This chapter contains sections titled: The Difference between Morality and Legality Retribution and the Death Penalty Consenting to Capital Punishment Determining the “Inner Wickedness” of the Accused The Fallibility of Justice Capital Punishment Cannot Be Categorically Demanded of Us A Moral Assessment of the Supposed Duty to Kill Do These Objections Rule Out All Punishments? Whose Dignity Is at Stake?

Drawing upon empirical studies of racial discrimination dating back to the 1940’s, the Movement for Black Lives platform calls for the abolition of capital punishment. Our purpose here is to defend the Movement’s call for death penalty abolition in terms congruent with its claim that the death penalty in the U.S. is a “racist practice” that “devalues Black lives.” We first sketch the jurisprudential history of race and capital punishment in the U.S., wherein courts have occasionally (...) expressed worries about racial injustice but have usually taken such evidence to warrant reform but not outright abolition. We argue that the racial discrimination at issue flows in significant part from implicit biases concerning race, criminality, and violence, which do not fit comfortably within the picture of racial bias advanced by the courts. The case for abolition, we contend, rests on Black Americans as a class (not merely those who interact with the criminal justice system as capital defendants or as murder victims) being subject to such bias and thereby not being accorded equal status under the law. (shrink)

Hegel does not directly examine the legitimacy of capital punishment in the Philosophy of Right. There is an implication of vengeful death in the endless retribution that characterizes abstract right, and also in the potential carnage that can result from non-compliance with the prevailing order in a society based upon morality; but in terms of just punishment, which can only occur in the state, Hegel is silent on the matter of the death penalty. It is mentioned occasionally (...) in the “additions” to the main text provided by the lecture notes of Hegel’s students, wherein Hegel reportedly speaks of the necessity of the death penalty for murder, and the undesirability of capital punishment for most lesser crimes. Although the conclusions of this paper do not contradict either of these representations of Hegel’s opinion about capital punishment, the arguments used will not rely on the additions since their authority is not beyond question. Rather, this paper will be concerned only with Hegel’s own pronouncements, which refer directly to the death penalty only twice—and each time in connection to historical treatments of the subject. Both Draco’s “barbarous” insistence that every criminal meet with death, and Beccaria’s arguments against the right of the state to employ the death penalty are criticized by Hegel, but the object of criticism in each case is the reasoning behind their respective positions. Nowhere in the main text of the Philosophy of Right does Hegel explicitly endorse or deny the legitimacy of capital punishment. (shrink)

Is the capital punishment a solution? Can a basis for rejecting or justifying it be established? How should and how can a criminal be punished? Can the capital punishment be replaced by another type of punishment? Is this really a cruel, violent and unusual punishment? Questions like the previous ones, to which, of course, many others can be added, cannot be avoided once the still controversial issue of capital punishment has been addressed, (...) being considered a major infringement of human rights. Uncomfortable and complex, sensitive and profound, it appears, first and foremost, as a fundamental theme for philosophical reflection and not only, being of a special significance to the applied ethics, as it is a point of contention that concerns life itself. The importance of this theme is conferred in particular by the fact that it deals with different aspects regarding the suppression of a person's life in a legal, deliberate and justified way, an obvious importance by the very purpose of this punishment. From a compositional point of view, we have structured the present study in such a way as to include, using the critical dimension, the highlighting of some of the relevant philosophical perspectives that are subsumed to the topic, and which can still be an argument, at least an ethical one, against the application of capital punishment. At the end of the study, we sketched some current distinctive reflections, pointing out an argument in favour of one's own choice on the subject of the study, not necessarily considering that this is not a solution, but also that an ultimate basis cannot be established to support it. (shrink)

Hegel does not directly examine the legitimacy of capital punishment in the Philosophy of Right. There is an implication of vengeful death in the endless retribution that characterizes abstract right, and also in the potential carnage that can result from non-compliance with the prevailing order in a society based upon morality; but in terms of just punishment, which can only occur in the state, Hegel is silent on the matter of the death penalty. It is mentioned occasionally (...) in the “additions” to the main text provided by the lecture notes of Hegel’s students, wherein Hegel reportedly speaks of the necessity of the death penalty for murder, and the undesirability of capital punishment for most lesser crimes. Although the conclusions of this paper do not contradict either of these representations of Hegel’s opinion about capital punishment, the arguments used will not rely on the additions since their authority is not beyond question. Rather, this paper will be concerned only with Hegel’s own pronouncements, which refer directly to the death penalty only twice—and each time in connection to historical treatments of the subject. Both Draco’s “barbarous” insistence that every criminal meet with death, and Beccaria’s arguments against the right of the state to employ the death penalty are criticized by Hegel, but the object of criticism in each case is the reasoning behind their respective positions. Nowhere in the main text of the Philosophy of Right does Hegel explicitly endorse or deny the legitimacy of capital punishment. (shrink)

Where does the object or idea begin, and where does it end as ‘unseen’? There is scope in Maori philosophising to think of the seen object or its idea in various ways, including as materially constituting the self and the rest of the world; as incomplete for a mental representation; as constituted in itself by the unseen ; and as co-constitutional with nothingness and presence. The possibilities of the seen object are several, especially if the concept of ‘seen’ is understood (...) as immediately determined by its other. This paper considers the consequences of the seen and unseen and the illogical in Maori thought for ‘teach-learn’ and in particular for the translation of teach-learn as ‘ako’ in the Maori language. It also discusses some possibilities for the term ‘porangi’, which is often quoted in relation to ‘madness’ but has deeper metaphysical potential that combines the reality of gloom/unseen alongside a heady potential. I refer to this phenomenon as ‘giddying abjection’ and turn it towards unpicking the certainty that ako as teach-learn replicates. Porangi can refer to self-derision, and I take certain statements of mine and destabilise them from their certainty. In that act I hope to show that students and scholars could follow a similar path with their own statements and, in so doing, subject their own utterances to madness. (shrink)

Punishment is a topic of increasing importance for citizens and policymakers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many more are examined in this highly engaging and accessible guide. Punishment (2nd edition) is a critical introduction to the philosophy of punishment, offering a new and refreshing approach that will benefit readers of all backgrounds and interests. The first comprehensive critical guide to examine (...) all leading contemporary theories of punishments, this book explores – among others – retribution, the communicative theory of punishment, restorative justice and the unified theory of punishment. Thom Brooks applies these theories to several case studies in detail, including capital punishment, juvenile offending and domestic violence. Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and ground-breaking. This second edition has extensive revisions and updates to all chapters, including an all-new chapter on the unified theory substantively redrafted and new chapters on cyber-crimes and social media as well as corporate crimes. Punishment is essential reading for undergraduate and graduate students in philosophy, criminal justice, criminology, justice studies, law, political science and sociology. "Lucid, fair-minded, and well-informed, Thom Brooks’ Punishment offers a superb introduction to a complex and contentious subject. Many a perplexed student will find illumination in his patient discussion of each of the leading theories. The way Brooks shows their interconnectedness and application in practice – to capital punishment, juvenile offenders, domestic violence, and the like – will interest not only students but scholars as well." ―Stuart P. Green, Distinguished Professor of Law and Nathan L. Jacobs Scholar, Rutgers School of Law "As a topic in moral and political philosophy, punishment has been jolted back to life. In the last quarter century, retribution has returned with a vengeance, both in the theoretical literature and (with a very different emphasis) in public policy. The rise of the victim as a player in the criminal justice system has also fuelled a counter-trend, placing an emphasis on redress. Human rights, privatization, globalization, the rise of the therapist, the lobbyist, the terrorist: all have affected our ways of punishing and of thinking about punishment. A new survey of the terrain is overdue. And who better to conduct it than Thom Brooks, whose grasp of the literature and feel for the issues is second to none? From the noble ideals of ‘communicative’ theory to the grim realities of children in prison: in Punishment Brooks covers it all with insight, rigour, and energy." ―John Gardner, Professor of Jurisprudence, University of Oxford "Thom Brooks has produced a valuable introduction to, and critical survey of, current theoretical approaches to punishment together with an analysis of their implications for practice. In addition, he has provided a spirited defence of a new, unified theory inspired by the British Idealists and encompassing retributive, consequentialist, and restorative elements. Written in a lucid and engaging style, the book will interest a wide range of readers – students, theorists of punishment, as well as those engaged in criminal justice policy." ―Alan Brudner, Albert Abel Professor Emeritus, Faculty of Law, University of Toronto. (shrink)

Some jurisdictions acknowledge, as a matter of positive law, the relevance of evil to capital punishment. At one point, the state of Florida counted that the fact that a murderer’s crime was “especially wicked, evil, atrocious or cruel” as an aggravating factor for purposes of capital sentencing. I submit that Florida may be onto something. I consider a thesis about capital punishment that strikes me as plausible on its face: if capital punishment is (...) ever morally permissible, it is permissible as a response to evil. Call this the Punishment as a Response to Evil thesis, or PRE. If capital punishment is not morally permissible as a response to evil, then, according to PRE, it is not morally permissible, period. PRE admits of at least two different readings: on the first, if capital punishment is ever morally justified it is justified as a punishment for evil crimes; on the second, if capital punishment is ever morally justified it is justified as a punishment for evil people. While this first version of PRE has found advocates in both philosophy and forensic psychiatry, I argue against this first reading of PRE and for the second. To secure this conclusion I appeal to an account of evil and evil personhood that I have developed elsewhere. (shrink)

Capital punishment—the legally authorized killing of a criminal offender by an agent of the state for the commission of a crime—stands in special need of moral justification. This is because execution is a particularly severe punishment. Execution is different in kind from monetary and custodial penalties in an obvious way: execution causes the death of an offender. While fines and incarceration set back some of one’s interests, death eliminates the possibility of setting and pursuing ends. While fines (...) and incarceration narrow one’s routes to happiness, death eliminates its possibility. Not surprisingly, there is much debate about the moral permissibility of capital punishment. This entry maps the terrain of this debate. The first section discusses justifications of the death penalty as they appear in major theories of punishment. The second section surveys moral objections to execution that apply to most justifications. The third addresses procedural criticisms, which do not target the morality of execution so much as the justice of its implementation. (shrink)

Using deconstruction, this book approaches contemporary problems raised by technologies of life and death from cloning to capital punishment; and thereby, provides new insights into current debates from a perspective outside of mainstream philosophy with its assumptions of individual and political sovereignty.

According to Thomas Aquinas, a sovereign government may legitimately execute sinners in pursuance of the common good. Aquinas outlines his defence of Capital Punishment in the Summa Theologica 2–2, q.64, a.2 and the Summa Contra Gentiles, Book 3, Chapter 146. Aquinas's stance on this issue is well known and his argument in favour of CP has been extensively discussed. This article will focus instead on the objections Aquinas raises to the institution of CP in the ST and SCG, (...) along with his responses to these objections. After providing a brief sketch of Aquinas's account of legal punishment, Aquinas's argument for the legitimacy of CP will then be outlined. The objections which Aquinas raises to CP will then be individually examined, along with his reply to each. After examining the underpinnings of Aquinas's objections and responses, the outline of a critique will be offered which draws upon the thought of Augustine and Karl Barth. (shrink)

According to Thomas Aquinas, a sovereign government may legitimately execute sinners in pursuance of the common good. Aquinas outlines his defence of Capital Punishment in the Summa Theologica 2–2, q.64, a.2 and the Summa Contra Gentiles, Book 3, Chapter 146. Aquinas's stance on this issue is well known and his argument in favour of CP has been extensively discussed. This article will focus instead on the objections Aquinas raises to the institution of CP in the ST and SCG, (...) along with his responses to these objections. After providing a brief sketch of Aquinas's account of legal punishment, Aquinas's argument for the legitimacy of CP will then be outlined. The objections which Aquinas raises to CP will then be individually examined, along with his reply to each. After examining the underpinnings of Aquinas's objections and responses, the outline of a critique will be offered which draws upon the thought of Augustine and Karl Barth. (shrink)

Both proponents and opponents of capital punishment largely agree that death is the most severe punishment that societies should consider imposing on offenders. This chapter considers how (if at all) this ‘Ultimate Thesis’ can be vindicated. Appeals to the irrevocability of death, the badness of being executed, the badness of death, or the harsh condemnation societies express by sentencing offenders to death do not succeed in vindicating this Thesis, and in particular, fail to show that capital (...) punishment is more severe than the most likely alternative punishment offenders would suffer, namely, lifelong incarceration. The most plausible vindication of the Ultimate Thesis instead resides in how being condemned to death alters a person’s psychological relation to death. Our ordinary tendencies toward “death denial” diminish the terror that our awareness of death can otherwise induce in us, thereby enabling us to pursue worthwhile lives despite knowing of death’s inevitability. But condemned individuals are continually compelled to confront both the reality and specific circumstances of their own deaths and so do not enjoy the protective psychic shield that death denial provides us. This ‘relational’ rationale does not obviously succeed in proving the Ultimate Thesis, but if the Thesis is true, this rationale is essential to its justification. (shrink)

_Against Capital Punishment_ offers an innovative proceduralist argument against the death penalty. Worries about procedural injustice animate many popular and scholarly objections to capital punishment. Philosophers and legal theorists are attracted to procedural abolitionism because it sidesteps controversies over whether murderers deserve death, holding out a promise of gaining rational purchase among death penalty retentionists. Following in this path, the book remains agnostic on the substantive immorality of execution; in fact, it takes pains to reconstruct the best (...) arguments for capital punishment and presumes the appropriateness of execution in limited cases. At the same time, the book contends that the possibility of irrevocable mistakes precludes the just administration of the death penalty. The heart of _Against Capital Punishment_ is a philosophical defense of the well-known irrevocability argument, which analyzes the argument’s premises, establishes their validity, and vindicates them against objections. The central claim is that execution violates the principle of remedy, which requires legal institutions to remedy their mistakes and to compensate those who suffer from wrongful sanctions. The death penalty is repellent to the principle of remedy by dint of its irrevocability. The incompatibility of remedy and execution is the crux of the irrevocability argument: because the wrongly executed cannot enjoy the obligatory remedial measures, execution is impermissible. _Against Capital Punishment_ also reveals itself to be free from two serious defects plaguing other versions of proceduralism: the retributivist challenge and the problem of controversial consequences. (shrink)

This paper contributes to the normative debate over capital punishment by looking at whether the role of executioner is one in which it is possible and proper to take pride. The answer to the latter question turns on the kind of justification the agent can give for what she does in carrying out the role. So our inquiry concerns whether the justifications available to an executioner could provide him with the kind of justification necessary for him to take (...) pride in what he does. If they cannot, I argue, this sheds some light on their adequacy as justifications. The main argument of the paper is that social control arguments for the death penalty fail to provide an adequate justification. I also give some consideration to retributive justifications. The argument is developed through close attention to the depiction of Albert Pierrepoint in the film, Pierrepoint: The Last Hangman. (shrink)

Although capital punishment has been gradually disappearing from liberal democracies, philosophers remain divided as to its permissibility. The first part of this chapter considers arguments in favor of retention and abolition, with particular attention to recent contractualist arguments. I then consider the United States Supreme Court’s incrementalist approach, under the rubric of “evolving standards of decency.” On this view, the Constitution is limited to sweeping up stragglers; like Minerva’s owl, the Constitution announces a philosophy of punishment only (...) in hindsight. The final section draws on Feinberg’s suggestion that punishment reflects a society’s particular “symbols of infamy.” A society may come to rethink its symbols of infamy, such as capital punishment, but that is unlikely to be because philosophical argument has silenced all reasonable doubt. (shrink)

This Article argues that just as the act of forcing sex upon a rapist is itself rape, the execution of a murderer is itself murder. Part I clears the way by defeating three simple, but common, arguments that capital punishment is not murder. Part II shows that despite moral theorists' best attempts to show otherwise, executions seem to instantiate all the morally relevant properties of murder. Part III notes a lacuna in the literature on capital punishment: (...) Even if there is a good moral reason to execute murderers, the distinction between capital punishment and murder requires a plausible account of the state's right to execute citizens. We have no such account. (shrink)

Numerous studies indicate that racial minorities are both more likely to be executed for murder and that those who murder them are less likely to be executed than if they murder whites. Death penalty opponents have long attempted to use these studies to argue for a moratorium on capital punishment. Whatever the merits of such arguments, they overlook the fact that such discrimination alters the costs of murder; racial discrimination imposes higher costs on minorities for murdering through tougher (...) sentences, and it imposes lower costs on whites for murdering minorities by dispensing weaker sentences. These cost differentials constitute an injustice not simply to actual minority defendants in capital cases, nor simply to the actual minority victims of murder, but to all members of minority communities. I here offer two arguments for a moratorium on capital punishment: The first draws upon evidence of racial discrimination against minority defendants in capital cases, and claims that such discrimination modifies the costs of murder in such a way that minority individuals do not enjoy equal status under the law. The second draws upon the evidence regarding racial discrimination in relation to the race of victims, and claims that such discrimination modifies the costs of murder in such a way that minority individuals do not enjoy the equal protection of the law. Thus, by not assigning equal costs to murder, the American criminal justice system fails to provide racial minorities the equality under the law and discounts the value of their lives and liberties. A moratorium is the least unjust response to such a social injustice. I also reply to the criticism that a moratorium prevents us from executing deserving murderers. (shrink)

In order to show that opposition to capital punishment cannot be both moral and entirely unconditional, Hugo Bedau proposes a fantasy–world scenario in which the execution of a murderer restores his murder victim to life. Were such a world to exist, argues Bedau, the death penalty would then be morally right. The aim of this article is to show that Bedau's argument is mistaken, largely because capital punishment in his fantasy world would not be an instrument (...) of perfect restitution, as he thinks, but instead would be an instrument of unfair restitution. Two attempts are made to repair Bedau's fantasy–world argument, but neither of them is found to be successful. Consequently his fantasy world does not successfully provide the conditions under which opposition to capital punishment morally would have to cease. However, because capital punishment is morally wrong in his fantasy world it does not follow that it is morally wrong in this world. (shrink)

Why is the Catholic Church against the death penalty? This second edition of Brugger’s classic work _Capital Punishment and Roman Catholic Moral Tradition_ traces the doctrinal path the Church has taken over the centuries to its present position as the world’s largest and most outspoken opponent of capital punishment. The pontificate of John Paul II marked a watershed in Catholic thinking. The pope taught that the death penalty is and can only be rightly assessed as a form (...) of self-defense. But what does this mean? What are its implications for the Church’s traditional retribution-based model of lethal punishment? How does it square with what the Church has historically taught? Brugger argues that the implications of this historic turn have yet to be fully understood. In his new preface, Brugger examines the contribution of the great Polish pope’s closest collaborator and successor in the Chair of Peter, Pope Benedict XVI, to Catholic thinking on the death penalty. He argues that Pope Benedict maintained the doctrinal status quo of his predecessor’s teaching on capital punishment as self-defense, with detectable points of reluctance to draw attention to nontraditional implications of that teaching. (shrink)

This paper uses the debate about whether capital punishment deters homicide as a case study for examining the claim, made by many feminists and others, that the traditional ideal of objectivity in seeking knowledge is misguided. According to this ideal, knowledge seekers should strive to gather and assess evidence independently of any influences exerted by either their individual and societal circumstances or their moral values. This paper argues that, although the traditional ideal rests on some valid precepts, it (...) is neverthelesss untenable. the author goes on to propose an alternative epistemological ideal – one that retains these valid precepts but also recognizes an important and legitimate role for people's circumstances and moral values in their efforts to find knowledge. (shrink)

In its treatment of capital punishment Amnesty International gives a central place to the suffering of the prisoner. Two quite distinct forms of suffering are relevant here. There is the psychological anguish of the person awaiting execution; and there is the physical suffering which may be involved in the execution itself. It is suggested that if we reflect clearly on this suffering we will conclude that the death penalty involves cruelty of a kind which makes it quite unacceptable. (...) It is to be condemned on the same ground as torture is to be condemned: on the ground, that is, that it involves the infliction of an unacceptable degree of suffering. (shrink)

A large proportion of the population thinks that capital punishment is a reasonable method to reduce crime and punish those who have been convicted of a capital crime. I discuss aspects to the philosophy of capital punishment, and analyze factual elements of murder conviction processes, to significantly cast doubt on the pro-capital punishment argument. In order to measure the true value and need for capital punishment, one must analyze pro capital (...) punishment arguments in light of the alternatives. While theories of deterrence, incapacitation and retribution will be reviewed, theories of rehabilitation and restoration will not since they are not applicable to the capital punishment discussion. With increased legal protections, which are a good thing, and rising costs of incarceration, capital punishment is not the greatest good punishment option for capital crime. The remaining options are revising the capital punishment system, an enormous challenge, or suspending it indefinitely. (shrink)

From a juridical standpoint, Kant ardently upholds the state's right to impose the death penalty in accordance with the law of retribution. At the same time, from an ethical standpoint, Kant maintains a strict proscription against suicide. The author proposes that this latter position is inconsistent with and undercuts the former. However, Kant's division between external (juridical) and internal (moral) lawgiving is an obstacle to any argument against Kant's endorsement of capital punishment based on his own disapprobation of (...) suicide. Nevertheless, Kant's basic conception of autonomy underlies both of these otherwise distinct forms of lawgiving, such that acts of suicide and capital punishment are rendered equally irrational within his overall framework. (shrink)

This chapter contains sections titled: Capital Punishment Conclusion Bibliography.

Can one consistently oppose abortion on moral grounds, yet think the death penalty is morally acceptable?

One of the many arguments against capital punishment is that execution is irrevocable. At its most simple, the argument has three premises. First, legal institutions should abolish penalties that do not admit correction of error, unless there are no alternative penalties. Second, irrevocable penalties are those that do not admit of correction. Third, execution is irrevocable. It follows that capital punishment should be abolished. This paper argues for the third premise. One might think that the truth (...) of this premise is self-evident. But in his paper “Is the Death Penalty Irrevocable?” Mike Davis argues that it is false: the death penalty is not irrevocable. While Davis’ argument is itself somewhat compelling, it receives additional support from work in the metaphysics of death, specifically the literature on posthumous harm. Strengthened in this way, the argument deserves careful consideration. I begin with a quick sketch of Davis’ argument, then show how the Pitcher-Feinberg theory of posthumous harm enables a more robust argument against the irrevocability of capital punishment, defending their theory of harm against standard objections in the literature. Having established the coherency of the robust argument, I conclude that it nevertheless fails to make the case against irrevocability. This is because it ignores the full set of practical requirements incumbent on legal institutions that wrongly punish someone. (shrink)

Taking a fresh look at a central controversy in criminal law theory, The Ethics of Capital Punishment presents a rationale for the death penalty grounded in a theory of the nature of evil and the nature of defilement. Original, unsettling, and deeply controversial, it will be an essential reference point for future debates on the subject.

A curious and comparatively neglected element of death penalty jurisprudence in America is my target in this paper. That element concerns the circumstances under which severely mentally disabled persons, incarcerated on death row, may have their sentences carried out. Those circumstances are expressed in a part of the law which turns out to be indefensible. This legal doctrine—competence-for-execution —holds that a condemned, death-row inmate may not be killed if, at the time of his scheduled execution, he lacks an awareness of (...) his impending death or the reasons for it. I argue that the law of CFE should be abandoned, along with the notion that it is permissible to kill the deeply disturbed just so long as they meet some narrow test of readiness to die. By adopting CFE, the courts have been forced to give independent conceptual and moral significance to a standard for competence that simply cannot bear the weight placed upon it. To be executable, CFE requires that a condemned prisoner meet a standard demonstrating an awareness of certain facts about his death. Yet this standard both leads to confusing and counter-intuitive results and is unsupported either by the reasons advanced by the courts on its behalf or by any of the standard theoretical justifications of criminal punishment. If executing the profoundly psychotic or delusional is wrong the law needs a better account of the wrong done when prisoners like Ford are killed. I suggest wherein that wrong might be located. (shrink)

This article argues that even if we grant that murderers may deserve death in principle, retributivists should still oppose capital punishment. The reason? Our inability to know with certainty whether or not individuals possess the necessary level of desert. In large part due to advances in science, we can only be sure that no matter how well the trial is administered or how many appeals are allowed or how many years we let elapse, we will continue to execute (...) innocent persons for as long as we legalize capital punishment. Thus, on grounds of desert, this article argues that retributivists should oppose capital punishment. (shrink)

Our purpose in this paper is to consider a procedural objection to the death penalty. According to this objection, even if the death penalty is deemed, substantively speaking, a morally acceptable punishment for at least some murderers, since only a small proportion of those guilty of aggravated murder are sentenced to death and executed, while the majority of murderers escape capital punishment as a result of arbitrariness and discrimination, capital punishment should be abolished. Our targets (...) in this paper are two recent attempts, by Thomas Hurka and Michael Cholbi respectively, to defend the view that ‘levelling down’ (that is, reducing the punishment imposed on a criminal from the punishment he absolutely deserves to a less severe punishment in order to achieve proportionality relative to the criminals who have escaped the punishment they absolutely deserve) is, in the context of capital punishment, morally permissible. We argue that both Hurka and Cholbi fail to show why the arbitrariness and discrimination objection impugns the death penalty. (shrink)

One argument often made against capital punishment is that it would involve the risk of killing innocent people and that such a mistake cannot be corrected in ways that other punishments can. I call this the ‘Irrevocability Argument’. In this article, I argue that the Irrevocability Argument is symmetrical with respect to capital punishment and active voluntary euthanasia. If the Irrevocability Argument works against capital punishment, then it also works against active voluntary euthanasia and (...) vice versa. The main upshot of this is that it means at least some of the moral positions that people hold to treat them differently are untenable. Those who rely on the Irrevocability Argument as an argument against capital punishment are also committed to it as an argument against active voluntary euthanasia. (shrink)

This brief essay responds to the Supreme Court’s recent decision in Bucklew v. Precythe. It contends that the argument relied upon by the Court in that decision, as well as in Glossip v. Gross, is either trivial or demonstrably invalid. Hence, this essay provides a nonmoral reason to oppose the Court’s recent capital punishment decisions. The Court’s position that petitioners seeking to challenge a method of execution must identify a readily available and feasible alternative execution protocol is untenable, (...) and must be revisited. (shrink)

Many political philosophers today think of justice as fundamentally about fairness, while those who defend capital punishment typically hold that justice is fundamentally about desert. In this paper I show that justice as fairness calls for capital punishment because the continued existence of murderers increases unfairness between themselves and their victims, increasing the harm to murdered persons. Rescuing murdered persons from increasing harm is prima facie morally required, and so capital punishment is a prima (...) facie duty of society and sentencing judges.1. (shrink)

This book is the joint work of a moralist, a sociologist and a psychologist arguing, as the sub-title indicates, for the abolition of capital punishment. Fr Tidmarsh’s essay provides the ‘Theoretical Framework’ of the discussion. He examines the notion of punishment as retributive, reformative and deterrent. He refuses to be drawn into the kind of detailed discussion that finds its place in the two essays that follow; but what he says is clarifying and indispensable. He points the (...) difficulty of formulating a ‘pure’ retributive theory of punishment; and the fact that ‘considerations of retribution may yield negative criteria—they may prevent our punishing the innocent and they may prevent our allowing considerations of expediency from too easily outweighing the general rule that the guilty are to be punished—but they have little, if any, positive contribution to make to the assessment of just punishments’. He remarks the different meanings given to reformation; does it mean the actual betterment of the offender’s frame of mind, or merely the fact that he refrains from crime in the future? And how, in fact, does punishment operate reform? And there is the paradox of the deterrent view of punishment—‘those crimes ought to be the more heavily punished that are the more difficult to refrain from committing, since it needs a greater motive for fear to restrain those tempted to them than is needed from those temptations more easily resisted. Passion, provocation, inadvertence, become not extenuating but exacerbating circumstances... ‘. (shrink)

This book is the joint work of a moralist, a sociologist and a psychologist arguing, as the sub-title indicates, for the abolition of capital punishment. Fr Tidmarsh’s essay provides the ‘Theoretical Framework’ of the discussion. He examines the notion of punishment as retributive, reformative and deterrent. He refuses to be drawn into the kind of detailed discussion that finds its place in the two essays that follow; but what he says is clarifying and indispensable. He points the (...) difficulty of formulating a ‘pure’ retributive theory of punishment; and the fact that ‘considerations of retribution may yield negative criteria—they may prevent our punishing the innocent and they may prevent our allowing considerations of expediency from too easily outweighing the general rule that the guilty are to be punished—but they have little, if any, positive contribution to make to the assessment of just punishments’. He remarks the different meanings given to reformation; does it mean the actual betterment of the offender’s frame of mind, or merely the fact that he refrains from crime in the future? And how, in fact, does punishment operate reform? And there is the paradox of the deterrent view of punishment—‘those crimes ought to be the more heavily punished that are the more difficult to refrain from committing, since it needs a greater motive for fear to restrain those tempted to them than is needed from those temptations more easily resisted. Passion, provocation, inadvertence, become not extenuating but exacerbating circumstances... ‘. (shrink)

This chapter sets out the traditional natural law defense of the claim that the death penalty can in principle be a just punishment for certain offenses. It begins by explaining the relevant principles of traditional natural law theory and how they are grounded in a broadly Aristotelian-Thomistic metaphysics. It then shows how the goodness of retribution follows from these principles, and thus is intelligible given that metaphysical picture. This is followed by an application of these results to the justification (...) of capital punishment specifically, as an instance of retributive justice. Finally, Feser responds to some objections. (shrink)

In this article I spell out a conception of dignity grounded in African moral thinking that provides a plausible philosophical foundation for human rights, focusing on the particular human right not to be executed by the state. I first demonstrate that the South African Constitutional Court’s sub-Saharan explanations of why the death penalty is degrading all counterintuitively entail that using deadly force against aggressors is degrading as well. Then, I draw on one major strand of Afro-communitarian thought to develop a (...) novel conception of dignity as the view that what is special and inviolable about human nature is our capacity for harmonious relationships. I argue that a principle of respect for the dignity of such a capacity entails that the death penalty is an indignity but that deadly force in self- or other-defense need not be, and I contend that this African- inspired principle promises to do no worse than the more Western, Kantian principle of respect for autonomy at accounting for a broad range of human rights. (shrink)

What is the strongest argument grounded in African values, i.e., those salient among indigenous peoples below the Sahara desert, for abolishing capital punishment? I defend a particular answer to this question, one that invokes an under-theorized conception of human dignity. Roughly, I maintain that the death penalty is nearly always morally unjustified, and should therefore be abolished, because it degrades people’s special capacity for communal relationships. To defend this claim, I proceed by clarifying what I aim to achieve (...) in this essay, criticizing existing objections to the death penalty that ethicists, jurists and others have proffered on ‘African’ grounds, and, finally, advancing a new, dignity-based objection with a sub-Saharan pedigree that I take to be the most promising. (shrink)

When engaging in a philosophical analysis of body and corporeality in a political context, it is essential to ask to what extent, under what circumstances, and in accordance with what moral norms the state performs actions that have the bodies and lives of citizens as their object. This issue was already discussed in ancient philosophy, examples of which can be found in the writings of Plato and Aristotle, but also in ancient jurisprudence, especially in the law and the legal doctrine (...) of ancient Rome. Aware of such a previous history of studies on this topic, this analysis will discuss the three main ways in which state power over the life and health of citizens is manifested. Namely: (i) capital punishment (ii) policing and (iii) warfare. In addition, it will be indicated, based on Thomistic philosophy, what moral norms govern these state actions. The fundamental differences between the three main state powers — judicial, police, and military — will also be shown in the context of lethal actions undertaken on their basis. (shrink)

The Universal Periodic Review (UPR), established in 2006, has been hailed as an innovative mechanism of the United Nations’ Human Rights Council. The peer review mechanism assesses the human rights records of all UN Member States and provides recommendations to further the global promotion and protection of human rights. This article provides an analysis of the Kingdom of Saudi Arabia’s third UPR in 2018 with a specific focus on the State’s use of capital punishment. It explores the challenges (...) faced by the UPR and issues recommendations to foster meaningful discourse, in the international community, to protect the right to life and engender change at the domestic level. (shrink)

One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life. Notably, this _right-to-life argument_ emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm. Can capital punishment be necessary in this sense—and thus justified defensive killing? If so, the right-to-life argument would have to admit certain exceptions where executions are justified. Drawing (...) on work by Hugo Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world. A state’s obligations to its prisoners include the _obligation to use nonlethal incapacitation_ (ONI), which applies as long as prisoners pose no imminent threat. ONI precludes executions for reasons of future dangerousness. By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground. (shrink)

In this article, I will describe the evolution of capital punishment and the influence that ideology had during the founding years of Romania’s communist regime, until 1958, when the legislation and application of capital punishment reached its highest peak. Starting with the punishment of war criminals and fascists, I will then describe how the death penalty was used for political motives in a period when the regime had to consolidate, legitimate and fight different enemies. With (...) ups and downs like The Death Penalty Law of 1949 and the abolitionist attempt in 1956, it reached its climax in 1958-1959 after the enactment of Decree no. 318/1958. (shrink)