The Death Penalty:

Theories of Punishment;

Kant and Nathanson

Capital Punishment and the Law The 8th amendment to the Constitution prohibits the infliction

of 'cruel and unusual' punishment. If capital punishment is a cruel and unusual punishment, then it is unconstitutional. In Furman v. Georgia (1972), the Supreme Court ruled that the

death penalty was cruel and unusual as then administered. They explicitly did not go so far as to insist that the death penalty was unconstitutional by its very nature.

In Gregg v. Georgia (1976), the court found that the DP was not unconstitutional when imposed at the discretion of a jury for the crime of murder, so long as appropriate safeguards are in place to protect from arbitrary or capricious decisions.

37 states now have statutes authorizing capital punishment with the Gregg principles in place. Since 1976, 1,178 people have been executed under this system.

The Moral Issue Of course, for us the legal status of the death

penalty is less significant than its moral status.

That this a live and important concern is amply testified to by the statistics on public opinion Timmons summarizes on p. 359.

Here’s some more recent data from a Gallup poll. As he states it, the issue can be summarized

by two questions:1. Is the death penalty ever a [morally] permissible form

of punishment (as opposed to a legally permissible form)?

2. If it is, why is it?

Untangling Morality and the Law The DP is a complicated issue in part

because though our primary concerns are moral and theoretical, any system of capital punishment is a legal system.

In other words, we are asking moral questions about the status of a legal system, more specifically a system of punishment.

A Moral Justification for Punishment Most people would agree that not all instances or

forms of punishment are morally acceptable. A parent may choose to chain their child to her bed for back

talking, but most of us would insist that this is not an appropriate punishment.

Timmons provides us with a list of conditions that help us understand the nature of legal punishment (360).

The primary moral concern with any such system is the strong presumption against harming people (The Harm Principle: Do no harm).

Retributivism and Punishment Responding to the need for a moral justification of

punishment requires providing an answer to the two questions highlighted on the third slide.

One popular approach to the question is the Retributive Theory, which focuses our attention on the actions of the wrong doer.

In response to the first question, retributivism argues that punishment is justified because the wrong doer deserves it.

In response to the second question, retributivism specifies a concept of fitness: the punishment should fit the crime.

Retributivism and the Death Penalty Though retributivism provides a straightforward

justification for punishment in general, the question of the death penalty is more complicated.

The sticking point is the notion of fit. Proponents of DP (retentionists) typically interpret fitness

along the lines of Lex Talonis (essentially, "an eye for an eye).

Opponents (abolitionists) argue instead for a principle of proportionality: a punishment is justified if it is proportional to the crime.

Consequentialism and Punishment Another approach adopts a consequentialist

standpoint, justifying punishment on the grounds that the consequences of punishment have greater value than other possible approaches.

Consequentialists answer the first question by insisting that punishment is only justified when in fact its consequences are in fact (or are likely to be) of higher value than the alternatives.

They answer the second question in any specific instance with a calculation that demonstrates the value consequences.

Consequentialism and DP Unlike with retributivism, there are no special considerations

that develop when consequentialism is applied to DP. There are however some specific positive and negative utility

considerations that have to be kept in mind. On the positive side, retentionists point to possible deterrent

effects of DP as well as the obvious fact that execution prevents a murderer from killing again.

On the negative side, abolitionists point to the possibility of executing the innocent by mistake, to the costs of administering DP (higher even then life imprisonment) and what is known as the coarsening effect (following an execution, the rate of murder by strangers actually increases for a time).

Kant, “Punishment and the Principle of Equality” In this short excerpt from one of his moral works, Kant

argues that the “Principle of Equality” requires that criminals who commit murder appropriately receive the death penalty. Kant is thus arguing for what Nathanson will call “Equality

Retributivism” Clarification of relevant terms

“Crime”: “...any transgression of the public law that makes a perpetrator incapable of being a citizen” (365c1).

○ Private crimes are dealt with by a civil court and are committed by a criminal who has a base character.

○ Public crimes are dealt with by a criminal court and are committed by a criminal who has a violent character.

“Natural punishment”: crime as a vice punishes itself.

Consequences are Irrelevant In his account of judicial punishment, Kant

explicitly rejects consequentialist approaches to punishment as contrary to the principle of justice.This type of punishment “can never be

administered merely as a means for promoting another good...” (365c2) and can only be justified on retributive grounds, “…it is the only principle which in regulating a public court, can definitely assign both the quality and quantity of a just penalty” (365c2).

Equality is all that Matters Kant defines the Principle of Equality as

requiring that “...the undeserved evil which anyone commits on another is to be regarded as perpetrated on himself” (365c2).We can see how this is justified from both the

Humanity and Universal Law perspectives. The P of E entails that a person who commits

murder must suffer the death penalty. It’s important to note that Kant specifies that the

death of a murderer must be free of maltreatment.

Nathanson "An Eye for an Eye?" Nathanson offers a critique of

retributivism of both the Lex Talonis (equality) and proportional sort.

He completes his case by arguing that abolition would have the important symbolic significance of signaling that our society is committed to the absolute dignity of human life in every person.

The Problem with Equality (Lex Talonis) Retributivism. Nathanson argues that equality is not an adequate criterion

for determining punishment in general. It recommends punishments for certain crimes that are not

morally acceptable. If a crime is barbaric and inhumane, then Lex Talonis would require us to act barbarously and inhumanely (ex. rape a rapist).

Can't tell us how to punish many crimes. E.g. Computer piracy, or plagiarism.

If it's not adequate in general, then it is obviously not adequate for DP.

A possible response is to seek a non-literal form of equality retributivism. Nathanson responds by noting that there is still the barbarity problem. Also, we run into the problem of how to accurately judge equivalence, either in the case of abstract crimes or in the case of varying resistances to suffering.

Problems with Proportional Retributivism

This theory is usually advanced in terms of a proportional ranking of punishments and crimes. Such a strategy avoids the major flaws of equality retributivism.

One problem from the standpoint of the retentionist is that it doesn't necessitate that murder should be punished with death, just with the most severe punishment in the scale.

A practical problem is that in and of itself it provides no resources with deciding the appropriateness/effectiveness of punishments. Needs to be supplemented by empirical data.

According to Nathanson, this form of retributivism does have an important role to play in our judicial system, but it doesn't justify DP.

Nathanson as an Abolitionist In addition to criticizing retributive justifications for DP,

Nathanson advances interesting abolitionist arguments.

The first highlights that respect for human dignity is a central element of our social structure. Nathanson argues that the DP undermines this respect to the extent that it says that some people have no value. We cannot consistently say that all people are valued and that some are not.

The second emphasizes the symbolic significance. Nathanson argues that abolishing the DP would provide an example of proper behavior, saying that we will not act with the same inhumanity that the murderer did.