Capital Punishment

We shall argue that there is adequate moral justification for capital punishment with linkage, that is, with linkage to keeping non-murderers from dying. We present the argument with two aims in mind. The first is to question the conventional wisdom, seldom challenged even by proponents of capital punishment, that being an abolitionist is closely connected to having a civilized respect for human life. This conventional wisdom, we hope to show, is somewhat off the mark. To this end we exhibit structural (...) similarities between so-called lifeboat dilemmas and the public's relationship to a murderer. In a lifeboat dilemma one must choose between saving this life or that, since the lifeboat will not hold both persons. Now if this life were an innocent's and that one a murderer's, a choice to save the latter would not be met with accusations of callousness towards human life. We hope to project everyone's intuitions about this case onto the more baffling case of a society's relationship to the murderers and dying innocents in its midst. (shrink)

Drawing upon empirical studies of racial discrimination dating back to the 1940’s, the Movement for Black Lives platform calls for the abolition of capital punishment. Our purpose here is to defend the Movement’s call for death penalty abolition in terms congruent with its claim that the death penalty in the U.S. is a “racist practice” that “devalues Black lives.” We first sketch the jurisprudential history of race and capital punishment in the U.S., wherein courts have occasionally expressed worries about racial (...) injustice but have usually taken such evidence to warrant reform but not outright abolition. We argue that the racial discrimination at issue flows in significant part from implicit biases concerning race, criminality, and violence, which do not fit comfortably within the picture of racial bias advanced by the courts. The case for abolition, we contend, rests on Black Americans as a class (not merely those who interact with the criminal justice system as capital defendants or as murder victims) being subject to such bias and thereby not being accorded equal status under the law. (shrink)

Reprint of a chapter first published in _African Philosophy and the Future of Africa_ (2011).

Aquinas held that lying is always a sin, an evil action. In later terminology it falls under what would be called an intrinsically evil action. Under no circumstances can it be a good action. Following Augustine, Aquinas held that even if others must die, one must still never tell a lie. Yet when it comes to self-defense and capital punishment Aquinas’s reasoning seems at odds with itself. One may kill a man in self-defense. Similarly, just as a diseased limb may (...) be cut off for the sake of the good of the whole, so too may an evildoer who is dangerous to the community be killed for the sake of the good of the whole community. Herein lies the tension: why does Aquinas hold that it is licit to kill in self-defense or in capital punishment on account of the common good, but that one may never tell a lie on account of the common good? I argue that Aquinas does indeed have a consistent account. Killing and lying are not analogous, despite the prima facie temptation to lump them together. (shrink)

Can one consistently oppose abortion on moral grounds, yet think the death penalty is morally acceptable?

Matthew Flannagan explains why Christians can consistently both oppose abortion and support the death penalty.

ABSTRACTIn a recent issue of this journal, David Silver and Gerald Dworkin discuss the physicians' role in execution by lethal injection. Dworkin concludes that discussion by stating that, at that point, he is unable to think of an acceptable set of moral principles to support the view that it is illegitimate for physicians to participate in execution by lethal injection that would not rule out certain other plausible moral judgements, namely that euthanasia is under certain conditions legitimate and that organ‐donation (...) surgery is sometimes permissible. This article draws attention to some problems in the views of Silver and Dworkin and suggests moral principles which support the three moral views just mentioned. (shrink)

At the end of the first part of the Philosophy of Right, Hegel outlines a retributivist theory of criminal punishment. According to this view, crime is an infringement of right, a negation which itself must be negated in order to establish the actuality of right. Crime is superseded through punishment, which inflicts on the criminal an injury that is equal in magnitude or “value” to the injury inflicted by the crime itself. Nothing in this account appears to foreclose the possibility (...) that an appropriate penalty for some crimes may be death. Indeed, some passages in the Philosophy of Right strongly imply an acceptance of the legitimacy of capital punishment for certain crimes, such as murder. (shrink)

Hegel does not directly examine the legitimacy of capital punishment in the Philosophy of Right. There is an implication of vengeful death in the endless retribution that characterizes abstract right, and also in the potential carnage that can result from non-compliance with the prevailing order in a society based upon morality; but in terms of just punishment, which can only occur in the state, Hegel is silent on the matter of the death penalty. It is mentioned occasionally in the “additions” (...) to the main text provided by the lecture notes of Hegel’s students, wherein Hegel reportedly speaks of the necessity of the death penalty for murder, and the undesirability of capital punishment for most lesser crimes. Although the conclusions of this paper do not contradict either of these representations of Hegel’s opinion about capital punishment, the arguments used will not rely on the additions since their authority is not beyond question. Rather, this paper will be concerned only with Hegel’s own pronouncements, which refer directly to the death penalty only twice—and each time in connection to historical treatments of the subject. Both Draco’s “barbarous” insistence that every criminal meet with death, and Beccaria’s arguments against the right of the state to employ the death penalty are criticized by Hegel, but the object of criticism in each case is the reasoning behind their respective positions. Nowhere in the main text of the Philosophy of Right does Hegel explicitly endorse or deny the legitimacy of capital punishment. (shrink)

This article is about decision making by juries in capital cases. A jury is a collection of individuals who may possess differing views about factors relevant to the task before them, but who must, nonetheless, arrive collectively at a decision. As such, the members of the jury face a classic social choice problem. We investigate how this problem is likely to be resolved under various institutional regimes, differentiated by the set of individuals who are allowed to participate and the decision (...) rule controlling their activities. As in our previous paper analyzing decision making by juries, we focus here on an aspect of the process that has been neglected in judicial opinions and academic scholarship: namely to what extent, and how, persistent disagreement among jurors can and will be resolved. (shrink)

The nine essays in this volume resulted from a symposium on "criminal justice and punishment" at the University of Nebraska at Omaha, in response to concerns about the workability and defensibility of any system of punishment. Among the contributors are Professors of Philosophy, Law, and Government, and the executive director of a Law Enforcement Commission. What emerges as the central focus of the book is a predominant interest in "retributivism." As J. B. Cederblom writes in the introduction, the retributive or (...) "just deserts" theory of punishment has come to dominate at the present time. The extent to which the retributivist position is promoted in opposition to an indistinct representation of utilitarianism, makes the book less challenging as a statement of the retributive position on punishment. Without a doubt, the more recent works of R. M. Hare and David Lyons, among others writing on utilitarian theory, do much to make easy claims against the theory appear facile if not naive. It is interesting that the bibliography does not refer to Hare’s work and mentions only one essay by Lyons. This is not to condemn the book, however, for it serves an important role in reawakening philosophers to the importance of a long-standing debate with a revived and healthy retributivism. But it is a warning that it is oftentimes too easy to defend a position when the opposition is not represented at the hearing. (shrink)

As the crime rate rises and attempts to rehabilitate criminals prove unsuccessful, attacks upon recent reforms in our handling of crime increase. In this book van den Haag offers both a theory of punishment which supports traditional penal policies and factual data which show the failure of recent reforms. van den Haag claims that the main purpose of a legal system is to preserve order but that not every system that does this is acceptable. Along with preserving order, a legal (...) system should also be retributively just, i.e., punish those and only those who deserve it, because only such a system will gain public support. Although van den Haag does not present an original thesis on the moral justification of punishment, he covers many important issues in a lucid fashion, argues forcefully for his views, and presents some new arguments. In his discussion of our legal system’s exclusion of illegally obtained evidence, he argues that such evidence should be admissible in court since the misconduct of the police is irrelevant to the guilt or innocence of the accused. If the police obtain evidence illegally, then they should be punished rather than society harmed by allowing the guilty to go free. In defending the death penalty, van den Haag contends that it is the opponents of the penalty’s effectiveness as a deterrent who have the burden of proof. Since, other things being equal, increasing the severity of the penalty decreases the incidence of various crimes, it must be assumed that the incidence of any crime can be decreased by increasing the severity of the punishment. Thus, without clear evidence to the contrary, the death penalty would have to be deemed likely to have a deterrent effect. The factual data presented by van den Haag is interesting and one recent experiment he discusses has produced particularly surprising results. This experiment on student cheating showed that the threat of punishment was effective in producing the desired behavior, but that exhortations to be honest were counterproductive.—M.G. (shrink)

Although a number of anthologies on the philosophy of punishment have been published in recent years, the inclusion of a number of important but rarely reprinted articles makes this volume a valuable addition to the field. Included are such historically important figures as Plato, Thomas Hobbes, and St. Thomas Aquinas; such rarely included figures as G. B. Shaw, Samuel Butler and Karl Marx; the important but ignored Mill-Gilpin controversy on capital punishment; and the hitherto nearly inaccessible paper by Richard Wasserstrom, (...) "Why Punish the Guilty?" Along with these fresh selections are numerous influential, widely-reprinted classical and contemporary essays. The selections are grouped into five sections, the largest of which, constituting nearly half the text, deals with the justification of punishment. The various justificatory theories are classified as teleological, retributivist, and teleological retributivist. The latter theory, not clearly defined by the editor, is represented by W. D. Ross, H. L. A. Hart, J. D. Mabbott, and K. G. Armstrong, who relate the teleological and retributivist elements in their theories in quite different ways. A section entitled "Alternatives to Punishment" provides selections which question the justice of punishment, its deterrent effect and the success of our present penal system. The other sections deal with the strict liability issue, the concept of punishment and the death penalty. Although containing good selections, the sections dealing with the latter two topics, including four and three articles respectively, are quite short. There are long bibliographies for each section and an introductory article by Professor Ezorsky examining the various justifications offered for punishment and arguing for a teleological retributivist theory.—M.G. (shrink)

Matthew Kramer has recently defended a novel justification for the death penalty, something he calls the purgative rationale. According to this rationale, the death penalty can be justifiably implemented if it is necessary in order to purge defilingly evil offenders from a moral community. Kramer claims that this rationale overcomes the problems associated with traditional rationales for the death penalty. Although Kramer is to be commended for carving out a novel niche in a well-worn dialectical space, I argue that his (...) rationale falls somewhat short of the mark. By his own lights, a successful justification of the death penalty must show that death is the minimally invasive, most humane means to some legitimate moral end. But even if we grant that his rationale picks out a legitimate moral end, there are at least three alternatives to death, either ignored or not fully considered by Kramer, which would seem to satisfy that end in a less invasive, more humane manner. (shrink)

Mental retardation is an invented bureaucratic category, currently undergoing radical rethinking and likely renaming, that includes many who have biologically based brain disorders, but is itself determined on functional criteria that are purely arbitrary. People with MR are socially vulnerable and thus are more likely to be "naíve confessors," "naíve defendants," and "naíve offenders." That is most likely the rationale and justification for the Supreme Court's decision, in Atkins v. Virginia, to exempt the class from execution. Although the decision is (...) to be applauded as a step in a more humane direction, it is problematic to use an indirect, artificial, and insufficiently inclusive category to determine who should or should not be executed. Limited social intelligence is a characteristic of a wide range of brainbased syndromes and disorders, including many who fall above the upper IQ limit and, thus, are ineligible for the MR label and the legal protections associated with it. A more equitable, and logical, policy would be to extend execution exemption to all who demonstrate the same kinds of vulnerabilities, especially if they can be linked to some brain-based medical condition, regardless of whether one qualifies for the label of MR. (shrink)

This book provides an entry-level introduction to philosophical ethics, theories of moral reasoning, and selected issues in applied ethics. Chapter 1 describes the importance of philosophical approaches to ethical issues, the general dialectical form of moral reasoning, and the broad landscape of moral philosophy. Chapter 2 presents egoism and relativism as challenges to the presumed objectivity and unconditionality of morality. Chapters 3, 4 and 5 discuss utilitarianism, deontology, and virtue ethics, respectively. Each chapter begins with a general overview of the (...) characteristic theory of value and moral reasoning and proceeds to present a more refined account based on a prominent historical source (Mill, Kant, and Aristotle, respectively). It then discusses strengths and weaknesses of the theory from a contemporary perspective, including more recent developments, defenses, and critiques. Each chapter includes an appendix in which secondary, less prominent, or more complex issues are discussed. Chapters 6-9 address in detail a prominent area of applied ethics: 6. abortion, 7. assisted dying, 8. Biotechnology, 9. Animals and eating. Each of these chapters presents an introduction to the topic, including definitions, historical and contemporary developments and contexts, etc.; the various questions and issues involved; and an application of each theory from multiple points of view. Each chapter also includes a set of primary readings along with an extensive bibliography. Chapter 10 discusses four more areas of applied ethics: War, Torture, and Terrorism; Capital Punishment; Environmental Ethics; and Same-Sex Marriage. The treatment of these topics focuses mainly on the introductory material. While there is some discussion of the various ethical arguments, it is less comprehensive or detailed compared to other chapters. However, several primary resources are listed to supplement the discussion in the textbook. (shrink)

_Against Capital Punishment_ offers an innovative proceduralist argument against the death penalty. Worries about procedural injustice animate many popular and scholarly objections to capital punishment. Philosophers and legal theorists are attracted to procedural abolitionism because it sidesteps controversies over whether murderers deserve death, holding out a promise of gaining rational purchase among death penalty retentionists. Following in this path, the book remains agnostic on the substantive immorality of execution; in fact, it takes pains to reconstruct the best arguments for capital (...) punishment and presumes the appropriateness of execution in limited cases. At the same time, the book contends that the possibility of irrevocable mistakes precludes the just administration of the death penalty. The heart of _Against Capital Punishment_ is a philosophical defense of the well-known irrevocability argument, which analyzes the argument’s premises, establishes their validity, and vindicates them against objections. The central claim is that execution violates the principle of remedy, which requires legal institutions to remedy their mistakes and to compensate those who suffer from wrongful sanctions. The death penalty is repellent to the principle of remedy by dint of its irrevocability. The incompatibility of remedy and execution is the crux of the irrevocability argument: because the wrongly executed cannot enjoy the obligatory remedial measures, execution is impermissible. _Against Capital Punishment_ also reveals itself to be free from two serious defects plaguing other versions of proceduralism: the retributivist challenge and the problem of controversial consequences. (shrink)

A deterrence theory of punishment holds that the institution of criminal punishment is morally justified because it serves to deter crime. Because the fear of external sanction is an important incentive in crime deterrence, the deterrence theory is often associated with the idea of severe, disproportionate punishment. An objection to this theory holds that hope of escape renders even the severest punishment inapt and irrelevant. -/- This article revisits the concept of deterrence and defend a more plausible deterrence theory of (...) punishment—the wide-scope deterrence theory. The wide-scope theory holds that we must make the best use of all the deterrence tools available, including both external and internal sanctions. Drawing on insights from the early Confucian tradition, the article develops a deep deterrence theory, which holds that the most important deterrence tool involves internal, not external, sanction. It describes how internal sanctions deter potential offenses and why relevant policies need not conflict with liberalism’s respect for neutrality. (shrink)

_Kant and Applied Ethics_ makes an important contribution to Kant scholarship, illuminating the vital moral parameters of key ethical debates. Offers a critical analysis of Kant’s ethics, interrogating the theoretical bases of his theory and evaluating their strengths and weaknesses Examines the controversies surrounding the most important ethical discussions taking place today, including abortion, the death penalty, and same-sex marriage Joins innovative thinkers in contemporary Kantian scholarship, including Christine Korsgaard, Allen Wood, and Barbara Herman, in taking Kant’s philosophy in new (...) and interesting directions Clarifies Kant’s legacy for applied ethics, helping us to understand how these debates have been structured historically and providing us with the philosophical tools to address them. (shrink)

The “medicalization” of the death penalty has ignited a debate, by those within the medical profession and by others outside it, about the appropriateness of physicians participating in state-sponsored executions. Physicians participating as “agents” of the State in executions argue that their presence ensures a more humane execution. Opponents argue physician participation violates the Hippocratic Oath which states clearly that physicians should never do harm to anyone. How any physician, who is dedicated to “preserving life when there is hope,” can (...) argue that taking the life of a healthy person because the state commands it is in the patient's best interest, and does not conflict with the goals of medicine is beyond comprehension. Physician participation in executions is unethical because it violates the four basic principles that govern medical ethics: respect for persons, beneficence, nonmaleficence, and justice. (shrink)

It is a truism that there are erroneous convictions in criminal trials. Recent legal findings show that 3.3% to 5%of all convictions in capital rape-murder cases in the U.S. in the 1980s were erroneous convictions. Given this fact, what normative conclusions can be drawn? First, the article argues that a moderately revised version of Scanlon’ s contractualism offers an attractive moral vision that is different from utilitarianism or other consequentialist theories, or from purely deontological theories. It then brings this version (...) of Scanlonian contractualism to bear on the question of whether the death penalty, life imprisonment, long sentences, or shorter sentences can be justified, given that there is a non-negligible rate of erroneous conviction. Contractualism holds that a permissible act must be justifiable to everyone affected by it. Yet, given the non-negligible rate of erroneous conviction, it is unjustifiable to mete out the death penalty, because such a punishment is not justifiable to innocent murder convicts. It is further argued that life imprisonment will probably not be justified (unless lowering the sentence to a long sentence will drastically increase the murder rate). However, whether this line of argument could be further extended would depend on the impact of lowering sentences on communal security. (shrink)

What is the strongest argument grounded in African values, i.e., those salient among indigenous peoples below the Sahara desert, for abolishing capital punishment? 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)

The lex talionis of the Old Testament has been widely perceived—understandably, but mistakenly—as a barbaric law of retribution in kind. It is better understood as a seminal expression of restraint and proportionality as moral principles of punishment. This has been recognized from the earliest times. Over the intervening centuries, the lex talionis has lost neither its moral significance nor its penal relevance. This is reflected in H.L.A. Hart's synthesis of modern retributivist and utilitarian theories of punishment and, again, in contemporary (...) Canadian law through the recognition of proportionality as the fundamental principle of sentencing under the Criminal Code. The tension between this fundamental principle and Canada's increasing resort to mandatory minimum sentences of imprisonment is examined briefly in this light. (shrink)

Regarded aesthetically the Oedipus Coloneus is unsatisfactory. The plot is episodic, consisting of a series of incidents which, except that they involve a single hero, and are derived from the previous history of that hero or his ancestors, are unrelated. That is to say, while Sophocles has in all his other plays combined the two to perfection, he has here given his content precedence over his art. The aim of this paper is to consider one or two aspects of that (...) subject-matter, which seemed to him to be so important. (shrink)

This article constitutes excerpts of a videotaped discussion hosted by the New England Journal of Medicine on January 14, 2008, concerning a range of topics on lethal injection prompted by the United States Supreme Court's January 7 oral arguments in Baze v. Rees. Dr. Atul Gawande moderated the roundtable that included two anesthesiologists - Dr. Robert Truog and Dr. David Waisel - as well as law professor Deborah Denno. The discussion focused on the drugs used in lethal injection executions, whether (...) physicians should participate, potential alternatives, and some of the legal parameters of Baze. (shrink)