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Justice and Retributivism in ‘Moon Knight’

photograph of 'Moon Knight' comic cover featuring an illustration of a superhero in a jump pose with a black suit and cape

This article contains spoilers for the Disney+ series Moon Knight.

In Disney’s Moon Knight, two Egyptian Gods advocate for two very different models of justice. Their avatars, of whom the titular character is one, are the humans tasked with doing the Gods’ bidding. Konshu is the beaked God of vengeance who manipulates his avatars to punish wrongdoers. His form of justice depends on the concept of desert — people should be punished for the choices that they make after, and only after, they have made them. Throughout the series, the main antagonist, Harrow (who was, himself, once Konshu’s avatar) attempts to release the banished alligator God Ammit. Ammit has the power to see into the future; she knows the bad actions that people will perform and instructs her avatars to punish these future wrongdoers preemptively, before anyone is harmed by the bad decisions.

As is so often the case with Marvel villains, the mission shared by Harrow and Ammit is complicated.

The struggle involved between the two Gods is not a battle between good and evil (neither of them fit cleanly into either of those categories). Instead, it is a conflict between competing ideologies. Ammit and Harrow want to bring about a better world. The best possible world, they argue, is a world in which the free will of humans is never allowed to actually culminate in the kinds of actions that cause pain and suffering. If people were prevented from committing murders, starting wars, and perpetrating hate, there would be no victims. The reasoning here is grounded in consequences; the kinds of experiences that people have in their lives are ultimately what matters. If we can minimize the kinds of really bad experiences that are caused by other people, we should.

Nevertheless, viewers are encouraged to think of Konshu’s vision of justice as superior; Mark and Steven spend six episodes trying to prevent Harrowing from reviving Ammit. The virtue of Konshu’s conception of justice is that it takes the value of the exercise of free will seriously. The concept of reward is inextricably linked to the concept of praise and the concept of blame is similarly linked to the concept of punishment. People are only deserving of praise and blame when they act freely; free will is a necessary condition for praise or blame to be apt. A person is only praiseworthy for an action if they freely choose to perform it, and the same is true with blame. Ammit’s form of justice doesn’t respect this connection, and the conclusion the viewer is invited to draw is that the God therefore misses something central about what it is that fundamentally justifies punishment.

The suggestion is that retributivism — the view that those who have chosen to do bad things should “get what they deserve” — is the theory of punishment that we should adopt in light of the extent to which it emphasizes the importance of free will.

But it isn’t that simple, in the MCU or in the real world. Later episodes of the series explore the theme of mitigating circumstances, and the viewer is left to wonder: are all circumstances mitigating? In episode 5, Marc and Steven travel to an afterlife and, at the same time, through their own memories. As viewers have likely suspected, Marc has dissociative identity disorder, and Steven is a personality he created to protect him from the abuse that he suffered at the hands of his mother. In childhood, Marc and his little brother Randall went to play in a cave together and rising waters resulted in Randall’s drowning. Marc’s mother never stops blaming him for the death and takes it out on him until the day that she dies. It is clear that Marc has carried a significant sense of guilt along with him all of his life. Steven assures him, “it wasn’t your fault, you were just a child!”

The actions that young Marc took might appear to be chosen freely; he went to the cave with his brother despite the fact that he knew doing so was dangerous. Yet it does seem that Steven is correct to suggest that the inexperience of youth undermines full moral responsibility. The same is true with at least some forms of mental illness. If the trauma of Marc’s past has fractured his psyche, is he really responsible for anything that he does, either as Marc or as Steven?

The kinds of factors that contribute to who a person becomes are largely outside of their control.

No one can choose their genetics, where they are born, who their parents are, the social conditions and norms that govern who it is deemed “acceptable” for them to be, whether they are raised in conditions of economic uncertainty, and so on.

Many factors of who we are end up being largely a matter, not of free will, but of luck. If this is the case, it is far from clear that, as viewers, we should be cheering for Konshu’s model of justice to win in the end. Anger and resentment are common sentiments in response to wrongdoing, but retributive attitudes about justice often create barriers to experiencing emotions that are even more important — forgiveness, compassion and empathy. Existence on the planet is not one giant battle between good and evil; explanations for behavior are considerably messier and more complicated.

Moon Knight’s story has only just begun, and the philosophical themes promise to be rich. With any luck, they’ll motivate us to think more critically about justice in the real world. Even if we could see into the future, there are good arguments against pursuing Ammit’s strategy — it seems unfair to punish someone to prevent them from doing something wrong (the metaphysics of time are kind of sketchy there, too). Konshu’s strategy — a heavily retributivist strategy — closely resembles the one we actually follow in the United States; we incarcerate more people than any country in the world. Our commitment to giving wrongdoers “what they deserve” may stand in the way of more nuanced moral thought.

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To Requite, To Restore, or To Deter: Punishing Amy Cooper

photograph of empty courtroom from Judge's perspective with gavel in foreground

On May 25, Amy Cooper called the cops on Christian Cooper after he asked her to leash her dog in Central Park. Video of their interaction sparked further debate about racial bias and police brutality, and also led to the renewed pressure to pass a NY State bill banning race-based 911 calls. Amy Cooper was fired from her job, had her dog temporarily confiscated, personal history exposed, and became a household name as one of the many faces representing the white “Karen” complex. She released a subsequent apology in The New York Times, but also immediately hired a defense attorney when she was officially charged with filing a false police report. However, on July 14, Christian Cooper announced he would not be cooperating with Manhattan District Attorney’s Office. In an opinion piece in The Washington Post, Cooper concluded that he must “err on the side of compassion and choose not to be involved in this prosecution.” His announcement shocked many and raises further questions about the purpose of punishment and the criminal justice system at large.

Why should we punish “bad actors?” Is the purpose of criminal law to deter crime, to punish perpetrators, or something else? And should prosecutors listen to victims when deciding whether to pursue charges?

Within the theories law and punishment, there are two major answers to the question of the purpose of criminal law: retribution and deterrence. The retributive approach to punishment and criminal justice is the belief that people who do the crime, should serve time. Under retributive theory, perpetrators should be punished regardless of the future consequences. Retributivists believe that the goal of punishment is ultimately to give people what they deserve. Retributivism therefore is inherently backward looking in its justification of punishment. The utilitarian approach to punishment, however, purports that the purpose of punishment is to deter future crime, both by the perpetrator and potential future bad actors. The goal of deterrence-based punishment is positive outcomes for society as a whole, and it is inherently forward-looking in its justification and goals. Both of these approaches to punishment can be used to answer whether or not Amy Cooper should be prosecuted.

In his explanation, Christian Cooper concludes that neither the retributive nor the utilitarian approach to punishment logically justifies Amy Cooper’s prosecution. In terms of retribution, Christian believes that Cooper has already gotten what she deserves. He explains that he believes “in punishments that are commensurate with the wrongdoing.” Cooper sees Amy losing her job and reputation as sufficient punishment for her crime, and even suggests she has little more to lose. He also argues there is little to be gained by punishing Amy Cooper further since the issue of racial bias against black and brown folks is a “long-standing, deep-seated racial bias” which “permeates the United States” and cannot be solved through one symbolic prosecution. He believes that charging Amy Cooper not only does little to solve the racial bias but may in fact cause a different problem because it “lets white people off the hook” from more deeply examining the ways in which they engage with and perpetuate racism. As Cooper explains, “They can push for her prosecution and pat themselves on the back for having done something about racism, when they’ve actually done nothing.” Cooper also points out that the social consequences of her actions might serve as the ultimate deterrence to many. He contends that, “if her current setbacks aren’t deterrent enough to others seeking to weaponize race, it’s unlikely the threat of legal action would change that.” Prosecution is no guarantee of securing positive consequences; it will not deter others who fail to see themselves as holding racial bias. In fact, Cooper argues, there is the potential for her prosecution to backfire and contribute to the continued apathy and unprobed racial bias of white people.

While Christian Cooper believes prosecuting Amy Cooper isn’t justified on retributive or consequentialist grounds, his sister Melody Cooper has a different perspective. In a recent tweet she explains that she believes that the potential for deterrence is simply too beneficial to ignore. Melody agrees with her brother’s argument that policing must change, she also believes that because “People are getting hurt and killed in the meantime” that “if there’s a chance to send a message to other white women they can’t and shouldn’t put black people at risk in this way, it should be done.” To Melody, and those who agree with her, the potential deterrence generated by prosecuting Amy Cooper outweighs all else. She references the very real consequences of interactions between Black people and the police, and the phone calls that precede them. Melody clearly favors the traditional utilitarian approach to punishment in which deterrence and positive outcomes are the highest goal of the criminal justice system.

While Melody and Christian clearly disagree on Amy’s prosecution, another question still remains: should the prosecuting attorney take Christian Cooper’s perspective into account when deciding whether to pursue charges? Neither retributive nor utilitarian approaches to justice necessitate acknowledging the victim’s perspective in determining punishment. However, there is another theory of criminal justice which would center Christian’s perspective and cooperation as the victim of a crime: restorative justice. This approach aims neither to produce the best outcomes nor to give perpetrators what they deserve, but rather intends to repair the harm caused by crime. In a restorative justice system, Christian Cooper’s desire for Amy Cooper not to be sentenced would hold far greater weight than in a retributive or utilitarian system. An article in The Indypendent by Kiara Thomas argues that a restorative justice approach would be the best approach in this situation, since it is not only about harm caused between two people, but represents larger harms such as racism, police violence, and white privilege. This approach might also address the issue of deterrence, since restorative justice has been shown to decrease the likelihood of repeat offense on the part of perpetrators.

Amy Cooper’s first court date is October 14. Despite Christian Cooper’s lack of cooperation, experts predict Amy Cooper will still be successfully prosecuted due to the stark video evidence against her. Whether or not this is immoral depends on what one views the purpose of criminal law to be: to requite, to restore, or to deter.

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Solitary Confinement and COVID-19

photograph of empty prison cell

On March 28th, 2020, Patrick Jones became the first person incarcerated in federal prison to die of coronavirus. At the time of his death, Jones had served 12 years of his 27-year sentence for a non-violent drug charge. He was working hard on appeals, hoping to get out early to live a different kind of life with his children. The spread of coronavirus in prison made that dream an impossibility. Since Jones’s death, four other inmates died of COVID-19 at the institution in Louisiana at which he was being held.

In response to the deaths and to the continued spread of the virus in the facility, six immunocompromised incarcerated individuals at the prison have sued for early release, claiming that the response to the situation has been too slow and that their lives are in serious danger. They don’t want their sentences to turn out to be death sentences, as Jones’ did. Their suit was filed by the ACLU last week.

Concerns about the spread of coronavirus in detention facilities has motivated both state and federal detention facilities to release some prisoners, as I have written about here. Other approaches to dealing with the outbreak are more disturbing. The Federal Bureau of Prisons announced that, for the next two weeks, inmates will be confined to their cells for 14 days—a move that strongly resembles implementation of solitary confinement for the entire prison population. At the end of the 14-day period, the action will be reassessed and may be extended if necessary.

There is good evidence to support the conclusion that solitary confinement takes a significant mental toll on those who are subjected to it. Former Harvard psychologist Stuart Grassian conducted a study that indicated that roughly a third of people in solitary confinement were “actively psychotic and/or acutely suicidal.” In addition to those conditions, those held in solitary confinement experienced conditions such as “hallucinations; panic attacks; overt paranoia; diminished impulse control; hypersensitivity to external stimuli; and difficulties with thinking, concentration and memory.”

Under ordinary conditions, solitary confinement is used by prison employees for a range of reasons. Inmates are sent to solitary confinement for disciplinary reasons. They also may end up there for their own protection when there is reason to believe that a threat exists to life or well-being. Many argue that there are no legitimate reasons to relegate a person to solitary confinement and that the practice constitutes cruel and unusual punishment. In keeping with this judgment, a handful of states have passed laws limiting or banning the practice.

Lack of access to consistent, quality mental health services exacerbates this problem. There is evidence to suggest that, at least when it comes to federal institutions, mental health issues frequently go unresolved. Given the known link between solitary confinement and mental illness, at a very minimum, funding and staff should be provided to adequately and humanely address the predictable mental illness this policy is likely to cause.

In response to these general concerns about solitary confinement, some argue that desperate times call for desperate measures. This situation lends itself to no ideal solutions. Confining incarcerated people to their cells is the lesser of two evils. It may be the case that solitary confinement leads to mental illness, but mental illness is better than dying of coronavirus. They argue that there is simply nothing else to do.

Others argue that the rapid spread of infectious disease is a predictable part of an incarcerated experience. When the offender chose to commit a crime, they knew that they might be caught and that the prison experience wouldn’t be pleasant. There is a reason why the possibility of prison is supposed to serve as a deterrent to crime. We have to punish people who commit crimes, or the law will become meaningless. Prison officials must do their best under difficult circumstances, and solitary confinement in these cases may be the best they can do given their obligation to keep those who have committed crimes incarcerated.

In response, one might challenge such a strenuous commitment to the idea that it is morally necessary to keep individuals who have committed crimes incarcerated come what may, even when doing so means they will live weeks in solitary confinement. The right approach might be to let many more inmates out of prison than we have so far (but only under the conditions that their situation isn’t more compromised outside of prison than it is inside). There may be no ready humane strategies for dealing with this pandemic, but with any luck this will cause our culture to radically rethink how we understand criminality and the proper role of punishment.

One significant challenge to bringing about real change is that individuals who have committed and/or have been convicted of crimes are politically marginalized. They have limited platforms for speech, and, in many cases, they can’t vote. Many people adopt a retributivist attitude toward criminal punishment, which results in a state of affairs in which no one is paying attention to the way incarcerated people are treated.

If, indeed, inmates must be held in solitary confinement for their own good, steps should be taken to ensure that this is done as humanely as possible. They should be treated with respect and regard, their desires to communicate with friends and family should be honored to the greatest extent possible, and their need for exercise and recreation should be accommodated.

Now that we’ve seen the problems that a pandemic of this magnitude can pose for detention facilities, we are morally obligated to see to it that we don’t return to business as usual after the it is over. What changes can we make to institutions to make it less likely that we’ll have to resort to solitary confinement in the future? What steps can we take to limit the number of incarcerated people in the United States? More theoretically, we should ask if all crimes should be viewed through the lens of retributivism. In some cases, a broad range of rehabilitative efforts might be more appropriate. An even more holistic approach would focus time and resources on the root social causes of crime so that we’re preventing it from occurring in the first place rather than punishing it in inhumane ways after it has taken place.

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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.

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Is Shaming an Important Moral Tool?

Photo of a person behind a banner that says "Shame on Mel Rogers, CEO, PBS SoCal"

Misbehaving students at Washington Middle School last month couldn’t expect their bad behavior to go unnoticed by their peers and teachers. A list titled “Today’s Detention” was projected onto the wall of the cafeteria, making the group of students to be punished public knowledge. This particular incident made local news, but it’s just one instance of a phenomenon known as an “accountability wall.” These take different forms, sometimes they involve displays of grades or other achievements, and sometimes they focus on bad behaviors. The motivation for such public displays of information is to encourage good behavior and hard work from students.  

Middle school administrators aren’t the only ones employing this strategy.  Judges around the country have participated in “creative sentencing,” using shaming to motivate the reduction or elimination of criminal behavior. For example, a district court judge in North Carolina sentenced a man convicted of domestic abuse to carry a poster around town reading, “This is the face of domestic abuse” for four hours a day, seven days in a row.  

The Internet ensures that the audience for public shaming will be wide in scope. Shaming behavior on social media ranges from photos of pugs wearing signs indicating that they “Ate Mommy’s Shoes” all the way to doxing—the sharing of names and addresses of people who participate in socially unpopular activities.

All of this is not entirely without warrant. Some emotions play a central role in morality—emotions like pride, guilt, and shame. We’re social beings, and as such, one of the ways that we protect against bad behavior in our social circles is to hold one another accountable. Imagine, for example, that Tom has a habit of not keeping his promises. He develops a bad reputation as an unreliable, untrustworthy member of the group. He may begin to feel guilt or shame for his behavior as a result, and he may then begin to actually do the things he has said that he is going to do. The recognition that his peers feel that he ought to feel badly about his behavior has the desired effect—it changes Tom’s behavior. It seems, then that shame can be a powerful tool in governing the behavior of members of a social group.

Shaming might play other important social roles as well.  First, it often makes the public aware of problematic behavior. It picks out people that some members of the population might want to avoid. For example, the revelation that Mike is a white supremacist who attended a white nationalist rally may prevent a potential employer from making the mistake of hiring Mike.

Second, public shaming may serve as a deterrent. If Sam, the regional manager of a small company, witnesses other people in his position being called out for sexual harassment against employees, perhaps Sam will stop harassing his employees out of fear of being publically treated the same way.

Third, shaming might be an important way of reinforcing our community values and making good on our commitment to speaking out against unacceptable behavior. After all, some of the most egregious human rights atrocities happened because of, or were prolonged by, the silence of people who knew better, could have spoken out, but did nothing.

On the other hand, there are some pretty compelling arguments against the practice of shaming as well. Often, shaming manifests in ways that end up humiliating another person for actions they have performed. Humiliation is, arguably, inconsistent with an attitude of respect for the dignity of persons. In response, some might argue that though humiliation may be a terrible thing to experience, many of the behaviors for which people are being shamed are comparatively much worse. For example, is it bad to humiliate someone for being a white supremacist?

In practice, shaming has real legs—stories about bad behavior travel fast. The details that provide context for the behavior are often not ready at hand and, most of the time, no one is looking at the context to begin with. Even if it’s true that shaming has an important place in moral life, this will presumably only be true when the shaming is motivated by the actual facts—after all, a person shouldn’t be shamed if they don’t deserve to be.

The question of ‘deserving’ is important to the resolution of the question of whether shaming is ever morally defensible. The practice of shaming can be seen as retributive—the assumption being made is that the person being shamed for their actions is fully morally responsible for those actions. A variety of factors including environment, socialization, and biology contribute to, and perhaps, at least in some cases, even determine what a person does. If societies are going to maintain the position that retributivism is necessary for fairness, they better be sure that they are using those retributivist tools in ways that are, themselves, fair. Similar actions don’t all have similar backstories, and being sensitive to the nuance of individual cases is important.  

The motivation for shaming behavior tends to be bringing about certain kinds of results such as behavior modification and deterrence. The question of whether shaming actually changes or deters behavior is an empirical one. Given the potential costs, for the practice to be justified, we should be exceptionally confident that it actually works.

A careful look at the real intentions behind any particular act of shaming is warranted as well. Sometimes people’s intentions aren’t transparent even to themselves. Moral reflection and assessment are, of course, very important. Sometimes, however, the real motivation for shaming behaviors is power and political influence. It’s important to know the difference.

Even if the evidence allowed us to conclude that shaming adults is a worthwhile enterprise, it would not follow that what is appropriate for adults is appropriate for children. Young people are in a very active stage of self-creation and learning. Shaming behavior might be a recipe for lifelong self-esteem issues.

Finally, given that shaming has the potential for bringing about such negative consequences, it’s useful to ask: is there a better way to achieve the same result?

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Death by State? The Country Discusses Abolition of Capital Punishment

image of two adjoining prison cells

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.

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Aging and Blaming in the Criminal Justice System

Photograph of a long hall of cells with light and a dome at the end

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A recent study in the medical journal The Lancet suggests that, if trends hold, 50% of babies born today will live to be over 100 years old.  Though long life is typically thought of as a good thing, some of our ordinary practices may need to change to track philosophical and practical challenges posed by longer life spans.  In particular, we need to reflect on whether our attitudes about blame and punishment need to be adjusted. For example, last year, John “Sonny” Franzese was released from an American prison at the age of 100.  Franzese was sentenced to fifty years for a bank robbery. The unique challenges and philosophical questions posed by extreme old age cast the moral permissibility of incarcerating the elderly into question.

Arguably, we need to think critically about duration of punishment. The criminal justice system in The United States relies heavily on retributivism as a justification for sentencing.  The concept of blame is central to a philosophy of retributivist justice. As an act of retribution, criminals are often given multiple life sentences or are sentenced to a number of years in prison that far exceeds the amount of time that criminal could reasonably expect to be alive. There is room for debate concerning the usefulness of blame as a moral concept.  Supposing, however, that blame is an important evaluative attitude in our moral lives, there is good reason for reflection on whether and under what conditions other moral considerations are more important than whether an agent is morally blameworthy. As lifespans increase, a life sentence becomes a still more serious proposition. At what point, if any, does respect for human dignity outweigh our retributivist concerns to ensure that a blameworthy agent is held responsible for their actions?

Intuitively, regardless of the nature of the crime, there are some upper limits to how long it is appropriate to punish someone.  For example, in his paper Divine Evil, David Lewis points out that it could never be just to punish a person infinitely for a finite crime.  Of course, in the context of the paper, Lewis is arguing that an omnibenevolent God couldn’t sentence a person to an eternity of torment in hell for a finite sin, but the main point here holds.  If human beings were immortal, it would be unjust to hold them in prison forever with no chance of release as punishment for a single crime or series of crimes.  That suggests that there is a time at which continuing to punish a blameworthy person is no longer morally justified. Some countries, like Portugal, Norway, and Spain, don’t sentence convicted criminals to life in prison at all.  In many other European nations, a life sentence always includes the possibility of parole. The understanding seems to be that a life sentence without the possibility of parole is a human rights violation. Even if the United States does not come around to thinking about the issue in this way, as human lifespans continue to get longer, it’s important to identify the point at which punishment is no longer morally permissible.

For retributivism to be justified, our assessments of blame must be apt.  For our judgments of blameworthiness to be apt, it must be the case that we are blaming one and the same person who engaged in the wrongdoing for which they are being blamed.  Increased lifespans muddy the waters of identity judgment. An extremely elderly person may have little to no psychological continuity with the being they were when they engaged in wrongdoing.  In his paper The Makropulos Case: Reflections on the Tedium of Immortality, Bernard Williams argues that if a being were immortal, or even if that being were to live an exceptionally long life, that being would either become extremely bored or would change so much that they would no longer be justified in judging future experiences as their own experiences.  Living a flourishing human life is a matter of setting goals and completing projects.  The kinds of goals we set goes a long way to establishing who we are as people. If we continue to set goals of the same type, Williams argues, we will inevitably get bored.  If we set different goals, we will eventually become totally different people, unrecognizable to our former selves.

Aging criminals aren’t immortal, but as human lifespans continue to increase, it may well be the case that they resemble their former selves in very few respects.  If this is the case, it is far from clear that our identity judgments are justified or that our assessments of blameworthiness are apt. This recognition should also cause us to reevaluate our goals when it comes to punishment.  As prisoners age, should our philosophy of punishment still be retributivism?

If blame is a useful moral concept, it is, at least in part, because a moral community that makes use of blame has a mechanism for encouraging bad actors to change their behavior in the future.  To successfully bring about this change in behavior, it is important that the behavior in question is a salient thread in the life narrative of the wrongdoer. Once enough time has past such that this is no longer true, it’s possible that continuing to blame a wrongdoer no longer serves this important social function in our moral community.

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Evaluating Solitary Confinement: A Matter of Values

Untidiness, tattooing, insolence towards a staff member, “reckless eyeballing,” and possession of an excessive quantity of postage stamps. These are all behaviors that are officially punishable by “restriction to quarters” and “change of housing” in the US Federal Prison System, according to Quartz. Thus, you can be placed in solitary confinement for relatively innocuous infractions, and the clear potential for abuse of this practice is one reason why the use of solitary confinement to punish prisoners has recently come under intense pressure. New York reached a legal settlement in 2015 with the New York Civil Liberties Union regarding the aggressive use of solitary confinement in its prisons, and a multi-year process was begun to lessen the times people spent in solitary confinement and to improve conditions in solitary confinement units.

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