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.
o 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.
o 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.
o 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.
o 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.
o 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.
o In response to the first of our moral questions about
punishment, retributivism argues that punishment is
justified because the wrong doer deserves it.
o 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.
o Proponents of DP (retentionists) typically interpret
fitness along the lines of Lex Talonis (essentially, "an
eye for an eye).
o 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.
o
•
Kant is thus arguing for what could be called “Equality
Retributivism”
Clarification of relevant terms.
o
“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.
o “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.
o 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.
o 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).
o 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.
o It’s important to note that Kant specifies that the
death of a murderer must be free of
maltreatment.