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I. Justifications for punishment

 A. Retribution: Nobody will defend a literal application of the lex talionis.  Punishment  must fit the crime.

 B. Deterrence (Better than life imprisonment?)

 C. Prevention

Furman v.. Georgia (1972)

I. Does CP violate 8th and 14th amendments?

II. No decision on constitutionality of CP per se, but decided that it's unconstitutional in practice because juries are free to sentence capriciously, with the result that those put to death are disproportionately poor and African-American.

Gregg v. Georgia (1976)

n.b. The court's job is not to decide how things ought to be done, but just to say whether or not some legislation violates the Constitution.

I. Does CP violate the 8th amendment?

 A. Public standards of decency

 B. Innately excessive? i.e. unnecessary and disproportionate

  1. Necessary for...

   a. Retribution (Funny sense, prevent lynch-law) (p.254)

   b. Deterrence

   1. Evidence inconclusive


        a. So shouldn't we say it doesn't deter?

        1. Maybe it's certainty that counts

        2.It deters in a way that's hard to test.  We are all deterred in a way.


   2. Still, intuitively clear it will deter sometimes, eg. cold-blooded     murderer, or someone serving a life sentence.

  2.  Not disproportional, worst punishment for worst crime.

Therefore, CP not innately unconstitutional.

II. In practice?

 A. Georgia law requires jury to find at least one  aggravating circumstance before it can  sentence to death, and it is to weigh aggravating and mitigating circumstances.

 B. So juries can't sentence capriciously.

Therefore, CP not unconstitutional in practice.


The Model Penal Code proposes the following standards:

   "(3) Aggravating Circumstances.

   "(a) The murder was committed by a convict under sentence of imprisonment.

   "(b) The defendant was previously convicted of another murder or of a felony involving the use     or threat of violence to the person.

   "(c) At the time the murder was committed the defendant also committed another murder.

   "(d) The defendant knowingly created a great risk of death to many persons.

 "(e) The murder was committed while the defendant was engaged or was an accomplice in the       commission of, or an attempt to commit, or flight after committing or attempting to commit         robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary or               kidnapping.

 "(f) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from lawful custody.

   "(g) The murder was committed for pecuniary gain.

   "(h) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.

   "(4) Mitigating Circumstances.

   "(a) The defendant has no significant history of prior criminal activity.

 "(b) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.

 "(c) The victim was a participant in the defendant's homicide conduct or consented to the homicidal act.

 "(d) The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct.

 "(e) The defendant was an accomplice in a murder committed by another person and his participation in the homicide act was relatively minor.

   "(f)  The defendant acted under duress or under the domination of another person.

 "(g) At the time of the murder, the capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication.

 "(h) The youth of the defendant at the time of the crime." ALI Model Penal Code 1210.6 (Proposed Official Draft 1962).

III. Dissent

A. Brennan

    1. Against human dignity-treats human as object to be discarded.

    2. Form of "official murder" - essentially just doing to murder what murderer did.

B. Marshal

    1. An informed public wouldn't approve of CP.

    2. No evidence that it deters better than life imprisonment.

    3. Retribution

          a. No evidence that CP is necessary to keep us from taking the law into our own   hands.

          b. Pure retribution denies criminals worth and dignity.

Kant: CP morally required, but only as retribution.

I. Deterrence, prevention treat murderer as means to an end.

II. But are we really treating murderer as an end in himself when we execute him?

 A. Principle of equality... (p. 262)

 B. ...from 1st form of categorical imperative

III. Punishment should be in kind, but not absolutely literally.

 A. So murderer ought to be killed.

 B. The example of the deal to volunteer for medical experiments,  society leaving the  island.

GLOVER: Assuming utilitarianism, capital punishment is wrong because it does not produce more  happiness than suffering.

I. Retribution

A. Pure retribution: no place in utilitarian thinking

B. Retribution must play some role given that it is critical that only the guilty are punished.  (May be utilitarian reasonas for saying this.)

 1. Deterrence: would work so long as people believe you're guilty.

 2. Prevention: would work so long as we have reason to believe you will commit a crime.

---However, although retribution may be relevant to who gets punished, it doesn't follow that we have to buy idea that murderers deserve death----

II. CP is a "denunciation" by the community...but either it's to achieve some good or its just an end in itself.  If the former we're back to utilitarian calculus.  If the latter, the utilitarian has no use for it.

III. Absolutist rejection: Killing another human being is wrong no matter what.  Utilitarian must reject this.

--- And so on to a utilitarian analysis of CP---

IV. Harm and suffering caused by CP

A. To the one being executed...rather worse than to the murder victim.

 1. But shouldn't we say that suffering of murderer matters less than suffering of victim?

 2. Not if we're utilitarians.

B. To friends and family of one being executed....rather worse than to friends and family of victim.

C. Wrongful execution

 1. innocent

 2. (Rogers) One who doesn't deserve execution.

D. Society as a whole

E. (Rogers) Murders committed by would-be suicides.

---So if you want to defend CP you'll have to show that it really produces beneficial consequenses. For example, if the suffering caused by execution outweighs the suffering of the murder victim, as Glover suggests, then if you want to defend CP as a deterrent, you'll have to show that we'll do better than break even, that is, for every execution more than one murder must be deterred.---

[Rogers: Prevention?  Statistically convicted murderers no more likely to murder than are those convicted of lesser crimes.]

V. Deterrence

A. Studies either inconclusive, or indicate that there is no deterrent effect.  Either way they fail to show beneficial consequences.

B. Intuitive arguments

1. Certain death?

2. Instant death?

3. Criminals would prefer life to CP

 a. (Rogers) Question about preference? (Subjective judgment, versus objective harms of  1.) termination of all possibilities and 2.) impossibility of redress in case of mistake.)

 b. Preference doesn't entail that there's a difference in deterrent effect.

C. The "Best Bet" Argument: Some people hold that CP is justified because it may deter.  Glover will hold that the Best Bet Argument really does not work to defend CP as a deterrent.

A. What do you do when you can't predict the consequences of your actions?  Compare  possible outcomes and ask what you're willing to risk.

B. The Pure Utilitarian form: Suffering is suffering, and the pain and suffering to the murderer is no less a cost than the pain and suffering of the innocent victim. (N.b. As we will note later, the Best Bet argument may work a bit differently if we hold that retribution is an important justification for punishment.)

We use CP thinking it will deter

     We're does deter.

          cost: lives of the guilty lost (etc.)...they're executed. (Utilitarian premise above.)

          benefit: lives of the innocent saved...the would-be murderer is deterred and does    not kill.

     We're really does not deter.

          cost: lives of the guilty lost (etc.) ...same.

          benefit: none...would-be murderer is not deterred and one is saved.

We don't use CP thinking it will not deter

     We're would not have deterred

          cost: one is executed and no additional innocent lives are lost since using  CP would not have deterred any
                    would-be murderer.

          benefit: lives of the guilty (etc.) saved

 We're would have deterred.

          cost: lives of the innocent lost...murderer who would have been deterred had we used CP is not deterred because
                we do not use it.

          benefit: lives of the guilty (etc.)saved...same.

Those who want to use this argument to defend CP put it this way: Since you're taking a risk either way which would you rather gamble with, the lives of the guilty or the lives of the innocent?  But Glover will respond by examining the probabilities.  If we use CP the guilty are certain to suffer, while the deterrent effect is a mere possibility.  If we don't use it the benefit is certain and, again, the harm is a mere possibility.  Therefore when we do the utilitarian calculus we can't use the Best Bet argument to defend CP.

---What if, contrary to Glover, we think that, in addition to deterrence and prevention, CP is legitimate as retribution?  Then the Best Bet argument might work out differently.

Hypothesis 1. The suffering of the guilty is not a cost.  Only certain cost would be the (few?) wrongfully killed.  Perhaps one might be willing to risk that in order to achieve the good of a possible deterrent.

Hypothesis 2. The suffering of the guilty is a positive good. Only certain cost would be the (few?) wrongfully killed.  One might be willing to risk that in order to achieve the two benefits of the suffering of the guilty and a possible deterrent.

Perlmutter: CP is justified as retribution.  We owe it to the murderer to execute him.

I. The past and the future.  Retribution versus consequentialist ethics.  The very concept of punishment entails idea of harm being inflicted due to past wrong doing.  Inflicting harm in other cases is just not punishment. (Taxing the rich).

II. Utilitarian is in a sense critiquing the very notion of punishment.  If future good consequences of prevention and deterrence could be achieved without inflicting harm on the perpetrator presumably the utilitarian would be all for them.

III. Critique of utilitarianism: The past is crucial in moral thinking. e.g. Promise to the dying man. (Promising, repaying debts, gratitude)

IV. CP depends on acceptance of idea of proportionality; more serious crime, more serious punishment.

A. Limit: Respect for human dignity. No maiming, torture, bodily mutilation

B. Not a matter of personal preference of the guilty, or even of the severity of the punishment...issue is bodily autonomy and privacy. (?)

V. So does murder deserve CP?

A. Terrible crime: not only death of victim, but undermines our society.  Something inappropriate about life imprisonment since it makes the murderer a ward of the society he is trying to destroy.

B. Clearly our society accepts CP.  (Might we accept other things?)

VI. Murderer has a "right to be punished".  By giving him what he deserves we recognize that he is a moral agent.  Most rights have to do with a persons interests.  We don't have an interest in being harmed, but we do have an interest in being treated like moral agents.  If we think there are circumstances in which it is appropriate to praise and reward us, have to allow that we may "deserve" punishment.