Capital Punishment

Both proponents and opponents of capital punishment largely agree that death is the most severe punishment that societies should consider imposing on offenders. This chapter considers how (if at all) this ‘Ultimate Thesis’ can be vindicated. Appeals to the irrevocability of death, the badness of being executed, the badness of death, or the harsh condemnation societies express by sentencing offenders to death do not succeed in vindicating this Thesis, and in particular, fail to show that capital punishment is more severe (...) than the most likely alternative punishment offenders would suffer, namely, lifelong incarceration. The most plausible vindication of the Ultimate Thesis instead resides in how being condemned to death alters a person’s psychological relation to death. Our ordinary tendencies toward “death denial” diminish the terror that our awareness of death can otherwise induce in us, thereby enabling us to pursue worthwhile lives despite knowing of death’s inevitability. But condemned individuals are continually compelled to confront both the reality and specific circumstances of their own deaths and so do not enjoy the protective psychic shield that death denial provides us. This ‘relational’ rationale does not obviously succeed in proving the Ultimate Thesis, but if the Thesis is true, this rationale is essential to its justification. (shrink)

Incarceration remains the foremost form of sentence for serious crimes in Western democracies. At the same time, the management of prisons and of the prison population has become a major real-world challenge, with growing concerns about overcrowding, the offenders’ well-being, and the failure of achieving the distal desideratum of reduced criminality, all of which have a moral dimension. In no small part motivated by these practical problems, the focus of the present article is on the ethical framework that we use (...) in thinking about and administering criminal justice. I start with an analysis of imprisonment and its permissibility as a punitive tool of justice. In particular, I present a novel argument against punitive imprisonment, showing it to fall short in meeting two key criteria of just punishment, namely (i) that the appropriate individual is being punished, and (ii) that the punishment can be adequately moderated to reflect the seriousness of the crime. The principles I argue for and that the aforementioned analysis brings to the fore, rooted in the sentient experience, firstly of victims, and not only of victims but also of the offenders as well as the society at large, then lead me to elucidate the broader framework of jurisprudence that I then apply more widely. Hence, while rejecting punitive imprisonment, I use its identified shortcomings to argue for the reinstitution of forms of punishment that are, incongruently, presently not seen as permissible, such as corporal punishment and punishments dismissed on the basis of being seen as humiliating. I also present a novel view of capital punishment, which, in contradiction to its name, I reject for punitive aims, but which I argue is permissible on compassionate grounds. (shrink)

Underpinned by the polemical idea that governments have redefined their role as a penal actor that prioritizes the practices of repressing, punishing, and confining people (instead of tackling the very complex root causes), this study scrutinizes how the press discursively collaborates with the State in ‘governing through crime’ (Simon, J. (2007). Governing through crime: How the war on crime transformed American democracy and created a culture of fear. Oxford University Press.). Drawing upon a corpus of Thai newspapers, the study analyzes (...) representational choices and identifies polarizing strategies in execution reports that serve to legitimize and neutralize the harshness of executions. The findings reveal that state-inflicted violence is mystified and downplayed by agent suppression and non-aggressive, judicially administered material processes. In contrast, executed individuals are dehumanized and their agency in sensational material processes foregrounded, which in turn constructs ideal victims. It is argued that this exaggerated, at times disturbing, dichotomy between ‘us’ and ‘them’ serves to project an image of the State as the champion of citizens’ and victims’ interests. A shift from the use of fault-assigning and consequence-imposing discourses to more holistic ones that attend to offenders’ and victims’ commonalitiesshould be adopted. (shrink)

One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life. Notably, this _right-to-life argument_ emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm. Can capital punishment be necessary in this sense—and thus justified defensive killing? If so, the right-to-life argument would have to admit certain exceptions where executions are justified. Drawing on work by Hugo (...) Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world. A state’s obligations to its prisoners include the _obligation to use nonlethal incapacitation_ (ONI), which applies as long as prisoners pose no imminent threat. ONI precludes executions for reasons of future dangerousness. By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground. (shrink)

The Universal Periodic Review (UPR), established in 2006, has been hailed as an innovative mechanism of the United Nations’ Human Rights Council. The peer review mechanism assesses the human rights records of all UN Member States and provides recommendations to further the global promotion and protection of human rights. This article provides an analysis of the Kingdom of Saudi Arabia’s third UPR in 2018 with a specific focus on the State’s use of capital punishment. It explores the challenges faced by (...) the UPR and issues recommendations to foster meaningful discourse, in the international community, to protect the right to life and engender change at the domestic level. (shrink)

Capital punishment—the legally authorized killing of a criminal offender by an agent of the state for the commission of a crime—stands in special need of moral justification. This is because execution is a particularly severe punishment. Execution is different in kind from monetary and custodial penalties in an obvious way: execution causes the death of an offender. While fines and incarceration set back some of one’s interests, death eliminates the possibility of setting and pursuing ends. While fines and incarceration narrow (...) one’s routes to happiness, death eliminates its possibility. Not surprisingly, there is much debate about the moral permissibility of capital punishment. This entry maps the terrain of this debate. The first section discusses justifications of the death penalty as they appear in major theories of punishment. The second section surveys moral objections to execution that apply to most justifications. The third addresses procedural criticisms, which do not target the morality of execution so much as the justice of its implementation. (shrink)

This chapter sets out the traditional natural law defense of the claim that the death penalty can in principle be a just punishment for certain offenses. It begins by explaining the relevant principles of traditional natural law theory and how they are grounded in a broadly Aristotelian-Thomistic metaphysics. It then shows how the goodness of retribution follows from these principles, and thus is intelligible given that metaphysical picture. This is followed by an application of these results to the justification of (...) capital punishment specifically, as an instance of retributive justice. Finally, Feser responds to some objections. (shrink)

In response to the challenges presented by violence, war, and capital punishment, For the Life of the World: Toward a Social Ethos of the Orthodox Church argues that foundational liturgical, canonical, and spiritual resources invite the Church to manifest a foretaste of the fullness of God’s peace amidst the brokenness of a world that remains tragically inclined toward taking the lives of those who bear the divine image and likeness. It also summons the Church to engage people and power structures (...) toward the end of enacting practical reforms that ameliorate the underlying causes of violence, a task especially urgent in light of the powerful weapons and technologies employed by governments today. While reflecting distinctive Orthodox sensibilities on the topics it addresses, the document also presents points of commonality with other Christian traditions of theological and moral reflection, especially concerning the obligation to take realistic initiatives in peacemaking. (shrink)

I propose a theory of punishment that is unfamiliar in the West, according to which the state normally ought to have offenders reform their characters and compensate their victims in ways the offenders find burdensome, thereby disavowing the crime and tending to foster improved relationships between offenders, their victims, and the broader society. I begin by indicating how this theory draws on under-appreciated ideas about reconciliation from the Global South, and especially sub-Saharan Africa, and is distinct from the protection and (...) retribution theories that have dominated the Western philosophy of punishment for about 250 years. Then I argue that it neatly avoids objections to them and is prima facie plausible in its own right. I conclude that this reconciliation theory of state punishment should be taken seriously by philosophers of law and policy makers. (shrink)

When it comes to the question of how much the state ought to punish a given offender, the standard understanding of the desert theory for centuries has been that it should give him a penalty proportionate to his offense, that is, an amount of punishment that fits the severity of his crime. In this article, part of a special issue on the geometry of desert, we maintain that a desert theorist is not conceptually or otherwise required to hold a proportionality (...) requirement. We show that there is logical space for at least two other, non-proportionate ways of meting out deserved penalties, and we also argue that they have important advantages relative to the dominant, proportionality approach. (shrink)

This chapter offers a proceduralist argument against capital punishment. More specifically, it contends that the possibility of irrevocable mistakes precludes the just administration of the death penalty. At stake is a principle of political morality: legal institutions must strive to remedy their mistakes and to compensate those who suffer from wrongful sanctions. The incompatibility of remedy and execution is the crux of the irrevocability argument: because the wrongly executed cannot enjoy the morally required compensation, execution is impermissible. Along with defending (...) his key premises, Yost explains the complicated role that sentencing uncertainty plays in the argument. He concludes by noting some of the flaws in substantive consequentialist and retributivist justifications of capital punishment. (shrink)

Punishment is a topic of increasing importance for citizens and policymakers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many more are examined in this highly engaging and accessible guide. Punishment (2nd edition) is a critical introduction to the philosophy of punishment, offering a new and refreshing approach that will benefit readers of all backgrounds and interests. The first comprehensive critical guide to examine all leading contemporary theories (...) of punishments, this book explores – among others – retribution, the communicative theory of punishment, restorative justice and the unified theory of punishment. Thom Brooks applies these theories to several case studies in detail, including capital punishment, juvenile offending and domestic violence. Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and ground-breaking. This second edition has extensive revisions and updates to all chapters, including an all-new chapter on the unified theory substantively redrafted and new chapters on cyber-crimes and social media as well as corporate crimes. Punishment is essential reading for undergraduate and graduate students in philosophy, criminal justice, criminology, justice studies, law, political science and sociology. "Lucid, fair-minded, and well-informed, Thom Brooks’ Punishment offers a superb introduction to a complex and contentious subject. Many a perplexed student will find illumination in his patient discussion of each of the leading theories. The way Brooks shows their interconnectedness and application in practice – to capital punishment, juvenile offenders, domestic violence, and the like – will interest not only students but scholars as well." ―Stuart P. Green, Distinguished Professor of Law and Nathan L. Jacobs Scholar, Rutgers School of Law "As a topic in moral and political philosophy, punishment has been jolted back to life. In the last quarter century, retribution has returned with a vengeance, both in the theoretical literature and (with a very different emphasis) in public policy. The rise of the victim as a player in the criminal justice system has also fuelled a counter-trend, placing an emphasis on redress. Human rights, privatization, globalization, the rise of the therapist, the lobbyist, the terrorist: all have affected our ways of punishing and of thinking about punishment. A new survey of the terrain is overdue. And who better to conduct it than Thom Brooks, whose grasp of the literature and feel for the issues is second to none? From the noble ideals of ‘communicative’ theory to the grim realities of children in prison: in Punishment Brooks covers it all with insight, rigour, and energy." ―John Gardner, Professor of Jurisprudence, University of Oxford "Thom Brooks has produced a valuable introduction to, and critical survey of, current theoretical approaches to punishment together with an analysis of their implications for practice. In addition, he has provided a spirited defence of a new, unified theory inspired by the British Idealists and encompassing retributive, consequentialist, and restorative elements. Written in a lucid and engaging style, the book will interest a wide range of readers – students, theorists of punishment, as well as those engaged in criminal justice policy." ―Alan Brudner, Albert Abel Professor Emeritus, Faculty of Law, University of Toronto. (shrink)

This new second edition of Punishment includes a revised and expanded defence of the groundbreaking unified theory of punishment that brings together elements of retribution, deterrence and rehabilitation into a new coherent framework. Thom Brooks expands the chapter length case studies from capital punishment, juvenile offending, domestic violence and sex crimes to include new chapters on social media offences and corporate liability addressing some of today's most pressing issues in criminal justice.

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 initially published in G. Walmsley (ed.) African Philosophy and the Future of Africa (2011).

_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)

This book provides rigorous but accessible scholarship, ideal for students in philosophy and public policy. It includes twelve original essays by world-renowned scholars, each examining a key topic in philosophy and public policy and demonstrating how policy debates can be advanced by employing the tools and concepts of philosophy.

This Article argues that just as the act of forcing sex upon a rapist is itself rape, the execution of a murderer is itself murder. Part I clears the way by defeating three simple, but common, arguments that capital punishment is not murder. Part II shows that despite moral theorists' best attempts to show otherwise, executions seem to instantiate all the morally relevant properties of murder. Part III notes a lacuna in the literature on capital punishment: Even if there is (...) a good moral reason to execute murderers, the distinction between capital punishment and murder requires a plausible account of the state's right to execute citizens. We have no such account. (shrink)

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

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)

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)

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)

A curious and comparatively neglected element of death penalty jurisprudence in America is my target in this paper. That element concerns the circumstances under which severely mentally disabled persons, incarcerated on death row, may have their sentences carried out. Those circumstances are expressed in a part of the law which turns out to be indefensible. This legal doctrine—competence-for-execution —holds that a condemned, death-row inmate may not be killed if, at the time of his scheduled execution, he lacks an awareness of (...) his impending death or the reasons for it. I argue that the law of CFE should be abandoned, along with the notion that it is permissible to kill the deeply disturbed just so long as they meet some narrow test of readiness to die. By adopting CFE, the courts have been forced to give independent conceptual and moral significance to a standard for competence that simply cannot bear the weight placed upon it. To be executable, CFE requires that a condemned prisoner meet a standard demonstrating an awareness of certain facts about his death. Yet this standard both leads to confusing and counter-intuitive results and is unsupported either by the reasons advanced by the courts on its behalf or by any of the standard theoretical justifications of criminal punishment. If executing the profoundly psychotic or delusional is wrong the law needs a better account of the wrong done when prisoners like Ford are killed. I suggest wherein that wrong might be located. (shrink)

My book, Punishment, has three aims: to provide the most comprehensive and updated examination of the philosophy of punishment available, to advance a new theory—the unified theory of punishment—as a compelling alternative to available theories and to consider the relation of theory to practice. In his recent review article, Mark Tunick raises several concerns with my analysis. I address each of these concerns and argue they rest largely on misinterpretations which I restate and clarify here.

Lawful euthanasia involves State endorsed termination of human life. Apart from a period of less than 9 months, in the Northern Territory, euthanasia has been illegal in Australia. Many of Australia’s parliaments have regularly considered introducing the practice and they continue to do so. In this context, this paper considers another type of State endorsed termination of human life: capital punishment. These took place in Australia from 1788 to 1967. The practice was abolished nationwide by 1985 and the Commonwealth passed (...) laws, in 2010, to prevent its reintroduction. This paper does not consider all of the arguments for or against euthanasia or capital punishment and nor does it argue that the two practices are identical. Instead, it argues that introducing euthanasia without careful consideration of the arguments and experiences of capital punishment would risk repetition of past mistakes. The paper considers whether introducing euthanasia would be inconsistent with arguments accepted as grounds for the abolition of capital punishment. It focuses, on the irrevocable argument. This is the argument that death is irrevocable and that the risk of an innocent person being executed should never be taken. The paper argues that, any criteria which might be adopted by the State as sufficient to justify euthanasia, would run the risk of people outside that criteria being euthanised. The paper argues that capital punishment and euthanasia each pose disproportionate risks to minority and vulnerable groups. The paper also argues that, the evidence of pain and suffering endured by the condemned in their execution require careful consideration in relation to arguments for euthanasia as a means to a quick and pain free “good death.” It considers the evidence that demonstrates that, like execution, euthanasia in practice can be slow and painful. The paper then argues that requiring health professional to administer lethal injections in acts of euthanasia would be inconsistent with the approach taken in Australia and the United States to the identification of those willing to administer the death penalty. The paper concludes that many of the key arguments which resulted in the abolition of the death penalty in Australia support the continued prohibition of euthanasia in Australia and ought to be addressed by proponents of change but its primary aim is to encourage further examination of the extent to which learnings relevant to the current euthanasia debate can be gained by examining the arguments and experience of capital punishment. (shrink)

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)

This essay draws on the work of Jacques Derrida and Angela Y. Davis towards a philosophical resistance to the death penalty in the U.S. I find promise in Derrida’s claim that resistance to the death penalty ought to contest a political structure that founds itself on having the power to decide life and death, but I move beyond Derrida’s desire to consider the abolition of the death penalty without engaging with the particular histories and geographies of European colonialism. I offer (...) a critique of Derrida’s recently published work on the death penalty by engaging with the work of Davis and argue that discussions of state violence in nations that inherit European forms of sovereignty must take seriously the racist violence on which those sovereign powers rely. (shrink)

Some jurisdictions acknowledge, as a matter of positive law, the relevance of evil to capital punishment. At one point, the state of Florida counted that the fact that a murderer’s crime was “especially wicked, evil, atrocious or cruel” as an aggravating factor for purposes of capital sentencing. I submit that Florida may be onto something. I consider a thesis about capital punishment that strikes me as plausible on its face: if capital punishment is ever morally permissible, it is permissible as (...) a response to evil. Call this the Punishment as a Response to Evil thesis, or PRE. If capital punishment is not morally permissible as a response to evil, then, according to PRE, it is not morally permissible, period. PRE admits of at least two different readings: on the first, if capital punishment is ever morally justified it is justified as a punishment for evil crimes; on the second, if capital punishment is ever morally justified it is justified as a punishment for evil people. While this first version of PRE has found advocates in both philosophy and forensic psychiatry, I argue against this first reading of PRE and for the second. To secure this conclusion I appeal to an account of evil and evil personhood that I have developed elsewhere. (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)

In this paper I argue for a theory of punishment I call Multilateral Retributivism. Typically retributive notions of justice are unilateral: focused on one person’s desert. I argue that our notions of desert are multilateral: multiple people are owed when a moral crime is committed. I argue that the purpose of punishment is communication with the end-goal of reconciling the offender to society. This leads me to conclude that the death penalty and life without parole are unjustified because they necessarily (...) cut communication short. (shrink)

Prior research on the psychology of retribution is complicated by the difficulty of separating retributive and general deterrence motives when studying human offenders . We isolate retribution by investigating judgments about punishing animals, which allows us to remove general deterrence from consideration. Studies 2 and 3 document a “victim identity” effect, such that the greater the perceived loss from a violent animal attack, the greater the belief that the culprit deserves to be killed. Study 3 documents a “targeted punishment” effect, (...) such that the responsive killing of the actual “guilty” culprit is seen as more deserved than the killing of an almost identical yet “innocent” animal from the same species. Studies 4 and 5 extend both effects to participants' acceptance of inflicting pain and suffering on the offending animal at the time of its death, and show that both effects are mediated by measures of retributive sentiment, and not by consequentialist concerns. (shrink)

Motivated by a conviction that mass incarceration and state execution are among the most important ethical and political problems of our time, the contributors to this volume come together from a diverse range of backgrounds to analyze, critique, and envision alternatives to the injustices of the U.S. prison system, with recourse to deconstruction, phenomenology, critical race theory, feminism, queer theory, and disability studies. They engage with the hyper-incarceration of people of color, the incomplete abolition of slavery, the exploitation of prisoners (...) as workers and as "raw material" for the prison industrial complex, the intensive confinement of prisoners in supermax units, and the complexities of capital punishment in an age of abolition. -/- Contents -/- Introduction: Death and Other Penalties Geoffrey Adelsberg, Lisa Guenther, and Scott Zeman -/- Part I. Legacies of Slavery -/- Excavating the Sedimentations of Slavery: The Unfinished Project of American Abolition Brady Heiner -/- From Commodity Fetishism to Prison Fetishism: Slavery, Convict-leasing, and the Ideological Productions of Incarceration James Manos -/- Maroon Philosophy: An Interview with Russell Maroon Shoatz Russell Maroon Shoatz -/- Part II. Death Penalties -/- In Reality-from the Row Derrick Quintero -/- Inheritances of the Death Penalty: American Racism and Derrida's Theologico-Political Sovereignty Geoffrey Adelsberg -/- Making Death a Penalty: Or, Making "Good" Death a "Good" Penalty Kelly Oliver -/- Death Penalty Abolition in Neoliberal Times: The SAFE California Act and the Nexus of Savings and Security Andrew Dilts -/- On the Inviolability of Human Life Julia Kristeva (translated by Lisa Walsh) -/- Part III. Rethinking Power and Responsibility -/- Punishment, Desert, and Equality: A Levinasian Analysis Benjamin S. Yost -/- Prisons and Palliative Politics Ami Harbin -/- Sovereignty, Community, and the Incarceration of Immigrants Matt S. Whitt -/- Without the Right to Exist: Mass Incarceration and National Security Andrea Smith -/- Prison Abolition and a Culture of Sexual Difference Sarah Tyson -/- Part IV. Isolation and Resistance -/- Statement on Solitary Confinement Abu Ali Abdur'Rahman -/- The Violence of the Supermax: Toward a Phenomenological Aesthetics of Prison Space Adrian Switzer -/- Prison and the Subject of Resistance: A Levinasian Inquiry Shokoufeh Sakhi -/- Critical Theory, Queer Resistance, and the Ends of Capture Liat Ben-Moshe, Che Gossett, Nick Mitchell, and Eric A. Stanley. (shrink)

Does communicative retributivism necessarily negate capital punishment? My answer is no. I argue that there is a place, though a very limited and unsettled one, for capital punishment within the theoretical vision of communicative retributivism. The death penalty, when reserved for extravagantly evil murderers for the most heinous crimes, is justifiable by communicative retributive ideals. I argue that punishment as censure is a response to the preceding message sent by the offender through his criminal act. The gravity of punishment should (...) be commensurate to the preceding criminal message, so that the offender can face up to the nature and significance of his crime. All murders are not the same. To measure up to the most evil and humanity-degrading murderous message, capital punishment should be the counter-message. Next, I argue that capital punishment does not necessarily violate human dignity. The death penalty and torture may both disrupt human dignity, yet in distinct ways. The death penalty terminates life, the vessel that holds together autonomy, while torture directly assaults autonomy. Torture is never permissible as a form of punishment. But death penalty, when used only on the extravagant evildoers, is justifiable, as life is thoroughly degraded by his own evil act. Further, I argue that mercy is integral to communicative retributivists’ theory of capital punishment. (shrink)

This article defends my 2011 book “The Ethics of Capital Punishment” against the thoughtful critiques written by Carol Steiker and John Danaher respectively. It does not attempt to respond to every point of contention in the two critiques, but concentrates instead on a few of the main points from each of them.

In The Ethics of Capital Punishment: A Philosophical Investigation of Evil and Its Consequences, Matthew Kramer argues that none of the standard rationales used to justify capital punishment successfully vindicates it and that a new justification, the purgative rationale, justifies capital punishment for defilingly evil offenders. In this article, it is argued, first, that a version of retributivism that adheres to the lex talionis as Kramer understands it does seem to call exclusively for the death penalty. Second, it is submitted (...) that the purgative rationale is over-inclusive inasmuch as Kramer considers it applicable to certain offenders with abusive or deprived backgrounds, some offenders indoctrinated to adhere to pernicious ideologies that have impelled their crimes, and wrongdoers who have sincerely repented. Third, doubts are expressed about whether the purgative rationale justifies the execution of any offenders. Even if it is true that the continued existence of an extravagantly evil offender represents an affront to humanity, as Kramer suggests, a moral obligation to execute him does not follow. Since repentance is intrinsically valuable and since repentance would extinguish the affront to humanity, the community in which an unrepentant evil offender abides is duty-bound to foster repentance on the part of the offender by imposing banishment or life imprisonment, sanctions that afford the offender the most extensive opportunity for repentance. The community is therefore obligated to impose one of these sanctions instead of capital punishment. (shrink)

When lethal injection was first legalized in the late 1970s, many people viewed it as safe, reliable, and humane. Today, however, lethal injection does not always perform as promised. Due to difficulties with sourcing lethal injection drugs, states are utilizing untested lethal injection protocols, with little knowledge or experience to guide them. This article argues that lethal injection reform requires regulation similar to that for human subject research, and that the practice of utilizing untested lethal injection methods comes very close (...) to falling under the federal statutory definition of “human subject research“ formulated in the Common Rule. This article argues further that even if one decides that it does not, the practice of lethal injection today is the type of conduct that the human subject research regulations were designed to correct. Moreover, society has an interest in ensuring that executions are conducted in a way that reduces pain and suffering to the lowest extent possible. As such, lethal injection ought to receive further review and oversight to ensure that it comports with reasonable notions of humanity. (shrink)

Matthew Kramer’s The Ethics of Capital Punishment: A Philosophical Investigation of Evil and its Consequences explores the morality of capital punishment and develops his own “purgative rationale” in support of the practice. I present my objections to Kramer’s purgative rationale and trace our disagreement to differences over the nature of evil, the autonomy of human character formation, and the concept of defilement.

Why is the Catholic Church against the death penalty? This second edition of Brugger’s classic work _Capital Punishment and Roman Catholic Moral Tradition_ traces the doctrinal path the Church has taken over the centuries to its present position as the world’s largest and most outspoken opponent of capital punishment. The pontificate of John Paul II marked a watershed in Catholic thinking. The pope taught that the death penalty is and can only be rightly assessed as a form of self-defense. But (...) what does this mean? What are its implications for the Church’s traditional retribution-based model of lethal punishment? How does it square with what the Church has historically taught? Brugger argues that the implications of this historic turn have yet to be fully understood. In his new preface, Brugger examines the contribution of the great Polish pope’s closest collaborator and successor in the Chair of Peter, Pope Benedict XVI, to Catholic thinking on the death penalty. He argues that Pope Benedict maintained the doctrinal status quo of his predecessor’s teaching on capital punishment as self-defense, with detectable points of reluctance to draw attention to nontraditional implications of that teaching. (shrink)

In October 2013, Missouri officials abandoned a plan to execute a convicted murderer using a novel method—an injection of propofol. The name of this drug became a household word after propofol played a role in singer Michael Jackson's death, but this has been a popular therapeutic drug for many years. Clinicians use it in intensive care, surgery, and common procedures like colonoscopy. After deciding to halt the execution, Missouri governor Jay Nixon told corrections officials to come up with a different (...) lethal injection protocol. But that was not a simple assignment. Missouri had proposed using propofol because officials had faced barriers to obtaining the drugs previously used for executions. Corrections officials in death penalty states are finding it harder to secure drugs for lethal injection. (shrink)

Those who argue against physician participation in state mandated executions tend to bracket the question of whether the death penalty should be abolished. I argue that these issues cannot be neatly separated. On the one hand, if justice demands that some criminals be executed for their crimes, then there can be no ethical or moral barrier to the participation of physicians in the execution process. On the other hand, I contend that the testimony and expertise of the medical community is (...) a necessary component of any fruitful reflection on whether capital punishment is, in fact, just. Thus, although the justice of capital punishment may render it permissible for physicians to participate in the execution process, the experience of physicians also sheds important light on whether the death penalty is morally justified. (shrink)