The Ethics of Capital Punishment: A Philosophical Investigation of Evil and its Consequences

366 Pages·2012·2.7 MB·English

by  Matthew H. Kramer

The Ethics of Capital Punishment
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The Ethics of Capital
Punishment
A Philosophical Investigation of Evil and
Its Consequences
Matthew H. Kramer
1
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3
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Preface
When I was eight years old, I learned about the Holocaust and the subsequent trials at
Nuremberg. During the months that followed my discovery of those events, my rumi-
nations led me to develop inchoately one of the ideas at the core of the pivotal sixth
chapter in this book. I remember thinking that it would have been morally grotesque
if the trials of some of the major Nazi leaders had ended with sentences that would
involve the devotion of resources to sustaining the lives of those leaders. That line of
thought—reinforced by my recognition that, in slightly diff erent circumstances, Hitler
and Goebbels and Mengele and Heydrich would have been among those who were
placed on trial—ultimately evolved into the purgative rationale for capital punishment.
I am a philosopher, and this book is a work of philosophy. However, because I want the
book to be accessible to readers who are unfamiliar with philosophical technicalities,
I have usually sought to elucidate any specialized philosophical phrases when they fi rst
appear. My explanations are mostly in the form of terse footnotes, but at a few junc-
tures I have provided longer expositions.
This is not a book on American constitutional law or on the law of punishment in
any other jurisdiction. Though I occasionally refer to some features of American law
and to some aspects of the role of capital punishment in American life, the philosophical
orientation of this volume leads me generally to prescind from the specifi cities of any
particular jurisdiction. Whereas some of my conclusions about capital punishment are
in accordance with the current law in the United States, many of them are not, and I
only intermittently touch upon the points of convergence and divergence. As this book
presents a philosophical investigation of the death penalty, it does not undertake any
sustained eff orts to track the correspondence (or lack of correspondence) between the
results of that investigation and the details of any existent legal doctrines. My aim is pri-
marily prescriptive; this volume seeks to recount, at a very high level of abstraction, what
the law concerning capital punishment in any liberal-democratic jurisdiction should be.
I owe thanks to many people—nearly all of whom are opposed to capital punish-
ment—for their generous help in my writing of this book. Alex Flach at the Oxford
University Press has been an excellent editor, in keeping with his adept handling of
some of my previous books. The anonymous readers whom he recruited were like-
wise superb, with perceptive comments that have salutarily prompted many modi-
fi cations. I am very grateful to them. I am grateful as well to Natasha Flemming,
Matthew Humphrys, and the rest of the production team at the OUP.
Norman Geras several years ago asked me to write a short account of my views on
capital punishment for his blog. Though I now regard that account as extremely rough
and facile, it murkily prefi gured the structure of this book. I wish to express warm
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vi Preface
thanks to Norm for his invitation, which he extended despite his own opposition to
the death penalty.
Eve Garrard and Steve de Wijze provided some invaluable feedback on Chapter
6, and Eve in particular has engaged in some remarkably helpful correspondence
concerning the nature of evil. I am extremely grateful to both of them for prodding
me to sharpen my thinking about evil. Especially fruitful was my encounter with Eve
and Steve at a conference in Manchester (England) in November 2009. Also present
at that conference were some other people to whom I am very grateful for their
thought-provoking comments: Ian Carter, Norm Geras (again), Eric Mack, Jonathan
Quong, Hillel Steiner, Zofi a Stemplowska, and Peter Vallentyne.
Of great value as well have been conversations with several of the philosophers
who have visited Cambridge during the past few years: Thom Brooks, Alan Brudner,
Robert Gibbs, Claire Grant, and Russ Shafer-Landau. (I am also grateful to Thom
for supplying me with an off print of his important article on capital punishment.)
I have likewise benefi ted considerably from conversations with several Cantabrigians:
Mark Hanin, Jules Holroyd, Antje du-Bois Pedain, Andrew Simester, and Andrew
von Hirsch. Some email exchanges with my twin brother Mark Kramer have also
been helpful.
Finally, I should make special mention of Dan Markel, whom I have never met. In
the late autumn of 2010, he undertook the entirely supererogatory labour of reading
every chapter and making extensive comments thereon. I have profi ted hugely from his
suggestions and queries, and have responded to most of them (though of course I have
not embraced his opposition to capital punishment). With his investment of so much
time and intellectual eff ort in a project that runs partly contrary to his own sophisti-
cated position on the death penalty, he has been a model of scholarly generosity and
integrity.
Matthew H. Kramer
Cambridge, England
January 2011
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Contents
Preface v
1. Introduction 1
1.1 The limits of the enquiry 1
1.2 A matter of justifi cation 3
1.2.1 A fi rst caveat 5
1.2.2 A second caveat 6
1.3 A pithy conspectus 8
1.3.1 Chapter 2: Deterrence-oriented theories 8
1.3.2 Chapter 3: Retributivism 10
1.3.3 Chapter 4: The incapacitative rationale 11
1.3.4 Chapter 5: The denunciatory conception 12
1.3.5 Chapter 6: The purgative rationale 14
1.3.6 Chapter 7: Problems of administration 16
2. Deterrence through Capital Punishment 19
2.1 The deterrence-oriented rationale expounded 20
2.2 Simplistic strictures 23
2.2.1 A misjudged recourse to Rawls 24
2.2.1.1 Donnelly’s fi rst line of reasoning: the matter of slavery 24
2.2.1.2 Donnelly’s second line of reasoning: an untenable asymmetry 25
2.2.1.3 Donnelly’s third line of reasoning: public order 26
2.2.1.4 Some further refl ections 27
2.2.2 Using people as means 29
2.3 Empirical doubts 30
2.3.1 The meagerness of the evidence 31
2.3.2 General misgivings 33
2.3.2.1 Prospects versus certainties 34
2.3.2.2 Beyond deliberation 34
2.3.2.3 Brutalization 36
2.4 The moral untenability of the deterrence-oriented rationale 38
2.4.1 The manner of use 39
2.4.1.1 Blocking the analogy? 40
2.4.1.2 Help from an unexpected quarter? 42
2.4.2 No limits 44
2.4.2.1 The massacre of the innocents 45
2.4.2.1.1 Ineff ective dissimulation? 45
2.4.2.1.2 A retributivistic side-constraint? 49
2.4.2.1.3 Justifi able executions of innocents? 53
2.4.2.2 Types of punishments 58
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viii Contents
2.4.2.2.1 Proportionality 59
2.4.2.2.2 Utilitarianism 60
2.4.2.2.3 Retributivism to the rescue? 65
2.4.2.2.4 Sunstein and Vermeule on analogies 66
2.5 A pithy conclusion 67
3. Death and Retribution 69
3.1 Some key themes 71
3.1.1 Desert and moral responsibility 72
3.1.2 Human equality 72
3.1.3 Commensurateness, proportionality, and lex talionis 74
3.1.3.1 Commensurateness 74
3.1.3.2 Proportionality 74
3.1.3.3 Lex talionis 77
3.1.4 Punishment as communication 78
3.2 Versions of retributivism 80
3.2.1 Desert-focused retributivism 80
3.2.1.1 Freedom as the unjust gain? 81
3.2.1.2 The price of a licence 85
3.2.1.2.1 A fi rst query 85
3.2.1.2.2 A second query 86
3.2.1.2.3 A third query 88
3.2.1.2.4 A fourth query 90
3.2.1.3 Self-indulgence 92
3.2.1.3.1 A manifestly unsustainable version of the thesis 92
3.2.1.3.2 A tenable version of the thesis 93
3.2.1.3.3 Some qualifi cations 96
3.2.2 Vindicatory retributivism 97
3.2.2.1 Retribution is not revenge 98
3.2.2.2 The communicative dimension 99
3.2.2.3 A fi rst objection to the communicative dimension
of vindicatory retributivism 101
3.2.2.4 A second objection to the communicative dimension of
vindicatory retributivism 102
3.3 Does retributivism disallow capital punishment? 104
3.3.1 Contrition precluded? 105
3.3.1.1 A fi rst rejoinder by Markel 107
3.3.1.2 The time of the punishment 108
3.3.1.3 Post-punitive opportunities for reform 109
3.3.2 Human dignity revisited 110
3.3.2.1 The exploitation of pain 112
3.3.2.2 The death penalty and moral responsibility 113
3.4 Can retributivism justify capital punishment? 115
3.4.1 The views of retributivists 116
3.4.2 On the limited determinacy of retributivism 119
3.4.2.1 Commensurateness to the rescue? 119
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Contents ix
3.4.2.1.1 Going too far 120
3.4.2.1.2 Against uniqueness 122
3.4.2.2 Proportionality 124
3.4.2.3 Lex talionis 128
3.4.2.3.1 Reiman on retribution and equality 129
3.4.2.3.2 Waldron on returning like for like 130
3.5 A concluding rejection of scepticism 135
4. Death as Incapacitation 137
4.1 The general doctrine 137
4.1.1 Punishment as incapacitation 138
4.1.2 Incapacitation is not tantamount to deterrence 140
4.1.2.1 Four diff erences 140
4.1.2.2 A missed distinction: some closing remarks and examples 143
4.1.3 Incapacitation is not tantamount to retribution or denunciation 145
4.2 The fatal shortcomings of the incapacitative justifi cation 147
4.2.1 Moral responsibility swept aside 147
4.2.2 More on moral responsibility 150
4.2.3 The hurdle of the Minimal Invasion Principle 151
4.3 Conclusion: irreparable damage 153
5. Death as a Means of Denunciation 155
5.1 The general denunciatory theory of punishment 155
5.1.1 Denunciation versus deterrence 157
5.1.2 Denunciation versus retribution 159
5.2 The denunciatory theory as a rationale for capital punishment 161
5.3 The unsustainability of the denunciatory theory 162
5.3.1 Empirical murkiness 162
5.3.2 When perceptions do not match reality 164
5.3.2.1 Denunciation versus incapacitation 165
5.3.2.2 A problem of principle 167
5.3.3 Inverted proportionality and surreptitious crimes 168
5.3.3.1 Reinforcement of moral outlooks 168
5.3.3.2 The defusing of vindictive impulses 170
5.3.3.3 The consolidation of a community’s identity 171
5.3.4 No upper limit 172
5.3.5 The minimal invasion principle afresh 174
5.4 Concluding refl ections 178
6. The Purgative Rationale for Capital Punishment 179
6.1 The execution of Achan 181
6.1.1 The extraneous features 182
6.1.1.1 Excessive severity and the massacre of the innocents 182
6.1.1.2 Collective responsibility versus defi lement 183
6.1.1.3 Some further extraneous features 185
6.1.2 The gist of the purgative rationale 186
6.2 The nature of evil 187
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