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PUNISHMENT AND THE DEATH PENALTY

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TOPIC PREPARATION

Be silent and close your eyes for 30 seconds – free your mind from thoughts
Continue to be silent for one minute and think about today’s topic
Talk about it with the person next to you: what images, questions, and feelings came up (esp. feelings and values).
Spend a minute writing on your own about what you thought were the 3 most important things to consider about our issue
Share this with the class and we’ll explore these things together

If you arrive late, please do not disturb the activity in progress

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AMERICAN PRISONER

We’re number #1!

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AMERICAN PRISONER: BREAKDOWN

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RACE, CLASS, AND PUNISHMENT

African Americans make up 12% of US population, 40% of its prisoners

1 in 3 of African-Americans will be imprisoned sometime in their lives. Compare to 1 in 6 Hispanics, and 1 in 17 Whites.�
99% of those sentenced to death are poor and rely on public defenders.

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WHAT IS LEGAL PUNISHMENT

Legal punishment is the states’ infliction of harm or pain on those who break the law, according to a set of legally established rules that establish:

WHO is to be punished
WHAT their punishment should be
HOW MUCH of that punishment they should receive

In the US, we have come to a very standardized way to do punishment, which generally involves different punishments for perpetrators and less for accomplishes.

The punishment is usually a fine or jail. But it can also be community services, public shaming, house arrest, deportation, or death by execution.

In other societies, these questions are answered differently. Whether one is better than another is a moral question.

(Note: the graphic on comparing Saudi Arabia and ISIS is one I haven’t been able to source, so I’m not sure it’s true. But the idea itself is worth noting and thinking about. There’s also often a difference between what the laws are and how they are enforced.) Here you have a different way of thinking about appropriate punishment and it’s worth thinking about what’s better and worse).

The blacklist Hou is referring to most likely involves debtors and was created by the Supreme People's Court in an attempt to make people comply with verdicts and repay their debts.

The court publishes the names and ID numbers of debtors on its website. They are banned from plane and high-speed train travel, and can't stay at four and five star hotels, send their children to expensive schools, book cheap hire cars, or make luxury purchases online.

Some provinces play a recorded message when someone tries to call a blacklisted debtor, informing the caller that the person they want to speak to has outstanding debts. And in May, a short cartoon with the photographs of debtors' faces began playing at movie theatres, on buses, and on public noticeboards with a voiceover that said, "Come, come, look at these [debtors]. It's a person who borrows money and doesn't pay it back".

The list of debtors launched in late 2013 with 31,259 names and within two weeks had been visited 180,000 times. By December 2017, 8.8 million debtors had been added to the list, preventing 8.7 million flights and 3.4 million high-speed train trips.

BEIJING (AFP) - Chinese cities are cracking down on jaywalkers by installing facial recognition kits at intersections to identify and shame them by posting their photo on public screens, state media said Tuesday (June 20).

The facial recognition equipment takes photos and a 15-second video of jaywalkers, whose images instantly appear on a screen, showing them that they've been caught, Xinhua said.

The photos are matched with images in a provincial police database.

"Within 20 minutes, the offender's photograph and personal information such as their ID number and home address are displayed on the screen at the crossroad," Xinhua said.

Traffic police give the offenders the choice between paying a US$3 fine, taking a half-hour course on traffic rules or spending 20 minutes helping a traffic officer.

Jinan traffic police department may also publish the offender's information on its Weibo social media account.

"Since the new technology has been adopted, the cases of jaywalking have been reduced from 200 to 20 each day at the major intersection of Jingshi and Shungeng roads," Jinan police officer Li Yong was quoted as saying by Xinhua.

Then there’se the get you wet scheme

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THE MORAL PROBLEM OF PUNISHMENT

1. Pain, suffering, death and the deprivation of freedom are bad.

2. Legal punishment intentionally causes pain, suffering, death and the deprivation of freedom.

3. Intentionally causing bad things is morally wrong.

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HOW CAN LEGAL PUNISHMENT BE MORALLY JUSTIFIED?

Utilitarian considerations: while suffering of offenders is intrinsically bad, it can be outweighed by good consequences like increased public safety.

Retributivism: the suffering of offenders is deserved (it’s what justice requires), hence can be intrinsically good regardless of consequences. The punishment must fit and be proportional to the crime

Proportional equivalency – what is required by punishment isn’t identical with the harm done, but proportional. Various punishments are less or more severe and the punishment should fit the crime.

The punishment has to fit the crime. Defacing public property is not so serious as to justify cutting off one’s hand as a proportional judgment (that would reuire deterrence justification)

3 strikes you’re out laws: mandate life imprisonment ofr anyone with two preivous convinctions for serious crimes found guilty of a third felony. (overturned in CA in 2012). This sentence is disproportional to the crime, which could be stealing a pizza. Again, if justified, deterrence has to b e the reason.

Utilitrianism

Deterrence
Protection of society
Correction/rehabilitation

Also raise the notion that cigarette manufacturers may now have to say on their packs that they lied to the american people

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OBJECTIONS TO …

The Utilitarian View

Utilitarian principles sometimes call for punishing the innocent (as a deterrent) – which is unacceptable.

Utilitarian principles sometimes call for unreasonably harsh punishments.

Utilitarian principles sometimes call for differential & inequal treatment for similar offenses, which is unjust.

The Retributivist View

Retributivism is a form of revenge and revenge is not a good thing/reason for punishment
It urges us to bring further unnecessary harm upon the world.
It focuses on justice, but what we really need from legal punishment is social order and safety. Retributivism is willing to sacrifice this for the sake of justice.

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CHINA’S SOCIAL CREDIT SYSTEM

We want to promote more pro-social behavior in order to create a better society for everyone.
To do this we can use tools of punishment and disincentive that go beyond traditional forms of fines and imprisonment.
We can also think not just in terms of punishing the bad, but also to focus on the good and to actively promote good pro-social behavior.
We can do this through a system that measures how much good and bad someone adds to society.
This system can apply to individuals, social organizations, and companies.

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CHINA’S SOCIAL CREDIT SYSTEM

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PUNISHMENTS AND REWARDS

If you score low in China

Denial of licenses, permits, and access to some social services
You can’t book flights or tickets for high-speed trains
Less access to credit
Restricted access to public services
Illegibility for government jobs
No access to private schools
Public shaming exposure (inc. if someone calls you they’re hear a recording that says that you’re a “dishonest debtor” if you are one)

If you score high in China

Priority for school admissions & employment
Easier access to cash loans and consumer credit
Deposit-free bike and car rental
Free gym facilities
Cheaper public transportation
Shorter wait times in hospitals
Fast-track promotion at work
Jump the line for public housing
Tax breaks

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GROUP ACTIVITY

Imagine we were going to build a social credit system for the United States.

What sort of things would you count toward being a good American citizen that may be rewarded with points towards a higher social credit score? List as many as you can.
What sort of things would you count toward being a bad American citizen that may be rewarded with points towards a lower social credit score? List as many as you can.
What sort of punishments/restrictions should apply to low-scoring individuals?
What sort of rewards/privileges should apply to high-scoring individuals?
What do you think of the merits of the system that you’ve created?

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A DIFFERENT APPROACH: “DECARCERATION”

Angela

Davis

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“DECARCERATION” + RESTORATIVE JUSTICE

Race, gender, and economic inequalities are at the heart of and made worse by the prison system.
We should aim toward “decarceration” - replace the costly prison system with a different kind of system that looks to change social conditions – to create healthy communities so that crime is prevented and its harms are minimized.

Demilitarize and revitalize schools on health levels
Provide physical and mental health care to all
Decriminalize drugs and provide free drug abuse programs
Dismantle immigration detain centers for those entering the country without proper documents
Stop criminalizing populations and communities

We should stop thinking of punishment as the inevitable consequence of crime and look instead to restorative justice that focuses on repairing lives instead of retribution.

Angela

Davis

NOTE: In some sense, this might be a utilitarian approach that says we’re going to get better results if we do this. But, traditional utilitarian thinking on punishment, focuses on justifying punishment. Here, the idea is to prevent crimes and for the most part try to have little punishment and focus on restoring communities instead.

Prisons were originally concieved as reform instititions and they’ve failed badly. The early idea of prisons were for rehabilitation and this contrasts greatly with what they are todaty. In America’s supermax prisons prisoners are confined to their cells 23 hours a day. There’s no restoration and heaing here.

Start by explaining the prison-industral complex and its relationship to other aspects of soceity. Abolistinists like Davis say that you need to look at the big picture, which includes these plus racist, classisim, sexism.

READ: We need to stop criminliazing populations and communities. If we’re willing to take seriously the conequnes of a rcists and class-biased justice system, we w ill reach the conclusion that enormous numbers of people are in prison simply because they are: black, Chicano, Vietnamese, Natiave American, or poor. They are sent to prison largely because tehir communiteis have been crimiliazed.

Restorative justice “seeks to heal the wounds caused by crime, while finding a way to allow criminals to take respnsiblity, make amends, and restore the community they have broken” (MacKinnon)

Proponents say that in many cases, this can produce better outcomes for boyth victims and offenders.

The borader idea here is to alter social conditions so thawt crime is prevented and its harms are minimized.

Most famous example is the truth and reconciliation process in the 1990s south africa. Offenders could apply for amnesty in exachage for honest testimony and public scrutiny.

Criticism: not applicable to some cases; offenders don’t get the punishment they deserve (retribution)

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A DIFFERENT APPROACH: “DECARCERATION”

Objection 1: This is going to cost a lot of money and may not work. It’s not worth taking the risk

Reply: It may be far cheaper than the current system, which is extremely expensive. In the long run this could actually save a lot of money by preventing crimes in the first place. It can also foster economic growth in many communities.

Angela

Davis

Objections:

This is going to cost a lot of money and may not work. It’s not worth taking the risk

Reply: It may be far cheaper than the current system, which is extremely expensive. In the long run this could actually save a lot of money by preventing crimes in the first place. It can also foster economic growth in many communities.

This may not create a system of effective deterrence

Reply: It would be less of a stick, but more of carrot. The threat would be less, but one would have much better legitimate alternatives to crime

This places the health of communities above restorative justice, which is more important. Criminals will not get what they really deserve.

The current system often does not give them what they really deserve, by punishing people that are often lead to crime by their circumstances.

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A DIFFERENT APPROACH: “DECARCERATION”

Objection 2: This may dangerously create a system of ineffective deterrence

Reply: It would be less of a stick, but more of carrot. The threat would be less, but one would have much better legitimate alternatives to crime.

Objection 3: This places the health of communities above restorative justice, which is more important. Criminals will not get what they really deserve.

Reply: The current system often does not give them what they really deserve, by punishing people that are often lead to crime by their circumstances.

Angela

Davis

Objections:

This is going to cost a lot of money and may not work. It’s not worth taking the risk

Reply: It may be far cheaper than the current system, which is extremely expensive. In the long run this could actually save a lot of money by preventing crimes in the first place. It can also foster economic growth in many communities.

This may not create a system of effective deterrence

Reply: It would be less of a stick, but more of carrot. The threat would be less, but one would have much better legitimate alternatives to crime

This places the health of communities above restorative justice, which is more important. Criminals will not get what they really deserve.

The current system often does not give them what they really deserve, by punishing people that are often lead to crime by their circumstances.

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GROUP ACTIVITY

What legal punishment for the following crimes do you think is appropriate for the following crimes?

Drunk Driving
Robbing a store with a gun (failed and got caught)
Domestic abuse, no history, nothing broken
Buying $100 worth of meth
Stealing clothes from target valued at $234
Setting up a false hate crime against yourself to raise your public profile
Teenager vandalizing a bus with spray paint
Lying to stockholders by manipulating your accounting, stealing millions, bankrupting the company, and leading to 1000s of stockholders losing a total of $40 billion.

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CAPITAL PUNISHMENT IN THE UNITED STATES

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Objection 1: it is unproven and maybe false that the death penalty is a better deterrent than alternative, nonfatal penalties.

Objection 2: the death penalty actually encourages worse crimes by making felons more desperate & ruthless.

Objection 3: The death penalty may normalize killing and reduce society’s valuation of life, ultimately leading to more violence

(1) Deterrence: fear of execution deters some from committing heinous crimes, thereby saving innocent lives.

Argument

Objections

THE CASE FOR THE DEATH PENALTY

Deterance requires people to think about the punishment and be persuaded by it. That means it’s not going to work for crimes of passion or if they decide the risks are worth thebenefits

If deterance is our rationale, then punishment is not essential to law breaking. Punishment is only warranted if it’s likely to produce deterrence.

One argument sometimes made against Deterrence is that the South has the highest execution rate and also the highest murder rate. The northest has less than 1% of executions and lowest murder rate. -- what do they think of that argument? (I want them to think about why it’s a bad argument)

The pie chart is a survey of the former and present presidents of the country’s top academic criminological societies, where 88% of these experts rejected the notion that the death penalty acts as a deterrent to murder. (Radelet & Lacock, 2009). -- that said, that’s one survey reported by deaht penlaty info center. It’s not clear how good it is as a survey – how larg4e and comprehensive.

Objection 1: anticipated good consequences don’t justify immoral actions (Kantianism).

But is it immoral to execute monsters?

Objection 2: it is unproven and maybe false that the death penalty is a better deterrent than alternative, nonfatal penalties.

Reply: even if the death penalty prevents just one innocent’s death, this is worth the lives of many murderers (?)

Objection 3: the death penalty actually encourages worse crimes?

Felons are more desperate & ruthless?

Legitimizes killing?

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Objection: there are less drastic means to this end – e.g. life imprisonment without parole.

(2) Protection of society: dead murderers can’t kill again.

Argument

Objections

THE CASE FOR THE DEATH PENALTY

Deterance requires people to think about the punishment and be persuaded by it. That means it’s not going to work for crimes of passion or if they decide the risks are worth thebenefits

If deterance is our rationale, then punishment is not essential to law breaking. Punishment is only warranted if it’s likely to produce deterrence.

One argument sometimes made against Deterrence is that the South has the highest execution rate and also the highest murder rate. The northest has less than 1% of executions and lowest murder rate. -- what do they think of that argument? (I want them to think about why it’s a bad argument)

The pie chart is a survey of the former and present presidents of the country’s top academic criminological societies, where 88% of these experts rejected the notion that the death penalty acts as a deterrent to murder. (Radelet & Lacock, 2009). -- that said, that’s one survey reported by deaht penlaty info center. It’s not clear how good it is as a survey – how larg4e and comprehensive.

Objection 1: anticipated good consequences don’t justify immoral actions (Kantianism).

But is it immoral to execute monsters?

Objection 2: it is unproven and maybe false that the death penalty is a better deterrent than alternative, nonfatal penalties.

Reply: even if the death penalty prevents just one innocent’s death, this is worth the lives of many murderers (?)

Objection 3: the death penalty actually encourages worse crimes?

Felons are more desperate & ruthless?

Legitimizes killing?

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THE CASE FOR THE DEATH PENALTY

Objection 1: why accept retributivism, rather than an ethic of forgiveness & mercy?

Replies:

(i) Because of the principle of lex talionis?
(ii) Only execution is proportional to some crimes.

Objection 2: even if we grant that execution is sometimes deserved, in practice it is unjustifiable

(3) Just retribution: some people deserve to be executed.

Argument

Objections

Deterance requires people to think about the punishment and be persuaded by it. That means it’s not going to work for crimes of passion or if they decide the risks are worth thebenefits

If deterance is our rationale, then punishment is not essential to law breaking. Punishment is only warranted if it’s likely to produce deterrence.

One argument sometimes made against Deterrence is that the South has the highest execution rate and also the highest murder rate. The northest has less than 1% of executions and lowest murder rate. -- what do they think of that argument? (I want them to think about why it’s a bad argument)

The pie chart is a survey of the former and present presidents of the country’s top academic criminological societies, where 88% of these experts rejected the notion that the death penalty acts as a deterrent to murder. (Radelet & Lacock, 2009). -- that said, that’s one survey reported by deaht penlaty info center. It’s not clear how good it is as a survey – how larg4e and comprehensive.

Objection 1: anticipated good consequences don’t justify immoral actions (Kantianism).

But is it immoral to execute monsters?

Objection 2: it is unproven and maybe false that the death penalty is a better deterrent than alternative, nonfatal penalties.

Reply: even if the death penalty prevents just one innocent’s death, this is worth the lives of many murderers (?)

Objection 3: the death penalty actually encourages worse crimes?

Felons are more desperate & ruthless?

Legitimizes killing?

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Argument

(1) Judicial Error: If there is a death penalty, inevitably some innocent people will be executed. It’s wrong for the government to kill innocent people.

Support:

Since 1973, more than 186 death row prisoners released because of new evidence.
2014 study says 1 out of 25 people executed in US is innocent (4.1%)

Objections

Objection 1: This is avoidable if we raise the burden of proof in capital cases.
Objection 2: (Ernest van den Haag): most human activities cost innocent lives, but are still justified because advantageous. Mistakes happen, but it’s still worth it.

Reply 1: it is morally worse to kill an innocent person than it is to let them die?
Reply 2: the death penalty is not socially advantageous.

THE CASE AGAINST THE DEATH PENALTY

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(2) Discrimination: bias in the U.S. justice system results in disproportionately many blacks being executed, which is unjust.

Support:

80% of death penalty cases involve white victims�
99% of those sentenced to death are poor and rely on public defenders.

Objection 1: (van den Haag): these inequalities don’t make executions any less deserved, hence just.

Reply 1: But social respect for the justice system is damaged if it is perceived to be discriminatory in its penalties.

Argument

Objections

THE CASE AGAINST THE DEATH PENALTY

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THE CASE AGAINST THE DEATH PENALTY

(3) Financial cost to society: A life sentence costs about $1,000,000, but a death sentence costs between $4 million and $7 million. That money can be used to help people who need it. The cost difference isn’t worth it.

Objection: Justice and/or deterrence is worth the additional cost.

Argument

Objections

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THE CASE AGAINST THE DEATH PENALTY

(4) Inhumane & cruel punishment: execution involves cold-bloodedly killing a person a long time after the offense.

Objection 1 (van den Haag): some murderers deserve it – they dehumanize themselves by their actions.
Objection 2: execution is required for the offender’s dignity, as recognition of his responsibility. (van den Haag)

Argument

Objections

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CANDIDATE CRIMES FOR THE DEATH PENALTY

Premediated murder?
Non-premeditated murder?
Those that help plan terrorist actions? Those that fund it?
major drug dealing?
violent hate crimes?
Major financial crimes?
Rape of a minor?
Rape of an adult?
Crimes committed by minors? (Supreme Court rules “No” in 2005)
Crimes committed by the mentally handicapped? (Supreme Court rules “No” in 2003)

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TWO COMMON EXCUSES FROM RESPONSIBILITY:

I didn’t know!

It was out of my control!

Lack of Knowledge: the wrongdoer fails to know relevant facts correctly.

Ex.1: Unbeknownst to you, someone had put a slept baby just in front of a tire of your car. You run over the baby by starting up the car.

Ex.2: Caren, a slender girl, gave a body-blow to her cheating boyfriend without knowing that she could and did break his breastbones by doing so. (She is less blameworthy than a person who intentionally breaks another’s breastbones.)

Ex. In 1957 the CIBA pharmaceuticas released Thalidomide as a tranquilizer and painkiller. It was proclaimed a "wonder drug" for insomnia, coughs, colds, and headaches. It was also discovered to help pregnant women with the effects of morning sickness. It was sold from 1957 until 1962, when it was withdrawn after being found to be a teratogen, which caused many different forms of birth defects. At the time of the drug's development, scientists did not believe any drug taken by a pregnant woman could harm the developing fetus. Was the company responsible for the harm caused?

Weak or No Voluntary Control: the wrongdoer does not fully control his action or its bad consequences.

Ex.: Mary was sleepwalking. She broke into your apartment while sleeping.
Ex. Educardo is mentally retarded – he couldn’t understand
Ex. When I found him in our bedroom with another woman, I just snapped! I couldn’t control myself, couldn’t think. I grabbed the gun from the drawer and shot and shot and shot until it just kept clicking and they were dead.
Ex. A bank teller handing over money here would count as well. He’s not betraying the bank.

Replies to these excuses when they’re not done well:

I didn’t know: You should have known (you were being negligent in not knowing!)

I couldn’t control myself: You should have been able to control yourself. It’s your responsibility to have the sort of character that can control herself.

How do tehse excuses connect with the three views?

On the consequentialist view: It depends. There are different ways to go here. It depends if you’re going to be held accountable for all of the actual consequences, or just the ones that you knew about, or the ones you knew and the ones you should have known about.

There is also the quesiton of product liabiliyt – which I can bring in to this conversation. It might make for an interesting begininng here.

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POTENTIAL STANDARDS OF CULPABILITY

When you actually cause overall bad consequences to happen

Worse consequences = greater culpability

When you perform a wrong action

Worse action = greater culpability

When you act out of wicked intentions

Worse intentions = greater culpability

Culpability = the degree to which one can be held legally responsible

There are two alleged problems with (1)

1. The neglect of knowledge and intentions: according to this standard, a person who accidentally caused bad consequences would be as culpable as a person who expected or even intended those bad consequences.

2. The problem of attempts: a person who made failed attempts to kill, harm etc. could not be culpable.

An initial step to deal with these problems: take the expected or reasonably expected (but perhaps not actual) consequences as the standard of culpability.

The actual performance of a wrong action? (2)

Problems:

The neglect of knowledge and intentions. A person who unknowingly or unintentionally took a wrong action would be as culpable as a person who knowingly and intentionally took the wrong action.

In other words, people tend to think that sometimes a wrongdoer is less blameworthy because he or she is excused for the reason of (1) lack of certain knowledge or (2) weak or no voluntary control.

Wicked attitudes or intentions, which cause the action or the upshots in question (3)

The alleged problem is its neglect of consequences: the ‘moral iniquity’ standard ignores the considerations of the badness of the consequences.

Ex.: A person who made a failed attempt to kill, lie, break a promise etc. would be as culpable as a person who succeeded in doing is.

Is this really a problem? This is a question we will think about later.

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CULPABILITY, LUCK, & PUNISHMENT

Should the law hold both people equally responsible?

Moral Luck In Brief

First set of examples should be of two people who are equally at fault in various ways, but with different conseuqcnes. Later I’ll bring in Thomson’s differentations.

Two equally drunk guys leave a bar and drive drunk. Both swerve on the sidewalk on the way home. Driver A is unlucky, there’s a boy standing on the sidewalk and he hits and kills him. He’s arrested and charged with drunk driving and manslaughter. Driver B is lucky, there’s no boy standing on that part of the sidewalk. He hits nothing, but is stopped on the way home and given a DUI.

Two hitmen are trying to kill their target. Both are equally good shots, aim, and shoot their target. Hitman’s A kills his man. Hitman B’s target happens to be wearing a bullet-proof vest at the time and he survives the shot. The two hitmen are arrested. A is charged with murder, while B is charged only with attempted murder.

Two switchmen work for different railroads. Both were supposed to throw a swithc at 10am and both failed to do so because they got lazy about. Unlucky for A, his train was running fine and his failure to swtich its tracks led to a terrible train crash. Lucky for B, the train that was supposed to turn had engine problems and stopped before reaching the switch. (this is a case not of action, but of an omission – because they didn’t do something, bad conseequcnes happened)

Two firemen are trying to save children from a burning apartment building through the window. Fireman A’s child steps onto a window ledge that collapses due to poor construction done years before. The child dies and the fireman feels ashamed of endangering the child’s life. Fireman A, on the other hand, is successful. The ledge the child steps on is well constructed and holds. A is celebrated on the front page of the next day’s paper as a hero.

In all 4 cases A is unlucky and B is lucky.

In order to answer these questions we need to think about what makes one morally responsible and what that has to do with luck.

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HOMEWORK

Angela Davis calls for a rethinking of the purpose of legal punishment and calls instead for a policy of “decarceration”.

Explain what she means by such a policy and how it differs from what we do today.

Do you think our society needs to move closer to such a model for legal punishment?