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Punishment and the Death Penalty


Basic Issue: When is an act of punishment morally permissible?

Classic Theories of Punishment



An act of punishment is morally permissible only if the person punished has been correctly convicted of
a crime, intentionally violated a morally permissible law and the punishment is appropriate to the crime.

A punishment is appropriate to the crime when it meets the demands of justice as determined by the
wrongness of the act.

Kant’s Requirements: 1. The person has committed the crime, 2. The punishment is proportional to the
seriousness of the crime.

Strong Points:
Explains how punishments can be good.
Captures the fact that it is wrong to punish the innocent and wrong to give overly harsh or lenient
Sees criminals as free agents responsible for their own choices.

Weak Points/Objections:
It’s a doctrine of revenge and encourages morally inappropriate ideas or feelings.
It is too narrow—Repeat offenders or plea-bargaining.
It’s based on a misconception of criminals.


What is a criminal?
Retributivism-A free responsible agent who has earned their penalty.

Utilitarianism-A social problem we need to understand and solve.

The Theory-

An act of punishment is morally justified if it would produce the best consequences.

Certain practices of punishment will be justified if they produce the best consequences.

Strong Points:
It explains how punishment can be good.
It is not a “doctrine of revenge.”
It is broader than retributivism—repeat offenders and plea-bargaining.
Does not assume that all criminals are responsible for their behavior.

Weak Points/Objections
Does not capture the idea that it is wrong to punish the innocent or give excessive or overly
lenient punishments.
It sees criminals solely as a means to the common good (Kant)
Seems to sometimes miss the idea that some acts of punishment are wrong because they don’t
give the criminal what they deserve.

We can put forth a Rule Utilitarian theory that may capture the concern of innocents.

The Death Penalty

The question: Is the death penalty morally permissible?

Seems admitted on both sides that it may not be a deterrent
Bedau gives 2 reasons
-Most capital crimes are committed in the heat of the moment.
-For those that are not, the criminals don’t plan on being caught.

van den Haag

-Even if it deters only one potential murderer it is justified.

Unfair application-
1. We may not adopt a particular penalty if we cannot apply that penalty with an appropriate degree of
justice. (Justice should be blind)
2. We are not capable of applying the death penalty with an appropriate degree of justice. (There are
racial inequities)
3. Therefore, we cannot adopt the death penalty.

There are multiple studies that show racial bias in penalties.

van den Haag-The only relevant question is: does the person to be execute deserve the punishment?
Whether or not others who deserved the same punishment, whatever their economic or racial group,
have avoided execution is irrelevant. If they have, the guilt of the executed convicts would not be
diminished, nor would their punishments be less deserved. (RT, 231/2)
Right to Life-
1. Each person has a right to life.
2. The right to life is always violated in acts of capital punishment.
3. Therefore, capital punishment is never morally permissible.

Forfeiture Principle: If someone violates the right of another, then the perpetrator forfeits that right in
his or her own person (John Locke).

Miscarriages of Justice-
1. The more severe the punishment, the higher the epistemic standards for administering that
2. Capital punishment is the most severe punishment.
3. The epistemic standard for applying the most severe punishments is certainty.
4. The standard of certainty can rarely, if ever, be met.
5. Therefore, capital punishment can rarely, if ever be administered.

If it is true that it is better to let ten guilty go free than to imprison one innocent, what do we say
about capital punishment?
Barbaric Punishments-
1. Some penalties are too barbaric to be appropriate in any case.
2. Death is worse than at least some of those penalties.
3. If death is worse than at least some penalties that are inappropriate in any case, then capital
punishment is not permissible.
4. Therefore, capital punishment is impermissible.

For there to be equivalence, the death penalty would have to punish a criminal who warned his victim of
the date at which he would inflict a horrible death on him and who, from that moment onward, had
confirmed him at his mercy for months. Such a monster is not encountered in private life. Camus, (RT,