death penalty Archives - Prindle Institute

October 18, 2023

On the Morality of Executing Child Sex Abusers: Part 2

Recently, I discussed the potential consequentialist justifications for Florida Governor Ron DeSantis’s new bill reintroducing the death penalty for those who commit sexual battery on a child under the age of 12. I argued that, for the most part, these justifications seemed lacking. It’s important to note, however, that there are a number of other ways in which we might justify punishment. In this article, I want to consider an alternative approach: namely that of retributivism.

While consequentialism looks forwards to the potential goods that can be achieved by punishment, retributivism instead looks backwards for its justification. According to the retributivist, the necessary harm of punishment is justified purely on the basis that the offender committed a crime – regardless of what future goods may (or may not) be achieved by this punishment.

There are many cases in which consequentialism and retributivism will disagree on whether punishment is justified. Imagine a case where a community passes a new law forbidding skateboarding in its downtown pedestrian mall. While this law is welcomed by the community at large, it is met with vehement opposition by a small minority. One of this group decides to openly break the law, skateboarding through the mall in protest. This hooligan is apprehended, and the judge must now decide whether or not to punish him. Suppose, however, that punishing this particular hooligan will serve only to foment further dissent and encourage even more cases of skateboarding protests.

The consequentialist justifies punishment on the basis of its deterrent effect – that is, its ability to deter future instances of crime (committed by both the offender and the wider community). In this case, then, the consequentialist will seemingly be forced to concede that punishing the hooligan is not justified. The retributivist, on the other hand, will disagree. Since retributivism is backwards-looking – paying no mind to the consequences of the punishment, and instead focusing solely on the fact that the offender committed a crime – it will still hold that punishment of the hooligan is justified.

It’s worth considering, however, precisely what it is about committing a crime that makes it justifiable to punish an offender. One common way of doing this is to claim that by committing a crime, an offender forfeits certain rights. Why? Well, we might argue that my possession of a right necessarily entails a duty to respect that right in others. Thus, when I violate the right/s of another, I forfeit my own corresponding right/s. We can call this Forfeiture-Based Retributivism.

There are many cases where Forfeiture-Based Retributivism provides a straightforward justification for a case of punishment. Consider, for example, the death penalty as a punishment for murder: My possession of the right to life entails a corresponding duty to respect your right to life. Thus, when I violate this right (i.e., by committing a murder) I simultaneously forfeit my own right to life, and in doing so empower the state to intervene and execute me for this crime.

It’s an intuitive approach – and one that underpins many discussions of how we treat offenders. It is, however, deeply problematic. If the right we violate dictates the right we forfeit, then this will lead to all sorts of strange conclusions regarding the punishments that the state is justified in administering. Consider the skateboarding example above. The hooligan has clearly violated their duty to not skateboard in a pedestrian area. According to the Forfeiture-Based Retributivist, this would entail the hooligan losing their corresponding right. But it’s unclear precisely what that right would be. A right to not have others skateboard in their area?

In other cases, the punishments endorsed by Forfeiture-Based Retributivism move from the absurd to the unacceptable. Consider the crime here under discussion: sexual battery on a child. In committing this crime, an offender violates their victim’s right to bodily autonomy in the most reprehensible way imaginable. According to Forfeiture-Based Retributivism, this offender would subsequently forfeit their own right to not have their bodily autonomy violated in this very same way. Put simply: Forfeiture-Based Retributivism seems to suggest that the perpetrator of sexual assault should be punished by also being sexually assaulted.

Some might find this an acceptable outcome. But most will not. While we might wish to see such offenders punished severely, we will most likely stop short of endorsing that rapists ought to be raped in retribution. This, however, seems to be precisely what Forfeiture-Based Retributivism entails.

An alternative way of providing a retributivist justification might be to simply claim that an offender simply deserves to be punished. We can call this Desert-Based Retributivism. The notion of desert should be a familiar concept for most. Basically, it boils down to the idea that good actions should receive good consequences, while bad actions should receive bad consequences. Suppose that one of my students writes an exceptional essay, while another plagiarizes an incredibly poor essay. The former, it seems deserves a good grade, while the latter deserves a bad grade. Why? This is harder to explain, but it seems to be rooted in the fact that the state of affairs in which the good student receives a good grade is better than the state of affairs in which they don’t. Likewise, the state of affairs in which the bad student receives a bad grade is better than the state of affairs in which they don’t.

Can Desert-Based Retributivism provide a justification for sentencing child sex offenders to death? Possibly. But while it might be clear that the abhorrent actions of these offenders deserve bad consequences, Desert-Based Retributivism fails to provide a specific answer to just how bad those consequences should be. Are they deserving of the most serious punishment at our disposal? This remains unclear. But there’s also a deeper problem with Desert-Based Retributivism: namely, that it justifies punishing the innocent. There are many people who deserve bad consequences despite having broken no law. Consider the vile racist, or the unrepentant philanderer. Racism and infidelity are not crimes, but these individuals clearly seem to deserve punishment for their actions. Should the state, then, punish these individuals, despite the fact that they are (legally) innocent? If we think not, then it seems we might have to look elsewhere for a potential justification for punishment.

While punishment is something we often accept without question, its justification requires careful consideration. This is particularly true where the punishment involves ending a human life. While few would argue that those who commit sexual battery on a child should receive punishment, a reasoned justification for the severity of this punishment is much more difficult to provide. Perhaps we think that child sex abusers should receive our most severe penalty for reasons of deterrence – but this approach is fraught with complications. We might, on the other hand, think that these offenders have forfeited certain rights, or simply deserve to be punished as severely as possible – but problems arise here too. Ultimately, this means that our discussion of the severity of punishment appropriate for child sex abusers needs to be carefully carried out on the basis of reason, not emotion. It’s unclear that the legislative procedure behind Florida’s new law followed any such process.

October 16, 2023

On the Morality of Executing Child Sex Abusers: Part 1

Several months ago, Florida Governor Ron DeSantis signed a bill reintroducing the death penalty for those who commit sexual battery on a child under the age of 12. Such laws were previously found unconstitutional by the Supreme Court. But even so, it’s worth considering what – if any – moral justification could be given for responding to child sex abuse with the most serious punishment at our disposal.

In order to make sense of the relevant arguments, we first need to consider precisely what punishment is. Whether it’s a fine, a prison sentence, or the death penalty, punishment seems to necessarily involve harming an offender in some way. But this is problematic. Ordinarily, we assume that there’s a strong moral prohibition against harming other people. We need to explain, then, why it’s permissible to treat some people (i.e., those who commit a crime) differently to other people.

One way in which we might do this is by being consequentialist in our reasoning. Consequentialism – as the name suggests – evaluates the morality of our actions based on the consequences they achieve. While there are many different varieties of consequentialism, they all agree that the right thing to do is that which maximises the good. A consequentialist, then, will argue that while punishment does involve harm to the offender, this harm is offset by the greater good it brings about for our society. What is that “good”? Generally, a reduction in future crimes. The central mechanism by which this is done is deterrence. Punishment is intended to deter an offender from reoffending. But this isn’t all. The punishment of an offender also acts as a wider deterrent for other members of society. Having seen the consequences of wrongdoing, those who might have committed a crime will (hopefully) no longer do so.

Taken together, the deterrence of the offender as well as the general population reduces the likelihood of future crimes and their associated harms. The consequentialist argues that this overwhelming good is sufficient to outweigh any harm caused to the offender.

It’s a straightforward approach, and one that many will find intuitive when thinking about why punishment might be justified. But a number of issues arise. For one, there may be cases where punishment doesn’t maximize the good. Consider a case where a crime is committed by a respected member of the community. Suppose that punishing this particular individual will create no deterrent effect and will, in fact, have far-reaching negative consequences in the form of anger and disillusionment across the community. In such a case, it seems that the consequentialist approach will recommend against punishment.

There might also be cases where consequentialism will recommend punishing the innocent. Suppose, for example, that imprisoning one innocent individual will be enough to deter an angry mob that – if left unchecked – will go on to cause widespread injury and destruction across town. In such a case, a consequentialist approach may very well tell us that punishing that person is the right thing to do.

There are ways that the consequentialist might avoid such problems. One solution would be to argue that while particular cases of punishing the innocent or failing to punish the guilty might maximize the good, adopting such practices as a rule would – in the long run – create more harm than good. But there are deeper problems with the very thing that forms the foundation of the consequentialist approach: namely, deterrence. In order for a punishment to deter, it must be something that the potential offender considers when deciding whether or not to commit a crime. But there are many situations in which this won’t be the case. Those who commit a crime of passion will be paying little mind to the potential consequences of their actions – punishment included. The same might also be true of those who are under the influence of certain substances, or who suffer from diminished mental capacity. All of these are examples of cases where the possibility of punishment will fail to provide a potential offender a reason to alter their behavior.

In other cases, increasing the severity of punishment for a crime may in fact encourage the commission of other crimes. Claire Finkelstein provides a helpful example of this, noting how an increase in the severity of the punishment for bicycle theft might incentivize those who would have otherwise stolen a bike to now steal a car instead.

Something similar can occur when the most severe punishment – the death penalty – is used for anything less than murder. If someone commits a crime punishable by death, they now have little discouragement from committing further crimes (since it is impossible for them to receive a greater punishment). This may be particularly relevant where someone has an opportunity to commit an additional crime in order to reduce their chances of being caught for their initial crime. Suppose, for example, that someone commits sexual battery against a minor, and that the only witness to this crime is the victim. If the perpetrator knows that they are already likely to receive the death penalty for the battery alone, they will have little discouragement from committing further offenses. What’s more, if they are able to reduce their chances of being caught by – say – now murdering that victim, it will make sense – at least, from their perspective – to do so.

And there are other ways in which an increase in the severity of punishment might have negative ramifications. Legal experts have expressed their concern that Florida’s new policy may in fact decrease the likelihood of incidents of sexual battery on minors being reported. This is due to the fact that most cases of child sex abuse are committed by family members. The fact that such incidents might be punished by death may cause families to be more reluctant in reporting such wrongdoing to the authorities.

Increasing the penalty for a serious crime might feel like the right thing to do. In many cases, it’s our society’s attempt to convey our utter disapproval of an abhorrent act. We must be wary, however, of the nuanced effects these severe punishments might actually have on the commission of crimes. In many cases they will simply fail to deter, while in others they may in fact encourage the commission of additional crimes. In yet other cases, a severe punishment might reduce the likelihood of crimes being reported in the first place – thus allowing the perpetrators to continue to offend.

For this reason, it is difficult to justify Florida’s new law on purely consequentialist grounds. But is there, perhaps, another approach that might provide justification? While consequentialism looks forward to the consequences of our actions, we could instead look backwards to certain facts about the past. This is precisely what the theory of retributivism does – and next time, I will consider whether this approach might provide better support for executing child sex abusers.

November 16, 2021December 14, 2022

Death Row Inmates, Execution, and Choice

photograph of drug vials and vintage syringe

On October 28th, 2021, the state of Oklahoma executed John Marion Grant. This was the first execution the state had carried out for six years, after placing a moratorium on executions following a case where a prisoner was given the wrong drugs (and another prisoner narrowly escaped the same fate). The drug of choice in nearly all modern federal executions had, until that point, been sodium thiopental. But issues with batch contamination shut down the sole factory producing and supplying it to prisons. Additionally, shortly after discovering a therapeutic alternative to sodium thiopental — pentobarbital — the drug company’s CEO imposed distribution restrictions on the product, prohibiting prisons from buying it.

Since then, most states have lost access to their first and second execution drug of choice, nearly slowing federal executions to a stop. In the last couple years, states have managed to re-access both sodium thiopental and pentobarbital, but the humaneness — and, therefore, constitutionality — of their use remain a matter of dispute, with several lawsuits across many states protesting their use in federal executions. Prisoners and their lawyers frequently use these lawsuits to try to achieve stays of execution. After all, if the jury is literally still out on whether a certain drug is a cruel and unusual means of execution, that seems a good reason to delay its use. However, since Justice Alito’s 2014 Supreme Court opinion arguing that “because capital punishment is constitutional, there must be a constitutional means of carrying it out,” states have been forced to come up with some way to perform executions. Oklahoma devised a compromise: take all of the contested methods of execution, and let the prisoners choose their preferred method.

There was a further deceptive aspect of the choice prisoners were given: several of the execution methods had active lawsuits against them. Therefore, if a prisoner chooses one of those drugs, their execution is put on hold indefinitely, at least until the lawsuit is resolved. The prisoners could choose between several different methods: pentobarbitol, sodium thiopental, non-FDA approved compounded versions of either of the first two drugs, firing squad, or a three-injection method that utilized a benzodiazepine, a paralytic, and potassium chloride to end lives.

But there were some prisoners who believed that selecting the method of their execution would be akin to participating in their own death (i.e., suicide). John Marion Grant was one of those prisoners.

Grant’s refusal to choose an execution method, on the grounds that it violated his deeply-held beliefs that this act would be morally wrong, meant that he was, by default, given the three-injection drug execution – a method not without controversy, given that dosing for these drugs represents a sort of guessing game. That is: nobody really knows how much of each drug any particular inmate will require for complete sedation, so they tend to give prisoners massive amounts rather than risk not giving them enough. Grant’s execution did not, however, go as planned. The aftermath of the injections saw him gagging, convulsing, and vomiting for at least 12 minutes before he was officially declared dead. In an op-ed for The Atlantic, Elizabeth Bruenig characterized Oklahoma’s ruling in the following headline: “Oklahoma Tortured John Grant to Death Because He Wouldn’t Commit Suicide.”

But is this a fair characterization of Oklahoma’s law? Is allowing inmates to choose their preferred method of execution really on a par with forcing them to commit suicide? Initially, the answer seems to be no. Merely having some active role in your own execution is surely not sufficient to render one’s actions “suicidal.” As far as John Marion Grant knew, he was going to die no matter what. All the state was offering him was a chance to choose what he would experience in his final moments.

But rhetoric aside, we may still wonder whether having prisoners take this active role presents an ethical problem. Elizabeth Anderson, in her Tanner Lectures entitled “Private Government,” argues that there are many instances in which a choice only superficially increases someone’s autonomy. She uses the example of laws regarding marriage, specifically the changes in the law when divorce became legal. This newly granted “freedom” of entry into (and exit from) a marriage which, on its surface, appeared to grant more autonomy to women within marriage, actually did the opposite. Because women still lost all property rights upon entering into a marriage contract with their husband, choosing to divorce would, for most women, result in almost certain destitution. It was an “option” that was not really an option at all. Such a choice did little to help improve the overall situation for domestic women. Anderson argues that, “Consent to an option within a set cannot justify the option set itself.” That is, a woman who consents to stay in the marriage, because her other option is homelessness, does not, by that acquiescence, justify the situation. Similarly, one might argue that the Oklahoma law only gives a superficial appearance of prisoner choice and autonomy, and does nothing to make the bare set of execution options permissible.

From a consequentialist perspective, however, an argument could be made that allowing prisoners to choose their method of executions maximizes net good. One may argue that this choice improves the lives of prisoners by alleviating some anxiety they may have otherwise experienced in the lead-up to execution, and that it does this without making anyone else worse-off. For example, if a prisoner had a particular fear of sodium thiopental, they may be relieved to have the option to avoid the drug entirely. Of course, this net gain in utility is not a guarantee — choosing their means of death could exacerbate the anxieties of the prisoner, allowing them to imagine their death in vivid detail in the days before their execution. It may also, as in the case of John Marion Grant, weigh on their conscience as a morally impermissible act of self-harm.

From a Kantian perspective, there may be entirely different reasons to avoid offering this choice to inmates. Kant’s theory of punishment is commonly held to involve a view of justice as primarily retributive — that is, justice is realized when people are rewarded for doing good, and punished for doing bad. Kantian retributivists like the philosopher Igor Primoratz hold that the punishment has to fit the crime in order of magnitude. A crime of murder, therefore, requires for justice that the murderer’s life be taken. The longer we wait to end the life of the murderer, the longer justice waits to be served.

One can, then, imagine a retributivist objection to the Oklahoma law on the grounds that it sometimes results in unnecessary stays of execution. Additionally, one could argue that granting this autonomy of choice to people who are charged with brutally taking innocent lives renders their punishment too light to actually serve justice. After all, the murder victims certainly were not allowed to choose their own means of death.

And so, it seems that, from all normative perspectives, the Oklahoma law regarding choice of means of execution appears morally questionable, at best. We can hope that the law will be replaced with one that is more just — whatever that may look like.

March 2, 2021December 14, 2022

Implications of Exonerations

black-and-white photograph of empty jail cell

I expect that in the near future we will know, for certain, that at least one innocent person has been executed in the United States. This should not come as a surprise. There have been many cases where those on death row are found to be innocent; indeed by some estimates more than 4% of death row inmates may be innocent. One major reason we have not previously proven someone’s innocence is that there is rarely the political will to continue investigating post execution.

What I want to investigate in this piece is what this should mean for the use of the death penalty. The BBC, in its Ethics Guides, notes that the “most common and most cogent argument against capital punishment is that sooner or later, innocent people will get killed, because of mistakes or flaws in the justice system.” But just how cogent an argument is this?

Let me lay my own cards on the table; I am emphatically anti-death penalty. I think the unnecessary killing of any human being is monstrous, and that the state may only use lethal force when combating an active threat, not as punishment for a past threat. However, I would hold this view even if there was no chance of an innocent person ever being executed; my objection is grounded in an invariant pro-life commitment. Thus, I think I am particularly well placed to assess the ethics of this question. I’m not in favor of capital punishment, and so am not looking for any rationalization to dismiss the argument from innocent execution; but nor do I feel a rationalizing compulsion to think the argument works — my own commitments would persist regardless. Of course, this all may just be a second-order rationalization about my own objectivity, but I’ll put aside worries about meta-level rationalizations for another post.

So here is a simple argument from the possibility of executing the innocent to the wrongness of the death penalty:

If we use the death penalty, eventually an innocent person will be killed. (innocence premise)
Executing the innocent is always morally wrong, no matter how good the consequences. (absolutism premise)
Therefore, if we use the death penalty, we will eventually do something wrong that cannot be justified by the goods of executing the guilty.

Now, there is a certain intuitive plausibility to this argument. Suppose I thought that the death penalty has a strong deterrent effect, and so executing the guilty would save many lives (see this article for a defense of this argument; note there have been, as far as I can tell, several persuasive replies); I still would not think it is permissible to frame an innocent person and execute them to get that same deterrent effect. Thus, it is wrong to kill the innocent, even to bring about the valuable execution of the guilty.

The problem with this argument, is that, by parity, it seems to suggest we should never punish anyone:

If we imprison people, eventually an innocent person will be imprisoned. (innocence premise)
Imprisoning the innocent is always morally wrong, no matter how good the consequences. (absolutism premise)
Therefore, if we imprison people, we will eventually do something wrong that cannot be justified by the goods of imprisoning the guilty.

This argument, as far as I can tell, has the same surface level plausibility as the previous one. If I knew the only way to capture a murderer was to, for some reason, imprison an innocent person for life, it would not be permissible to imprison that person.

So what has gone wrong with these two arguments? I think it is that there is a difference between killing or imprisoning the innocent as an intended means to punishing others, and foreseeing that the innocent may be killed or imprisoned as a consequence of a broader policy of punishment. While there may be an absolute prohibition on killing or imprisoning the innocent, that does not mean there is a prohibition on anything that could lead to that as a result.

To articulate the innocence argument against the death penalty, one needs to show that a) the fact an innocent person will be killed means we cannot use the death penalty, and b) the fact an innocent person will be punished does not mean we cannot use any schema of punishment (since I assume few people would accept that the inevitable punishment of the innocent means all punishment is unjust).

In fact, the problem for the innocent argument is even more profound. Remember that study I cited at the beginning, saying that as many as 4% of death row inmates are innocent? The way that study worked is that they compared the exoneration rate of those who stayed on death row (about 4%) to those who were shifted to life in prison. Because more scrutiny is given to death penalty cases (especially as the guilty approach execution), those who are actually to be executed (and not just on death row) are more likely to be exonerated. So, the study most commonly cited to support the claim that some innocent will be executed, actually shows that likely more innocent people would be punished if we switched from the death penalty to life in prison (since we are less likely to identify the innocent without the scrutiny provided to death penalty cases).

So, what can we point to in order to say that executing the innocent is uniquely bad — bad in a way that imprisoning the innocent is not?

Barbarity. Perhaps the thought is that the death penalty is, in some way, so much worse than life in person, that we cannot take any risk with the innocent being killed, even if we can take risks on an innocent person going to jail for life. But I’m not sure this is quite right. In other parts of life, we don’t treat risks of death as categorically worse than other risks. Anytime you drive a car there is a disturbingly high chance an innocent person might die (far more innocent people die in car accidents than are executed); but I don’t think we treat such risks as categorically distinct from other types of risks. You might, for instance, choose a small risk of death to avoid a much larger risk of having to spend the rest of your life locked in prison.

Irreversibility. The first thing we might suggest is that the death penalty is irreversible. If you kill someone you cannot bring them back to life, but if you imprison someone you can always let them go later. But it is not quite that simple. For one thing, you really cannot reverse a prison sentence. Even if you are eventually released, you do not get back those twenty years spent in prison. The punishment cannot be reversed, all we can really do is shorten it if we discover you are innocent.

Permanency. Is that the solution then? Is the reason the death penalty is so bad because it is permanent? Perhaps the thought is that if we cannot be certain someone is guilty, no permanent punishment is justified. But here, again, this does not seem quite right. After all, I still permanently lose my twenties and thirties to prison, even if I get released on my fortieth birthday.

And note too, the risk of permanence is not the same thing as permanence. Just because someone could be released does not mean they will. And we know that, since executions receive greater scrutiny, an innocent person is more likely to be sentenced to life in prison than sentenced to death.

Reparability. Perhaps it is not that the death penalty is permanent, but that it cannot be repaired. Sure, someone imprisoned till they are forty permanently, loses out on their thirties, but at least the state can do something to make it up to the person falsely imprisoned. For example, often those falsely imprisoned are given financial compensation from the state.

I actually find this argument somewhat convincing, but we have already seen that as a society we don’t accept the broader implication. After all, it is death, not execution, that is irreparable. But we have already seen that we don’t treat risks of death as categorically different from other types of serious risks. If car accidents just resulted in serious bodily injury, we could imagine making some reparation for such injury. Since they sometimes result in death, sometimes no such reparation is possible. But, again, it seems we don’t see that fact as particularly dispositive when assessing the ethics of driving.

It is a terrible and tragic thing to execute the innocent. But, I think, that is just a subset of the terrible and tragic thing that it is to punish the innocent. Perhaps we should strengthen our criminal standards for conviction (I’m quite sympathetic to that line of thought) so that fewer innocent people are punished. But I’m not sure. At the very least, if we accept as inevitable that the innocent will be punished it gives us a categorical reason to select some punishments over others.

November 19, 2019December 14, 2022

Cruel and Unusual Reasoning? Some Recent SCOTUS Decisions on the Eighth Amendment

Yellow and white corridor with metallic doors of cell rooms in old prison

Between October 2 and October 24, 2002, ten people were killed and three others injured by John Allen Muhammad and Lee Boyd Malvo. This series of attacks, referred to as the D.C. Sniper Attacks, were executed within the I-95 corridor around Northern Virginia, Baltimore, and Washington, D.C. While John Allen Muhammad was executed by lethal injection in 2009, Lee Boyd Malvo was sentenced to life without parole in Virginia and six life sentences in Maryland.

Malvo, however, is now appealing his Virginia life sentences in the Supreme Court of the United States (SCOTUS), relying on that court’s 2016 ruling that recent constitutional bans on mandatory life-without-parole sentences for juvenile offenders are to be applied retroactively. The constitutional ban on such sentences was itself enacted in 2012 as an extension of a 2010 ruling that found mandatory sentences of life without parole for juvenile offenders to be in violation of the Eight Amendment ban on cruel and unusual punishments.

The SCOTUS ruling that mandatory sentences of life without parole, as well as death sentences, constitute cruel and unusual punishment for juvenile offenders, but is not cruel and unusual in general, brings up an interesting question: What does the court consider cruel and unusual? We should also ask, regardless of the SCOTUS opinions on the matter: What do we consider cruel and unusual?

Death sentences are not generally held to be cruel and unusual by the SCOTUS, nor is a death sentence held to be cruel and unusual even in instances when the sentenced person may suffer tremendously. In Bucklew v. Prescythe the court ruled that Russell Bucklew could not demand his death sentence be executed via gas chamber instead of Missouri’s standard pentobarbital lethal injection. Bucklew requested an alternative means of execution due to a rare condition he has which could cause him to drown in his own blood during execution. However the majority opinion, delivered by Justice Neil Gorsuch, argued that the State of Missouri’s interest in concluding pronounced legal sentences in a timely manner outweighed Bucklew’s claims. More specifically, the court stated that Bucklew’s case did not meet the standard set by the so-called “Baze-Glossip test,” which requires that an appeal identifies an available and easy alternative execution method that is very likely to ameliorate what would otherwise be significant suffering.

The court struck a seemingly different tone in Hudson v. McMillian when they opined that a prisoner being beaten by a guard may count as cruel and unusual punishment, even when the prisoner does not suffer lasting injuries. Justice Sandra Day O’Connor, writing for the majority, stated that it was not only the extent of a prisoner’s injury and suffering that mattered, but also the attitude with which the punishment was inflicted by state agents. Despite the apparent differences between the decisions in Bucklew v. Prescythe and Hudson v. McMillian, there is a common thread. Writing for the majority in Bucklew, Justice Neil Gorsuch argued that the mere fact of significant suffering on the part of inmate did not automatically make a punishment cruel and unusual. Rather it is whether the inmate’s suffering is directly intended by the agents of the state. In two separate decisions the attitude of state agents was the predominating consideration over the extent of a prisoner’s suffering.

In the case of death sentences and mandatory life without parole for juveniles, however, the court’s reasoning is that such punishment is cruel and unusual. The 2010 decision in Graham v. Florida stated that sentencing juveniles to mandatory life without parole for non-homicide crimes is cruel and unusual because it doesn’t allow any possibility of releasing convicted people, even when they have demonstrated a commitment to their own rehabilitation. This reasoning was extended to juveniles convicted of homicide in the 2012 Miller v. Alabama ruling. Hence the state of SCOTUS opinion at present is that it is cruel and unusual to foreclose on the possibility that a juvenile offender may reform enough that they should be considered for parole; but that it is not cruel and unusual for an offender to be executed in a fashion that may cause extreme suffering; but that it is cruel and unusual for an offender to be beaten in a way that does not cause lasting injury. Can these views be squared with each other?

To probe this question it is helpful to look at two prominent theories of punishment: utilitarianism and retributivism. The utilitarian theory considers the advisability of punishing a particular offense, or type of offense, in terms of the balance of social benefit to social harm. Questions about whether a punishment will sufficiently deter, incapacitate, or rehabilitate an offender are balanced against the needfulness, efficiency, and cost of that punishment. A punishment may be considered cruel and unusual under such a theory if the social costs outweigh the benefits. For example, sentencing minor offenders to death would greatly erode general freedom and the populace’s acceptance of the legal system. Punishing thieves by chopping off their hands may be effective, and people might even accept it, but less harsh punishments could achieve the same effect. Marijuana possession may be against the law, but it may not be worth trying to deter people from obtaining and using the drug.

Retributivist theories, on the other hand, focus on the concepts of moral desert and fittingness. That is, ensuring that punishments are proportional to offenses. In such theories the concern is more that offenders get what’s coming to them, rather than balancing benefits and detriments to society. In the extreme a retributivist theory promotes the idea of “an eye for an eye.” Hence a person who has killed someone may themselves deserve to be killed. However pronouncing a death sentence for forgery or speeding is not fitting—not proportional—to the offense. Under a retributivist theory a punishment would be cruel and unusual if it were grossly out of proportion to the offense.

In the few cases noted above, clear signs of the utilitarian view are manifested in the state of SCOTUS opinion on capital punishment. In cases like Lee Boyd Malvo’s, the court brings to bear considerations of whether a sentence allows for the possibility of rehabilitation, even when that sentence clearly fulfills deterrent and incapacitating purposes. At the same time cases like Russell Bucklew’s show that the court is also concerned with cost and efficiency. Whether a punishment is cruel or unusual turns out to be a function of a calculation balancing numerous different values. If the final tally in the eye of the court seems out of balance, even grossly so, the example of weighing a variety of factors and decided on a case-by-case basis is a good one.

February 25, 2019December 14, 2022

Death by State? The Country Discusses Abolition of Capital Punishment

Many Netflix viewers in recent weeks have familiarized themselves with the details of a set of notorious crimes committed by a criminal executed by the state of Florida in the 1980’s. The Ted Bundy Tapes tells the story of the life and crimes of Theodore Robert Bundy, a depraved serial killer who raped, tortured, and killed women and engaged in necrophilic acts with their bodies. A case like Bundy’s is just the kind of case that motivates supporters of the death penalty in their arguments for the claim that capital punishment is a moral necessity.

The series includes footage of the day Bundy was executed. Thousands of people celebrated outside of Florida State Prison. Street vendors sold electric chair lapel pins and t-shirts that read “Burn Bundy burn!”—a phrase that the crowds chanted at fever pitch while setting off fireworks nearby. Spectators held signs scrawled upon with phrases like “Toast Ted!” and “Crank up Old Sparky!” When asked about the spectacle, Bundy replied, “They’re crazy! They think I’m crazy, listen to all of them!” The scene was not unlike the one that Charles Dickens described witnessing at the execution of François Courvoisier in 1840: “No sorrow, no salutary terror, no abhorrence, no seriousness; nothing but ribaldry, debauchery, drunkenness, and flaunting vice in fifty other shapes … It was so loathsome, pitiful and vile a sight, that the law appeared to be as bad as he, or worse.”

These cases motivate reflection on the role that emotion plays in this most severe of punishments. Emotions spike in response to acts of senseless violence and depravity. If this happens at the level of community spectators, might there also be intense emotion in place at other stages of the criminal proceedings? What level of emotion is appropriate? What kind of emotion is appropriate, and directed toward whom? It may be that moral judgments always involve a certain amount of sentiment. Indeed, some moral philosophers have argued that moral judgments are nothing more than expressions of sentiment. On the other hand, it is uncontroversial that emotions sometimes cloud our better judgment. What’s more, not all emotions are created equal, and empathy may well count for much more than anger.

Public support for the death penalty has diminished significantly over the years, with rates of approval dropping from 80 percent in the 90’s to 56 percent as reported by Gallup in 2018. In the past year, several states have considered repeal of the death penalty. In 2018, abolition was considered by Washington, Utah, New Hampshire, and Louisiana. In 2014, the governor of Washington, Jay Inslee, imposed a moratorium on the death penalty in the state, claiming that its inconsistent and unequal application made retaining the form of punishment morally and legally indefensible. In October of 2018, the Washington Supreme Court ruled that the death penalty, as applied in the state of Washington is arbitrary and capricious and racially biased, and that as such it is inconsistent with Article I, section 14 of the Washington State Constitution. The court made use of a study produced by researchers at The University of Washington titled “The Role of Race in Washington State Capital Sentencing 1981-2014”. The study concluded that “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.” Earlier this month, the Washington State Senate reinforced the reasoning of the court when they passed a measure to repeal the death penalty. The bill now advances to the House. On February 14 of this year, the proposed repeal of the death penalty in Wyoming failed in the Senate.

The United States has been engaged in a conversation about issues related to state-sanctioned killing as punishment for as long as the nation has existed. Recently, arguments for repeal have focused on racial bias, cost, the proper relationship between the government and its citizens, and the possibility of executing innocent people. Since the reinstatement of the death penalty after a national moratorium in 1973, 165 death row inmates have been exonerated.

One of the central arguments in support of the death penalty has to do with retributive justice—a moral commitment to make sure that a criminal “gets what they deserve.” According to this argument, some crimes—like those that Bundy committed—are so heinous that the perpetrators deserve to lose their lives as punishment. On this view, the death penalty is a basic requirement of justice. One of the primary moral obligations of a state’s criminal justice system is to achieve justice for victims and their loved ones. If this is the case, the state is not merely permitted to execute perpetrators of the most heinous crimes, they are morally obligated to do so. Those that hold this view would likely argue, for example, that if the state of Florida failed to execute Ted Bundy, that failure would count as a serious miscarriage of justice and dereliction of duty.

This argument raises a series of questions, many of which focus on the idea that imposition of the death penalty is not merely permitted, but is actually required. This claim seems to rest on the idea that the obligation that the state owes to victims of crimes is unique and morally privileged. There are considerations that speak in favor of this idea. Many philosophers argue that the feature that makes persons distinct from non-persons is their capacity to make autonomous decisions. When people commit crimes, those crimes almost always involve violations of autonomy. In the most heinous cases—like cases of murder—the crimes involve the annihilation of the person and the autonomy that makes them one. If autonomy is highly valued by our society, as it should be, then perhaps it makes sense to place justice for victims and their families high on the list of moral priorities. Add to this the pain and suffering experienced by the loved ones that the victims left behind, and we are left with a powerful argument for giving special moral consideration to victims. These considerations are paired with a perceived (and possibly real) obligation arising from intuitions both common and strong—it is unfair when bad things happen to good people, and when those bad things are freely caused by a bad person, bad things should happen to that person. One might think that this is an issue of fairness.

Even if the state’s obligations to victims and their families is important, it is worth asking whether those obligations override the State’s other important obligations. Death penalty cases are exceptionally expensive. In earlier discussions of repealing the death penalty, Washington legislators considered the fact that capital cases cost the state at least $1 million dollars more than non-capital cases. Presumably, these funds could be used for other crucial state expenses. Even if we concede that the death penalty achieves justice for the families of victims, does the state’s obligation to achieve that justice really supersede other state obligations? Given that the offender has already been apprehended and faces life in prison, would the money be better spent on schools, roads, or health care?

Another crucial question to resolve is exactly what should count as evidence against the permissibility of the death penalty. Washington made use of research indicating racial bias within the state. Should other states with similar or identical policies and practices take that same study as evidence that their policy is susceptible to racial bias? Or is any policy potentially subject to racial bias and does the moral permissibility of the policy turn on the demographics and attitudes of the particular area in question? Are all states morally obligated to be proactive in conducting research about their own communities?
Should evidence that a single person on death row is innocent count as evidence of the inevitably error-prone nature of the system, and should that evidence suggest that we should abolish the death penalty? How many errors are we willing to let slide?
Lack of agreement on these initial framing questions may explain why the national conversations about this issue have been prolonged and frequently unproductive.

May 2, 2017December 14, 2022

Justice on a Conveyor Belt: The Death Penalty in Arkansas

In March and April of this year, the state of Arkansas made national headlines for its plan to execute eight prisoners over the course of 11 days. The speed involved is striking, especially when compared with national annual execution averages; only 20 people were executed nationwide in 2016.

The truth is, Arkansas is racing against the clock. Like most states, the primary method of execution in Arkansas is lethal injection. Death by lethal injection is typically accomplished using a three-drug cocktail. In Arkansas, midazolam is used as an anesthetic, ideally ensuring that the prisoner does not experience any pain. Vecuronium bromide is used to cause paralysis before potassium chloride is used to stop the heart. The trouble is, the remaining midazolam that Arkansas possesses is about to reach its expiration date, and it looks like they won’t have access to more any time soon.

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December 14, 2016December 14, 2022

Death Row Dilemmas: The Sentencing and Execution of Ronald Smith Jr.

In the early hours of the morning, on November 8th, 1994, Casey Wilson was working his shift at a Circle K in Huntsville, Alabama. That morning, 23-year-old Ronald Bert Smith Jr. came into the station with the intention to rob it. He pistol-whipped Wilson and forced him to the convenience store restroom where he shot him. Wilson died of his wounds. To avoid detection and identification, Smith removed the store’s surveillance videotape from that night and brought it with him.

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March 9, 2016December 14, 2022

The Nuances of the Death Penalty

In the wake of a violent crime and loss of a family member, complicated decisions often must be made in an attempt to find a suitable resolution. In 2013, Darlene Farah’s 20 year-old daughter, Shelby, was murdered in Jacksonville, Florida by 24 year-old James Rhodes. After security camera footage and Rhodes’s confession made the case clear-cut, Rhodes and his attorneys came up with a plea deal for him to get two consecutive life sentences plus 20 years in state prison with no trial or chance of his appeal. Despite Darlene Farah’s desire to accept the plea deal and allow her family to begin healing, the Florida State Attorney’s Office has decided instead to seek the death penalty for Rhodes.

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