Legal Responsibility and Punishment: Philosophical Issue of Punishment and the Death Penalty

Before entering this class I was for the death penalty. After a mindful study of the issue, I now lean toward abolition of the death penalty for most cases. To say that murderers 'deserve' to die and should be executed by the state according to Stephen Nathanson is reasoning the "argument from desert," in other words, for having preformed premeditated murder they receive their just deserts. My response to the question is people who commit murder do deserve to die within specific circumstances.

         Stephen Nathanson's argument in my mind is closest in agreement with mine after considering all the possibilities. His position is that one can oppose the death penalty yet still concede that murders deserve to die. There are good reasons why a person should not get what they deserve. One of them is that the 8th Amendment of the U.S. Constitution says a criminal cannot be subjected to cruel and unusual punishment. This particular amendment is vague and subject to interpretation. Originalists would argue that based on articles and writings of the time, execution by hanging or execution in general was not considered cruel and unusual punishment. Originalists claim that this clause is meant to prevent the criminal from being tortured, but execution for murder would not constitute cruel and unusual punishment. According to Nathanson, the government's policy of giving murderers their just deserts would be carried out at the cost of innocent people's loss of life. When given the choice between giving murderers what they deserve and protecting innocent lives, the government ought to choose protection of the innocent over execution of the guilty. It is a central function of the government that it protect people's well-being than it carry out the distribution of just deserts.

         The abolitionists would argue that execution in itself constitutes cruel and unusual punishment. First, a criminal must wait on "death row," sometimes for years, before being executed which in itself is cruel and unusual punishment. It creates unnecessary suffering knowing you're going to die but not knowing when that time will be. All forms of execution cause tremendous pain and suffering. Electrocution is not always final and in some cases criminals have been electrocuted several times in order to kill them. Gassing also takes time, usually a few minutes which also constitutes suffering. Even lethal injection although clean and neat has tremendous pain. Having witnessed euthanasia of a pet I can attest that injection is not simply putting someone peacefully to sleep. The body still has the same reaction and resists the act of dying and clings to life as long as possible, therefore all forms of execution are cruel and unusual punishment.

         Another problem with execution is that the law is not consistent on how it allies the death penalty. According to Nathanson one such case is double jeopardy. According to our system of law, a criminal cannot be tried more than once for a particular crime. If he is tried and acquitted, he is a free man. If he is acquitted, as he is walking out of the courthouse tells a reporter that he did it and got away with it, this person ought to die but cannot be retried because of the double jeopardy clause. The double jeopardy clause outweighs whatever obligation there might be to see that this person receives what they deserve. If the legal system's function is to give people what they deserve then problems such as this would not arise. The problem is that giving them what they deserve may conflict with other important goals or ideas.

         When one examines the case of Furman v. Georgia, the most significant argument according to Nathanson was Justice Black's reasoning. Justice Black said, "Out of a large number of persons eligible in law for the punishment, a few were selected as if at random, by no stated (or perhaps statable) criteria, while all the rest suffered the lesser penalty of imprisonment." Here the court was concerned with the procedures under which the death penalties were being determined and it was judged unacceptable because life and death decisions were being made arbitrarily.

         Other justices cited that the application of death sentencing was arbitrary but not random nor free of bias. Statistics pointed to the fact that Whites who murdered blacks and blacks that murdered blacks were more likely to not receive the death penalty, yet blacks who murdered whites were more likely to receive the death penalty. In addition, social and economic status also influenced decisions in illegitimate ways. The state, even the smallest court has extremely significant power to wield against a defendant. Defendants who could afford the very best lawyers could wield a significant amount of power against the state in defending themselves. Those with public defenders are at a significant disadvantage in defending themselves. Justice Douglas argued that the death penalty was cruel and unusual punishment because it was being applied to people for reasons that were legally irreverent and impermissible. It was a violation of the Constitution if the law permitted the execution of only poor people or people of color. Therefore under these conditions the death penalty was unconstitutional.

         According to Nathanson, the Furman argument brings to light the paradox that the death sentence can be morally unjust to punish someone for a crime even if he morally deserves to die. What is morally unjust if we are sentencing people on the basis of the skin color and heir economic status.

         In order to eliminate this bias, jurors were given guidelines or "guided discretion" consisting of lists of aggravating and mitigating circumstances that may make the crime more or less bad. According to Nathanson in the Gregg v. Georgia case, the Supreme Court ruled that, "statutes incorporating guided discretion was constitutional because they made arbitrariness sufficiently unlikely. It claimed that arbitrariness had been sufficiently eliminated so as to guarantee fair proceedings and controlling, unbiased sentencing. Van der Haag rejected the argument of arbitrariness in defense of the death penalty by saying that, "Justice requires the guilty — as many of the guilty as possible, even if only some can be punished — and sparing the innocent — as many of the innocent as possible, even if not all are spared." This undermines the moral basis of the Furman decision according to Nathanson. "It dismisses as irrelevant the abolitionist argument that the death penalty is unjust because its use in the U.S. has been inextricably bound up with patterns of racial discrimination. If this is correct then we must give up the argument from arbitrariness, and accept van der Haag's view that ‘unequal justice is justice still.’" There are two different arguments that Nathanson calls the argument from arbitrary judgement and the argument from arbitrary imposition.

         The argument of imposition assumes that we know who deserves to die, and it objects to the fact that only some of those who deserve to die are executed which is the argument that van der Haag addresses. Nathanson claims that van der Haag neglects the argument from arbitrary judgement. According to Nathanson, the determination of who deserves to die is itself arbitrary. It is not that arbitrary factors decide who among the deserving will be condemned, but the problem is that, "the judgement concerning who deserves to die is itself a product of arbitrary factors." Van der Haag has assumed we know who deserves to die. According to Justice Black, quoting Nathanson, "judgments about who deserves a particular punishment are arbitrary because the law does not contain meaningful standards for distinguishing those who deserve death from those who deserve imprisonment." Van der Haag has neglected this point. He would have to show that the law contains adequate criteria for deciding whether people deserve to death or imprisonment and that judges and juries were making these judgments in a non-arbitrary way. Therefore if prosecutors, juries and judges do not have a clear criteria by which to sort out these issues, then the judgments are still arbitrary. Hence if we are not confident that the death penalty is being imposed on those who deserve it, then we must reject the premise that the punishment is unjust. We should not allow the state to execute if the procedures adopted by the state are unlikely to separate the deserving into the undeserving in a rational and just manner.

         Now let's make two lists one of which will contain circumstances in which a killer deserves to die and the other being circumstances in which a killer would not deserve to die. Next I will try to determine what factors set the two lists apart by focusing on some of the qualities of the murderer, the qualities of the victim, the qualities of the intention behind the act, features of the society in which the killing took place, and some calculation of the likely consequences of assigning that kind of penalty to that kind of act (fig. 1).

Figure 1: Circumstances Warranting Death Penalty Vs Circumstances Not Warranting Death Penalty

         In analyzing why there are those we justify as candidates for the death penalty, the qualities of the killer are that they were in a proper state of mind to disseminate between the difference between right and wrong. These criminals may have been in a position where by the nature of their official status had the ability to murder without discretion and a lack of checks and balances to prevent them from wielding absolute power. The number of people killed also determines administering the death penalty. Those who planned the murder for self-gain or for political statements are also subject to the death penalty. Hate crimes, murders based on racial motives are not tolerated. Cases of armed robbery are also subject to the death penalty because there is an intention to use force if necessary in order to meet their objective. Criminals who show a complete disrespect of the law by murdering Law Enforcers are subject for their motive is to make sure they get away with the crime. Murders who kill the frail and children demonstrate that they will prey on the weak and defenseless. Those that are not fully aware of their actions or understand the implications of committing murder or may be in full control but cannot be proven that they are in possession of their full faculties, as in the case of Son of Sam and Charles Manson, are subject to life imprisonment. Crimes out of passion are extenuating circumstances in which a right person may demonstrate remorse for their crime and are not likely to find themselves in the same circumstances; therefore, are usually subject to a life sentence with an option for parole. Regan's assailant even though there was a clear plan to assassinate the President for personal gain received life imprisonment because he did not in fact murder his victim, but on the other hand because of the possibility that he may attempt it again is subject to imprisonment for life.

         The factors for assigning the death penalty seem to be a total disregard for human life, personal gain, how heinous the murder was, how many victims there were, and a total disregard for the law as with the murder of a police officer. Other factors that seem to decide the death penalty are how the victims suffered before their deaths say in the case of abduction and torture before murder, the age and frailty of the victim, whether there was any possibility of whether the victim had the ability to defend themselves, if the victim was in fear of their life and had no other choices other than to kill as in self-defense, and the number of people left behind that will suffer due to the loss of the victim. Qualities of the act considered if there was a plan to murder or use force or whether there was an inability to control the self. Other qualities are that in most cases society will not tolerate any type of racially motivated killing of any kind due to shifts in the collective thought of society and if the murderer calculated the gains against the losses of committing the murder. I.E., that the gains in the murderer's mind outweigh the likelihood of being caught for the murder and if caught, being found guilty and if found guilty whether they will be sentenced to death.

         Many of the criminals receive the death penalty based on Utilitarianism, which looks forward into events. This is to mean that if ever released, the criminal may repeat the same acts. Utilitarianism operates under three premises; that being of Incapacitation, that getting the criminal off the street ensures that he will not commit future offenses. Second factor is deterrence: that the death penalty because of its severity will deter or act as a deterrent to some from not committing murder. When others see what the state will do, others will not think of doing the same thing. Third, there is the possibility of Rehabilitation that the person will feel remorse for their acts and that they can be returned back to society after being rehabilitated. All three factors support the premise that the greatest amount of good or happiness is served for the most number of people.

         Others take a stand from the position of Retributivism, which is a looking back into events that lead to the murder and into decisions that were made in similar cases if they exist. Retributive thinking takes the stand that punishment is deserved. It is just and fitting to repay every injury with a similar injury to the one who is inflicted. According to Kant humans exhibit and are subject to fee will and Retributivism. Others have called this philosophy of the law civilized vengeance in the sense that the state decides what is an appropriate sentencing for a particular form of murder and adheres to Lex Talonis or “the law of the claw."

         After considering all the arguments for and against the death penalty and based on statistics of how many citizens are for the death penalty, society as a whole values the sacredness of life for its victims only and assigns a lower value to the life of the criminal. In other words, society has chosen to assign degrees to the value of life and that some lives are not as valuable as others, which opposes the view that all life is sacred and that no human being is without sin; therefore, it is not for human beings or the state to decide who shall live and who deserves to die.