Introduction to Ethics
Lecture 22
Van Den Haag
In Defense of the Death Penalty
By David Kelsey
The abolitionist
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Replying to the abolitionist:
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Abolitionists argue:
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Van Den Haag takes it upon himself to reply to the abolitionist whose position is to
abolish the death penalty.
We should not use it because some guilty persons will escape it.
Consider that there is unavoidable capriciousness:
• the justice system often rests on accidental factors…
Van den Haag replies:
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That some guilty parties elude it entails we should extend the death penalty to them…
Justice requires punishing the guilty, as many as possible, even if some escape…
Discrimination is irrelevant
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If the death penalty is applied discriminatorily this is irrelevant to the moral
question of whether the death penalty is morally just and or useful.
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If it were distributed equally and with super human perfection to all the guilty but
was morally unjust, it would be unjust in each case.
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And if it were morally just but discriminatorily applied to only some of the guilty it
remains just in each case in which it is applied.
Persons executed in error
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Persons executed in error:
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The objection here is that the death penalty should be abolished because some of the
innocent do not and cannot escape it.
The execution of innocents believed guilty must be opposed whenever detected.
Van Den Haag in reply:
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This possibility doesn’t warrant the abolition of the death penalty.
To do so the moral drawbacks would have to outweigh the moral advantages of the
death penalty, which includes the innocent lives that might be saved by it.
And most human activities cause the death of innocent bystanders…
Deterrence
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Deterrence:
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Ehrlich’s study:
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In the past there has been no evidence for deterrence effect.
Van den Haag sights a recent study by Isaac Ehrlich.
Over the period 1933-1969 “an additional execution per year…may have resulted (on
the average) in 7 or 8 fewer murders.”
Van den Haag on Ehrlich:
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The matter is still controversial.
Ehrlich shows that the previous studies, which show that no such deterrent effects exist
on the death penalty, are flawed.
There is some likelihood of statistically demonstrating marginal deterrent effects.
Deterrence continued
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The choice:
– Execute the convicted murderer.
• Trade the certain shortening of the life of a convicted murderer against the
survival of 7-8 innocent victims whose future murder becomes more probable
unless the convicted murderer gets executed.
– Don’t execute the convicted murderer.
• Trade the certain survival of the life of a convicted murderer against the loss of
lives of 7-8 innocent victims who are more likely to be murdered by others if the
convicted murderer is allowed to survive.
– “It seems immoral to let convicted murderers survive at the probable--or
even at the merely possible--expense of the lives of innocent victims who
might have been spared had the murderers been executed.”
Deterrent effects
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Deterrent effects:
– Our penal system is built on the notion that more severe penalties are more
deterrent than less severe penalties.
• A 5$ fine deters rape less than a 500$ fine and both deter less than the threat of
five years in prison.
• This rests on the common assumption that people learn to avoid natural dangers
the more likely they are to be injurious and the more severe the likely injuries.
• Following this logic: the most severe penalty would have the greatest deterrent
effects…
– The burden of proof rests on the other side:
• To argue against you must argue either that capital crimes are never deterrable or
that beyond some point the deterrent effects of added severity is zero.
• But the burden of proof rests on those who presume to have located the point of
zero marginal returns…
Special circumstances
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Without the death penalty we confer immunity on those individuals who are most
likely to be in need of deterrent threats.
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For example, a prisoner serving a life sentence can kill a fellow prisoner or guard with
impunity. Such homicidal life prisoners are given permanent immunity. This endangers
the lives of other prisoners and guards…
There is no threat of additional penalty for additional crime.
And only the death sentence could deter…
Capital Punishment is barbaric
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Against the death penalty some argue that it is barbaric.
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“The laws which punish homicide…themselves commit it.”
Capital punishment is legalized murder.
Van Den Haag:
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Legally imposed sanctions or punishments are not crimes.
So the murders committed by a convicted murderer and the execution of the convicted
murderer are both physically killings. One is a crime though and one is not.
Crimes of Passion
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Abolitionists often argue:
Most capital crimes are acts of passion that 1. Could not be restrained by the
death penalty and 2. Do not deserve it morally even if other crimes might.
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Van Den Haag:
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There is no moral difference between a crime motivated by sexual passion than one
motivated by passion for money for example.
Perhaps it is true that many murders are irrational acts of passion that could not have
been deterred by threat of the death penalty.
But if most murders are irrational acts then the threat of the death penalty has
succeeded in deterring most rational people, or most people when rational, from
committing murder…
Pickpockets
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Dr. Johnson observed pickpockets active in a crowd assembled to see a
pickpocket hanged. He concluded that executions do not deter.
Van Den Haag:
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The spectacle of execution was probably more fascinating to the crowd. Therefore,
increased opportunities…
Deterrent effects are only slight with respect to those already committed to criminal
activities. It is much greater with respect to deterring people who aren’t yet in a
criminal occupation from entering one.
To truly gauge the effects of deterrence we would have had to compare the number of
pickpocketing assaults in the crowd to witness the execution to the number of
pickpocketing assaults in the crowd assembled for some other purpose…
Revenge
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One objection to capital punishment is it gratifies the desire for revenge.
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Van den Haag:
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Vengeance may be one motive behind capital punishment.
But no rule should be regarded as morally wrong because of the motives of those who
support it.
So capital punishment is warranted if it achieves its purpose: doing justice and
deterring crime, regardless of whether it gratifies vengeful feelings.
The argument in favor of the death penalty
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The argument in favor:
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Punishment must be proportioned to the gravity of the crime, to denounce the crime
and to vindicate the importance of the rule that is broken.
Thus, all penal systems proportion punishments to crimes. The worse the crime the
higher the penalty deserved.
Thus, why not the highest penalty, death, for the worst crime, murder?
So the burden of proof rests on those wanting to argue that no crime deserves capital
punishment.
And Van den Haag has attempted to show that there is no argument yet which has
shown this…