Week 6 Lecture One Death Penalty Texts in Reader

Useful Information:

Bureau of Justice Statistics, Capital Punishment Statistics http://www.ojp.usdoj.gov/bjs/cp.htm

Texas Dept of Criminal Justice Death Row Home Page http://www.tdcj.state.tx.us/stat/deathrow.htm

Death Penalty Information Center http://www.deathpenaltyinfo.org/

Some of the reasoning behind punishment

1. RETRIBUTION : Just desertsBecause the criminal *deserves* it

2. DETERRENCE:‘Crime doesn’t pay’

3. INCAPACITATION: forced deterrence

4. REFORM OR REHABILITATION:

ALL BUT # 4 APPLY TO OUR THINKING ON THE DEATH PENALTY

Three texts assigned for today’s lecture

1.18^th-century political-philosophical basis for opposition to the death penalty
----Enlightenment-Utilitarian thinker, Beccaria

2. Recent statistical-historical piece on the U.S. death penalty by contemporary philosopher and abolitionist, Hugo Adam Bedau

3. Actual protocol for an execution by lethal injection from a book by British documentary filmmaker, Stephen Trombley

We will also cover the connections between invisible principles and visible events

MY THESIS:

The death penalty, and execution specifically, represent a paradoxical mixture of IDEAS AND VISCERA [viscera=guts]

Cesare Bonesana Marquis of Beccaria (1738-94)

“On Crimes and Punishments” (1764)

Extensive Influence: Jefferson, Franklin, Declaration of the Rights of Man and Citizen, Catherine the Great

Mario Cuomo: Beccaria “creates a catalogue of universal legal principles as enduring as the patterns of human motivation he derived it from”

Utilitarianism: All social action must seek the greatest good for the greatest number.

Beccaria’s Principles:

Crime should be considered an injury to society and the only rational measurement of crime is the extent of this injury.

Prevention of crime is more important than punishment.Punishment is only justifiable if it prevents crime.

Punishment can be used only as a deterrent.

Torture should be abolished.There should be speedier trials and humane treatment of the accused.

It is not the severity of punishment, but the certainty of it that makes it effective.

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Two specific arguments against the death penalty:

1.Social Contract: (p. 482)

[Rousseau: not necessarily in agreement: “It is so that we may not fall victims to a murderer, that we agree to die if we ourselves become murderers. By this agreement, so far from throwing away our lives, we think only to make them safe. It is not to be supposed that any party to the agreement expects, at the moment of his adherence, that the noose will actualy tighten around his own neck! The Social Contract 1762]

Kant also opposed: “...the Marquis Beccaria has advanced his assertion of the unjust nature of the death penalty out of the sympathetic sentimentality of an affected compassion: because it is not to be found in the original social contract [he claims that] every individual in society would have to consent to lose his life in case he murdered another, but that this consent is impossible because no one has the right to surrender his life [in this fashion]. Nothing but sophistry and distortion of the law.”[Metaphysics of Morals]

Kant then attempts a complicated proof based on the distinction between the noumenal individual who enters into the Law or the social contract and the phenomenal individual who is punished by it.

2. Deterrent value of intensity vs. duration

A long or lifelong prison sentence has more deterrent value than the threat of execution because the one is quickly over with and the other lasts for a long time.

Based on “human nature”

Criminal mind (poor man who rebels against laws made by the rich and favoring the rich chooses duration of pleasure and intensity of death) p. 484

So death penalty is both unlawful (social contract cannot demand it of us; divine law forbids suicide) and based on poor psychology.

Second Reading:

1997 Hugo Adam Bedau’s The Death Penalty in America

Bedau’s question: Why is the death penalty so important in the United States?

What speaks against the death penalty for Bedau?
[controversial, immensely costly, labor-intensive, deadly]

----There is no evidence that it deters crime.

----It is far more expensive than life-imprisonment. (Vs. $35,000 per yr per prisoner)

----A vast legal and penal bureaucracy is strained to the limit in maintaining these statutes.

But, roughly 65-70% of the US population supports the death penalty and the consensus is that no one could be elected president w/o supporting it.

So why?

The death penalty has enormous symbolic value for US citizens [even in the absence of executions] and this interests us as humanists.

Practice:

Ending public executions:

Why execute in public?

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Why abolish public executions?

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Two accounts of Damiens’ (remember the man who tried to assassinate Louis XV in winter quarter?) execution.

1. Foucault – Discipline and Punish

2. Casanova - Memoirs

Death Penalty was recently suspended.

US Moratorium on all executions: Furman vs. Georgia 1972