Lecture Outline Notes on Capital Punishment, I

1. Some statistics on capital punishment in the U.S. and in VA since 1976 (Gregg v. Georgia).

2. Justifications for Punishment in General:

A. Prevention (pertains to the convicted criminal)

B. Deterrence (pertains to potential lawbreakers)

C. Retribution (making the criminal pay, in order to (i) "set the scales straight"; (ii) give social expression to the seriousness of the crime and to the wrong done to the victim; (iii) honor a victim's (or family's) reasonable desire for retribution, since the right to vigilantism has been denied them by the law)

All three of these are importantly concerned with desert, but in different ways; in A and B the notion of desert comes in as a constraint on the pursuit of other goals; in C it comes into the goal itself.

3. Capital Punishment (CP)

Questions:

(A) Do criminals ever deserve to die for their crimes? If not, then CP is out of the question: it would be unjust. If they do, it still does not automatically follow that CP is morally sound, even in principle. We still have to ask:

(B) Is it morally appropriate for human beings to mete out this kind of punishment, especially given that it is not presently necessary for any reason other than (perhaps) retribution? Only if it is can CP be judged to be a morally sound practice, at least in principle. (Van Den Haag never addresses this question in his argument on 838-9, and just assumes that if someone deserves something bad then it is obviously appropriate for us to inflict it on him. But many--including many religious leaders and groups--have raised questions about this.) But even if it is morally appropriate in principle for human beings to inflict the penalty of death on other human beings, as punishment, we now still have to ask:

(C) Is the practice of CP morally sound in practice, given our real-world circumstances? Here we have to think about the frequency of error in legal proceedings (about which there has been much in the news lately, and about which I know something firsthand, to be discussed Wednesday with the video), and the well-documented and dramatic effects of race and class on the likelihood of someone's being convicted of a crime eligible for the death penalty, and of his or her actually receiving a death sentence. (I'll go over this in detail in both lectures.)

4. Much of the rest of the lecture, as well as the lecture on Wednesday, will be devoted to exploring and illustrating the issues in 3C. In particular, we'll focus today on the problem of arbitrariness:

• Are morally arbitrary or irrelevant factors such as race, class or place of residence
• causing some people who deserve death not to get it while others who deserve death do, so that life and death decisions are being made on arbitrary grounds, or
• (even worse) making it likely that some people who don't deserve death will get it?

Under the first heading: Are some people less likely to be charged with a capital offense, or less likely to be convicted of a capital offense, or less likely actually to receive a death sentence for it, simply because e.g. they are wealthy or are white and killed a black victim (as opposed to the other way around)? Under the second heading: Are people more likely to be wrongfully charged, convicted and given a death sentence because e.g. they are poor or black?

After considering these matters carefully, the question we need to ask is: How important is the achievement of retributive justice through CP as compared to the importance of other values, such as the protection of innocent life from mistakes in capital cases, or the importance of making sure that life and death decisions are not made on arbitrary grounds? Is it worth having a practice of CP (rather than just life without parole) and bearing some of these costs? Or are these costs too high to be justified by the value of CP?