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Desert, Justice and Capital Punishment

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Abstract

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

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Notes

  1. As Jeffrey Reiman notes, ‘On the issue of capital punishment, there is as clear a clash of moral intuitions as we are likely to see’. Reiman adds in relation to arguments for and against retribution as a justification for capital punishment, ‘there is truth on both sides, such arguments are easily refutable, leaving us with conflicting intuitions’ (1985: 115). Commenting on the death penalty debate in the US, Cholbi observes that ‘[o]pponents of the death penalty now rarely argue that death is in itself an immoral or ineffective punishment but rather that the risks of its being unfairly applied are intolerable’ (2006: 255).

  2. Furman v Georgia 408 U.S. 238 (1972). Justice Douglas explicitly referred to ‘the discretion of judges and juries in imposing the death penalty’ (p. 255). Almost a quarter of a century later, in the South African Constitutional Court’s Makwanyane decision, ‘arbitrariness and discrimination’ was one of the principal grounds on which Chief Justice Chaskalson, on behalf of a unanimous South African Constitutional Court, struck down the death penalty. See S v Makwanyane 1995 (3) SA 391 at paras 48–55.

  3. Gregg v Georgia 428 U.S. 153 (1976).

  4. But cf. Michael Cholbi (2006: 255), who refers to a body of empirical evidence in the US which, he suggests, indicates that ‘African Americans are disproportionately more likely to receive the death penalty for murder than are convicted whites’.

  5. Van den Haag’s line is followed by Christopher Meyers, an opponent of capital punishment who nevertheless considers that, on the assumption that the death penalty is the deserved punishment for the most vicious murderers, the appropriate response to racial discrimination in the application of the death penalty is ‘not to reduce the penalties of blacks (or killers of whites) but to guarantee that all those who deserve capital punishment receive it’ (Meyers 1990: 143). Louis Pojman, a supporter of capital punishment, takes the same view (Pojman 2004: 70).

  6. For simplicity’s sake, we shall omit those details of Feinberg’s account that do not have a bearing on or are peripheral to concerns about the arbitrary and discriminatory application of the death penalty. We shall do likewise when we consider Kagan’s account.

  7. The question of exactly what punishment an individual noncomparatively deserves is not one that admits of an easy answer. Although punishment has several functions, one is to express social condemnation of the wrongdoing that is being punished. That being the case, we expect similar crimes to receive similarly severe punishments and also that the severity of the punishment will track the seriousness of the offence for which it is imposed. If a punishment of 5 years imprisonment should be imposed for a less serious crime X, we would expect a more severe punishment (10 years, say) to be imposed for a more serious crime Y. If in these circumstances an individual commits crime X and receives a 10-year sentence we would condemn this punishment as disproportionately severe. A tariff may thus be established for different crimes using the criteria of proportionality. What punishment the defender deserves will be the punishment that the tariff specifies for the crime committed. Even so, as David Miller observes, ‘we do seem also to be prepared to make absolute judgements about desert of punishment that are not reducible to comparative judgements about how different offences are treated’ (2003: 34). So, for example, if a thief is punished by being tortured, our condemnation is not principally that the punishment is inconsistent with the tariff, but that it is not acceptable to punish thieves in this way no matter how other categories of criminals are being treated, since this punishment is absolutely too severe (for this or any other crime). On the other hand, if an aggravated rape is punished with a 2-week sentence of imprisonment, we would regard this sentence as absolutely too light. True, we would have grounds for complaining that since the punishment for fraud is a year’s imprisonment, the punishment of the murder is comparatively too light relative to the less serious crime. But our principal complaint will express the noncomparative judgement that aggravated rape is a crime of such seriousness that we do not punish it properly if we do not impose a prison sentence of some years. For an excellent discussion of this issue, see Miller (2003: 26–35).

  8. This assumption is not wholly uncontroversial, however. Phillip Montague, responding to Feinberg, asserts ‘principles of comparative justice purportedly require that every member of a comparison class be deprived of his due if any member of that class is deprived of his due. And this surely cannot be right’ (Montague 1980: 133). See also Hoffman (1993). In his assertion that the guilty do not become less deserving of capital punishment because some escape it, Van den Haag occupies the same position as Montague. Nevertheless our intuitions, which are widely shared amongst theorists of desert, are that desert includes a concern with comparative desert as well as noncomparative desert. We think that Kagan is right that ‘most of us do feel the pull of these comparative considerations as well’ (2003: 97).

  9. Owen McLeod argues that we can dissolve the distinction between comparative and noncomparative justice and avoid the question of how to reconcile conflicts between them (2003: 125). He advances an account, grounded on what he calls ‘the economics of receipt’, in accordance with which a recipient’s desert is diminished or enhanced depending on what others receive. The implication of his account for arbitrariness and discrimination in capital punishment is that since some who deserve it escape it, the minority on whom it has been imposed no longer deserve it; the death penalty has as a result of the disproportion become more than they deserve. We disagree. The fact that fewer people receive the death penalty does not inflate the severity of the punishment. Those who receive the death penalty have been treated as they (noncomparatively) deserve, even though a judge or juror who has imposed a lesser punishment on others who are equally deserving has acted unfairly. McLeod’s analysis fits situations in which the value of a particular form of treatment is strongly comparative. Undeservedly favourable criticism of one author debases the currency in which praise is given to all the other authors (Feinberg 1980: 274). McLeod’s error, as David Miller notes, is to extend what is true of strongly comparative cases to deserved treatment generally (2003: 31, fn. 13).

  10. The individual referred to as ‘I’ is not impartial in a way required by comparative justice. Mill defines impartiality as ‘an obligation of justice [which] may be said to mean being exclusively influenced by considerations which it is supposed ought to influence the particular case in hand, and resisting solicitation of any motives which prompt to conduct different from what those considerations would dictate’ (2001: 46). The decision-maker has failed to resist the solicitation of improper reasons (assuming that the motivational factors reported by the students to the teacher are not mitigating factors, in which case the teacher might be justified in passing two of the plagiarising students (Pojman 2004: 70)).

  11. The tenor of Feinberg’s assertions in the passage above strongly suggests that he did not consider arbitrariness and discrimination in the capital punishment process to be such a case.

  12. In a subsequent paper, Kagan states, ‘those who want to incorporate both [comparative and noncomparative desert] into a complete theory of desert will eventually need to work out a tradeoff schedule, so that we know which has more weight in such cases of conflict. But that will not be my concern here’ (2003: 98). Such a schedule will presumably be included in Kagan’s work in progress, The Geometry of Desert.

  13. Hart refers to ‘the qualification which civilized moral thought places upon the pursuit of the utilitarian goal [the protection of society from harm] by the demand that punishment should not be applied to the innocent; indeed, so insistent is this demand that no system of rules which generally provided for the application of punishment to the innocent would normally be called a system of punishment’ (1968: 80).

  14. Most modern deontologists admit a consequentialist override to baseline deontological prohibitions, although the threshold at which the consequentialist override is triggered varies with different accounts. For a general discussion, see Alexander (2000).

  15. Why not? Presumably we accept disproportion resulting from policing shortfalls because there is a limit to the amount of law enforcement any society can afford, even when murders are routine. Provided that the state devotes a reasonable proportion of its budget to policing, the fact that some murderers escape punishment is an inevitable consequence of a policy we consider to be morally acceptable because it is the only way in which we can achieve to the maximum extent possible, given numerous and conflicting demands on the state’s budget (e.g. healthcare, housing, defence etc), the penal aims of retribution and deterrence. Thus, the fact that some murders may go undetected does not undermine our conviction that murderers that are caught and convicted should receive the punishment they deserve according to the tariff of punishments that prevails in the criminal justice system.

  16. We use ‘alleviate’ rather than ‘eliminate’ because Hurka’s talk of ‘elimination’ seems misplaced. Even if the state reallocated its budget to the maximum extent possible to bolster policing, some murders would remain undetected and unsolved.

  17. According to the South African Constitutional Court in Makwanyane, ‘Considerable expense and interminable delays result from the exceptionally-high (sic) standard of procedural fairness set by the United States Courts in attempting to avoid arbitrary decisions’ (at para 56, per Chaskalson P).

  18. Van den Haag contends that what morality requires is reflected in the fact that we do not abolish punishments of lesser severity than the death penalty because they are applied in an arbitrary and discriminatory fashion, so that some people escape the punishment they deserve. We retain these penalties despite inherent and to some extent inescapable arbitrariness in the way they are imposed and we should do likewise in the case of capital punishment (Van den Haag and Conrad 1983: 224).

  19. According to Nathanson, ‘[o]pponents of capital punishments may continue to support other punishments, even though their administration also involves arbitrariness’ because ‘arbitrariness counts against the death penalty with special force’ (1985: 161). That is so because the death penalty is a more severe punishment than imprisonment, partly because it deprives the wrongdoer of life. See also Chaskalson P in Makwanyane at para 54: ‘Imperfection in criminal trials … means that persons similarly placed may not necessarily receive similar punishment … We have to accept these differences in the ordinary criminal cases that come before the courts, even to the extent that some may go to gaol when others similarly placed may be acquitted or receive non-custodial sentences. But death is different … Unjust imprisonment may be a great wrong, but if it is discovered, the prisoner can be released and compensated; but the killing of an innocent person is irremediable.’ Ackermann J expresses the same thought in para 164 of the Makwanyane decision.

  20. A version of this argument is advanced in Cholbi (2006: 264–5).

  21. In fact, comparative justice is also at stake in comparisons between individuals who have committed different crimes. We are grateful to Professor R.A. Duff for alerting us to the comparative injustice that is created if we level down from the death penalty to life imprisonment for all those guilty of aggravated murder but then fail to level down the sentences of those who are guilty of lesser crimes. Such folk might justifiably complain that the punishment for murder ought not to be quite so similar to the punishment for the offence of which they are guilty. These considerations make life even more difficult for proponents of leveling down.

  22. Woodson v North Carolina 428 US 280 (1976) at p. 305, per Stewart, Stevens and Powell JJ.

  23. Makwanyane at para 164.

  24. Admittedly, on a different regress there may be a gain in comparative terms. Hurka attributes the regression objection to Dolinko (2003: 56). But Dolinko’s version of it differs from Hurka’s. On Dolinko’s formulation, in the society in which capital punishment is abolished and life imprisonment substituted in its place, ‘in the system thus modified, one person could accept life without parole, another life with parole, a third a 5-year term, and a fourth could go free of punishment altogether’ (1986: 576). In that case, any levelling down from capital punishment will result in a gain in comparative terms relative to those escaping punishment altogether as a result of arbitrariness and discrimination, since the disproportion between those receiving the death penalty and those escaping punishment altogether will be reduced.

  25. Our conviction that the death penalty is much more severe than life is reflected in Figs. 1 and 2 by life imprisonment being located some distance away from the peak, at a point on the steep part of the (eastern) slope.

  26. Cholbi is prepared to assume, as do other proponents of the AD objection, that for the purposes of his argument ‘capital punishment is at least sometimes a just punishment for murder’ (2006: 276).

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Lenta, P., Farland, D. Desert, Justice and Capital Punishment. Criminal Law, Philosophy 2, 273–290 (2008). https://doi.org/10.1007/s11572-008-9045-6

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