Philosophy 220

1. Philosophy 220 The Death Penalty Nathanson

2. Nathanson "An Eye for an Eye?” • Nathanson offers a critique of retributivism of both the LexTalonis (equality) and proportional sort. • He completes his case by arguing that abolition would have the important symbolic significance of signaling that our society is committed to the absolute dignity of human life in every person.

3. The Problem with Equality (LexTalonis) Retributivism. • Nathanson argues that equality is not an adequate criterion for determining punishment in general. • It recommends punishments for certain crimes that are not morally acceptable. If a crime is barbaric and inhumane, then LexTalonis would require us to act barbarously and inhumanely (ex. rape a rapist). • Can't tell us how to punish many crimes. E.g. Computer piracy, or plagiarism. • If it's not adequate in general, then it is obviously not adequate for DP. • A possible response is to seek a non-literal form of equality retributivism. Nathanson responds by noting that there is still the barbarity problem. Also, we run into the problem of how to accurately judge equivalence, either in the case of abstract crimes or in the case of varying resistances to suffering.

4. Problems with Proportional Retributivism • This theory is usually advanced in terms of a proportional ranking of punishments and crimes. Such a strategy avoids the major flaws of equality retributivism. • One problem from the standpoint of the retentionist is that it doesn't necessitate that murder should be punished with death, just with the most severe punishment in the scale. • A practical problem is that in and of itself it provides no resources with deciding the appropriateness/effectiveness of punishments. Needs to be supplemented by empirical data. • According to Nathanson, this form of retributivism does have an important role to play in our judicial system, but it doesn't justify DP.

5. Nathanson as an Abolitionist • In addition to criticizing retributive justifications for DP, Nathanson advances interesting abolitionist arguments. • The first highlights that respect for human dignity is a central element of our social structure. Nathanson argues that the DP undermines this respect to the extent that it says that some people have no value. We cannot consistently say that all people are valued and that some are not. • The second emphasizes the symbolic significance. Nathanson argues that abolishing the DP would provide an example of proper behavior, saying that we will not act with the same inhumanity that the murderer did.

6. Van den Haag, "A Defense" • Ernest van den Haag was a prominent retentionist. In this piece, he attempts to rebut many arguments made by abolitionists. • These claims concern questions about: racial inequalities in DP sentencing; the problem of irreversibility; deterrence; cost; symbolism; human dignity. • As becomes clear, vdH is essentially a retributivist. When the chips are down, his position is that DP is a just form of retribution for the most serious crimes. For him, other considerations just don't matter.

7. Inequalities in Sentencing • As vdH observes, DP is a rare sentence for the crime of murder. In an average year, there are about 20,000 homicides, but on average over the last 20 years fewer than 300 people are given DP. • 2012: 78 death sentences; 43 executions • There is substantial evidence that race plays a significant role in those small number of cases where there is a possible sentence of death. • This is true not only in verdicts, but especially in decisions about which defendants to seek DP against. • Black people who kill white people are the likeliest to be considered to be "DP eligible" and are the likeliest to receive DP.

8. So What? • VdHdoesn't dispute these statistics, rather he argues that they don't matter. • He argues instead that the question of the justness in distribution of something is independent of its value (moral or otherwise). • That is, if DP is morally justified, it doesn't matter if it is imposed unfairly or unjustly. We should, he thinks try to impose it fairly and justly, but the fact that we don't doesn't make it immoral.

9. Miscarriages of Justice? • VdH makes a similar point in response to concerns about executing innocent persons. • He recognizes that there is some likelihood that at one time or another, innocent people have been executed. • He just doesn’t think that it matters. Many human activities come at the cost of some innocent lives, but society still engages in them because the benefits outweigh this cost. • He thinks DP is one such activity.

10. Deterrence • A popular retentionist argument is that DP deters possible future murderers more effectively than other forms of punishment. • However, more than 50 years of social scientific research has failed to demonstrate this. • VdH is undeterred by this failure, insisting that despite the lack of evidence, he believes that there is a deterrent effect, and even if there isn’t, DP is justified on retributivist grounds (though he doesn’t provide an argument for this).

11. Costs, Symbolism and Degradation • These last issues are much less weighty on vdH's account than the previous. • He dismisses the cost concern by insisting that concerns of justice always outweigh financial concerns. • He responds to a symbolic argument like Nathanson's by insisting that the symbolic significance is trivial. • He addresses concerns about the DP and human dignity by invoking Kant and Hegel, and by arguing that the murderer brings the degradation on themselves (retributivism).