims of social injustice who commit crimes ought not to be subject to punishment has attracted serious attention in recent legal and political philosophy. R. A. Duff has argued, for example, a states that perpetrates social injustice lacks the standing to punish victims of such injustice who commit crimes. A crucial premiss in his argument concerns the fact that when courts in liberal society mete out legitimate criminal punishments, they are conceived as acting in the name (...) of all citizens—on behalf of the whole political community. Resisting this premiss, Peter Chau has suggested that courts ought to be conceived as acting only in the name of “just citizens”: citizens who cannot be plausibly seen as having contributed to distributive injustice. When conceived in this way, Chau argues, courts can no longer plausibly be regarded as lacking standing to punish. This article uses the debate between Duff and Chau to explain why the question of whether to punish socially deprived offenders can only be answered adequately when connected to broader concerns of democratic theory. Specifically, it argues that Chau’s proposal is not available within the context of the kind of political community upon which (Duff rightly believes) a system of liberal criminal law depends for its justification and maintenance: a community in which citizens see the law as embodying shared norms whose specific demands they disagree about. State officials are morally permitted to see themselves as acting on behalf of a subset of the citizenry, I argue, only in circumstances of democratic crisis : circumstances in which a moral community can no longer be plausibly said to exist. (shrink)
