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THE ETHICS OF CAPITAL PUNISHMENT Source: Electric Chair, Andy Warhol, 1971.

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1 THE ETHICS OF CAPITAL PUNISHMENT Source: Electric Chair, Andy Warhol, 1971

2 “How to Argue About the Death Penalty” Hugo Adam Bedau

3 FACTUAL ISSUES Bedau begins his paper by noting that the death penalty controversy in the U. S. has largely considered certain questions of fact, and has not really concentrated on “the normative propositions crucial to the dispute” which are of greater importance. The questions of fact are four: 1. Is the death penalty a greater deterrent to murder than life imprisonment without parole? 2. Is the death penalty applied in a discriminatory way? 3. What is the risk that an innocent person will be executed? 4. What is the risk that a convicted murderer who is not executed will kill again in or out of jail, if not given life without parole ?

4 ANSWERS TO THE FACTUAL QUESTIONS For Bedau the answers to these four questions are: 1. There is no evidence that the death penalty is a better deterrent to murder than life in prison. Both life in prison and execution seem about equally ineffective. 2. There is good evidence that the death penalty is not applied to everyone equally but race makes a difference. 3. The risk to an innocent person cannot be calculated but the risk is not zero. 4. There is recidivism amongst murders, and so there is that risk that they will kill again.

5 THE ETHICAL RELEVANCE OF FACTS I Bedau says that the important thing to see here is that the answers to the questions cannot by themselves answer the question of the morality of the death penalty. Even though Bedau thinks that the death penalty should be abolished, he says that the facts as they stand cannot show that the death penalty ought to be eliminated. The facts also do not show that life imprisonment is better than the death penalty.

6 THE ETHICAL RELEVANCE OF FACTS II The death penalty is not the only form of punishment in which discrimination occurs, but discrimination is found in other kinds of punishment as well. In addition, and as far as the facts are concerned, it can always be argued that such discrimination will decrease over time, and, if that were the case then one could not use the former fact of discrimination as an argument against the morality of the death penalty.

7 THE ETHICAL RELEVANCE OF FACTS III Bedau says that the important point when we consider facts which concern the death penalty is that “the empirical evidence is not the major factor in explaining why settling disputes over matters of fact cannot settle the larger controversy about the death penalty itself.” Rather, the larger controversy concerns the morality of the death penalty. That is, whether the death penalty should be legal or not is a moral question which cannot be argued from facts.

8 THE ETHICAL RELEVANCE OF FACTS IV Arguments in favor of or in opposition to the death penalty will have to be moral arguments. They will have to be normative and not just practical. That is, we have to look at what standard to adopt, and not what uses or abuses may follow from the adoption of that standard.

9 THE ETHICAL RELEVANCE OF FACTS V Bedau: “As a matter of sheer logic, it is not possible to deduce a policy conclusion (such as the desirability of abolishing the death penalty) from any set of factual premises, however general and well supported.” Bedau: “Any argument intended to recommend continuing or reforming current policy on the death penalty must include among its premises one or more normative propositions.”

10 NORM AND NORMATIVE The term ‘normative’ means “of, relating to, or determining norms or standards,” and a ‘norm’ is “a principle of right action binding upon the members of a group and serving to guide, control, or regulate proper and acceptable behavior.” (Both definitions from the tenth edition of Merriam-Webster’s Collegiate Dictionary.) And Simon Blackburn says that “A norm is a rule for behavior, or a definite pattern of behavior, departure from which renders a person liable to some kind of censure.” (The Oxford Dictionary of Philosophy.)

11 NORMATIVE STATEMENTS AND THE DEATH PENALTY Bedau says that normative statements which concern the death penalty can be divided into two groups: 1. Those which focus on relevant and desirable social goals or purposes. 2. Those which express relevant and respectable moral principles. An example of a social goal is reduction of crime, and the question here would be to what extent does the death penalty meet the goal of reducing crime? An example of a respected moral principle is that everyone should receive a fair trial.

12 GOALS, PRINCIPLES, AND FACTS Bedau thinks that the way to argue about the death penalty is to look at the social goals relevant to punishment in general, and to look at the moral principles which are relevant to correct management of the social goals. Once we have looked at the social goals which are relevant to punishment in general and have identified and evaluated the moral principles relevant to punishment, then we can consider whatever facts are relevant to the issue. Thus Bedau says that the issue of the death penalty can be resolved in theory by first looking at what our social goals are, how these should be constrained by our moral principles, and then by looking at whatever facts are relevant to the use of the death penalty as a kind of punishment.

13 PUNISHMENT AND RELEVANT SOCIAL GOALS I Goal 1: “Punishment should contribute to the reduction of crime; accordingly, the punishment for a crime should not be so idle a threat or so slight a deprivation that it has no deterrent or incapacitative effects; and it should not contribute to an increase in crime.” Goal 2: “Punishments should be ‘economical’ - they should not waste valuable social resources in futile or unnecessarily costly endeavors.”

14 CONSIDERATION OF THE FIRST TWO GOALS The goals of reducing crime and doing so cheaply have been seen by many as arguments in favor of the death penalty. However, Bedau says that “opponents of capital punishment need not reject these goals, and its defenders cannot argue that accepting these goals vindicates their preferred policy.” Bedau thinks then that thinking that capital punishment is the best means of reducing crime and doing so in the cheapest way can be questioned.

15 THE JUSTIFICATION OF PUNISHMENT AS A MEANS TO AN END The justification of a particular punishment, such as capital punishment, as a means to an end or ends, such as reducing crime and being economical, must involve two steps: 1. It must be shown that an end or ends which a punishment is a means of reaching is desirable. For instance, if an end is a reduction in crime, then it must be shown that a reduction in crime is a good thing. 2. It must be shown that punishment is “the best means” to that end or ends. Thus it must be shown that the end cannot be better achieved without punishment, that there is no better means of reducing crime apart from punishment. For the death penalty, this would mean that it would have to be shown that a reduction in the murder rate cannot be achieved without capital punishment.

16 PUNISHMENT AND RELEVANT SOCIAL GOALS II Goal 3: “Punishment should rectify the harm and injustice caused by crime.” Goal 4: “Punishment should serve as a recognized channel for the release of public indignation and anger at the offender.” Goal 5: “Punishment should make convicted offenders into better persons rather than leave them as they are or make them worse.”

17 CONSIDERATION OF THE LAST THREE GOALS I As Bedau says, if you accept goal 5 you must object to the death penalty since you cannot improve a person by killing him. He also says that he will not try to argue against the death penalty on this goal, and notes that many who are in favor of the death penalty will not be persuaded by it. Bedau recognizes that one can object to the third goal that it is not really a goal of punishment to rectify an injustice.

18 CONSIDERATION OF THE LAST THREE GOALS II The problem with rectifying the crime of murder, either through imprisonment or through the death penalty, is that “there is no possible way to rectify the crime of murder.” The only way to rectify murder would be to bring the victim back. Because that is the case, Bedau says that it may make the fourth goal of punishment being an outlet for anger even more important.

19 CONSIDERATION OF THE LAST THREE GOALS III In fact, Bedau recognizes that some people think that this fourth goal of punishment is the best argument for the death penalty. They think that it is important because it is necessary to have a punishment which can express the outrage that citizens – perhaps especially the family and friends of the victim – feel towards a murderer. That is, punishment appropriate to the expression of anger is necessary for a mentally healthy society, and the death penalty is the best means of expressing that anger.

20 POSSIBLE RESPONSES TO GOAL 4 AS A DEFENSE OF CAPITAL PUNISHMENT I How might we respond to the fourth goal as an argument for the death penalty - that it provides for the release of public anger directed to the murderer? Bedau mentions three possible responses: 1. Reject as false the view that the death penalty provides for the release of public anger, and is necessary for the mental health of a just society. 2. Concede that the death penalty does function as a means of dealing with public anger, but argue that it is only justified in a small number of cases, such as for the likes of Timothy McVeigh.

21 POSSIBLE RESPONSES TO GOAL 4 AS A DEFENSE OF CAPITAL PUNISHMENT II 3. Concede that it is legitimate and important to have some form of punishment which is an outlet for public anger directed towards a murderer, but that the death penalty is not the right punishment since it is ruled out on grounds of morality. For Bedau, both the second and third responses are sound.

22 ANGER I For Bedau, simple anger at the crime of murder is not enough by itself to justify the death penalty in any case. We need to know more details about the particular crime including the context in which it occurred and what caused it. Bedau says that we rarely know enough about the particulars in a crime to know whether to know to what extent our anger is justified, and whether we are justified in putting the person to death.

23 ANGER II Bedau thinks that it is curious that those who argue for the death penalty on the basis that it is needed as an outlet for public outrage nevertheless reject some forms of execution which are true expressions of hatred and anger at murderers. We no longer behead, crucify, torture, or dismember murderers, and the preferred method of execution now is lethal injection, which Bedau says seems too calm a form of execution to be an expression of outrage at the crime.

24 CONSEQUENCES, DUTY, AND PUNISHMENT Bedau: “If the purposes or goals of punishment lend a utilitarian quality to the practice of punishment, the moral principles relevant to the death penalty operate as deontological constraints on their pursuit.” Thus, the purposes or goals of punishment are to be valued in terms of the positive consequences which their implementation has for society, but kinds of punishment utilized are constrained by moral principles which we have a duty to recognize.

25 MORAL PRINCIPLES RELEVANT TO THE DEATH PENALTY I Principle 1: “No one should deliberately and intentionally take another’s life where there is a feasible alternative.” –(How does this pertain to the issue of euthanasia? Should other language be added here to make this first principle relevant to that issue?) Principle 2: “The more severe a penalty is, the more important it is that it be imposed only on those who truly deserve it.” Principle 3: “The more severe a penalty is, the weightier the justification required to warrant its imposition on anyone.”

26 MORAL PRINCIPLES RELEVANT TO THE DEATH PENALTY II Principle 4: “Whatever the criminal offense, the accused and convicted offender does not forfeit all his rights and dignity as a person. Accordingly, there is an upper limit to the severity - cruelty, destructiveness, finality - of permissible punishments, regardless of the offense.” Principle 5: “Fairness requires that punishments should be graded in their severity according to the gravity of the offense.” Principle 6: “If human lives are to be risked, the risk should fall more heavily on wrong-doers (the guilty) than on others (the innocent).”

27 MORAL PRINCIPLES RELEVANT TO THE DEATH PENALTY III Bedau says that these principles are either implicitly or explicitly recognized by society in practice. And these principles put limits on what we can and cannot do to someone who has committed a crime. Bedau says that these principles are “corollaries or theorems of the general proposition that life, limb, and security of person - of all persons - are of paramount value.” Because of this general principle, it follows that we can only interfere in the life of another to the extent to which this is necessary to protect the rights of others. This is why principle 5 outlaws torture - only minimal interference in the life of another, even a criminal, is morally permissible.

28 MORAL PRINCIPLES RELEVANT TO THE DEATH PENALTY IV Bedau recognizes that none of these principles rules out the death penalty. In fact, he says that he knows of no moral principle which by itself would rule out the death penalty Even so, these principles do place a heavy burden on anyone who advocates the death penalty to show that it is necessary when locking up a criminal will just as well protect society. Imprisoning someone for life is less intrusive then, and is more in conformity with the principles, than capital punishment.

29 MORAL PRINCIPLES RELEVANT TO THE DEATH PENALTY V Perhaps the principle which would seem to argue most favorably for the death penalty is number 5 that the punishment should fit the crime. Thus, if murder is the worst crime, which it is, then it should have the severest penalty. But even so, Bedau says that it does not follow from this that the punishment has to be death. The severest punishment could be life without parole.

30 LEX TALIONIS It does not follow, Bedau says, unless you accept lex talionis - an eye for an eye, a tooth for a tooth, a life for a life - that the punishment should be the same as the crime, so that if a person kills he should be killed. But Bedau says that lex talionis is not a sound principle on which to base punishment in general. He does not say why, but the reason is that not all crimes can be repaid with the same kind of punishment - child abuse and rape for instance.

31 PRINCIPLE SIX I Bedau says that the principle of greater interest is number 6 - that if humans lives are to be risked, better to risk the lives of the guilty than the innocent - which is what van den Haag will say. The idea is that it is better to execute all murderers so that none of them can kill again than it is to execute none of them so that we avoid the risk of executing an innocent person.

32 PRINCIPLE SIX II For van den Haag, if we do not have capital punishment then there is a risk to innocent people that a convicted murderer released from prison may kill again, and if we do have capital punishment, the risk is that an innocent person may be put to death. But for van den Haag it is clear that it is better to place the risk of the killing of the innocent on the lives of convicted felons than it is to place the risk of being killed on the innocent population.

33 PRINCIPLE SIX III Bedau says that this argument is not as conclusive as it may seem, and it is not enough to outweigh other arguments against the death penalty. And he says that it is really a disguised version of the first policy goal of punishment which is that it should reduce crime. Thus this principle argues that reducing crime is more important than anything else. Bedau also objects that we cannot really compare the two risks discussed - the risk that an innocent person will be executed as opposed to the risk to the innocent given no death penalty.

34 BEDAU’S CONCLUSIONS ABOUT THE DEATH PENALTY 1. The death penalty is primarily a means to one or more goals, but is probably not the best means of reaching those goals. 2. Several principles favor abolition of the death penalty. 3. However, there is no conclusive argument either for or against the death penalty. (An argument which seems conclusive to one side, such as lex talionis, the other side does not have to accept.) 4. The goals and principles which Bedau has looked at have “no obvious rank or relative weighting” - it is hard to say which are more important than others.

35 GOVERNMENT POWER Bedau’s first argument against the death penalty is that the power which the government has over the lives of individuals should be decreased and not increased. Of course, some government power is necessary to have a civil society, but the government’s power should be constructive not destructive. A government’s power should enhance liberty not decrease it. The government’s use of the death penalty is a destructive not a constructive use of power. For Bedau, it is the ultimate symbol of government power.

36 PAST AND FUTURE I Bedau’s second argument against the death penalty is that the goals and principles of punishment should be directed towards the future, not the past. “We cannot do anything to benefit the dead victims of crime.” This is the idea that reality is such that some problems may have no solutions, at least not the kind we would wish. As Bedau himself wonders: how many people would be opposed to the death penalty if executing a murderer would bring back his victim? Would we not owe it to the victim?

37 PAST AND FUTURE II The point of looking to the future is that we can try to do something for the living in the time ahead of them even if we cannot go back to the past to help the victim. What we do is try to protect the innocent, try to console those affected by crime, and try to prevent future crimes. And Bedau thinks that none of these future-directed constructive goals demands capital punishment. For Bedau the death penalty, in being vindictive and retributive and expressing our outrage at the murder of an innocent person, are all directed towards the past.

38 FALSE PICTURES Bedau’s third argument against the death penalty is that the death penalty gives a false picture of man and society. Bedau: “Far from being a symbol of justice it is a symbol of brutality and stupidity.” Bedau thinks that the common conception of the criminal is as an autonomous Kantian moral agent who freely and knowingly acts deliberately to kill another. But Bedau says that the killers actually on death row do not resemble Kant’s rational moral agents.

39 CONCLUSION For Bedau, the death penalty question concerns how controversial social goals, controversial moral principles, and disputed general facts are to be balanced and reasonably assessed. Bedau thinks that deeper rational argument can decide the matter against the death penalty, but in this paper he has only attempted to sort out what the difficulties are.

40 “The Ultimate Punishment: a Defense” Ernest van den Haag

41 PRELIMINARY CONSIDERATIONS van den Haag notes that, on average, there are about 20,000 homicides a year in the U. S., but fewer than 300 convicted murderers are sentenced to death - about 1.5.%. Accordingly, “most convicts sentenced to death are likely to die of old age.” It is interesting to note here that van den Haag finds “death row as a semipermanent [or permanent if they are never executed] residence [to be] cruel, because convicts are denied the amenities of [normal] prison life,” such as contact with other prisoners. (Cf. Kant.) Even though the execution rate is so small, van den Haag says that the death penalty “raises important moral questions independent of the number of executions.”

42 DISCRIMINATION AND CAPRICIOUS DISTRIBUTION I van den Haag notes that some people object to the death penalty because it is not evenly applied. This can be for reason of discrimination, where minority murderers may be more likely to be sentenced to death and executed than murderers who form part of the majority population, or for reason of caprice, as when one person is executed and another not for no predictable or clearly understandable reason. In addition, money may make a difference, so that of two equally guilty people one is executed and another not based on the affordable quality of his or her legal defense.

43 DISCRIMINATION AND CAPRICIOUS DISTRIBUTION II However, van den Haag says that how the death penalty is in fact applied - whether or not it is evenly and so fairly applied - is irrelevant to the morality of the punishment. The death penalty is either moral or immoral in itself. You cannot make it moral if it is immoral by applying it equally, and you cannot make it immoral if it is moral by only applying it to some convicted murderers and not to others, for whatever reason or reasons. (Its uneven application would be a separate moral issue.)

44 DISCRIMINATION AND CAPRICIOUS DISTRIBUTION III Further, in being applied unevenly, the death penalty is the same as every other punishment, in that every punishment is also unevenly applied. And van den Haag says that “Maldistribution of any punishment among those who deserve it is irrelevant to its justice or morality.” The only relevant question for van den Haag concerning the death penalty is: does the convicted murderer deserve to be executed?

45 DISCRIMINATION AND CAPRICIOUS DISTRIBUTION IV If the death penalty is morally justified for convicted murderers, then it does not matter to the morality of the punishment whether one murderer gets executed and another does not. van den Haag: “Even if poor or black convicts guilty of capital offenses suffer capital punishment, and other convicts equally guilty of the same crimes do not, a more equal distribution, however desirable, would merely be more equal. It would not be more just to the convicts under the sentence of death.”

46 DISCRIMINATION AND CAPRICIOUS DISTRIBUTION V Even if a guilty person is not executed, he still deserves to be executed if capital punishment is morally justified. van den Haag’s way of putting this is to say that equality is less important morally than justice. And he says that “Punishments are imposed on persons, not on racial or economic groups. Guilt is personal. The only relevant question is: does the person to be executed deserve the punishment?”

47 DISCRIMINATION AND CAPRICIOUS DISTRIBUTION VI According to van den Haag, what is a just punishment for an offense is just no matter whether it is evenly or unevenly distributed amongst the guilty. van den Haag: “Whether or not others who deserve the same punishment, whatever their economic or racial group, have avoided execution is irrelevant.” van den Haag: “Justice requires that as many of the guilty as possible be punished, regardless of whether others have avoided punishment.”

48 DISCRIMINATION AND CAPRICIOUS DISTRIBUTION VII For van den Haag, it is not just to let people escape punishment who deserve to be punished, but that does not make punishment unjust for those who are punished. And van den Haag notes that some inequality of punishment is unavoidable in any legal system as a practical matter. People are not perfect, and so their legal and penal systems are not going to be perfect either. But, for van den Haag, unequal justice is better than injustice, and injustice is what we have when anyone escapes punishment which he deserves.

49 RISK TO THE INNOCENT I van den Haag says that there seems little doubt that innocent people have been executed, and that such people will also be unjustly executed in the future. But he says that nearly all human activities, and not just punishment, carry some risk to the innocent. In this sense then punishment, including capital punishment, is not unusual. Innocent people can be killed in driving accidents or from construction, for instance, but we do not give these things up because we think that the benefits of travel and construction outweigh the risks to the innocent.

50 RISK TO THE INNOCENT II Analogously, van den Haag says that the occasional execution of an innocent person is outweighed by the benefits to society of the death penalty. The chief benefit of the death penalty to society, for van den Haag, is its justness or its morality. This is because, for van den Haag, the death penalty is the only appropriate punishment for the crime of murder, and not to punish murderers by executing them would be unjust, and so not a benefit to society.

51 RISK TO THE INNOCENT III van den Haag also maintains that, for people who think that the death penalty is immoral in any case - whether evenly applied or not, or whether or not an innocent person is executed - the occasional miscarriage of justice which happens from executing an innocent person “can hardly be [the] decisive” reason for finding it immoral.

52 DETERRENCE I van den Haag admits that there is no conclusive evidence that the death penalty is a better deterrent to crime than other kinds of punishment. However, he does not think that the issue of deterrence argues either for or against the death penalty. He thinks that those people who are opposed to the death penalty would be opposed to it even if it were shown to be a better deterrent than some other form of punishment, say life in prison without parole.

53 DETERRENCE II van den Haag says that opponents of the death penalty “appear to value the life of a convicted murder or, at least, his non- execution, more highly than they value the lives of the innocent victims who might be spared by [using the death penalty to deter] prospective murderers.” van den Haag also says that he would still favor the death penalty for murder even if it were shown that capital punishment is not a better deterrent than other forms of punishment, and would only favor its abolition if evidence showed that executions increased rather than decreased the murder rate by functioning as a deterrent. But van den Haag does think that the threat of capital punishment is a better deterrent to crime than other forms of punishment because of its finality.

54 DETERRENCE III van den Haag thinks that saving the lives of innocent people by using the threat of capital punishment is more important than preserving the lives of convicted murderers by thinking that the death penalty is not a deterrent. For van den Haag, the important point is that the lives of innocent people are valuable, whereas the lives of convicted murderers are not due to their crimes. van den Haag says that it is the purpose of the law to protect the innocent, not the guilty.

55 DETERRENCE IV van den Haag recognizes that “murder rates are determined by many factors,” and recognizes that we cannot be sure that by threatening execution for a convicted murderer that the murder rate will thereby be lower than it would if we did not have that form of threatened punishment. Even so he maintains that the threat of execution does deter at least some people from murdering others, and this deterrence is an argument in favor of the death penalty in addition to his fundamental argument that there is no justice for the crime of murder without it.

56 DETERRENCE V Thus whether it is a deterrent or not, van den Haag says that “The severity and finality of the death penalty is appropriate to the seriousness and finality of murder.” And this appropriateness is moral appropriateness.

57 COST Some people object to the death penalty because they maintain that it is more expensive than life imprisonment. This is because of the legal costs which must be born by the state in the lengthy appeals process. van den Haag says that this argument is flawed “by the implied assumption that life prisoners will generate no judicial costs during their imprisonment.” This cannot be assumed, and so the issue of expense can be questioned, but even if the cost of pursuing the death penalty is more expensive than life imprisonment, still the death penalty is justified on grounds of justice.

58 SUFFERING I Some people object to the death penalty on the grounds that it makes the murderer on death row suffer more than his victim did - for instance, isolation and anxiety from anticipating execution - and no punishment ought to inflict more suffering on the criminal than the victim. This view is related to lex talionis, or the law of retaliation which says that the punishment should fit the crime. According to this principle, what the criminal took from his victim society should take from the criminal. In the case of murder this would be a life for a life. And it would follow from considering suffering as just punishment in relation to lex talionis that the criminal should suffer at least as much as his victim, but not more than his victim.

59 SUFFERING II van den Haag’s first response to this objection to the excessive suffering caused by capital punishment is that we cannot really know if the murderer suffers more than the victim. However, whether he does or not is irrelevant since, for van den Haag, the crucial point here is that the victim did not deserve to suffer whatever she suffered. van den Haag’s second response is that “the limitations of the lex talionis were meant to restrain private vengeance, not the social retribution which has taken its place.”

60 SUFFERING III van den Haag: “Punishment - regardless of the motivation - is not intended to revenge, offset, or compensate for the victim’s suffering, or to be measured by it.” van den Haag: “Punishment is to vindicate the law and the social order undermined by the crime.” van den Haag: “This is why a kidnapper’s penal confinement is not limited to the period for which he imprisoned his victim; not is a burglar’s confinement meant merely to offset the suffering or harm he caused his victim; nor is it meant only to offset the advantage he gained.”

61 THE LEGITIMIZATION OF UNLAWFUL KILLING I van den Haag: “Another argument, heard at least since Beccaria is that, by killing a murderer, we encourage, endorse, or legitimize unlawful killing.” Yet van den Haag says that “although all punishments are meant to be unpleasant, it is seldom argued that they legitimize the unlawful imposition of identical unpleasantness.” For instance, “imprisonment is not thought to legitimize kidnapping.”

62 THE LEGITIMIZATION OF UNLAWFUL KILLING II For van den Haag, “The difference between murder and execution is that the first is unlawful and undeserved, the second a lawful and deserved punishment for an unlawful act.” van den Haag: “The physical similarities of the punishment to the crime are irrelevant. The relevant difference is not physical, but social.”

63 WHY DOES SOCIETY PUNISH? van den Haag notes that society threatens punishment in order to deter crime, and society imposes punishment in order to make the threats credible. Thus the threat of punishment for a crime committed is of no use unless the punishment is enforced. van den Haag says that both the threat of punishment and actual punishment are necessary to deter crime. And the fact that they function as deterrents is “sufficient practical justification for them.” Societies also punish as retribution for the crimes actually committed. And this retribution “is an independent moral justification.”

64 THE JUSTIFICATION OF PUNISHMENT van den Haag says that “An explicit threat of punitive action is necessary to the justification of any legal punishment.” Thus, a punishment is not just if there is no prior law which threatens the punishment as a consequence for committing a particular crime. But van den Haag notes that a prior law “legitimizes the threatened punishment only if the threat is warranted.” To that end, “To be sufficiently justified, the threat [of punishment] must have a rational and legitimate purpose.” Thus, van den Haag says that “‘Your money or your life’ does not qualify; nor does the threat of an unjust law; nor, finally, does a threat that is altogether disproportionate to the importance of its purpose.”

65 JUST PUNISHMENT OF CRIMINAL ACTION I For van den Haag, punishment is not only practically justified but it is morally justified, and is so justified independently of its practical justification. That punishment is morally justified means that “the infliction of legal punishment on a guilty person cannot be unjust.” It cannot be unjust because when a criminal commits a crime he volunteers to assume the risk of being punished for the crime which he commits.

66 JUST PUNISHMENT OF CRIMINAL ACTION II Because the punishment which a criminal receives is the one which he risked suffering, it is not unjust. In the case of the death penalty, since a murderer voluntarily risks the death penalty in deliberately killing an innocent person, the punishment of death for him is not unjust. Further, there is a disparity of volunteering to risk something here between criminal and victim since, whereas the criminal voluntarily risks being punished in committing his crime, his victim volunteered to risk nothing.

67 JUST PUNISHMENT OF CRIMINAL ACTION III For van den Haag, because: A) a murderer voluntarily risks execution in murdering; B) his victim did not voluntarily risked being killed; and C) because we have the advance threat of execution for murder, It follows that capital punishment is just.

68 IS THE DEATH PENALTY EXCESSIVE? However, van den Haag recognizes that, although capital punishment cannot be unjust in this sense, still people might object that it is overly punitive and is morally degrading. To view the death penalty as overly punitive one would think that no crime, not even first degree murder, warranted this punishment. And here van den Haag says that “Such a belief can be neither corroborated nor refuted; it is an article of faith.” van den Haag thinks that the murderer does not have the same right to life which everyone else has. Rather, he forfeits his right to life because of his crime. Not only is it not excessive, but it is the only just punishment for the crime of murder.

69 IS THE DEATH PENALTY MORALLY DEGRADING? I Some objectors to the death penalty might argue that it is immoral because “everybody, the murderer no less than the victim, has an imprescriptible (natural?) right to life.” (An imprescriptible right is one that cannot in any circumstances be taken away or abandoned. Thus if there is an imprescriptible right to life then the murderer has it as much as his or her victim and so cannot for this reason be executed.) van den Haag says that he agrees here with “Jeremy Bentham’s view that any such ‘natural and imprescriptible rights’ are ‘nonsense upon stilts.’”

70 IS THE DEATH PENALTY MORALLY DEGRADING? II Further, van den Haag cites both Kant and Hegel who thought that, “far from degrading the executed convict, [the death penalty] affirms his humanity by affirming his rationality and his responsibility for his actions.” This of course assumes that all adults, including murderers, are rational, and do not act irrationally when killing, and it assumes that they are capable of taking responsibility for their actions. We have already seen that Bedau does not think that the average person on death row much resembles a Kantian rational moral agent, and so would find van den Haag’s argument here unconvincing.

71 IS THE DEATH PENALTY MORALLY DEGRADING? III Both Kant and Hegel thought that execution is required to preserve the convicted murderer’s dignity as a rational moral agent. As van den Haag puts it: “They thought that execution, when deserved, is required for the sake of the convict’s dignity. (Does not life imprisonment violate human dignity more than execution, by keeping alive a prisoner deprived of all [?] autonomy?)”

72 IS THE DEATH PENALTY MORALLY DEGRADING? IV One might question the use of the term “all” in the preceding quote since in fact it is death which deprives a person of all autonomy. The incarcerated individual still has some autonomy - freedom of thought for instance. If the person did not have this freedom of thought then he could not be protected by some human rights theories which say that convicted killers should not be executed because they still have the right - fundamental to all persons - to dialogue, to be a partner in the search for truth.

73 DEATH AND THE DEATH PENALTY van den Haag thinks that common sense does not see normal death as inhuman. This is because death is an essential part of our humanity. Therefore, those, such as Justice Brennan, who see the death penalty as morally degrading must see death as inhuman when it is neither natural nor accidental. van den Haag says that capital punishment tells the convicted killer that he is not fit to be a member of society, that his fellow humans have found him “unworthy of living.” Because of his crime, the murderer is being expelled from the realm of the living.

74 THE SELF-DEGRADATION OF MURDER In deliberately murdering, the killer degrades himself as a person, and the death penalty is simply society’s recognition of his self-degradation. For van den Haag, the essence of capital punishment is society’s recognition that the killer has degraded himself by killing. To believe that it is the execution which degrades the criminal rather than the act of murder is to get things the wrong way around. For van den Haag, capital punishment is the only punishment which fits the crime of murder.

75 SHOULD EXECUTIONS BE TELEVISED? I No, according to van den Haag, and this is the case even if, by televising, it might be thought to be a greater deterrent than it is without making the execution public. The reasons, according to van den Haag, are: 1. “The death of even a murderer, however well- deserved, should not serve as public entertainment.” 2. “Television would unavoidably trivialize executions.” This is because they would appear “between game shows, situation comedies, and the like.”

76 SHOULD EXECUTIONS BE TELEVISED? II 3. “A televised execution would present the murderer as the victim of the state.” This is because “televised executions would focus on the physical aspects of the punishment, rather than the nature of the crime and the suffering of the victim.” As a result, the “moral significance of the execution” would not be communicated to the audience. Rather “television would shift the focus to the pitiable fear of the murderer.”

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