The Death Penalty: Theories of Punishment; Kant Philosophy 220 The Death Penalty: Theories of Punishment; Kant

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. 472. Here’s some more recent data from a Gallup poll. As he states it, the issue can be summarized by two questions: Is the death penalty ever a [morally] permissible form of punishment (as opposed to a legally permissible form)? 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 (473). 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 general forms of the 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 of our moral questions about punishment, 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 (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 could be called “Equality Retributivism” Clarification of relevant terms. “Crime”: “...any transgression of the public law that makes a perpetrator incapable of being a citizen” (478c1). 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...” (479c1), which would treat another human as a mere means. It 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” (479c2).

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” (479c2). 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.