Has to be M'Naghten Rule (1845)

1. Defect of reason
2. Disease of the mind
3. Failure to know the nature and quality of one's act
4. Failure to know that the act was wrong

Insanity Defense:

2 Criterion for Criminal Liability

1. Actus Rea:
2. Mens Rea:

P430, Col. 2: "One view holds that "know" refers only to formal cognition or intellectual awareness (as in "I know that two plus two equals four"); the other holds that "know" is to be understood in a wider sense to mean that one appreciates the total setting (including the feelings and emotions of oneself and others) in which one's actions take place, and that one can evaluate the impact the impact of one's actions upon others (as in "He knew that the match would cause a fire and the people would be burned.")

Problem #1: Degrees of "Knowing" — Potential Problem

Problem #2: Cognitive Reasoning

• 2nd Option — Irresistible Impulse Test, (See P431, Col. 1...)
  • "One is exempt from criminal liability if one either fits the M'Naghten definition or at the time of the offense could not control the urge to act as one did."
• Durham Rule: (See p431, Col. 1...)
  • "The accused is not criminally responsible if his or her unlawful at was the "product of mental disease or mental defect."
• Model Penal Code — Irresistible Impulse Test: (See p431, Col. 2...)
  • "Provides that 'a person is not responsible for criminal conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law.'"
• Qualifies "Knowledge" more than the ability to answer questions w/ a right answer.
  • A function in the light of that "knowledge"
  • But the ability to apply that knowledge.
  • "Substantially Impaired" — How do we determine?

Background: This case is a prime example of the utilization of the insanity defense by a petitioner.

Gary Cameron was charged with the pre-meditated murder of the stepmother, Marie Cameron on the day of June 9, 1980. Mr. Cameron does not deny that he killed Mrs. Cameron, but he defends himself as being insane at the time the crime was committed.

The Crime:

• Mr. Cameron does not deny that Mrs. Cameron died as a result of over seventy stab wounds.
• He does not deny that he continued to stab her on three separate occasions, though one right after another, until she was no longer moving leaving the knife implanted in her heart.
• Mr. Cameron gave both an oral and a written confession detailing the crime and his mental state at the time.

The Insanity Defense:

• Mr. Cameron believes that Mrs. Cameron was a practicing sorceress who was evil and became violent with him right before the murder.
• Mr. Cameron believes that his intent was not vicious because she continued to lunge and laugh at him during the stabbings therefore he felt he was justified in self defense.
• He also believes he was directed by God to “stop the spirit that was moving in her” and “kill the spirit that seemed to be attacking my spirit.”

The Testimony:

• Three psychiatrists and one psychologist testified that Mr. Cameron suffered from paranoid schizophrenia both at the time of the murder and the trial.
• The four doctors agreed that Mr. Cameron was directed by God to kill Mrs. Cameron and that he was obligated to kill the “evil spirit.” They agree that he was obeying a higher law and therefore was found to be legally insane.
• The four doctors concurred that he has no remorse for the killings and believes that the killing is justified by God as performing a “service.”
• Mr. Cameron also believes he is not guilty because he was denied a fair trial.

The Challenge:

• The definition of insanity prevented the jury’s consideration of an insanity defense.
• The admission of foreign pubic hairs found on the body of the victim.
• The admission of hearsay statements made by the victim tow months prior.
• This case also considers precedence with State v Crenshaw in reference to the jury instruction.

Examples:

• Jeffery Dalmer failed on "Insanity Plea"
• Malvo failed on "Insanity Plea"
• Mandez Brothers — Used as an excuse, failed
• Yates w/the five children being drowned in the bathtub
• Kaczynski
• John Hinkley Jr. — Shot Ronald Regan/Observed w/Jodi Foster images everywhere and wanted to get her attention.
  • After 20 years, unsupervised weekend release
  • Hinkley will never be granted a release because he attempted to shoot a President.

Background: Author Morris starts off by saying that he does propose to abolish the insanity defense and give an alternative position, which will not conflict with the separation thesis. That is to abolish the special defense and allow legislators to decide how to reduce the charge of murder and if that is successful, just add the manslaughter charge to the conviction.

Presentation of his argument in a broad perspective in the following format:

1. The general argument for abolition.
2. An analysis of how the law would operate under the proposed abolition and the alternative submission of diminished responsibility.
3. A consideration and repudiation of the main criticism of the abolition proposal.

General Arguments for Abolition:

• Issues are basically legal, moral and political, not medical or psychological, though; the insights of psychiatry and psychology are relevance to those legal, moral, and political issues.
• A definition of mental illness, as threshold to the invocation of the defense, and a statement of a required casual relationship between that “mental illness” and the otherwise criminal behavior of the accused.
• Why give same punishment to mental illness as blindness or deafness?
• Actus reus (prohibited act) and mens rea of a crime. Why go further?

US statistics on the plea of “not guilty by reason of insanity” Nationally from the 1978 census of state and deferral facilities:

• 3,140 people were being held as “not guilty by reason of insanity.”
• In the state of Illinois, 127 people were being held.
• In NY, during the years 1965-1976 inclusive, 278 were found not guilty by reason of insanity, 53 in the first five years, and 225 in the second six years.

The main reasons for defining a “Special Defense” beyond the traditional common law relationship between mental illness and actus reus and mens rea of crime are:

• Expediency in crime control: rationale can quickly advance and be disposed of.
• Fairness: rationale is more difficult.

In an article “Abolish The Insanity Defense – Why Not?, by J. Goldstein and J. Katz, published in 1963, “The insanity defense is not a defense, it is a device for triggering indeterminate restraint, of those who were mentally ill at the time of the crime, but were not civilly committable now.”

The Central Issue is Fairness:

• That it is unjust and unfair to stigmatize the mentally ill as criminals and to punish them for their crimes.
• Criminal law exists to deter and to punish those who would or who do choose to do wrong.
• If criminals cannot exercise choice, they cannot be deterred and it is a moral outrage to punish them.

Three points for the favoring of a legislatively introduced rule of “Diminished Responsibility” (pg 458-59)

First - For some exceptional murder cases:

• Use mens rea principles and even rules like the Illinois9-2(b) may not suffice to reduce murder to manslaughter.
• If a person hears voices or commanded by God to kill, he would be doing this to reduce the charge from murder to manslaughter.
• A legislative provision modeled on the English Homicide Act of 1957 would achieve that result.

Second – States should impose mandatory sentences on those convicted of murder:

• Only for some mentally ill sentence should be reduced.
• Lies in the mandatory sentence, not in the criminal law relating to mentally ill criminals.
• But, the only politically acceptable remedy may be legislative enunciation of a doctrine of diminished responsibility.

Third – Reduce Responsibility:

• Sentencing discretion to a degree from judge to jury, the jury reduces responsibility lowering the maximum and minimum sentencing range within judge will impose sentence.

Finally, Morris urges the legislative abolition of the special defense of insanity. The above three ways will reduce responsibility and will through out ordinary mens rea doctrines. Also, Morris claims that the English Homicide Act of 1957 with the accused who fall within it, being convicted of and sentenced for manslaughter, his sentence is taking into account his mental illness at the time of the crime.

Victims of the Unfairness are;

1. The group who are mentally ill and are not receiving treatment.
   1. Sentenced/But not allowed to mention "Insanity"
2. Rehabilitation: in correctional facilities is hopeless.
   1. No medication for it/No Medical Assistance.
   2. So condition only gets worse.
3. Figure "Reason of Insanity" @ back-end of trial.

Execution/Death Penalty States:

• Texas/VA/Louisiana/Alabama...

"Diminished Responsibility"

• 3 Ways:
  • First
  • Second
  • Third

No longer able to put in Plea of Not Guilty by Reason of Insanity

• At the Back-End: Could be used to Reduce Sentencing w/o Treatment.
• Has become a Luxury of the Rich and those who can afford enough Attorneys.
• Criminals will also use to convince a group of Psychologists that are insane.
• Ex: David Berkowitz/"Son of Sam."
  • Tried Multiple Personalities/Failed to convince on Reason of Insanity.
• Will use as a Plea Bargain.
• Other way used: Not Guilty by Reason of Insanity is actually used as a threat.
• Question of Fairness.

Background:

• Says that criminal positivists want to eliminate the insanity defense from the law because it is too subjective about deciding “blameworthiness.”
• A morally innocent person should not be disqualified from being legally guilty.
• Mens Rea (Latin for a “guilty mind” or criminal intent in committing the crime):
  • “Condition of the mind.”
  • Things or conditions that qualify a person to be punished for a crime that he/she has committed.
  • The idea that a conscious choice to commit the crime must be present in order to be able to confer blame and punishment.

Two Categories of Mens Rea:
First Category:

• The special sense of mens rea.
• Refers to the mental state of the guilty party, whether or not there was intent to commit a crime, or whether they knew what they were doing was wrong.
• Important in conveying what kind of conduct should be punished and what shouldn’t be punished.
• How is it right to punish someone who had no idea that he/she was doing wrong?

• Legal responsibility as in regards to insanity or infancy.
• This category assumes that the party in question is not of the same metal capacity or state as the rest of us.
• This case of mens rea absolves a person because of a deficiency in maturity, temperament and etc., in such a way as to make them quite distinguishable from the rest of the population.

The legal positivist’s move to abolish the second category is the question at hand:

• It is hard to define legal insanity, but there is a controversial test that has been used to decide the mental capacity of criminals: the M’Naghten test.
• There are 4 types of criticism for the M’Naghten Test:
  • Reactionary: Provides a loophole for criminals to use to escape punishment. It must be made much harder to establish who is or isn’t legally insane for the sake of the public good.
  • Liberal Reform: The test does not account for people who are of fine cognitive capabilities, but suffer in other areas, such as irresistible impulses.
  • Radical Critique: The legal definition of mental disease used in the test is not reconcilable with the medial conception of it.
  • Neo-Reactionary: Don’t bother making the definitions better, eliminate the defense altogether.
    • The test has been a failure; it can’t help to administer the insanity defense rationally because the jury is subjective to other conditions such as the credentials of the psychiatrist. It is also a problem if the defendant can’t afford a good psychiatrist. Psychiatry itself is a problem because it is a soft science and doctors often disagree because their evaluations are often colored by personal values.
    • The defense is not practical or important. Only used in 2% of cases. Usually used in appeal cases rather than the original trial. Used in England to decide on probation, not fault.

Whether or not the defendant consciously made a choice to commit a crime is irrelevant, the point is that they did in fact commit a crime and are a danger to society. Most criminals do have some sort of mental “defect,” but few are treated because the test fails to distinguish them. Kadish believes that most, if not all criminals should be treated, not just jailed, for the protection of the public (Abolitionists View).

The present situation is not good, but we should not just abolish the defense because the administration of it still has many kinks in it.

M’Naghten Rules (House of Lords, 1843):

If “at the time of committing the act, the accused was laboring under such an ill effect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong,” then the defendant is legally insane.

Abolish the insanity defense because it is poorly administered?

• No, an adversary system that does not supply equal resources to the criminals is an example of bad administration.
• This is not a reason to abolish the adversary system.
• Improvement of the system is a better idea.

Abolish the insanity defense because it is infrequently used?

• No, the defense of necessity and duress are also infrequently used.
• This is not a reason to abolish the adversary system.
• Improvement of the system is a better idea.
• “The function of a legal defense is not measured by its use, but by its usefulness in the total framework of the criminal justice system” (462).
• Think the “Big Picture.”

Abolish the insanity defense because it has reduced the flow of psychiatric and other resources to the majority of criminals?

• Yes, the flow is too small.
• But, there is no evidence to support the claim that the reduced flow is because of the insanity defense. (This is an Empirical Issue and would require a study to defend or refute the claim.)

Would we achieve a net advantage by eliminating the insanity defense?

• Example: Eliminate the M’Naghten defense.
• M’Naghten: Authorizes the legal insanity defense when the effect of the disease is to destroy cognitive capacity, leading to the inability to know the nature and quality of the act.
• With M’Naghten, the result would depend on the type of crime.
  • If the crime were something that required intent, or knowledge, or recklessness a defendant would have to rely on any mens rea (in the first, special sense).
  • “A total inability to know the nature and quality of the act quite plainly precludes convicting a defendant of any crime whose definition requires that he/she have that knowledge” (463).
  • So the defendant would have complete defense and would not be committed.
  • If the crime only required negligence.
  • “All that is required is that the defendant has fallen substantially below the standard of the reasonable man, and this, by definition, a M’Naghten defendant has done” (463).
  • So the defendant would have no defense.
  • Unless cognitive disabilities were considered in the same light as visual or hearing impairment.
• This doesn’t make sense for abolitionists. They want to assure that those who propose threats are efficiently channeled.
  • The criminal would get out even if they could not provide a defense.
  • Kadish claims this would be worse without an insanity plea.
  • Should the system be reformed?
    • What do you suggest?
    • How would you implement it?
• In response, abolitionists tacked on the provision that would prevent all evidence of mental abnormality that bears on mens rea.
  • The problem with this is the system would judge first, and then commit policy.
  • If the judge is to exclude evidence, there must be standards to distinguish admissible from inadmissible evidence.
  • This standard would be the test for legal insanity.
  • This brings back the problems inherent with deciding legal insanity.
  • Insanity becomes evidence instead of a defense.

Fundamental Issues with Abolition:

• “Mr. Justice Fortas: ‘Our morality does not permit us to punish for illness. We do not impose punishment for involuntary conduct, whether the lack of volition results from ‘insanity,’ or addiction to narcotics, or from other illness’” (465).
• Moral responsibility: Only punish those that are blame worthy. Only those that could have done otherwise under the circumstances.
• Abolitionists believe that the criminally insane would receive treatment in jail just like any other criminal (rehabilitation). Our system doesn’t work this way.
• “We can not shut our eyes to the fact that the element of punishment is still in our criminal laws” (465).
• We convict and punish those whose ability to conform is impaired by youthful neglect, parental inadequacy etc.
• This is an argument for the extension of the defense of lack of responsibility, not for abolition of the insanity defense. (Morris: Only usable because of cognitive/internal issue, others bring up social upbringing. They should get hauled away.
• The insanity defense takes away the strength of the deterrent impact of criminal law.
• For some people, the deterrent impact of the law has no meaning. (They don’t understand the law.)
• Be more sympathetic to those with external forces of child abuse, social injustice, battered wife syndrome. (Not even a self-defense issue.)
  • Can a jury sift through the bull shiters and the ones with a valid excuse?

Kadish's View: Super Rich won't be able to exploit this aspect of the law.

Abolishing Insanity Defense

• Then have to eliminate mens rea.
• But still have those that are "Insane" but are not coherent enough to understand the cause of their actions.

Retributivism (Looks back into events)

• Looks towards what was done in the past demands punishment.
• Punish because they deserve it.
• Kant was a Moral Retributivist.
• It is Just and Fitting to repay every injury with a similar injury to the one who inflicted it.
• Kant: Humans are;
  1. Free Will
  2. Retribution
  • Some have called it "Civilized Vengeance."
• Lex Talonis: "Law of the Claw"
• Existentialists: "We are condemned to be Free" — John Paul Sartre
  • Therefore, I have to make choices & suffer the consequences for the choices I make.
  • "Containment of Responsibility"

Utilitarian (Forward Thinking)

• Do for the purpose of doing the most good for the most number of people.
• Punishment should be selected and administered w/the objective of doing the maximum good for society.
• Incapacitation/Disablement:
  • Getting the criminal off the street ensures he will not commit further crimes.
• Deterrence:
  1. When punish person but w...
  2. When done publicly they see what happened to the first who committed the crime then others will think twice about doing the same thing.
• Rehabilitation:
  • A person may be returned back to society after being rehabilitated.
  • Ex: "Clockwork Orange," Extreme Form of Rehabilitation.
• May want a Disproportionate Punishment.
• Dilution/Actually perpetuate incarceration.

Background: Morris examines whether making the consequences of crimes more costly may deter would be criminals from committing offences.

Wilson looks at how a potential criminal might view a crime or the opportunity to commit a crime.

Questions Wilson Addresses:

• Why is crime popular?
• Why do crime rates go up?
• Does deterrence work?

Wilson’s Main Points:

• Cost and benefits.
• Complications:
  • How effective is deterrence?
  • Problem with statistical methods: problem with obtaining meaningful data.
• Theory of swamping.

Testing Deterrence:

• Another study involves studying the changes in a nation over a long period of time.
  • Kenneth Wolpin studied changes in crime rates and changes in various parts of the criminal justice system.
  • He studied the chances of being arrested, convicted, and punished from 1894-1967.
  • He concluded that changes in the probability of being punished seemed to cause changes in the crime rate.
• Measuring changes in the behavior of a small number of hard-to-observe individuals who are responding to delayed and uncertain penalties.
  • Theorists will never be entirely sure that their statistical manipulations have proved that deterrence works.
  • However, the most impressive ting is that most studies using these different methods come to similar conclusions.
• Measuring how the probability of severity of a possible punishment will affect the behavior of individuals who might commit a serious crime.
  • Most of us would not commit a serious crime due to the operation of our internal control on our behavior reinforced by the fear or embarrassment of our misconduct.
  • A few will commit serious crime with only a small regard to risks, unless the risk is great and immediate.
  • Considering wife abuse and murder, for a few men, doing away with their wives is strongly conditioned by their perception of the risks. The arrival of an officer usually signifies the end of a fight that could evolve into murder; however, if no officer were around, people still pay attention to some of the costs of being engaged in emotional behavior.
  • If consequences of emotional and impulsive acts are given some weight, then the consequences of less emotional acts are likely to play a larger role in influencing the willingness of people to engage in them.
• Measuring changes in the prospective costs of crime and prospective benefits of pursuing legitimate alternatives to crime affect the behavior of those individuals who are at ‘risk.’
  • People at ‘risk’ = those who lack strong, internalized inhibitions against misconduct, who value highly the excitement and thrills of breaking the law, who have a low stake in conformity, who are willing to take greater chances than the rest of us, and who greatly value quick access to ready cash. Wilson believes these are young males.
  • Phillip Cook believes it is only necessary that would-be offenders attach some value to the consequences of their actions, i.e., positive value to the loot and a negative value to the chance of being caught, and that they operate on a crude rule of thumb about how great or small those risks are.
  • Law abiding individuals are not well aware of the true costs of crime. We think the chances of being caught are higher and the punishment more severe than it really is.
  • Individuals at ‘risk’ don’t feel this way at all. Due to different sources of information on crime, they are supplied with a crudely, yet accurate rule of thumb, i.e., punishment is not severe as most think it is.
• Measuring behavior of persons informed; measuring the deterrent effect of the sanctions of the criminal justice system on individuals, as opposed to cities and states.
  • Ann Witte followed 641 men who were released from prison.
  • She couldn’t discover how the convicts evaluated their future chances of being caught should they break the law again, but she did discover how frequently their arrests led to conviction and their conviction led to imprisonment.
  • Her conclusion was that deterrence works, but works differently for different kinds of offenders.
  • A limitation to her study is that it is a study of older men who had previously been in prison which can understate the true effect of either sanctions or jobs.
  • Charles Murray and Louis Cox, Jr. followed the criminal careers of 317 Chicago boys.
  • These boys were hardly beginners with crime:
    • Arrested an average of 13 times.
    • 14 homicides.
    • 23 rapes.
    • Over 300 assaults and auto thefts.
    • Almost 200armed robberies.
    • Over 700 burglaries.
  • These boys served an average prison sentence of 10 months, then once released, Murray and Cox followed them for the next 17 months.
  • They found that the recidivism rate had declined by about two-thirds (arrested 6.3 times before prison, arrested 2.9 times after release).
  • They coined this ‘suppression effect’: the tendency of the first exposure to prison to suppress the rate at which delinquents are arrested. This adds support to the deterrence theory.
  • Problem with this study is that it still focuses on persons who already committed crime; we want to study would-be offenders.
• Measuring would-be offenders:
  • Two studies done among students at an eastern college and a high school in Arizona.
  • This study found that students who believed there was a high probability of being punished for a crime were less likely to report having committed the crime than those who thought there was a low probability of being punished.
  • Problem is that it is hard to tell if the number of offences the student reported is the same as the number actually committed.
  • Study may also find that morality is the basis for deterrence with students and not punishment.
• Criminals are not indifferent nor do they not have any opportunities.
• People differ by degree in reference to internal restraints, just the same as sanctions and opportunities are changeable in modest limits.
• First Main Point: Find out to what extent feasible changes in the certainty, swiftness, or severity of penalties will make a difference in the behavior of those ‘at the margin.’ ‘At the margin’ = those who are neither so innocent nor so depraved as to be prepared to ignore small changes in the prospects of punishment.
• Second Main Point: To know what feasible changes in availability of jobs will effect those at the margin of the labor market.
  • Wilson believes that the weight of all the evidence – aggregate statistical analyses, evaluations of experiments, and studies of individual behavior, supports the view that the rate of crime is influenced by its costs.
• There is a possibility of lowering the crime rate by increasing the certainty of sanctions, but it must involve the criminal justice system and this is hard to do.
• In theory, the rate of crime should also be sensitive to the benefits of non-crime.
• The nature of the connection between crime and legitimate opportunity is complex, i.e., unemployment can cause crime, crime can cause unemployment, and both can be caused by third factors.
• Wilson believes economic factors have the greatest influence on low rate, novice offenders and the least on high rate, experienced offenders.
• Wilson believes the best course of action is for society to simultaneously increase both the benefits of non-crime and costs of crime, all while bearing in mind that no feasible change in either part is likely to produce large changes in the crime rate. Wilson never mentions a third possibility.
• People opposed to this idea tend to increase one side or the other, but that can cause problems of spending a great deal of money and unnecessarily blight the lives of offenders who could safely be punished for much shorter periods of time. Wilson ends with, “The problem of severity is inextricably bound up with the problem of justice.”

Third Possibility:

• Throw carrots and better jobs.
• Because of living in the here and now and having a weak conscience will still go on.
• Never discusses how going to jail increases the level of some that go on to commit greater, harsher crimes.

Social Darwinism:

• That there is a group of "Higher People" who have the ability to do whatever they want to correct "Lower People" such as Sterilization of those who are Insane, Mentally Retarded, etc.

Deterrents:

• Two Ways to Reduce Crime:
  1. Make Consequences more undesirable.
     • "Big Stick" Theory.
  2. Make Alternatives to crime more beneficial.
     • More jobs/Better paying jobs.
     • "Carrot" Theory.
     • J.Q. Wilson does not talk about why he is not excited about the "Carrot Theory."

(See p472, Col. 1) “But that is something of a misnomer, because the theory of human nature on which is erected the idea of deterrence (the theory that people respond to the penalties associated with crime) is also the theory of human nature that supports the idea that people will take jobs in preference to crime if the jobs are more attractive. In both cases, we are saying that would-be offenders are reasonably rational and respond to their perception of the costs and benefits attached to alternative courses of action. When we use the word ‘deterrence’, we are calling attention only to the cost side of the equation; perhaps ‘inducement’ might serve. To a psychologist, deterring persons from committing crimes or inducting persons to engage in non-criminal activities are but special cases of using ‘reinforcements’ (or rewards) to alter behavior.”

• Environment: Enters into Mixed Theory

Why is crime popular?

• Cost/Benefit Analysis

(See p472, Col. 1, Last para to 2nd Col.) (See p472, Col. 1, Last para to 2nd Col.) “Imagine a young man walking down the street at night with nothing on his mind but a desire for good times and high living. Suddenly he sees a little old lady alone on a dark corner stuffing the proceeds of her recently cashed social security check into her purse. There is nobody else in view. If the boy steals the purse, he gets the money immediately. That is a powerful incentive, and it is available immediately and without doubt.”

• Main reason why Criminals do what they do.
  • A Quick Payoff in the "Here and Now."
• What are the chances of being caught.
• What are the chances of actually going to jail.
  • Holmes & "The Bad Man."
  • Young Males.
  • Targets those who have done time and are back out/After the experience, those who have done jail time don't want to go back.
• What about those who haven't committed crimes yet or have been in jail or have no information about Judge Bruce MacDonald, "Maximum Max" & "Turn 'Em Loose Bruce."
• (See p476, Col. 1, End of first para.)

Why is this group less interesting?

• In the minority.

Theory of "Swamping"
(See p473, Col. 2, 1st para.)
(See p473, Col. 2, Last Para to P474.)

• Criminal mind may have a weaker conscience, worry less about their perpetuation in a polite society.
• Find it harder to postpone gratifying urges, therefore Lex Talonis ("Law of the Claw") is meaningless.
• The flaws in the studies may be repaired.

• Cash out Weaker Conscience?
  • Kant's above any conscience/Have "Free Will" and can do otherwise unless "Insane."
  • Kant will have no sympathy for this person.

Testing Deterrence:

(See p477, Col. 2) “More important, the studies raise the possibility that what actually deters these students (very few of whom commit any serious acts with any frequency) is not what they guess to be the chances of being caught, but the moral opprobrium with which such acts are viewed. For most people in most circumstances, the moral nature of the act and the internalized inhibitions on misconduct arising out of that moral code are probably the major deterrents to crime.”

Moral Code vs. Punishment

• Increasing penalties will not act as a deterrent.
• Moral Education more of a deterrent.

Psychopaths:

• Disconnect from the Emotional Involvement.
• Ex: Mgrs/Doctors/Therapists.
• Ted Bundy & Jeffery Dolmer are extreme cases.

3 Strike Law:

• Only compounds overcrowding in jails & the Legacy of Pete Wilson (Gov. of California).
• 25 years to life (Harder to commit a crime at 65 or 70...).
• Or gives idea that this is my second strike, if I do another that's my 3rd., so go up to 2 strikes.

Taxonomy of Purposes of Punishment:
The Prima Facie Justification of Punishment

Retributivism: is the view that punishment is justified by the desert of the offender. The good that punishment achieves is that someone who deserves it gets it.

Retributivism is distinct from “Revenge Utilitarianism”:

• The view that the state must punish because private citizens who otherwise will take the law into their own hands and this private vengeance leads to chaos and disorder. (Death Wish)

The Two Pure Theories of Punishment:

• The denunciation theory of punishment is the second kind of utilitarian theory of punishment, the good it seeks to achieve is not simply the prevention of crime; it grants intrinsic value to social cohesion. It outweighs the harm that is the punishment by some form of net social gain that punishment achieves.
• The general utilitarian theory of punishment is one that combines these and other forms of collective good that punishment might achieve, and calls them all a “social gain.” Punishment is justified if and only if some net social gain is achieved by it.
• A retributive theory is necessarily non utilitarian in character, for it eschews justifying punishment by its tendency to achieve any form of net social gain. Retributive asserts that punishment is properly inflicted because and only because the person deserves it.

The Mixed Theory of Punishment:

1. Asserts that punishment is justified if and only if it achieves a net social again AND is given to offenders who deserve it. (This patches a hole in Utilitarianism, that of Scapegoating.)
2. Asserts that punishment is justified if and only if it achieves a net social again OR is given to offenders who deserve it.

However Moore thinks that the two branches of the theory understood to be the same are because they justify the exact same kind of treatment for all cases.

• Restores faith in the system when get the right person, otherwise would have vigilantism/People take the law & justice in their own hands.

The Argument against the Pure Utilitarian Theory:

• Incapacitation Element: Bring them in even though they haven’t done anything yet. “Racial Profiling” in general. “You look like a suspicious person, so I’m going to bring you in.”

Reductio ad Absurdum Argument: Three Premises

1. Punishment should be inflicted if and only if doing so achieves both a net social gain and gives an offender his just deserts. (p.482, col. 2, bottom)
2. A net gain would be achieved in this case by the infliction of punishment.
3. It is not the case that punishment would give an offender his just deserts in this case.
4. Punishment should not be inflicted.

• There is no contradiction when substituting mixed theory for the utilitarian theory of punishment.
• A rape case is presented to test whether one truly believes the mixed theory or is in fact a pure retributivist. (State v Chaney)
  1. Punishment should be inflicted if and only if do so both achieves a net social gain and gives the offender just deserts.
  2. A social net gain would not be achieved in this by the inflation of punishment.
  3. Punishment should not be inflicted.
  4. Punishment should be inflicted.
• 1 and 2 follows that there should be no punishment, this contradicts with number 3.
• The only way to avoid contradiction is to give up premise number 1. This means one would have to give up mixed theory.

The Argument for Retributivism

• Hugo Bedau – Retributivism faces the same dilemma:
  • Either he appeals to something — some good end — that is accomplished by the practice of punishment in which case he is open to the same criticism.

• Restores faith in the system when get the right person, otherwise would have vigilantism/People take the law & justice in their own hands.

Attraction of Utilitarianism:

• There is an amount of pain that we will endure so long as there is a "Net Benefit."

Mixed Theory:

1. Mixed View Utilitarianism: Scapegoating
   • Only punish those who deserve to be punished and ...

State v. Chaney

• In the act, becomes castrated and receives an inheritance so he will commit no other crimes
• Set up mock trial
• Should he do the time for the crime?

Kant:

• Cargo Ship begins to sink.
• Captain & Mates get to a deserted island.
• Food & water will have to be rationed.
• Create Law, which says anyone caught stealing food and/or water will be sentenced to death by hanging.
• Two get caught, 1st is hanged.
• 2nd is to be hung, but a rescue ship comes.
  • If say do not hang then Utilitarianism.
  • If do hang, then Strict Retributivism.
• Kant: would say hang them both.

Retributivists: Moore:

• Most of us are Retributivists, which is the way most juries think today.
• Ted Bundie: Sentenced to death in Fla./Washington State did not pursue.

Back Door Retributivism:

• We favor because its the civilized version of revenge.

Standard Justification for the State’s Punishment:

• A community cannot tolerate violent and/or wrong behavior within it; it is justified in interfering in people’s lives with public/agreed upon reasons to prevent wrong behavior. Certain choices cannot be respected by the state in order to preserve well-being of community members. The State carries out punishment when a person has broken the law.

Moral Education Theory of Punishment:

• Moral Boundaries: teaches the criminal that the action is forbidden because it is morally wrong. Makes the criminal reflect on why there are moral boundaries in existence.
• Public educative message, directed at the criminal and the rest of society (deterrence, vicarious learning)
• Goal: person will reject performing an illegal action due to moral reasons. (not just pain avoidance) It’s the teaching of morals by the State. (Crude Behaviorism)
• Offenders may reject moral message. Will learn there is a “punishment barrier” and threat punishment (like a dog and deterrence) and hopefully preclude actions that will harm citizens.
• Punishment is justified as a way to prevent wrongdoing — teaches wrongdoer and public moral reasons for choosing not to perform an offense. (Consequentialism/Utilitaritanism)

The Nature of Law:

• According to Hart: Two Kinds of Law: (Positivistic View)
  • Rules of Obligation (Primary Law): Regulates conduct. “Orders backed by treats.” (Relates to Aquinas/Command Theory)
  • Power-conferring Law (Secondary Law): Rules of Recognition.

Subject Matters of Laws:

• Ought to be drawn from: (Naturalistic, Anti-Positivistic/Separation Theory)
• From the Ought’s
  • Ethical Imperatives (Don’t murder)
  • Imperatives made necessary for moral reasons, for the good of society (drive on the right/Aquinas — Human Law)
  • These commands define a minimal set of duties for the community members to follow and designate actions which will help solve societal problems. (provided everyone follows them)

Fidelity: Whichever works.

• Non-Moral incentive: avoidance of pain inflicted by punishment, practical reason to obey the law.
• Ethical Incentive: moral knowledge of right and wrong.

Morality and Human Freedom:

• Assumes there is a matter of fact of what is right and wrong, morally. (Ethical Objectivism)
• Humans: autonomous, able to choose, responsible for our actions, free to determine our lives according to moral values — agents.
• Punishment should only be inflicted on free human beings. (Not the insane or mentally diseased, hence the Insanity Defense)

Deterrence:

• Threat of punishment will only deter if it is believed there is a good chance the punishment will actually be inflicted.
• According to Hegel: if we aimed to prevent wrong actions only by deterrence — treat people like dogs with electric fences/barriers — conditioning. People can reason and ask why an act is wrong.

Differences between Moral Education and Deterrence Justification:

• ME: goal is to educate citizens so they choose not to act immorally
  DJ: uses pain to progressively eliminate certain types of behavior.
• DJ: infliction of pain on individual is a way of promoting a larger social end. (Using a person as a means to achieve a goal)
  ME: helps a person gain moral knowledge. Benefits the person experiencing while also providing with societal benefits. (Treating a person as an end in himself) Means to an End Principle.

Differences between Moral Education and Rehabilitation Theories:

• RT: treats offender as “sick” to be cured/treated.
• ME: sends a moral message. Focuses on being good for the offender. Moral growth and/or acceptance of societal norms and operating in the community. (Done for him/Not to him)

Punishment as Moral Speech/Communication:
Nozick, Grice — Retributivist View

• Intuitively natural/attractive. Evident in common person: “teaching him a lesson.” Eye for an eye modeling behavior.
• Communicate immorality of the act to teach. Message is public so it reaches members of the community.
• Revenge: moral point (Movie e.g.: Good Guy confronts Bad Guy and explains why act was wrong. Unsatisfying if movie did not have this bit)
• Punishment affirms facts: victim has been wronged; victim owed certain treatment from others. Restore moral status (equilibrium)

Difference between Moral Education and Retribution Theories:

• ME: as a variant of Retribution.
• RT: punishment “negates the wrong,” reset the scales (moral equilibrium)
• ME: concrete moral goal of benefiting the criminal. Promotes moral personality.

Punishment as Moral Education Efforts by any Institution:
Family: punishment harms (avoidance of pain) and teaches wrongness of actions. (moral choices)

Paternalistic Theory:

• Being governed is necessary until we are no longer prone to immoral acts. Even adults need governance.
• Who is the State to presume to teach moral lessons? State’s role: Establish laws arrived at by a representative community consensus on what is right and wrong.

Civil Disobedience and Martin Luther King, Jr.:

• Must accept penalty for lawbreaking (direct civil disobedience) to express “highest respect for the law,” to respect State’s right to punish transgressors, and will alert community to injustice by the State’s punishment that will be morally outrageous.

Hampton tackles the issue of what is the formula for Moral Education Theory of Punishment:

• Begins by saying that if, punishment is justified as a way of morally educating the criminal and the rest of society about the immorality of the act, then it follows that one should discipline in a way that promotes this two-part goal?
• One reason these formulas fails is that, all of them fail to incorporate an acceptable upper bound on what punishments can be legitimately inflicted on an offender.
• If we use the retributivist’s lex talionis formula (dictating that punishments are to be somehow equal to the crime) for, torturing the torturer, murdering all murderers, and such recommendations cast serious doubt on the formula’s moral adequacy.
• Even if we use this theory (mentioned above), still does not place strict limits on the kinds of “treatments” which can legitimately be given to offenders.
• Only, the upper bound on the treatments inherent in this theory derives from the conscience of psychiatrists and their consensus about what constitutes “reasonable treatment,” and many have argued that these upper bound limits also goes far too high.

Hampton raises another question, how can inflicting any pain a criminal be morally educational?

• The moral education theorist must provide an explanation of why certain sorts of painful experience (whose infliction on others we would normally condemn) may legitimately be inflicted in order to facilitate moral growth.
• Even if it is possible, would the infliction of pain always be the right way to send a moral message?
• Hampton states that if moral education theory can show that only infliction of pain of a certain sort following a wrongdoing is necessarily connected with the promotion of the goal of moral education. Moral education theorist needs an account of what moral concepts are and can how humans can acquire moral education.

Background: Hampton offers three reasons for thinking that painful experiences of a particular sort would seem to be necessary for the communication of a certain kind of moral message. Hampton starts by discussing the getting understanding of what actions count as punishment.

• We have to see punishment from the offender’s viewpoint to see how the person looses freedom.
• It’s natural for us to characterize punishment as having pain or other unpleasant consequences, what we want to call punishment, might involve the wrongdoer in performing actions which one would not describe as painful or unpleasant.
• As the State takes away freedom from criminals, the State is only depriving him of his freedom to carry out his own plans and to pursue the satisfaction of his own interests. Hampton calls this plan “disruption of the freedom to pursue the satisfaction of one’s desires.”

Lastly, Hampton raises a last question; “What is it that one wants wrongdoer to see?”

• Sometimes who for moral reasons violates her (perfect) moral duty to others is not thinking about the other’s needs and interest and pain action caused another to suffer.
• What the punisher needs to do is to communicate to the wrongdoer that their victims suffered and how much they suffered, so the wrongdoer can appreciate the harmfulness of her action.
• One can get this message across to a person by representing the pain suffered by their victim(s).
• The moral education formula does not recommend that punishment be specifically equal to the crime.
• One way the moral education theorist can set punishments for crime is to think about “fit.”
• Make specific punishment recommendations, is to construct an ordinal scale of crimes, going from most offensive to least offensive.
• Then to link determinate proportionally between crime and punishment.

Parent/Child Theory:

• The punishment has impact.

• Punish a child from a Moral Education point of view.
  • That its for their own good.
  • If not punished then will never see the good/the good for others, not the one being punished.
• Moral Punishment/Moral Education.
  Paternalistic View.
  • Could be construed as Utilitarianism.
  • Theoretical - Consequentialist Theory - "Forward Looking."
    • Moral Education is Result Oriented - therefore Forward Looking.

Utilitarianism: Those actions that are morally good and produce the most amount of happiness.

• 3 Types:
  1. Rehabilitation
  2. Deterrence
  3. Incapacitation (3 strikes you're out)

Mixed Theory: The idea that there is some focus on the offender which separates itself from the other 2 views.

• Difference from Deterrence/Incapacitation.

(See p.221, Col. 2, last para [Green Bracket] through P.222 Col. 1, 2nd para in yellow.)

Degree of Punishment

• We don't adhere to lex talionis (the Retributivists punishment formula dictating that punishments are to be somewhere equal to the crime.)

Examples:

• 2nd Degree Murder: 10-20yrs.
• HIV Epidemic: More time in prison, more likely to get AIDS.
  • Could be deemed "cruel and unusual punishment."
  • Only ones in society provided with the right to healthcare on paper, but may not get treatment or receive poor treatment.
• Minor Offense: $250 for parking in handicap parking space.
  • So the problem becomes... Why worry about the fine meeting the crime?
  • Raising the threshold acts as a deterrent.
• DWI: Becoming more severe w/more innocents dying.
  • Retributivists & Utilitarian would both argue, "somewhere before you get drunk you had the sobriety making the decision beforehand that you would drive home drunk.
• Plea Bargaining: Lex Talionis; Not getting punishment to meet the crime.
  • Usually to save cost of trials.
  • Usually offer lesser punishment than what wold be served in the full-blown trial.
  • Retributivists also make an issue of this.
• Hampton attempts to reign in severe punishment.
  • Issue of Pain is necessary for Moral Education.
  • The way she does this: cannot get the message across to the criminal that this act is morally wrong by using overly harsh penalties.
• Insistence on Criminal's Autonomy:
  • Don't confuse w/Conditioning.
  • Would reign in Moral Conditioning/Negative Reinforcement.
• Hampton feels Death Penalty is wrong/Don't teach them much by killing them.
  • Loss of something of value teaches more/Loss of Freedom.

Incarceration:

• Physically contained/Loss of Freedom/Mental and Physical Repercussions.
• Provides time to learn why your act was wrong.
• Tell them why this was wrong/Explain why was wrong.
• The criminal is driven by selfishness except Gang Wars/Family/...
  • Disrupt what self-interested person enjoys most - Freedom.
• Punishment out of compassion vs. other theories that are not compassionate.
  • Revisionists: would argue showing compassion to victims & the families of victims.

Hampton's last 2 questions:

• Shouldn't the moral education theory imply an indeterminate sentencing policy?
  • Probably won't succeed most times.

Education/2 Parts:

• Part 1: A fence/a barrier/electric fence
• Part 2: Moral Education:
  • Understand the wrongness of the act.
  • Make them aware of their wrongness.

Example:

• Rapists subjected to being confronted by their victim/realizing that the victim is a person and not an object. Especially for a repeating rapist.
  • One time rapist is worth a try for alternatives.
• Failing Moral Education of Criminal, then Moral Education of Citizens.
  • Why is it wrong?
  • Plea Bargaining undermines the Moral Education of the Criminal.
  • Weakness: Can convey message by depriving Criminal Freedom, but does not convey it to Citizens.
  • By victim confronting rapist, then sends message to criminals.
    • But what does it send to citizens?
    • May not be through punishment, but through other means.

Other Examples:

• Flag Burning
• Nude Beach Goers
• Dead Beat Dad's
• Child Molestation

Community Majority:

• Decides the Justness
• But what about Martin Luther King w/majority v. minority?
• Have to constantly question what society is saying to the criminal?
  • Examples:
    • Sodomy
    • Internet Pornography
    • International consensus on Rape/Murder/Child Molestation

  Educating v. Conditioning:

  • Autonomy of criminal must be kept in mind.
  • We are trying to develop their rational side of their Autonomy through Moral Education.
• Shouldn't the moral education theory imply an indeterminate sentencing policy?
  • Probably won't succeed most times.
  • You can't make a free human being believe something.
  • Hoping they are aware of the barrier & are not lying just to get parole.

(See p.233, col. 2, last para.)

• Does the moral education theory actually presuppose the truth of retribution?

Retributivists: They deserve to be morally educated because you wouldn't be educating them if they hadn't done this.

• Moral Education is not matching pain for pain.
  • Not deserving for Education.

• Most Moral Theories have Secular Reasoning why Murder is wrong.

Examples:

• Stealing property
• Doing physical harm to someone
• Fraud
• Treason

Paternalism/State Paternalism: Power over its Citizens

• Murder
• Rape
• Stealing

Two Conflicting Views:
Abolitionists:

• Killing a person seems to be uniquely inappropriate way of imparting the moral teaching that killing people is morally wrong.

Retentionists /Retributionists:

• Failure to match the most extreme punishment for the most extreme crimes fails to acknowledge the seriousness of such crimes. (Some people deserve death: Hitler & Stalin)

The dispute is whether killing is respecting or failing to respect the criminal’s dignity.

• Example: “Green River Killer”
• Bargained out of Death by telling them the names and place where victims are buried.
• Because the victims were prostitutes, the police were accused of not trying hard enough to get him.
• Have to wonder about the person’s sanity.
• When does it become worthless to exert Moral Education?
• Sex Offenders: taking medication/shot once a week/chemically conditioned to reduce sex drive, or become so deserving of death that should be sentenced to death.

Utilitarian View:

• The families are the victims.
• Supported by Retributionists and Utilitarians.
• Torture for the purpose of suffering.
• Others say prison is worse than death.

Background: Furman v Georgia (1972), the Supreme Court ruled the death penalty as unconstitutional due to racial discrimination; Gregg v. Georgia (1976), the death penalty was reinstated by the US because of changed jury procedures. [Coker v. Georgia (1997), the Supreme Court ruled the death penalty unconstitutional for the crime of rape due to racial discrimination; McCleskey v. Kemp (1987), the Supreme Court decided the death penalty was constitutional despite evidence that the victim’s race is the strongest factor of a death sentence.]

Majority Opinion: (Follows Naturalism)

• These judges support the death penalty.
• Do not feel that the death penalty violates the constitution.
• Argue their belief with a quote from Chief Justice Warren: “The amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. This requires looking at the public attitude toward a given sanctity. (8th Amendment, “Cruel and Unusual Punishment)
• Realize that the penalty must also accord with the “dignity of man” which means that the punishment not be excessive.
  • Punishment must not involve the unnecessary and wanton infliction of pain.
  • Punishment must not be grossly out of proportion with the severity of the crime.
• The death penalty for the crime of murder has had a long history with the US; it is a common-law rule that imposes a mandatory death sentence on all convicted murders.
• Capital punishment was accepted by the Framers of the Constitution according to the language of the Constitution.
• It is now evident that a large proportion of the American people continue to regard the death penalty as an appropriate and necessary criminal sanction. (Politicians would push this at the top of their agenda when up for re-election)
• Legislative response to Furman proves the aforementioned point best.
• Death penalty serves two purposes:
  • Retribution
  • Deterrence of capital crimes
• Capital punishment is an expression of society’s moral outrage at offensive conduct. It may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous to humanity that the only adequate response may be the death penalty.
• There is no supporting evidence that the death penalty is a significant deterrent; however, there is no supporting evidence refuting it either. But some see it as a significant deterrent for those criminals who are at risk of committing severe crime in the future.
• In reference to federalism and moral consensus, the death penalty for murder is not without justification and thus not unconstitutional.
• When a life has been taken, it is an extreme sanction suitable to the most extreme of crimes.
• The judgment on the death penalty is ruled constitutional and is affirmed by the Georgia Supreme Court.

Dissenting Opinion: (Follows some Positivism and some Originalism)
Justice Brennan:

• The court has the duty as the ultimate arbiter of the meaning of the Constitution.
• Punishment by death is no longer morally tolerable in our civilized society.
• The Constitution states that even when we punish, we must treat citizens as human beings; punishment must not degrade human dignity.
• Constitution sees the death penalty as treating humans as non-humans, as objects to be toyed with and discarded.
• Constitution sees the death penalty as “cruel and unusual punishment.”
• Murdering the convicted murderer adds a second defilement to the first.

Justice Marshal:

• Death penalty is unconstitutional for two reasons:
  • It is excessive
  • The American people would reject it if they were fully informed of its purposes and liabilities. (Must reform the Justice System/Stats lean towards discrimination/Waiting for death/Methods of killing/Execution)
• The American people are largely unaware of the information on the death penalty and if they were fully informed, they would consider it shocking, unjust, and unacceptable. Studies show that Americans’ don’t know much about the death penalty and if they did, they’re opinion would differ drastically.
• An excessive penalty is invalid under the “cruel and unusual punishment” clause though popular sentiment may favor it.
• Data from a United Nations Committee states that there is no correlation between capital punishment and lower rates of capital crime.
• Retribution does not provide a moral justification for capital punishment.
• The possibility of “anarchy” (vigilantism) quoted by Justices Stewart, Powell, and Stevens does not justify capital punishment as it defies belief that the death penalty is necessary to prevent the American people from taking the law into their own hands. (Calms thirst for revenge)
• The contention that the death penalty reinforces moral values has no support because it has not accomplished those results.
• The death penalty is at odds with the 8th Amendment because it does not comport with the basic concept of human dignity.
• The death penalty is also forbidden by the 14th Amendment.

8th Amendment: “Cruel and Unusual Punishment”
Fundamentalist View:

• The public does not find it to be “Cruel and Unusual Punishment,” therefore still acceptable.

• To reign in the method of execution means that there is a search for a moral way to execute without pain.
• Other Western Countries have abolished the death penalty.
• We have more violent crime, therefore greater need for the death penalty.
• Four days before/Four days after a death sentence, statistically there more crimes committed in the particular area where the execution takes place.
• If criminal sentenced to death, the family receives peace and closure.
• If not sentenced to death, then the family may rise up in vigilantism which is difficult to contain outside of prison
• Life without parole, then the family would be appeased.

Part 1: Is the Death Penalty Constitutional?
“No person shall be deprived of life, liberty, or property without due process of law.”

• With “due process of law,” the Constitution authorizes depriving persons “of life, liberty, or property.”
• The 14th amendment leaves the decision of retention up to individual states.
• The 8th amendment prohibits “cruel and unusual punishments.”
• “Cruel” punishment is not prohibited unless “unusual” as well. (New, rare, not legislated, or disproportionate to the crime punished.)

Evolving Standards:
Trop v. Dulles

• “Evolving standards of decency that mark the progress of a maturing society” allows courts to declare “cruel and unusual punishments authorized by the Constitution.
• Expatriation is not authorized by the constitution. The Death Penalty is.
• Chief Justice Warren, writing for the majority in Trop, declared that the “death penalty… cannot be said to violate the constitutional concept of cruelty.” (Originalists)
• Evolving standards and current views, enacted by judicial fiat can not supersede what the constitution states. This can only be done with formal amendments.

Caprice:

• Laws that are allowed courts too much latitude to decide, perhaps capriciously, whether to actually impose the death penalty in capital cases also were found unconstitutional.
• Two-thirds of states have modified their death penalty statutes. Aggravating factors must outweigh mitigating factors to impose the death penalty. (Furman)
• Professor Black says that elements of chance, unavoidable in all penalization, are least tolerable when capital punishment is involved.
• This is not a reason for abolition. The framers were aware of chance and human frailty.

Discrimination:

• Black or poor defendants were more likely to be executed than equally guilty others.
• This argues for correction of the distributive process, but not abolition.
• Unless the distribution problem is inherent in the penalty.
• There is no evidence to support this.

Comparative Excessiveness:

• Is the death penalty unconstitutionally disproportionate if defendants, elsewhere, received lesser sentences for compatible crimes?
• The Constitution only requires that penalties be appropriate to the gravity of the crime not that they cannot exceed penalties imposed elsewhere.
• Equality and justice are not the same.
  • We strive for two distinct ideals of equality and justice.
  • We want justice and we want to extend it equally.
  • Unequal justice is still justice.
  • Equal injustice is injustice for all.
  • It is never possible to punish equality.
  • If the death penalty were inherently discriminatory but deserved by those who received it, it would be morally just to impose it upon them. (Failing to execute those who deserve to die)
  • A law that is unequally enforced is not a law.
• Laws could never be applied if the escape of one person, or group were accepted as grounds for not punishing another. (Plea bargain)
• To do justice is primarily to punish as deserved and only secondary to punish equally. That justice does not catch up with all guilty persons understandably is resented by those caught. But it does not affect their guilt.
• Our courts consider evidence not truth. Truth is only found if evidence establishes it.
• They may have reasonable doubts abut the guilt of an actually guilty person. Unequal justice will remain our lot in this world.
• Black murdering a black is less likely to be sentenced to death. More likely favored and let off.
• A black murders a white, more likely to be sentenced to death. More likely favored and hung.
• Must work out the kinks, therefore we need to get all who deserve to die.
• According to can den Haag it is a “fairy tale argument, where does it really work?
• States revolved around the Furman decision (1st Degree)

Capital Crime:

• Has to premeditated (Plan it)
• Mitigating and aggravating factors (warrant death penalty)
• Opportunistic: Example: Son killing grandfather for inheritance.
• Malice
• Hate Crime (Malicious intent)
• Repeat offense
• Multiple victims
• Murder a law enforcer
• Murder children
• Or Murder in conjunction with some other crime.
• Cross state lines/Will be tried in multiple state courts and federal court
• Social class — public defender/It is a reason to get the death penalty or revise the system.
• Because innocent people will be executed and because there are flaws within the system…then abolish the death penalty? (Nathanson)
• Statistics has not proven if the death penalty has or has not deterred murderers more than other punishments.
• Most abolitionists would still fight to abolish the death penalty even if studies proved that the death penalty proved to deter murders from happening; van den Haag then concludes that abolitionists consider one life more important than the many lives the murderers could take.
• Van den Haag believes that a life of an innocent has more value than a life of a convicted murderer.
• Van Den Haag also believes that the death penalty would be more successive in deterring crimes because people fear death more than anything else.
• Death penalty could be the only punishment that would deter prisoners with life sentences to not harm the guards and/or other prison mates.
• Although many prisoners on death row appeal for life sentences rather than execution, there are a miniscule proportion of convicted murders that would prefer it.
• Van den Haag believes that it is doubtful that execution is more costly than life sentencing because life prisoners spend as much time preparing habeas corpus appeals as those on death row. Also even if it were to be more costly that should not be the reason to abolish the death penalty if it is just. (Empirical question: Which is more costly? Might be mute.)

Part 2: Compensatory Judgment
Is the Death Penalty more of a deterrent than other forms of punishment?

• Statistics has not proven if the death penalty has or has not deterred murderers more than other punishments.
• Most abolitionists would still fight to abolish the death penalty even if studies proved that the death penalty proved to deter murders from happening; van den Haag then concludes that abolitionists consider one life more important than the many lives the murderers could take.
• Van den Haag believes that a life of an innocent has more value than a life of a convicted murderer.
• Van Den Haag also believes that the death penalty would be more successive in deterring crimes because people fear death more than anything else.
• Death penalty could be the only punishment that would deter prisoners with life sentences to not harm the guards and/or other prison mates.
• Although many prisoners on death row appeal for life sentences rather than execution, there are a miniscule proportion of convicted murders that would prefer it.
• Van den Haag believes that it is doubtful that execution is more costly than life sentencing because life prisoners spend as much time preparing habeas corpus appeals as those on death row. Also even if it were to be more costly that should not be the reason to abolish the death penalty if it is just. (Empirical question: Which is more costly? Might be mute.)

Part 3: Is the Death Penalty Moral?

Miscarriages:

• Miscarriages are rare but do occur, but the benefit of death penalty outweigh the harm. Example: Trucks employed by the government/Fatal accident with Postal Trucks/Acceptable risk.

Vengeance:

• Though vengeance may be a motive, the purpose of the death penalty is to do justice and deter crime.
• Provides examples from the bible that God allows the government to administer vengeance. (The State can represent God’s wrath)

Charity and Justice:

• Van den Haag thinks the moral views of the church have changed because in the past the Roman Catholic Church, as well as most Protestants, supported capital punishment, always distinguishing between punishment and charity. (More emphasis of charity towards criminal/Church is confused and should go back to its old ways.)

Human Dignity:

• “Many abolitionists believe that capital punishment is ‘degrading to human dignity’ and inconsistent with the ‘sanctity of life.’”
• Van den Haag does not see how capital punishment is more degrading to dignity than life in prison.
• Punishment is not meant to be pleasant, and murderers suffer less on death row than people awaiting their deaths in hospitals, unless their consciences bother them.
• Deterrence Factor is Utilitarian.
• Death Penalty is just. Because a few are innocent that means we should abandon the death penalty?

Lex Talionis (Ta-lee-onis):

• Puts limitations on what we can do privately.
• The punishment does not have to fit the crime.
• Some insist that the murderers facing the death penalty suffer more than their victims had suffered.
• The death penalty is punishment for the murderers, not just for the suffering of their victims, but also for creating an unsafe environment for the society. (Slide into Anarchy/Public Solidarity of the law. What makes it civilized is that it is reigned in.)

Sanctity of Life:

• Constitution authorized to take the life of a murderer by protesting the lives of the innocent.
• The authors of the Declaration of Independence did not believe that taking a murderers life was inconsistent with the “sanctity of life.’

Legalized Murder?

• “An act does not become a crime because of its physical character, which indeed, it may share with the legal punishment, but because of its social, or better, antisocial, character — because it is an unlawful act.”

Severity:

• Other crimes, excluding murder, are partly or potentially reparable, but murder is not. Van den Haag believes that torture may be repulsive, but death is natural, something that will happen to everyone, some day.
• Capital punishment, according to Mill, “hastens death,” just as the murderer did to his victim.
• “To believe that capital punishment is too severe for any act, one must believe that there can be no act horrible enough to deserve death.”

Conclusion:

• Two reasons that explain the prominence of the death penalty issue:
  • The genuine ethical issue:
    • The right to life is equally imprescriptible to all, that the murderer has much right to life as much as his victim.
    • That a person loses this own to life when he intentionally takes an innocent life.
  • Symbolic significance:
• Those who favor capital punishment believe that the major remedy for crime is punishment.
• Those who are against believe that the remedy for crime is anything but punishment.

• Retributivists: Punishment is Retributivism, therefore abolitionists do not believe in deterrence or punishment.

Empirical Evidence is Inconclusive:

• Common sense argument that Capital Punishment is a deterrent.

Appeals Process:

• Seeks clemency from the governor of the state.
• Shows that criminals don’t want to die.
• Might be the only thing that can deter the criminals from the second worst punishment. I.e., what stops the murderer from killing other criminals and jail guards.
• There are those that have killed once, so why not kill again. You can only sentence a person to death once.
• Abolitionists will not be persuaded by seeing the light.
• Killing has positive connotations (Acceptable connotation)
• Murder has negative connotations

Constitutionality of the Death Penalty:
Fifth Amendment and Due Process:

Van den Haag: “The fifth amendment…states that ‘no person shall be deprived of life, liberty, or property, without due process of the law.’ Thus with ‘due process of the law,’ the Constitution authorizes depriving persons ‘of life, liberty, or property.” (508).
Bedau: Doesn’t believe in Lex Talionis.

• The constitution does not authorize the death penalty, it presents a conditional proposition: “If life is to be taken as a punishment, then it must be done with due process of law.” (515)
• Are the current procedures for imposing the death penalty satisfactory to the due process requirement? No.
• The legislature could not enact a statute that amputated a person’s hand after his third felony and rely on the term “limb” in the 5th Amendment to validate this law provided it was done with due process of the law. The 8th Amendment (no cruel and unusual punishment) would invalidate this law.

“Cruel and Unusual Punishment” and “Evolving Standards of Decency”:
Van den Haag: “…the argument based on ‘evolving standards’ is paradoxical: the Constitution would be redundant if current views, enacted by judicial fiat could supercede what it plainly says. (508)
Bedau: Troop v. Dulles, Supreme Court ruling that the 8th Amendment must be interpreted according to “evolving standards of decency.”
Van Den Haag: Trop was valid because the punishment was “not specifically authorized by the constitution.”
Bedau: Capital punishment is not specifically authorized either.
Bedau: Van den Haag argues that any punishment that is given with “due process of the law” and was tolerated by the framers is constitutionally “authorized.” He provides no weight to the proportionality of punishment (as used to define “cruel and unusual punishment.”) Under Van den Haag’s reasoning, many crimes could be punished by death; he provides no limits to its application.
Van den Haag: Any legislature that wants to enact the death penalty for rape is constitutionally authorized to do so, even if disproportionate. (516)

Capricious (unpredictable, impulsive):
Van den Haag: Since Gregg, many states have enacted death penalty reforms that eliminate capricious. (As much as possible given inherently human shortcomings) The remaining and those not punished is a result of “lottery” or chance. (Disagree)
Bedau: the reforms have done nothing but made cosmetic, discrimination is not caused by chance. (Disagree)
Van den Haag: Unless we believe the death penalty is more capricious today than pre-Furman, then this causes no constitutional problem. (Furman - the case that made states create new statutes regarding the application of the death penalty to make it less arbitrary, discriminatory, etc.)
Bedau: this is a bad argument; unless the death penalty is significantly less (or not at all) capricious today, those standards created by Furman ought to be invalidated by Furman itself! Since this has not happened, and the application of the death penalty is still obviously capricious, we see the ideology and politics of the court rather than a serious attempt at non-capriciousness. (516) (We will see a Constitutional ruling saying the “Furman Problem” has not been rectified.)

Racial Discrimination:
Van den Haag: There is some racial discrimination (throughout the entire criminal justice system) but the solution is to abolish the racism, not the death penalty. Van den Haag contends that discrimination against black murderers is cancelled out by discriminating against black victims. (Lack of justice for the victims)
Bedau: Abolishing the racism is a great thought, but that is not going to happen. (Look at history) The only way to minimize the (unavoidable) inequalities is to sentence all murderers to prison. Discrimination for and against blacks "canceling each other out" is totally ridiculous. Not only is this fiction, but a number of other confounding factors contribute to the discrimination.

Racial Disparity:
Van den Haag: This disproportion is a result of "lottery" or chance. Giving some murderers what they deserve even though we cannot get all of them is better than not giving some murderers what they deserve even though we cannot get all of them is better than not giving any of them what they deserve. (Justice over equality)
Bedau: Great in theory, but evidence shows that the disparity is not due to factors like race, social class and social policy. This is why the death penalty can be criticized on equal protection grounds. The penalty is given to one group over another (MLK: Rule not equally enforced.) (Evident in segregation laws, but not evident in the death penalty.)

Deterrence of the Death Penalty:
Van den Haag: Empirical evidence is inconclusive.
Bedau: Evidence is conclusive; it is not a more effective deterrent because people fear death more than van den Haag: the death penalty must be a better deterrent because people fear death more than life in prison. (Depends on which study you look at.)
Bedau: Many murderers are not thinking of the punishment likely to perceive, they are thinking of how to avoid getting caught and getting any punishment. The death penalty or a prison sentence could deter only rational people.
Van Den Haag: People on death row want to get their sentences commuted to life in prison making it less severe than the death penalty.
Bedau: The death penalty is more severe, but that does not therefore make it a better deterrent.
Van den Haag: Even if only a few people were deterred it would be worth it.
Bedau: What costs are you prepared to pay? High financial and moral costs. Where is the line drawn here?
Van der Haag: Life in prison is more costly than death. The high rate of appeals makes the death penalty so costly. Even if the death penalty were more costly than prison life, it would still be wroth it to pay "what justice costs." Bedau: Van den Haag is simply wrong (Dieter), capital punishment is more costly and it is not due to the post-conviction appeals. We should pay what justice costs, but it has not been shown that death is what justice costs. (Addressed in section 3)
Bedau: van den Haag has failed to address why (since the death penalty is supported on deterrence grounds) other punishments (such as torture) should not be used if they proved to be more effective deterrents (utilitarian). Van den Haag dismissed the doctrine of proportionality and is now only able to create limits with "collective subjective preferences." I.E. Van den Haag dismisses torture as repulsive to us, but not as repulsive to torturers.
Van den Haag: "...for these abolitionists would spare the murderer, even if doing so would cost a hundred future victims their lives." (Van den Haag, 511)
Bedau:

1. A refusal to authorize the killing of murderers is not the same as authorizing the death of innocents, there is no responsibility transferred for those future deaths.
2. This point is so far-fetched and exaggerated that worrying about it makes no sense. Bedau is "confident that zero deterrence would be lost" (519) as explained earlier.

• Bedau regarding federal trucks have moral justification but is Utilitarian. (Look at how much happiness the Post Office provides.
• To break down an analogy, site the difference.
• Bad form to speak from a religious forum, better to speak from a secular forum.
• Human dignity p.519/520 [Green bracket]
  • No clear-cut thoughts on Human dignity.
• P.520 Col. 2, [Green Bracket]
  • 1)
  • 2)
  • 3)
• Once convicted of crime if desert is what after then mandatory death penalty.
• P.521, Col. 1, Secondly... [Green bracket] Rejects lex talionis
• State killing. P. 521 col. 2, 1st para, 2nd para.
  • The state discriminates who to kill.
  • So why can't I discriminate?
• States overwhelming power on display against helplessness of the prisoner.
  • Killing is killing.
  • Euthanasia of a pet.
• P.522 Col. 1, last para. To Col. 2 top of para.
• Right to Life Issue.
  • There instances where we have to.
• Major good point to argument/Final stake/P. 522, Col. 2, [Green bracket]

Giving People What They Deserve:

• You can believe that someone deserves to die, and yet oppose the death penalty. Executing someone may conflict with other obligations.
• "There is no consistency in conceding that murderers deserve to die and still opposing the death penalty."
  1. Brutalization Effect (controversial): "Exclusions actually cause homicides." (Innocent people are put in danger)
  2. Double Jeopardy: A person cannot be tried for the same crime twice. Suppose someone admits guilt post trial? He cannot receive the punishment he deserves. (Criminal Law only)

  3. Legal System Maintains Multiple Goals: The goals are bound to conflict. (Can't make everyone happy. What best serves a set of values. Could be Utilitarian)

Furman v. Georgia (1972): The case rules that the administration of the death penalty was cruel and unusual punishment because the death penalty was imposed in an arbitrary manner. Court's concern was the legal procedure under which the death penalty sentences were being determined, not the punishment.

1. Classification of Murders:
   1. Murderers that commit the worst murders shall be in consideration of the death penalty.
   2. Ranking of murders was based on non-factual elements, i.e. race and socioeconomic factors.
2. Moral Basis of Furman:
   1. Just because a person deserves to die does not mean his execution is just. (What is meant by "just"? Injustice: Discrimination/Especially in an Egalitarian Society)
   2. Basing punishment on uncontrollable, irrelevant factors is cruel and unusual punishment.

Eliminating Arbitrariness:

1. Mandatory Death Sentences: Ruled unconstitutional in Woods v. North Carolina because they failed to permit consideration of individual differences among defendants. (Ruled unconstitutional)
2. Guideline Discretion: Ruled constitutional in Gregg v. Georgia because they made arbitrariness sufficiently unlikely. (Abolitionists not happy with guidelines)
3. Decide Degrees through Sincere Remorse: Previous criminal record.

Against the Argument from Arbitrariness: Looking at the end v, looking at the means: Proponents of the death penalty look at the punishment itself as just. The problems in the procedure arriving to it have no bearing. Opponents claim the death penalty is unjust because the procedure is unjust.

Arbitrary Decisions about who Deserves What: (Core of the argument)

1. Arbitrary Imposition: Determining who will die and who will not.
   1. Assumes we know who deserves to die.
   2. Some of those who deserve to die are executed.
2. Arbitrary Judgement: the determination of who deserves to die is arbitrary. THERE ARE NO STANDARDS!! (The greater problem) The sate can not separate those who deserve to die and those who do not in a rational and just manner.

Is the System Still Arbitrary?

• Look at statistics on p.754
• Florida v. Georgia outcomes
• Lawyers prediction on an outcome

Liberty: All Utilitarian

Ethical Theory in Utilitarianism:

• Usually in favor of Society & the Majority.
• Reverses on Liberty: They are looking at the "Big Picture."

Liberty in General:

• If everyone has the right, will create the ultimate amount of happiness.
• Is it purely selfish pursuing happiness?
  • Extends to others.

Liberty: Thought & Feeling:

• Squelch an opinion we loose the ability to discover the truth.
  • Less discovery w/limitations.

"The Harm Principle":

• Physical Harm
• Psychological Harm (Non-racist)
• Mill is defending Minorities
  • May be best hope for the future.
  • Don't know where next discovery or innovation may come from.

Examples:
Iraqi Society v. France Society?

• France is the happier society.

"Village of Skokie, Ill v. American Nazi Party"

• Residents of Skokie, Ill were mainly Jewish survivors from the Holocaust.
• ACLU: Jumped in to defend the Nazi Party and the Courts ruled in favor of the Nazi Party.
• Based their decision on Freedom of Expression.

"Flag Burning"

• Not sufficient harm.

The Four Philosophical Theories of Liberty: All Utilitarian

1. Harm Principle/Liberty
2. Legal Moralism
3. Legal (State) Paternalism
4. Offense Principle (Has limited applications)
   • Prohibits conduct that is offensive to society's standards, but not harmful to others.

• (2 & 3 are the most controversial of the four)

State Imposed Limits on Personal Liberty

• P.197 "The People v. Edgar S. Bullington"
  • Charged w/mutilation of bodies because removing dead people's gold fillings.
    • Glorified Grave Robbing.

Background: Mill establishes baseline on Liberty as far as American context/viewpoint.

• The only situation is which the state may exercise power over an individual is to prevent harm to others.
• The state cannot make an individual do something or forbid them from doing something simply because the state believes that it is in the best interest of that particular individual.
• A person is free to do whatever they desire so long as it does not harm or interfere with the freedom of other individuals. The exception to this is persons unable to care for or protect themselves, i.e. children and disabled persons. (Backwards states of society: Imperialistic England and the 13 colonies/Backwards children)
• Despotism is acceptable only when mankind is not capable "of being improved by free and equal discussion: ...when man is a barbarian.
• When man is capable of reasoning his own well-being, the state can no longer use despotism as a means of control.
• Man is also under a duty to perform certain tasks within the state.
  • Testifying in court
  • Saving someone's life
  • Protecting society in general
• Man does not, however, have to comply to these duties if in doing so his own well-being is threatened.
  • Freedom is compromised of the following:
  • Freedom to think and feel what one chooses
  • Freedom to hold and express opinions
  • Freedom to pursue what we choose and to like what we choose
  • Freedom to unite when not harming others
• "The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it."
• There is an increase today in the encroaching power of society. By use of force of opinion or by legislature, the world today is trying to strengthen the society by weakening the individual. This problem isn't going anywhere.
• Because of a love of power and an increase in power, we should expect in the future that our freedom will be targeted by the powerful unless a "moral barrier" is put up against this.

At the top is Utilitarianism:

Background: Devlin’s philosophical argument is based on the Wolfenden Report, which takes into consideration two difficult legal and social problems.

• Sets out clearly and carefully what in relation to its subjects it considers the function of the law to be.
• The law demonstrates no logical relationship between it and moral ideas that most of us uphold in relation to sexual offences.
• Adultery, fornication, prostitution (Legal Moralism or Paternalism), and homosexuality between females are not criminal offenses. (What about Polygamy?)
• Homosexuality between males is a criminal offence.
• There is a proposal to make artificial insemination of a married woman with the seed that is not her husband’s a criminal offence, yet does not make adult a criminal offence.

Practical Question: Does the legislature select offences haphazardly or is there some principles that are used to determine what part of the moral law should be embodied in criminal law? (P.203, Col. 1, Top of page.)

Practical Question: What is the connection between crime and sin and to what extent, it at all, should the criminal law concern itself with the enforcement of morals and punish sin or immorality? (P.203, Col. 1, End of first para.)

Practical Question:Why does the law inquire into matters that are clearly matters of private morality and do not involve the law? (P.204, Col. 1, End of first para.)

Practical Question: Where does the Law or the State get the power to settle issues of morality and enforce them? (P.204, Col. 1, 2nd para.)

According to Devlin;
“Immorality for the purpose of the law: is what every right-minded person is presumed to be considered immoral.”

“Any immorality is capable of affecting society injuriously and this is what gives the law its locus standi.”

Three areas of philosophical interrogation: (P.204, Col. 1, 2nd para.)

• Has society the right to pass judgment (what is good and what is evil) at all on matters of morals? Ought there be a public morality, or are morals always a matter for private judgment?
  • There is a case for collective judgment, IF and only If society is affected.
  • There is a case for collective judgment, IF and only If society is affected.
  • Is the freedom of choice and action of an individual to decide for himself what is moral or immoral, society remaining neutral; or is it freedom to be immoral if he wants to be?
  • Define ‘private morality’ as private behaviors in matters of morals.
  • The Wolfenden reports claim there is a public morality, which decides what is moral and immoral.
    • Every society is made up of morals and politics.
      Ex: The institution of marriage ‘bridges’ both morals and politics.
    • Society has chosen to organize itself upon monogamy; society thinks of it as something that is good and constructive upon itself offering a good life, therefore this is the reason why society has adopted it.
    • Hence a society is a community of ideas; without shared ideas on politics, morals and ethics no society can exist.
• If society has the right to pass judgment, has it also the right to use the weapon of the law to enforce it?
  • According to Devlin, it is not possible to set theoretical limits to the power of the State to legislate against immorality.
    • Society is entitled by means of its laws to protect itself from dangers, whether from within or without.
    • There is disintegration when no common morality is observed and history shows the loosening of morals is the first stage of disintegration.
    • Therefore, society is justified in taking steps to preserve its moral code as it does to preserve its government and other institutions.
      Ex: (P.206 Col. 1 Top of page), the right to get drunk every night in the privacy of your own home… What kind of world would it be if everyone did this? Simple! Compare to Former Soviet Russia manufacturing. Once the mad rush was over to meet the State quota for production that month, the employees were paid, went off on drinking binges and didn’t return to work until the 2nd, 3rd, 4th or 5th of the month due to drinking.
• If so, ought it to use that weapon IN All CASES or only in some; and if only in some, on what principles should it distinguish?
  • The State/the Law has a locus standi.
  • The Individual/the Citizen, has a locus standi, who cannot be expected to surrender to the judgment of society throughout the conduct of his life. I.E. the right of the individual to be an individual; Individualism.
  • Question of balance between the rights of the community and the rights of the individual.
  • Therefore Law becomes a curtailing of societies rights and the rights of the individual, in order to ensure that the essential needs of each are met.
  • Morality is a sphere in which there is a public interest and a private interest, often in conflict.
  • When the law’s balance of the public and private interest is an ad hoc decision, it must contain statements of principle to which the court should have regard when it reaches a decision.
  • Therefore the right to privacy is something to be put in the balance against the enforcement of law.
  • Hence in a limited number of cases, the right to privacy should be taken into account in the formation of some laws.
  • “When all who are involved in the deed are consenting parties and the injury is done to morals, the public interest in the moral order can be balanced against the claims of privacy” (Devlin)
  • According to Devlin, “the test of ‘private behavior’ should be substituted for ‘private morality’ and the influence factor should be reduced from that of definite limitation to that of a matter to be taken into account.”

Fundamental to the entire argument:

1. How are the moral judgments of society to be ascertained?
2. How is the law-maker to ascertain the moral judgments of a society?
   • Too difficult to require the individual consent of every citizen.
   • Decided by what is considered reasonable by the ‘reasonable man,’ according to Devlin, ‘the man in the jury box,’ not to be confused with ‘rational/rational man.’
   • May not be based on ‘reason/thinking’ by on ‘emotion/feeling.’
   • Definition: Reasonable Man - the moral judgment of society must be something about which any twelve men or women drawn at random after discussion be expected to be unanimous.
     • What they conclude is ‘Practical Morality.’
     • It is not based on theological or philosophical foundations.
     • Based in a mass of continuous experience, half consciously or unconsciously accumulated. It embodies the morality of common sense.
     • It is a certain way of thinking on questions of morality, which we would expect to find in a reasonable civilized man take at random.

Patrick Devlin is either a Judge or Member of Parliament.

Individual - Private Morality
Liberty

• State (Between the two and works on the behalf of both)

Society - Public Morality
Social Needs

What are the limits to my freedom?

• Mill: "Harm Principle" - anything that harms others
• Devlin: "Legal Moralism" - A Common Morality
• Three Elastic Principles:
  1. Tolerance: There must be toleration of maximum individual freedom that is consistent with the integrity of society.
  2. Levels of Tolerance Shift:
  3. As far as possible, Privacy should be respected, but Public Interest in Moral Order be balanced against the claims of privacy.
• Devlin wants to agree with Mill, but thinks Mill goes too far with "Freedom."
• Devlin is trying to reign in Freedom somewhat.
• Total Freedom can be harmful to the integrity of society and may ultimately cause its collapse.

Legal Moralism: a legal position in regard to Liberty that establishes a restraint of Liberty based on Common Morality.

Limitations of Freedom:

• I cannot harm anyone.
• Cannot do anything that will undermine society as a whole.
• Victimless Crime.
• Devlin's explanation is why society puts a limit on freedom say, Prostitution, is that society considers it an immoral act.

(Hart's rebuttal to Devlin's essay, "The Enforcement of Morals")

Background: To justify the legal enforcement of morality it is important to distinguish a moderate and an extreme thesis.

Lord Delvin: The moderate thesis (Legal instrument to perpetuate the flourishing of society.)

• Shared morality is the cement of society; without it there would be aggregates of individuals, but no society.
• "A recognized morality as necessary to society's existence as a recognized government." (Delvin)
• Society has the right to enforce a morality as such on the grounds that a shared morality is essential to society's existence.
• Delvin denies that there could be such a thing as private immorality and his comparison of sexual immorality, even when it takes place in private with treason.
• Morality of law should be enforced in public in the sense that it is generally shared identifiable by the triple marks of intolerance, indignation, and disgust. (Offense principle)

Hart: Clearest way of distinguishing the two theses is to see that there are always two levels at which we may ask whether some breach of positive morality is harmful:

1. We must ask, does this act harm anyone independently of its repercussion on the shared morality of society?
2. Does this act affect the shared morality and thereby weaken society?

Stephen: The extreme thesis:

• Doesn't look upon a shared morality as simply an instrumental value equivalent to ordered government, and it does not justify the punishment of immorality as a step taken, like the punishment of treason, to preserve society from dissolution or collapse.
• Instead, the enforcement of morality is regarded as a thing of value, even if immoral acts harm no one directly or indirectly by weakening the moral cement of society.
• Has many alternatives there is something intrinsically valuable in the legal enforcement of morality.
• Once common alternative to both theses, they do not hold the enforcement of morality or its protection to be valuable only because of their beneficial consequences is securing the existence of society.

Hart's Moderate & Extreme Thesis:

• Hart's blow to Devlin's argument against Homosexuality.
• P.208, Col. 2, [Green Bracket]
• P.208, Col. 2, [Green Bracket]
• Hart thinks Devlin is out of control.
• Legal Moralism seems to be disconnected from Real Society of the time
• Devlin's claim that if 12 people were in a jury, that they would unanimously decide Homosexuality is morally wrong

Paternalism is different than Legal Moralism.

Difference between Legal Moralism and Paternalism:

1. Legal Moralism:To perpetuate flourishing of society (Focused on Society)
2. Paternalism:To protect the individual that cannot make a good decision on their own. (Focused on the Individual)

Background: A discussion about the relationship between law and morals.

Hart's Doctrine:

1. Not the same as Mill.
2. Has not been presented with clarity and definition.
3. Only revealed in order to compare to Mill's doctrine.
4. Well grounded, down to earth.

According to Delvin:

• Mill's ideas in "On Liberty," have been available for over 100 years, but have not been put into practice.
• Certain actions are morally wrong and should be forbidden by law.
• There are reformers who attempt to change laws that they think are morally wrong.
• Even though it is not perfect, a democracy is composed of the best and most comprehensive set of statements of social reality at that time.
• There are always old laws that could be repealed.
• Law cannot be immediately responsive to new developments.
• The observation of man is needed to test the quality of the law.
• Professor Hart would keep laws concerning bigamy and cruelty to animals and would abolish laws relating to homosexuality, abortion, incest, obscenity, and prostitution. (We don't know if that would be true, if Hart even said this, or would Hart think this. This conjecture on Delvin's part.)
• Hart is not offering an alternative to "Legal Moralism."
• Delvin's claim/point is that law does not draw guidelines and laws that guide us to prevent acts that are deemed by society as immoral by society.

A contrast between Mill and Hart on morals in punishment:

• Mill would not allow morality to be involved in making law.
• In reality, the degree of moral guilt does not determine how severe the sentence will be.
• The law considers the gradation of offenses in the criminal calendar and considering the wickedness in the way the crime was committed.
• Hart doesn't eliminate morality. Harmful conduct determines the amount of punishment.
• Power given for one purpose should never be used for another purpose.
• As an example, no extra punishment should be added to a punishment for adultery since adultery isn't criminal. The law should be concerned with harming another person against their will. (P.231, Col. 2, [Green bracket]

(Infringements on Individual Rights/The State treat society as a child)

• The only purpose for which power can be rightfully exercised over any member of a civilized community, against their will, is to prevent harm to others.
• Man cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right.
• There are two principles:
  1. Asserts that self protection or the prevention of harm to others is sometimes a sufficient warrant.
  2. Claiming that the individuals own good is never a sufficient warrant for exercise of compulsion either by the society as a whole or by its individual members.
• "I shall not be concerned with activities which though defended on paternalistic ground are not interference's with the liberty of persons."
• "The class of the person whose good is involved is not always identical with the class of persons whose freedom is restricted."
• Paternalistic inferences should be divided into "pure" and "impure" cases.
• In "pure" paternalism, the class of person whose freedom is being restricted is identical with the class of persons whose benefit is intended.
  • Examples of Pure:
    • The making of suicide a crime.
    • Requiring passengers in automobiles too wear seat belts.
    • These are done for the individual's benefit.
• In "impure" cases, the incurring of the harm requires the active cooperation of the victim. It may be that impure paternalism requires arguments or reasons of a stronger kind in order to be justified.
  • Examples of Impure:
    • Licensing
• Paternalism then will always involve limitations on the liberty of some individuals in their interests, but it may also extend to inferences with the liberty of parties whose interests are not in question (impure).
• Paternalism might be thought of as the use of coercion to achieve a good, which is not recognized as such by those persons for whom the good is intended. (Definition of Paternalism/Justification of paternalism)

Dworkin:

• Claims Paternalism is as controversial as Legal Moralism.
• At first Dworkin seems to agree with Mill, then brings out the negatives.
• All of the people within this study of Liberty agree w/"The Harm Principle."

Licensing of Medical Doctors mandated by the State:

• Not done for your own good, but done for everyone, else who may knock on your door for Heart Surgery?
• Can't call yourself a Psychologist w/o a license.

Seat Belt Requirement:

• Requiring a seat belt also infringes on Society.
• Risk of death & dismemberment.
• Societal Argument: If crack skull, we don't want to pay for your damages if you live.

Physician Assisted Suicide:

• Suicide/Physician assisted suicide has been approved in the state of Oregon.
• Federal Judicial System is trying to try it as an "Unconstitutional Law."
• Person trying this can be tried/declared not in proper mental capacity/no "rational" person would be left to die.
• Bring in the state because there is a "Harm Principle" in that we have to care for you if you harm yourself.

Burden Question? - The state is willing to assume the burden of keeping someone alive who is comatose.

Is Paternalism is an insidious form of control?

• Many would argue that it is.
• Dworkin doesn't want to allow any act of "Paternalism."
• Dworkin talks about Mill's distaste for Paternalism.
• P.213 Talking about Hart & Stephen.
• People know what is good for them and bad for them.

The State's Restraint:

• Because autonomy in itself cannot be disrespected.
• Selling yourself into Slavery:
• State does not allow, therefore protecting your right to autonomy.
• Biggest threat to autonomy.
• Selling your body organs.
• Guarding your health.
• Does allow for Egg Donors/Sperm Donors/Blood Transfusions.

According to Dworkin: The State trying to preserve your autonomy in some future state.

So what is the difference between Seat Belts and Mountain Climbing?

• On particularly difficult climbs, must hire an experienced guide in order to receive approval.

“Some cases of paternalism do not use coercion or force and, therefore, do not involve liberty.”

• Doctor patient relationship.
  • Misinformation
  • Not revealing more than the patient wants to know.

There are more ways to paternalize besides coercion or manipulation of information:

• Refusal to engage in a form of social cooperation (not playing a game to avoid hurting someone’s feelings)
• Acts that don’t violate the rights of the person in question.
  • Patients don’t have the right not to be told the truth.
  • A suicidal person doesn’t have the right to someone’s pills.

The only condition that will work for the definition is one that depends upon the fact that the person does not wish to be treated a certain way.

There must be a violation of a person’s autonomy for one to treat another paternalistically. There must be a usurpation of decision-making.

Soft Paternalism:

1. Paternalism is sometimes justified.
2. It is necessary condition for such justification that the person for who we are acting paternalistically is in some way not competent.

Hard Paternalism: Paternalism is sometimes justified even if the action is fully voluntary.

Three cases which are difficult for the soft paternalist:

1. Safety Cases:
   • Requiring usage of certain things.
     • Motorcycle helmets, hunters must wear bright jackets, drivers must wear seatbelts.
   • Preventing people from using various things.
     • Red dye #2, fire crackers, heroin.
2. Collective Decisions:
   • Illustrated with fluoride in drinking water. There is no requirement to drink it.
   • Makes it easy for people who want it.
   • Makes it hard for people who don’t want it.
3. Slavery Cases:
   • Forbids people to sell themselves into slavery or to sell body parts.

The first strategy:

• Argue that assumptions about these cases are not valid.
• Anyone who would agree to do these things must be distracted, misinformed impetuous, weak willed, self-destructive, etc.
• Yet, nothing in these concepts, like becoming a slave, prohibits one from doing so freely.

Justification of interference based on the interest of third parties is non-paternalistic.

Safety Cases:

• Persons who are injured or killed because of their risky impose a cost upon the rest of us.
  • Medical costs might require mandatory health care, but not safety helmets.
  • Safety helmets might save people who would have died otherwise. (They would then require costly medical care.)
  • Cost of rescue operations might warrant insurance for all motorcyclists.
  • What about the people who disobey and don’t get insurance?
  • Libertarians would deny aid to these individuals.
• Hunters who do not wear brightly-colored clothing.
  • People have to bear the knowledge that they do not tip the scales enough to impose restrictions on behavior.

Collective decisions:

• Creates difficulties in schemes which require unanimous consent.
  • Can’t always assume that we all share common values, religious outlooks, and risk taking preferences.
• It is both more effective and cheaper to put fluoride in the community water supply than it is to distribute fluoride pills to those who want them or to supply non-fluoridated water to those who do not want fluoride.
• This is a constitutional question of deciding what powers to give the legislature.
• Relevant conditions:
  • The majority interest must be important (health).
  • The imposition on the minority must be relatively minor.
  • The administrative and economic costs of not imposing on the minority would be very high. (Have right to buy bottled water)
• The restrictions on the minority are not motivated by paternalistic considerations but by the majority’s self interest.
• These are not paternalistic decisions.

Slavery cases:

• There is nothing in the idea of autonomy that precludes a person from saying: “I want to be the kind of person who acts at the command of others. I define myself as a slave and endorse those attitudes and preferences. My autonomy consists in being a slave.”
• One can’t argue against such slavery on the grounds of autonomy.
• The case may be reduced to a safety-case as one of mistaken calculation about the best way of securing a person’s good as conceived by her or him.

Paternalism is more controversial than Legal Moralism?

• Paternalism gets more attention than Legal Moralism.
• The State preventing one from doing things.
• Reigning in Freedom more than Mill does which creates the objection to them.

Mill did not declare himself a "Libertarian"

Liberation: Says you have rights because you as an individual have value which exceeds the Utilitarian Principle of the best is that serves the greatest # of people, producing the greatest amount of good.

Background: On August 13, 1989, Buddy Hernandez was standing at a street corner with his traditional Ku Klux Klan outfit and hood. The hood covered his whole face except for the eyes. He was arrested for violating a state law prohibiting a person over the age of sixteen to wear a mask as to conceal his identity. He was sentenced to thirty days in jail suspended and a $1000 fine.

Hernandez argued his case with the following points:

• He did not try to conceal his identity. He claims to have been wearing the mask only for the symbolic purposes.
• To this the court said, “A trier of fact may infer that a person intends the natural consequences of his acts.”

• Hernandez also claims that the statute is unconstitutional because, “it penalizes him for engaging in disfavored symbolic speech.” He therefore wants to invoke the first amendment.

• The court though, says that for his activities to fall in the scope of the first amendment he must have had a message that could have been understood by those who saw him but they ruled that he did not. One thing that is peculiar is that they mentioned the hood and mask part of the KKK’s outfit as being a meaningless item when not worn without the cape and robe, but that the ladder two were symbolic by themselves. Such a mask would be very representative of the Ku Klux Klan. The court mentioned that they do take the language of the law as open, so as to accommodate the wearing of a ski mask in winter, veils, etc.

• Finally, Hernandez says that he is being targeted because of his beliefs are unpopular and that he is being tried because of them.

• The court says that it does not take into account the beliefs of the appellant although it acknowledges that the original statute was passed with one about the burring of crosses, which is closely related to the activities of the Klan. The court claims to have rendered the judgment without taking into account the appellant’s unpopular views. Though they are very unpopular beliefs the history associated to the Ku Klux Klan is filled with so much violence that is impossible not to look at one of their members with an open mind.

• What is not clear is why Hernandez believed that he was expressing an opinion and that it was part of his right to cover his face while expressing that opinion? He might not have been concealing his identity, but it was probably not for any kind of purpose of expression that he was wearing it in the first place. It looks as though in this ruling, the court had decided that this law was not only about concealing one’s identity but also about wearing a mask for no particular reason.

• George Reynolds charged with bigamy violating sect. 5352 of Revised Statutes, “every person having a husband or wife living, who marries another, whether married or single, in a Territory, or other place over which the U.S. has exclusive jurisdiction is guilty of bigamy…”
• George Reynolds was a member of Mormon Church claiming Church Doctrines state it is duty to practice polygamy and failure to do so would result in damnation in the next life.
• Reynolds received permission from the Mormon Church to enter into a polygamous marriage.
• The jury was instructed that if he was married as charged, it was only in conformity with what he believed was his religious duty and the verdict should be not guilty.
• Request refused by the court reasoning, “there must have been a criminal intent, but if the defendant, under the influence of religious belief that it was right, under an aspiration that it was right, deliberately married a second time, having a first wife living, the want of consciousness of understanding on his part that he was committing a crime did not excuse him; but the law inexorably in such case implies the criminal intent.

Question: Can religious belief be accepted as justification of an overt act made criminal by the law of the land? No!

Question: Is one guilty if they knowingly violate a law which has been properly enacted if he entertains a religious belief that the law is wrong? Yes!

• Religious freedom is guaranteed everywhere throughout the US so far as Congressional interference is concerned.
• Polygamy unaccepted in North and Western European nations, before Mormons more exclusive to the Asiatic and African peoples.
• Common law 2nd marriage is void.
• Earliest history in England as an offense against society punishable by death in England and Wales by Statute of James I.
  • December 8, 1788, after the passage of the act establishing religious freedom the Statute of James I was enacted because, “it hath been doubted whether bigamy or polygamy was punishable by the laws of the Commonwealth.
  • Never had there been a time where polygamy wasn’t an offense to society.
• Impossible to believe that the Constitutional guarantee of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.

Question: Are those who make polygamy part of their religion excepted from the operation of the statute? No!

Laws can’t interfere with mere religious beliefs and opinions but they may with practices.