Capital Punishment

How should the worst crimes be punished?
  • Federal capital offenses include murder under certain circumstances, espionage, and treason.
  • In 1977 the Supreme Court ruled that the Eighth Amendment forbids the death penalty for rape (Coker v Georgia) and in 2008 ruled that, for crimes against an individual (versus the state), “the death penalty should not be expanded to instances where the victim’s life was not taken” (Kennedy v Louisiana).
  • Capital offenses in other countries include possession of illegal drugs, various sexual offenses, and economic crimes such as bribery and corruption of public officials.
  • Capital Punishment
  • Life Imprisonment without Parole
Big Picture
Arguments for Capital Punishment
Articulation and Evaluation
The punishment must fit the crime (Retributive Justice)
  • Argument
    • The punishment should fit the crime.
    • Some crimes are so heinous the only fitting punishment is execution.
    • Therefore CP should be retained for these crimes.
  • First Premise: The punishment should fit the crime
    • Principle of Retributive Justice
    • The Principle of Retributive Justice is not the Lex Talionis
      • Lex Talionis
        • Criminals should receive as punishment precisely those injuries and damages they had inflicted upon their victims.
      • Objection to the Lex Talionis
        • The Lex Talionis calls for punishing rape by rape.
  • Second Premise
    • For some crimes, such as mass murder or torturing people to death, the only proportional punishment is execution. Incarceration, though restricting liberty, leaves the criminal free to think, feel, remember, and perhaps take pleasure in reliving their crimes.
    • Objection
      • There’s no clear criterion for proportionality between severity of punishment and gravity of offense. It’s not clear, therefore, that LIWP is not proportionate to murder.
CP guarantees no repeat offense (Incapacitation)
  • Argument
    • Capital punishment guarantees the criminal never repeats their crime. With LIWP, however, there’s a possibility that:
      • they escape
      • they kill a guard or fellow inmate
      • they order crimes from prison
      • they are released due to a mistake, e.g. a clerical error
  • Evaluation
    • Both CP and LIWP result in death in prison.  Let’s assume that the average time spent on death row is 10 years and the average time for LIWP is 40 years; then the chance a death row inmate committing murder is ¼ the chance of a lifer. But the former chance isn’t zero.  The difference is a degree of probability.
CP is a better deterrent than LIWP (General and Individual Deterrence)
  • Argument
    • Capital punishment deters crimes (murder) more effectively than LIWP.
  • Supporting Arguments
    • CP is inherently scarier and thus a better deterrent
    • States and countries with CP have lower murder rates than those without.
  • Evaluation
  • Incapacitation, General Deterrence, and Individual Deterrence
    • Incapacitation: 
      • A bank robber in prison can’t rob a bank.
    • General Deterrence:
      • The threat of prison deters would-be bank robbers.
    • Individual Deterrence:
      • The fear of going back to prison deters an individual bank robber.
CP is less expensive than LIWP
  • Argument
    • Capital Punishment is less expensive than LIWP
  • Evaluation
  • Areas where CP costs are higher:
    • Jury selection, which takes longer
    • Defense, for which the state pays in virtually every case
    • Trial, which takes longer
    • Incarceration, in a special facility
    • Appeals, to which inmate is entitled
Capital punishment provides closure to friends and relatives of victims
  • Argument
    • Capital punishment provides closure to friends and relatives of victims
  • Evaluation
    • The argument needs to be comparative, that CP provides closure more often than LIWP.
    • But what’s the that CP provides closure more often than LIWP?
Capital punishment saves lives
  • Argument
    • Capital punishment saves lives
  • Evaluation
    • The argument needs to be comparative, that CP saves more lives than LIWP
    • Lives are saved by general deterrence and incapacitation.  The argument is thus a combination of those arguments. 
Arguments for Life Imprisonment without Parole
Articulation and Evaluation
An argument against capital punishment is an argument for life Imprisonment without parole.
CP carries the risk of executing an innocent person
  • Argument, Utilitarian Version
    • Capital punishment carries the risk of executing an innocent person, a grave injustice that precludes compensating the victim if later found innocent.
  • Argument, Deontic Version
  • Supporting Argument
  • Evaluation
    • Objection
      • The argument also applies to LIWP.  An innocent person sentenced to LIWP may spend the rest of their life behind bars, dying in prison. Therefore, by parity of reasoning, defendants should not be sentenced to LIWP. 
    • Reply to Objection
      • The longer an inmate remains alive, the greater the chance of being exonerated while alive.  The average time in prison for LIWP is greater than the average time in prison for CP. 
Killing is morally wrong
  • Argument
    • Killing is morally wrong.
    • Capital punishment is killing.
    • Therefore capital punishment is morally wrong.
  • Evaluation
    • Like moral principles in general, killing is wrong is true other things being equal. It can thus be argued that, in the case of capital punishment, other things are not equal, since the state is legally justified in executing those convicted of capital crimes.
CP is inhumane (“cruel and usual”)
  • Argument
    • Capital punishment is inhumane (“cruel and unusual”)
    • Any form of punishment that’s inhumane is immoral.
    • Therefore capital punishment is immoral.
  • Evaluation
    • Objection
      • Inhumane forms of punishment include: amputation, torture, blinding, causing permanent paralysis, disfiguring one’s face.  By contrast, incarceration and fines are not inhumane. The difference is that inhumane forms of punishment inflict pain or cause permanent disability. But death by lethal injection does neither.  Therefore it’s humane.
    • Reply to Objection
      • Mock executions are a form of torture because they inflict intense suffering (but not pain).  Real executions obviously inflict the same kind of suffering. Therefore real executions are a form of torture and thus inhumane.
CP is unfair
  • Arguments
    • Capital punishment is unfairly applied because a “capriciously selected random handful” of murderers are sentenced to death.
      • In Furman v Georgia (1972), the Supreme Court said: 
        • “These death sentences are cruel and usual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.”
    • Capital punishment is unfairly applied because a disproportionate number of poor are sentenced to death
  • Evaluation
    • These argument are not against capital punishment per se but against its application
    • Incarceration too can be unfairly applied, but that doesn’t mean it should be abolished.  Unfair punishment is a reason, not to abolish punishment, but to implement procedures that minimize unfairness. That’s what states did about capital punishment after Furman v Georgia.
Two wrongs don’t make a right.
  • Argument
    • Two wrongs don’t make a right
  • Evaluation:
    • The argument, which is expressed figuratively, can be put in literal terms: 
      • Killing is wrong, other things being equal.
      • Therefore killing a person for doing something wrong is wrong.
    • Compare
      • Keeping a person locked in a room is wrong, other things being equal.
      • Therefore keeping a person locked in a room for doing something wrong is wrong.
    • The premise of the second argument is true, but the conclusion is false: incarcerating a criminal for robbery is not wrong.
    • The same applies to the first argument.  Its premise is true but the conclusion, that killing a person for doing something wrong is wrong, begs the question.
No morally relevant difference between CP and revenge
  • Argument
    • There’s no material difference between an individual taking a life in revenge and the state executing an individual for a crime. 
    • Taking a life in revenge is morally wrong.
    • Therefore execution by the state is morally wrong.
  • Evaluation
    • But there is a material difference: the state has a right to administer justice but an individual does not.
    • It’s the difference between criminal justice and vigilantism, between hanging by the state and lynching by a mob, between incarcerating a robber and an individual keeping a robber locked in his basement.
No one has the right to play God
  • Argument
    • Only God has the right to decide whether a person lives or dies.
    • Therefore the state does not have that right.
  • Evaluation
    • Left to the reader