Abstract
In this chapter, I argue that viable conceptions of responsibility, desert, and proportionality in punishment morally justify (permit) the state’s infliction of capital punishment for at least certain cases of first-degree murder wherein the duly convicted
By “duly convicted,” I mean one who is convicted by way of a fair and reasonably just system of due process, that one’s conviction was not the result of inadequate legal defense, and that the offender satisfies strongly the conditions of criminal retrospective liability responsibility. I assume that most inmates qualify for inclusion in this category, though for present purposes it is assumed that little or no significant mitigating factors exist concerning most death row inmates. However, those death row inmates whose significant mitigation escaped the findings of jurors and sentencing judges will be accorded unprecedented post-trial due process in order to revise their death sentences to lesser sentences. See below for my discussion of such matters.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
Edmund L. Pincoffs, The Rationale of Legal Punishment (New York: Humanities Press, 1966), p. 134.
- 2.
By “first degree murder,” I mean the unlawful and unjustified killing of a person with intent and voluntary premeditation and extreme indifference in the commission of a felony such as but not limited to rape, burglary, and kidnapping with cruelty attending the circumstances of the crime.
- 3.
By “duly convicted,” I mean one who is convicted by way of a fair and reasonably just system of due process, that one’s conviction was not the result of inadequate legal defense, and that the offender satisfies strongly the conditions of criminal retrospective liability responsibility. I assume that most inmates qualify for inclusion in this category, though for present purposes it is assumed that little or no significant mitigating factors exist concerning most death row inmates. However, those death row inmates whose significant mitigation escaped the findings of jurors and sentencing judges will be accorded unprecedented post-trial due process in order to revise their death sentences to lesser sentences. See below for my discussion of such matters.
- 4.
An example of this straw man fallacy is found in S. Nathanson, An Eye for an Eye: The Morality of Punishing by Death (Totowa: Rowman & Littlefield Publishers, 1987), pp. 10–11, wherein he represents capital punishment retentionism as the view that holds the claim that the only way to respect victims’ lives is by way of the state’s imposing capital punishment on murderers. This is an overstatement of what the most responsible capital punishment retentionism need accept. A more modest and plausible capital punishment retentionism holds that capital punishment is one justified method of punishing such offenders: J. Angelo Corlett, Responsibility and Punishment, 3rd Edition (Dordrecht: Springer, 2006), p. 133. For a roughly similar position on this matter, see Michael Davis, Justice in the Shadow of Death: Rethinking Capital and Lesser Punishments (Lanham: Rowman and Littlefield Publishers, 1996).
- 5.
That a retributivist account of capital punishment entails the claim that capital punishment is the strongest punishment for the worst crimes is found in Nathanson, An Eye for an Eye, p. 86.
- 6.
Such a strongly skeptical position is found in Nathanson, An Eye for an Eye, pp. 91–92. Yet Nathanson states that “we can reject the idea of a precise moral desert scale without giving up the practice of making moral desert judgments in our ordinary life” (p. 94).
- 7.
C. L. Ten, Crime, Guilt, and Punishment (Oxford: Clarendon Press, 1987), p. 158.
- 8.
Ten, Crime, Guilt, and Punishment, p. 158.
- 9.
Ten, Crime, Guilt, and Punishment, p. 159.
- 10.
Ten, Crime, Guilt, and Punishment, p. 160.
- 11.
See Chaps. 3 and 5 of this book. The passage in question is: “Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead in all cases be imposed on him only on the ground that he has committed a crime; for a human being may never be manipulated merely as a means to the purposes of someone else.… He must first be found to be deserving of punishment before any consideration is given to the utility of his punishment for himself or for his fellow citizens” [Immanuel Kant, The Metaphysical Elements of Justice, John Ladd, Translator (London: MacMillan, 1965), p. 100. Emphasis added].
- 12.
See note 2 for a description of the category of cases that would qualify for capital punishment.
- 13.
Nathanson, An Eye for an Eye, pp. 62f.
- 14.
Nathanson, An Eye for an Eye, p. 59.
- 15.
Nathanson, An Eye for an Eye, p. 69.
- 16.
This matter is discussed in J. Angelo Corlett, “Pacifism and Punishment,” Philosophia (Israel), 41 (2013), forthcoming.
- 17.
Larry May, Aggression and Crimes Against Peace (Cambridge: Cambridge University Press, 2008). May describes his “contingent [capital punishment] abolitionism” in the following terms: “According to this view, capital punishment should not be employed if it looks as though defendants will be executed when they do not deserve to be” (p. 34). “The contingent abolitionist does not say that all cases of capital punishment are morally unjustified. Indeed, there may be cases, at least in theory, in which the evidence is nearly unassailable that a defendant, who is about to be executed, is the one who committed an especially egregious murder. What drives the contingent abolitionist to a position similar to the opinion of those who on absolute principled grounds oppose all capital punishment is a belief that in most if not all cases there is a significant risk that an innocent defendant will be falsely convicted and then executed. The contingent abolitionist, however, remains open to the possibility that some cases of capital punishment are justified. The contingent abolitionist allows that capital punishment can be legitimate and worries only that innocent persons might mistakenly be convicted of capital crimes” (pp. 39–40).
- 18.
Jeffrey Reiman, “Why the Death Penalty Should be Abolished in America,” in Loius Pojman and Jeffrey Reiman, The Death Penalty: For and Against (Lanham: Rowman & Littlefield Publishers, Inc., 1998), pp. 67–132.
- 19.
Robert Young, “What Is So Wrong with Killing People?” Philosophy, 54 (1979), pp. 515–528, especially p. 522. It should be noted that this is an unreasonable standard the application of which would justify the abolishment of punishment of any kind altogether. I take this to be a counter-intuitive stance, especially in light of the lack of a viable method of criminal rehabilitation. Furthermore, below I shall detail a program that can minimize the probabilities of the contingent pacifist’s concern occurring.
- 20.
Young, “What Is So Wrong with Killing People?” p. 522. It should be noted that any significant time spent in prison will eventuate in serious psychological and often physical damage to inmates that is often irreversible. Yet this hardly speaks against what a duly convicted offender deserves in terms of punishment. Note that this argument differs from the one that attempts to demonstrate the revocability of capital punishment, as found in Michael Davis, “Is the Death Penalty Irrevocable?” Social Theory & Practice, 10 (1984), pp. 143–156; Benjamin Yost, “The Irrevocability of Capital Punishment,” Journal of Social Philosophy, 42 (2011), pp. 321–340.
- 21.
Contrast the justification for capital punishment in terms of deterrence explicated in Ernest van den Haag, The Death Penalty: A Debate (New York: Plenum Press, 1983). More specifically, van den Haag argues that only capital punishment can serve as a successful deterrent for those having life sentences who might contemplate committing capital crimes against other inmates or correctional staff. Moreover, “Without the death penalty, those already threatened a life term for kidnapping, skyjacking, or murder, but not yet apprehended, have no reason to refrain from additional crimes” [Ernest van den Haag, Punishing Criminals (New York: Basic Books, Inc., Publishers, 1975), pp. 209–210]. One of the weaknesses of van den Haag’s defense of capital punishment is that it is based primarily on social utility considerations instead of matters of justice and desert. In doing so, it ignores matters of mitigation of crimes that often pose serious complications to his sometimes facile assumptions about crimes and criminals. For there exist a myriad of ways in which criminal conduct might be mitigated, implying to those devoted to a justice-based defense of capital punishment that the sentencing for such crimes ought to be reduced from a penalty of death. For capital punishment ought only to be imposed on those who deserve it, that is, who satisfy strongly each of the conditions of criminal retrospective liability responsibility. Nothing is found about such matters in van den Haag’s utilitarian-based justification for capital punishment. The same can be argued concerning van den Haag’s statements that the state’s failure to impose capital punishment on murderers devalues human lives killed, and represents a “loss of nerve” in society, etc. (van den Haag, Punishing Criminals, p. 213). Furthermore, his claims that “When murder no longer forfeits the murderer’s life…, respect for life itself is diminished, as the price for taking it is. Life becomes cheaper as we become kinder to those who wantonly take it….Yet if life is to be valued and secured, it must be known that anyone who takes the life of another forfeits his own” (van den Haag, Punishing Criminals, p. 213) conflate first-degree and other degrees of murder and manslaughter and fail to account for various complexities and mitigating factors in murder cases, not all of which deserve capital punishment. These kinds of claims cannot be made if mitigation is taken seriously in capital offenses. For if mitigation accrues in a capital case, it might be precisely because the murderer is not in fact (and regardless of the legal charges brought against her) a first-degree one, but a second-degree murderer, one who did not totally devalue the life that she illicitly took.
- 22.
van den Haag, The Death Penalty: A Debate.
- 23.
Even some capital punishment abolitionists concur that there are some criminals who deserve death. See Jeffrey Reiman, “Justice, Civilization, and the Death Penalty: Answering van den Haag,” Philosophy & Public Affairs, 14 (1985), pp. 115–148.
- 24.
This subject is taken up in Chap. 12 of this book.
- 25.
By this I mean either that an innocent person is executed, or that a person deserving of a lesser punishment is executed, or that the system of capital punishment is inflicted wrongly in the sense that due process rights (such as a defendant’s right to a speedy trial, or a condemned inmate’s right to an appeal or habeas corpus petition) are violated.
- 26.
It is commonly believed by legal experts that there exists no successful method of criminal rehabilitation. This problem is compounded due to the fact that most inmates are regular drug users, thereby making criminal rehabilitation contingent in significant part on the drug rehabilitation of the same. While some experts argue that one reason why no criminal/drug rehabilitation program has had a solid rate of success is because there has yet to exist a program wherein monitored criminals were actually visited by qualified rehabilitation personnel on a sufficiently regular basis. While this may be true, it then raises the issue of whether or not an effective criminal/drug rehabilitation program can ever be affordable to the state, assuming the utilitarian idea that criminals ought to be rehabilitated in the first place because it will make society better-off. Without attempting to resolve these moral and social issues (because my primary focus herein is on capital punishment and whether or not it is morally justified) my proposals below can contribute positively to such rehabilitation.
- 27.
“Coherentist” because the concepts of desert, responsibility and proportionate punishment form the guiding principles against which my discussion of capital punishment occurs. This is not a foundationalist approach in that these concepts are not already fully worked out, but in the process of being worked out, as there are challenges facing each one.
- 28.
This line of argument is addressed below.
- 29.
A similar point is echoed in Carol Steiker, “The Death Penalty and Deontology,” in John Deigh and David Dolinko, Editors, Oxford Handbook of Philosophy of Law (Oxford: Oxford University Press, 2011), pp. 441–466, especially p. 445.
- 30.
My reply to this objection differs significantly from one offered in van den Haag, The Death Penalty: A Debate, p. 216, where the main reason for continuing capital punishment in the midst of unfairness is practical: “We would have to abolish the criminal justice system and hand over society to its criminal elements.” My argument is one of logical entailment regarding the abolitionist position.
- 31.
I take for granted that the U.S. criminal justice system sometimes “gets it right” in capital cases. In turn, this assumes that in such cases, offenders genuinely and strongly satisfy the conditions necessary and sufficient for criminal responsibility such that a fitting (proportionate) punishment for the first degree murder is death. This is especially true when the capital punishment is under-determined in cases of, say, multiple or serial murders.
- 32.
Stephen Nathanson, “Does it Matter if the Death Penalty is Arbitrarily Administered?” Philosophy & Public Affairs, 14 (1985), pp. 149–164, especially p. 150.
- 33.
Travis W. Franklin, “Sentencing Native Americans in US Federal Courts: An Examination of Disparity,” Justice Quarterly, 30 (2013), pp. 310–339.
- 34.
One must be mindful of such claims, however, as sometimes it is argued that wrongful death sentences exist, but upon close examination, the claims are based on expanded definitions of “innocence” which are questionable. An example of this is found in Cathleen Burnett, Wrongful Death Sentences (London: Lynne Rienner Publishers, 2010). The study in question also relies on a rather small sample size of alleged wrongful death sentences that is supposed to ground the author’s capital punishment abolitionism.
- 35.
Philip E. Devine, “Capital Punishment and the Sanctity of Life,” Midwest Studies in Philosophy, XXIV (2000), pp. 229–243, especially p. 241, note 24.
- 36.
This right is also explicitly guaranteed by the Constitution of the State of California, Article 1, Section 15.
- 37.
Reiman , “Why the Death Penalty Should be Abolished in America,” pp. 67–68.
- 38.
Similar reasoning can be found in van den Haag, “Refuting Reiman and Nathanson,” Philosophy & Public Affairs, 14 (1985), pp. 173–174.
- 39.
Appeals (state) by Westerfield have been summarily dismissed.
- 40.
J. Angelo Corlett, “U.S. Responsibility for War Crimes in Iraq,” Res Publica 16 (2010), pp. 227–244.
- 41.
Tommie Shelby, “Justice, Deviance, and the Dark Ghetto,” Philosophy & Public Affairs, 35 (2007), pp. 126–160, especially p. 128. Also see Erin Kelly, “Criminal Justice Without Retribution,” The Journal of Philosophy, CVI (2009), pp. 440–462, especially p. 462: “our understanding of criminal justice should not be at odds with our shared responsibility for securing the broader terms of social justice,” and on p. 454: “It is possible … that systematic conditions of social injustice more consistently undermine the rational force of punishment as a disincentive for certain crimes. A convergence of factors across a social group affecting the dispositions of persons to comply with the law represents the partial breakdown of a system of law and order for that segment of society. … The legitimacy of criminal sanctions for the sorts of crimes in question (for example, certain property and drug crimes) is thereby called into doubt, since the law would have become a system of coercion lacking public justification.” However, that a relatively small group in U.S. society and even in the ghettos and barrios of urban areas disrespects legal authority does not amount to that authority’s being disrespectable in principle—even under non-ideal conditions of non-compliance. That group might be wrong in its assessment of the authority in question. Or, it might be correct but still lack the moral justification to break the laws in question in terms of committing crimes against innocents. Innocents, whatever color(s) they may be, deserve the protection of their government a primary purpose of which is to protect their rights not to be harmed by others. [For a definition of “harm” as the setting back of a legitimate interest, see Joel Feinberg, Harm to Others (Oxford: Oxford University Press, 1984)]. The case of Brian Banks being falsely accused of rape by Wannetta Gibson heralds as a black on black ghetto crime that wrongly imprisoned Banks for 10 years, ruining his professional football career hopes as a highly recruited star. Gibson spent her $1.5 million for which she settled and only then confessed on tape to intentionally falsely accusing Banks. Gibson is hardly excused for her crime, and should be harshly punished for it, no matter what her ghetto status! Nor does her egoism count as mitigation. One must be careful not to excuse or mitigate that which is the result of selfishness, greed and laziness in the ghettos and barrios, especially when most of the others in such neighborhoods are law-abiding and hard-working citizens.
- 42.
I write “possible” mitigation in that one must understand that relatively few people living in poverty in the U.S., whatever their color(s) and experienced racism and classism, commit crimes and either fail or refuse to earn legal means of income. Most are law abiding citizens. Once again, one must take care to not fall prey to, say, the anti-black racist stereotype that either all or most poor U.S. blacks are prone to commit crimes as one finds in, say, Michael Levin, “Responses to Race Differences in Crime,” Journal of Social Philosophy, XXIII (1992), pp. 5–29 [For a critical commentary on Levin’s argument, see J. Angelo Corlett, “Racism and Affirmative Action,” Journal of Social Philosophy, XXIV (1993), pp. 163–175], as relatively few such U.S. blacks do so. We must understand that whatever the ghetto or barrio crime rate, it must be understood in terms of for the most part the same relatively small cadre of criminals continually committing crimes, instead of mostly new criminals committing them. So it seems incumbent on those who would seek to mitigate the sentencing of a certain class of poor black crimes in light of the conditions of poverty and experienced or merely perceived racism alone in that most of those who experience the pains of poverty do not resort to criminal activities. Such assessments must be performed, of course, on a case by case basis.
- 43.
This discussion of the Economic Objection to Capital Punishment is indexed to the current economics of the capital punishment system in the State of California. The reasons for this focus include that the State of California more than any other state in the U.S. has the most numerous resources to be able to address economic problems that arise, and is the 8th largest economy in the world. So if California cannot successfully address the concerns of the Economic Objection, it is unlikely that such concerns can be addressed. The State of California also has the largest number of death row inmates in the U.S. at 733, and the largest budget for its capital punishment system. So addressing the Economic Objection in terms of the current fiscal problems in California is a good way to begin to address the Economic Objection more generally.
- 44.
Judge Arthur L. Alarcón and Paula M. Mitchell, “Executing the Will of the Voters?: A Roadmap to Mend or End the California Legislature’s Multi-Billion-Dollar Death Penalty Debacle,” Loyola of Los Angeles Law Review, 44 (2011), pp. S41–S224; “Costs of Capital Punishment in California: Will Voters Choose Reform this November?” Loyola of Los Angeles Law Review, 46 (2013), pp. S1–S34.
- 45.
van den Haag, The Death Penalty: A Debate, p. 34.
- 46.
Furthermore, there is the unfairness of punishing a person who, if remaining in prison for decades subsequent to having been tried, convicted and sentenced for her crime, because she might no longer deserve it. This raises personal identity issues such that, if reasonable, make long-term imprisonment an unfair punishment compared to execution within a few years of such events. To the extent that this consideration is valid, it reveals a kind of irony concerning capital punishment abolitionists who favor long-term imprisonment to execution for certain first-degree murderers. A similar point is made in van den Haag, “Refuting Reiman and Nathanson,” pp. 172–173: “Those who deserve the death penalty should be executed while they deserve it, not kept in prison when they no longer deserve any punishment” (p. 173).
- 47.
I assume here that, as discussed below, the system of capital punishment can be repaired such that it would be justifiable to execute such inmates shortly after their constitutional due process rights have been satisfied. This matter is addressed below. It is addressed in greater depth in J. Angelo Corlett and Norma Mejia, “The Economic-Unfairness Argument Against Capital Punishment” (Under review).
- 48.
Hence the moderate nature of my capital punishment suspensionism.
- 49.
See J. Angelo Corlett and Norma Mejia, “The Economic-Unfairness Argument Against Capital Punishment” (Under review), where details are provided regarding the cost savings and revenue generation of the LSIP and incarceration reforms for the State of California, along with specific propositions that would, if adopted by the voters, significantly expedite the appellate process in California for death row inmates.
- 50.
For details of the LSIP program, see the source cited in notes 47 and 49.
- 51.
Non-able-bodied inmates can be forced to perform (uncompensated) less menial tasks around the prison, as is currently the custom in many prisons.
- 52.
My figure of at least $1.14 billion dollars per year is based on a figure of approximately 110,000, which is the new prison population cap for California state prisons. (This figure was obtained from http://www.lao.ca.gov/reports/2011/crim/overcrowding_080511.aspx, accessed on 4 May 2013.) 110,000 inmates per year at a wage of only $5.00 an hour for an 8 h year-round work day (an annual per inmate incarceration savings of $10,400) is based on a 5-day per week work schedule. One ought to bear in mind that the $5.00 h wage is far below the state’s current minimum wage and below the estimated state average for a migrant farm worker’s wage, providing agriculture owners a discounted wage rate on workers that can be contracted with the state to be passed on to California produce consumers in the form of slightly lower than otherwise costs of produce. I am confident that all of the 110,000 inmates in California who are able-bodied will be able to be worked full-time, as indicated above given that it is estimated that there are far more than that number of undocumented farm workers currently in California. [National Center for Farm Worker Health, Inc., “Farmworker Health Factsheet,” (August 2012), pp. 1–6].
- 53.
See notes 47 and 49.
- 54.
http://www.huffingtonpost.com/2012/12/10/prison-labor_n_2272036.html: accessed on 25 May 2013.
- 55.
While industries with unionized labor would continue to reject such an idea as it threatens union jobs, many management of various industries would continue to support it, though not publicly, as it reduces the ever-rising costs of labor.
- 56.
See notes 47 and 49 for the source of and calculations for this estimate.
- 57.
Some recent examples of such cases are discussed in John Holloway, “Innocent on Death Row”: http://www.slate.com/id/2269765/: accessed on 6 October 2012; Jesse J. Holland (Associated Press), “Court: Exonerated Inmate Doesn’t Get $14 Million”: http://news.yahoo.com/s/ap/us_supreme_court_exonerated_inmate/print: accessed on 29 March 2011.
- 58.
The remaining cost savings for the State of California would serve as a healthy pool of compensatory funding for the exonerated California inmates.
- 59.
This view is consonant with California Penal Code, Section 128: “Procuring the execution of innocent person. Every person who, by willful perjury or subornation of perjury, procures, the conviction and execution of any innocent person, is punishable by death or life imprisonment without possibility of parole.”
- 60.
I assume the conservative figures of the current costs of the capital punishment system in the State of California provided by Alarcón and Mitchell, “Executing the Will of the Voters?: A Roadmap to Mend or End the California Legislature’s Multi-Billion-Dollar Death Penalty Debacle;” “Costs of Capital Punishment in California: Will the Voters Choose Reform this November?”
- 61.
R. J. Gerber, “Economic and Historical Implications for Capital Punishment Deterrence,” Notre Dame Journal of Law, Ethics & Public Policy, 18 (2004), pp. 437–450.
- 62.
Walter Berns, For Capital Punishment (New York: Basic Books, 1979), pp. 29–30, 83–152. Also see van den Haag, The Death Penalty: A Debate, Chapters 3–4.
- 63.
Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), p. 94.
- 64.
John Rawls, Collected Papers, Samuel Freeman, Editor (Cambridge: Harvard University Press, 1999), Chapter 2.
- 65.
van den Haag, The Death Penalty: A Debate, Chapters 3–4.
- 66.
Feinberg, Doing and Deserving, p. 264.
- 67.
Berns, For Capital Punishment, p. 66.
- 68.
See van den Haag, The Death Penalty: A Debate, p. 54; S. E. Martin, L. B. Sechrest and R. Redner, Editors, New Directions in the Rehabilitation of Criminal Offenders (Washington, D.C.: National Academy Press, 1981).
- 69.
Ten, Crime, Guilt, and Punishment, p. 160. Ten also notes that “There have also been strong moral objections to those rehabilitation programmes which ignore the rights of offenders, and provide insufficient safeguards against the abuse of official power in depriving offenders of their liberty, welfare, and dignity.” Of course, such programs would indeed violate Kant’s requirement that offenders never be treated as mere means to ends.
- 70.
Lois Davis, “California’s Prisoner Shuffle,” The Los Angeles Times, 18 August 2011: http://articles.latimes.com/2011/aug/19/opinion/la-oe-davis-prisoners-state-prisons-20110819: accessed on 30 May 2013.
- 71.
That punishment does not entail vengeance and is distinct from it is argued in Joel Feinberg, Editor, Reason and Responsibility (Belmont: Wadsworth Publishing Company, 1965), pp. 296–299; Ted Honderich, Punishment, Revised Edition (London: Penguin, 1976), p. 14; Robert Nozick, Philosophical Explanations (Cambridge: Harvard University Press, 1981), pp. 366–368; van den Haag, The Death Penalty: A Debate, pp. 246–248.
- 72.
Michael Byron, “Why My Opinion Shouldn’t Count: Revenge, Retribution, and the Death Penalty Debate,” Journal of Social Philosophy, 31 (2000), pp. 307–315, especially p. 313.
- 73.
William J. Brennan, Jr., “Speech to the Text and Teaching Symposium,” Georgetown University, Washington, D.C., 12 October 1985, published in The Great Debate: Interpreting Our Written Constitution, Volume 11 (The Federalist Society, 1986).
- 74.
See Chap. 8 of this book.
- 75.
Abe Fortas, “The Case against Capital Punishment,” New York Times Magazine, 23 January 1977, p. 29. This position is echoed in U.S. Supreme Court Justice Brennan’s decision in Furman v. Georgia (1972) and in Gregg v. Georgia (1976).
- 76.
This argument is based on the reasoning found in Berns, For Capital Punishment, pp. 153–155.
- 77.
Reiman , “Why the Death Penalty Should be Abolished in America,” p. 94.
- 78.
Reiman , “Why the Death Penalty Should be Abolished in America,” p. 108.
- 79.
Reiman , “Why the Death Penalty Should be Abolished in America,” pp. 67–68.
- 80.
Reiman , “Why the Death Penalty Should be Abolished in America,” p. 109.
- 81.
Reiman , “Why the Death Penalty Should be Abolished in America,” p. 109.
- 82.
Ernest van den Haag, “Refuting Reiman and Nathanson,” in A. John Simmons , Marshall Cohen, Joshua Cohen and Charles Beitz, Editors, Punishment (Princeton: Princeton University Press, 1995), pp. 332–333.
- 83.
See T. W. Clark, “Crime and Causality: Do Killers Deserve to Die?” Free Inquiry, 25 (2005), pp. 34–37. Clark’s argument seeks to bolster his position by citing the theories of Derk Pereboom, Daniel Dennett and Owen Flanagan, among others, though what he quotes from each does not support the idea that causal determinism somehow refutes the idea that capital punishment is morally justified. Clark seems to support a vague position that is deterministic, though he seems unaware that compatibilism is a live option.
For a refutation of the idea that empirical sciences support the theory of hard determinism and rule out normative morality, see Markus Schlosser, “Conscious Will, Reason-Responsiveness, and Moral Responsibility,” The Journal of Ethics, 17 (2013), pp. 205–232. For arguments in support of Peter Strawson’s claim that hard determinism rules out human love and affection, see Justin Coates, “In Defense of Love Internalism,” The Journal of Ethics, 17 (2013), pp. 233–255. Giving up free will or higher-order volition is not supported by solid empirical science, and it has counter-intuitive implications for human morality.
- 84.
Perhaps this is what one scholar means when he refers to the abolitionist’s clinging, as a matter of religious faith, to the idea of the absolute sanctity of human life with regard to the murderer as being “immune to argument” (van den Haag, The Death Penalty: A Debate, p. 276).
- 85.
Davis, To Make the Punishment Fit the Crime; Ryberg, The Ethics of Proportionate Punishment.
- 86.
David Hume, A Treatise of Human Nature, Second Edition, L. A. Selby-Bigge and P. H. Nidditch, Editors (Oxford: Oxford University Press, 1978).
- 87.
U.S. Supreme Court Justice Blackmun’s dissenting opinion in Callins v. Collins (1994) serves as an example of the cautionary argumentation of abolitionists and the call for “consistency, fairness, and reliability in a capital-sentencing scheme” [See “Callins v. Collins: Justice Blackmun’s Dissenting Opinion,” in R. M. Baird and S. E. Rosenbaum, Editors, Punishment and the Death Penalty (Amherst: Prometheus Books, 1995), pp. 241–252, especially p. 252]. But this hardly serves as a rebuttal to the counter-example of the Westerfield case.
- 88.
Some recent examples of such cases are discussed in Holloway, “Innocent on Death Row”: http://www.slate.com/id/2269765/: accessed on 6 October 2012; Holland (Associated Press), “Court: Exonerated Inmate Doesn’t Get $14 Million”: http://news.yahoo.com/s/ap/us_supreme_court_exonerated_inmate/print: accessed on 29 March 2011.
- 89.
M. L. Radelet, Hugo Adam Bedau, and C. E. Putnam, “In Spite of Innocence: Erroneous Convictions in Capital Cases,” in R. M. Baird and S. E. Rosenbaum, Editors, Punishment and the Death Penalty (Amherst: Prometheus Books, 1995), pp. 103–110, especially p. 149. Another collection of essays on the topic is that of Hugo Adam Bedau, The Death Penalty in America (Chicago: Aldine Publishing Company, 1967), though this and even subsequent editions of this collection contain essays that are somewhat dated regarding empirical facts concerning capital punishment, and the philosophical works therein are not substantial.
- 90.
Feinberg, Doing and Deserving, Chapter 5.
- 91.
A less impressive statement of the expressive functions of capital punishment is found in Burton M. Leiser, “Capital Punishment and Retributive Justice,” Free Inquiry, 21 (2001), pp. 40–42, especially p. 42.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2013 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Corlett, J.A. (2013). Capital Punishment. In: Responsibility and Punishment. Library of Ethics and Applied Philosophy, vol 34. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-0776-4_9
Download citation
DOI: https://doi.org/10.1007/978-94-007-0776-4_9
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-007-0775-7
Online ISBN: 978-94-007-0776-4
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)