The Ethics Of Proportionate Punishment: A Critical Investigation

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Society may never be able to fully eliminate wrongful convictions. However, by removing the death penalty, society can at least allow the wrongly-convicted citizen the life-long opportunity to prove his innocence. The question comes to what society values more: giving the wrongly-convicted a life-long chance of exoneration, or bringing a speedy end to the lives of rightly-convicted killers. Another critical public policy issue surrounding the death penalty in the U.

The issue first came to light in the Supreme Court case, McCleskey v. The defendant, Warren McCleskey, was a black man who was sentenced to death some years earlier in Georgia for killing a white police officer. Thus, in the eyes of the justice system, the lives of black victims count less than the lives of white ones. Second, when victims were white, the murderers who were black were more likely to receive the death penalty than white murderers. Thus, in the eyes of the justice system, more leniency was shown to white killers than to black ones.

Ultimately, the Court ruled against McCleskey. Convicts like McCleskey cannot argue that they have been wronged because of a general pattern of racial bias; rather, a convict must show that race affected his or her specific case. McCleskey was executed in Currently more than half of all people on death row are people of color, most of whom are black.

In response, McAdams concedes that there is an element of racial bias when the death penalty is handed down, but it is actually a bias against white killers, not against black killers. The reason is that, first, the criminal justice system under-punishes those who kill blacks, just as Baldus indicated. Second, most killings occur within racial groups; that is, blacks typically kill blacks, whites typically kill whites. The result is that black killers are on the whole punished more lightly than white killers, both with the death penalty and the length of prison terms.

McAdams writes,. What the studies do show is a huge bias against black victims. Offenders who murder black people get off much more lightly than those who murder whites. Since the vast majority of murders are intra racial and not inter racial , this translates into a system that lets black murders off far more easily than white murderers. According to McAdams, there are racial disparities throughout the criminal justice system, particularly insofar as the punishments are stiffer when the victim is white.

This is certainly unfortunate and it exposes an imperfection in the system as a whole. Nevertheless, McAdams argues, this does not mean we should stop punishing people altogether or stop executing convicted killers.

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The conservative view of capital punishment is that it is at least sometimes morally justifiable and it should be legal. The main arguments for the conservative position are these.

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Comparative criminology. Duff rational reasons recognise reform repentance response retributivism retributivist role sanction sense Sereny social sovereignty Speer suggests theorists theory of punishment tion understanding utilitarian values wrong wrongdoing. Schedule 1 to the Serious Crime Act lists a number of serious offences. Justice in an unjust society. Wolf , Basingstoke: Palgrave Macmillan, The first is first-degree murder, which is committed with premeditation and deliberation, meaning that the offender thought about and planned. Jeser Ryberg, Punishment and Ethics , ed.

Retribution : the death penalty is deserved and ultimately balances the scales of justice. A criticism of this argument is that, while justice demands that murderers be punished, literal eye for an eye retribution is not an acceptable means of punishment in civilized societies.

Incapacitation : the death penalty keeps the murderer from killing again. Deterrence : the death penalty deters crime. A criticism of this argument is that there is no conclusive evidence that the death penalty deters more than long term imprisonment. Financial Costs: Detaining criminals in prison for life is very expensive, and society should not have to pay those costs for murderers. A criticism of this argument is that justice should not be determined by financial considerations.

We could cut the costs of the criminal justice system even more by eliminating juries and appeal processes for all crimes. We could cut back on food and cell space in all prisons. We could, in short, have our criminal justice system be like those in third world countries, which are much more cost-effective than ours. In an advanced society, though, there is always a high financial price that we pay for being just and humane, and that price is worth it. The liberal view of capital punishment is that it is never morally justifiable and it should be illegal. The chief arguments for the liberal position are these.

Executing the innocent : mistakes are made in the criminal justice system that sometimes result in innocent people being executed. Probably not. A criticism of this argument is that it is difficult to identify clear cases of innocent people being executed, and, even if it does occasionally happen, many public policies result in the deaths of innocent people.

Racial bias : Capital punishment is imposed with racial bias. A criticism of this argument is that the real bias appears to be against white killers who typically kill whites , and not against black killers who typically kill blacks. Typical black killers get the lighter sentences. International Standards : The most industrialized and advanced countries around the world have abandoned the death penalty, and by retaining the practice the U. This is particularly so with the quantity of executions we carry out, which compares to the most tyrannical governments today.

A criticism of this argument is the American culture is not completely comparable to that of other developed countries. Our per capita murder rate is among the highest in the world, and by far the highest of the most developed countries. Perhaps when our crime rates drop to those of the United Kingdom or France we can follow their lead with the death penalty. Technically, there is no true middle position on the issue of the death penalty since abolitionists on the liberal side believe that it is never justified under any circumstance.

Nevertheless, there is room for at least some compromise by making the system less arbitrary and prone to error. For example, some states overuse the death penalty, most notably Texas which, since , has been responsible for one-third of all executions in the U. Other heavy users of the death penalty are also Southern states. Bringing these states more in line with national averages would eliminate some charges of disproportionality. To accomplish this, the Supreme Court could set strict guidelines to assure that the death penalty is imposed proportionally, only on the truly guilty, and without racial bias.

The useless profusion of punishments, which has never made people better, induces me to inquire whether punishment by death is really just or useful in a well-governed state. What right, I ask, do people have to cut the throats of their fellow-creatures? Certainly not the right on which the sovereignty and laws are founded. The laws, as I have said before, are only the sum of the smallest portions of the private liberty of each individual, and represent the general will which is the aggregate of that of each individual.

Did anyone ever give to others the right of taking away his life? Each person gives only the smallest portion of his liberty over to the good of the public. If this were so, how can it be reconciled to the principle which tells us that a person has no right to kill himself? Certainly he must have this if he could give it away to another. Only One Justification of Capital Punishment. But the punishment of death is not authorized by any right, for I have demonstrated that no such right exists.

It is therefore a war of a whole nation against a citizen, whose destruction they consider as necessary, or useful to the general good. But if I can further demonstrate that it is neither necessary nor useful, I will have gained the cause of humanity. The death of a citizen cannot be necessary except in one case. This is when he is deprived of his liberty and yet still has enough power and connections to endanger the security of the nation, that is, when his existence may produce a dangerous revolution in the established form of government.

But even in this case, it is only necessary when a nation is on the verge of recovering or losing its liberty, or, in times of absolute anarchy, when the disorders themselves hold the place of laws.

Investigation

But this is not so in a reign of peace, or in a form of government approved by the united wishes of the nation, or in a state well-fortified from enemies without, and supported by strength within and, even more effectively, by popular opinion , or where all power is lodged in the hands of the true sovereign, or where riches can purchase pleasures and not authority.

In these there can be no necessity for taking away the life of a subject. Consider whether the experience of all ages is not sufficient to prove that the punishment of death has never prevented determined people from injuring society. Look, for example, at the Romans, or the twenty-year reign of Elizabeth, empress of Russia, in which she gave the fathers of their country an example more memorable than many conquests bought with blood.

If, I say, all this is not sufficient to persuade people, who always suspect the voice of reason and who chose rather to be led by authority, then let us consult human nature in proof of my assertion.

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The philosophical discussion of state punishment is well on in years. In contrast with a large number of ethical problems which are concerned with right and. ykoketomel.ml: The Ethics of Proportionate Punishment: A Critical Investigation ( Library of Ethics and Applied Philosophy) (): Jesper Ryberg.

It is not the intenseness of the pain that has the greatest effect on the mind, but its continuance. For our sensibility is more easily and more powerfully affected by weak but repeated impressions, than by a violent, but momentary, impulse.

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The power of habit is universal over every sentient being. It is by habit that we learn to speak, to walk, and to satisfy our necessities. So too the ideas of morality are stamped on our minds by repeated impressions. The death of a criminal is a terrible but momentary spectacle, and therefore a less effective method of deterring others, than the continued example of a person deprived of his liberty and condemned as a beast of burden to repair by his labor the injury he has done to society.

The terrors of death make so slight an impression that it does not have enough force to withstand our natural human forgetfulness, even in the most essential things and when assisted by the passions. Violent impressions surprise us, but their effect is momentary. They are suited to produce those revolutions which instantly transform a common person into a [brutal] Lacedemonian or a Persian.

But in a free and quiet government, such impressions should be frequent rather than strong. To the masses, the execution of a criminal is entertainment, and in some it excites compassion mixed with indignation. Both of these sentiments fill the mind with a greater terror than the needed terror which the laws try to inspire. But in the contemplation of continued suffering, terror is the only or at least the predominant sensation.

The severity of a punishment should be just sufficient to excite compassion in the spectators, as it is intended more for them than for the criminal. Advantages of Long-Term Imprisonment. For a punishment to be just, it should have only that degree of severity that is sufficient to deter others. Now there is no person, with the least reflection, who would jeopardize the total and continual loss of his liberty for the sake of the greatest advantages he could possibly obtain resulting from a crime.

Consequently, perpetual slavery [i. In fact, I say it has more. There are many who can look upon death with courage and steadfastness. Some approach it through fanaticism, and others through vanity that attends us even to the grave. Others approach it from a desperate resolution either to get rid of their misery, or cease to live.

But fanaticism and vanity abandon the criminal in slavery, in chains and fetters, in an iron cage. Despair seems rather the beginning than the end of their misery. By collecting itself and uniting all its force, the mind can momentarily repel the attack of grief. But its strongest efforts are insufficient to resist perpetual misery. In all nations where death is used as a punishment, every example requires a new crime committed. However, in perpetual slavery, every criminal affords a frequent and lasting example.

And if it is necessary for people to frequently be witnesses of the power of the laws, then criminals should frequently be put to death. But this supposes a frequency of crimes, and for that reason this punishment will cease to have its effect, and thus it becomes useful and useless at the same time.

Suppose you say that perpetual slavery is as painful a punishment as death, and therefore as cruel. I answer that if all the miserable moments in the life of a slave were collected into one point, it would be a more cruel punishment than any other. But these are scattered through his whole life, whereas the pain of death exerts all its force in a moment.

There is also another advantage in the punishment of slavery, which is that it is more terrible to the spectator than to the sufferer himself. For the spectator considers the sum of all his miserable moments, whereas the sufferer, by the misery of the present, is prevented from thinking of the future. All evils are increased by the imagination, and the sufferer finds resources and consolations, of which the spectators are ignorant judge by their own sensibility of what passes in a mind, by habit grown callous to misfortune.

Let us, for a moment, note the reasoning of a thief or assassin, who is deterred from violating the laws [because of execution] by the gibbet or the wheel. He refuses me the pocket change I ask of him, and excuses himself by instructing me to get a job, with which he is unacquainted. Who made these laws? The rich and the great, who never stooped to visit the miserable huts of the poor, who have never seen a poor person dividing a piece of moldy bread, surrounded by the cries of his starving children and the tears of his wife.

Let us break those ties that are fatal to the greatest part of humankind, and only useful to a few indolent tyrants. Let us attack injustice at its source. I will return to my natural state of independence. I will live free and happy on the fruits of my courage and industry. A day of pain and repentance may come, but it will be short. And for an hour of grief I will enjoy years of pleasure and liberty. As king of a small number of people who are as determined as myself, I will correct the mistakes of fortune, and I will see those tyrants grow pale and tremble at the sight of him, whom with insulting pride, they would not even rank with their dogs and horses.

Religion then presents itself to the mind of this lawless villain by promising him almost a certainty of eternal happiness upon the easy terms of repentance. This contributes much to lessen the horror of the last scene of the tragedy. Consider now the villain who foresees that he will pass many years, even his whole life, in pain and slavery.

The Ethics of Proportionate Punishment: A Critical Investigation

He will be a slave to those laws by which he was protected, in sight of his fellow citizens with whom he lives in freedom and society. He thus makes a useful comparison between those evils, the uncertainty of his success, and the shortness of the time in which he will enjoy the fruits of his crime. The example of those miserable criminals continually before his eyes makes a much greater impression on him than a punishment, which instead of correcting, makes him more hardened.

Harmful Effects of the Death Penalty. The punishment of death is harmful to society from the example of cruelty that it presents. If the passions, or the necessity of war, have taught people to shed the blood of their fellow-creatures, the laws, which are intended to moderate the savagery of humankind, should not increase it by examples of cruelty, which is even more horrible since punishment is usually accompanied with formal ceremony.

Is it not absurd that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves? What are the true and most useful laws? Those compacts and conditions which all would propose and observe in those moments when private interest is silent, or combined with that of the public. What are the natural feelings of every person concerning the punishment of death? We may read them in the contempt and indignation with which everyone looks on the executioner, who is nevertheless an innocent executor of the public will.

In this light, the executioner is a good citizen, who contributes to the advantage of society and is the instrument of the general security within, just as good soldiers are without. What then is the origin of this contradiction?

Introduction

Why is this sentiment of humankind permanent, even though contrary to reason? It is that in a secret corner of the mind in which the original impressions of nature are still preserved, people discover a sentiment which tells them that their lives are not lawfully in the power of anyone, except only that necessity which with its iron scepter rules the universe. What must people [i. Or consider, while a condemned person trembles with agony expecting the fatal stroke, the judge who has condemned him leaves his tribunal to enjoy the comforts and pleasures of life, with the coldest insensibility, and perhaps with no small gratification from the exertion of his authority?

Those cruel formalities of justice are a cloak to tyranny.

The Ethics of Corrections

They are a secret language, a solemn veil, intended to conceal the sword by which we are sacrificed to the insatiable idol of despotism. Murder, which they would represent to us as a horrible crime, we see practiced by them without repugnance, or remorse. Let us follow their example. A violent death appeared terrible in their descriptions, but we see that it is the affair of a moment. It will be still less terrible to him, who not expecting it, escapes almost all the pain.

If it is objected that almost all nations in all ages have punished certain crimes with death, I answer that the force of these examples disappears when opposed to truth, against which it is pointless to offer further recommendation. The history of humanity is an immense sea of errors in which a few obscure truths may here and there be found. Consider that human sacrifices have also been common in almost all nations.

That some societies only, either few in number, or for a very short time, abstained from the punishment of death, is in fact favorable to my argument. For such is the fate of great truths, that their duration is only as a flash of lightning in the long and dark night of error. The happy time is not yet arrived when truth will be the portion of the majority as falsehood was previously.

I am aware that the voice of one philosopher is too weak to be heard when surrounded by the uproar of a multitude, blindly influenced by custom. But there are a small number of wise people, scattered around the earth, who will echo my views from the bottom of their hearts. If these truths should happily force their way to the thrones of princes, let it be known to them that they come attended with the secret wishes of all humankind.

Tell the sovereign who patronizes them with a gracious reception that his name will outshine the glory of conquerors, and that equal fame will elevate his peaceful trophies above those of a Titus, an Antoninus or a Trajan. How happy humankind would be if laws were now first formed, especially since we see benevolent monarchs on the thrones of Europe.

They are friends to the virtues of peace and to the arts and sciences; they are fathers of their people and, though crowned, remain citizens. The increase of their authority enhances the happiness of their subjects by destroying that transitional despotism which intercepts the prayers of the people to the throne.

If these humane princes have allowed the old laws to continue, it is undoubtedly because they are deterred by the numberless obstacles, which oppose the subversion of errors established by the sanction of many ages. Accordingly, every wise citizen will wish for the increase of their authority.

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Please answer all of the following questions. Describe the four principal aims of punishment. What are the two problems with the rights forfeiture defense of capital punishment? Explain the Furman v. What are proportionality review systems, and what problems do they face? What are the criticisms of the four conservative arguments against the death penalty? What are the criticisms of the four liberal arguments in favor of the death penalty?

According to Beccaria, what is the one justification of capital punishment? According to Beccaria, why does capital punishment not deter? According to Beccaria, what are the advantages of long-term imprisonment? According to Beccaria, what are the harmful effects of the death penalty?

According to Beccaria , how might we overcome the custom of the death penalty? Short essay: pick any one of the following views in this chapter and criticize it in a minimum of words. Punishment in General A basic definition of punishment is that it involves the deliberate infliction of suffering on a supposed or actual offender for an offense such as a moral or legal transgression. Aims of Punishment All punishment has some aim which serves to justify the suffering that is inflicted on the offender. What People Think Most people in the U. Retribution The first traditional justification of the death penalty is that it is a direct application of the retributive conception of punishment: the death penalty is justified as a proportionate punishment for a serious crime, which should be carried out because it is deserved for its own sake, and not because of any benefit that it might bring to society.

Social Contract A second traditional defense of the death penalty is that it is justified through the social contract: to preserve the peace, citizens contractually agree to set aside their hostilities and set up a government that will punish lawbreakers, including executing them if deemed necessary. For a better shopping experience, please upgrade now. Javascript is not enabled in your browser. Enabling JavaScript in your browser will allow you to experience all the features of our site.

Learn how to enable JavaScript on your browser. See All Customer Reviews. Shop Textbooks. Add to Wishlist. USD Sign in to Purchase Instantly. Temporarily Out of Stock Online Please check back later for updated availability. Overview This volume will be of great value to moral philosophers, philosophers with an interest in the ethics of punishment, and criminal law theorists. The book deals with the question of how severely criminals should be punished for their crimes. It provides a critical investigation of a fundamental principle in penal theory and practice: the principle of proportionality.

This book is the most comprehensive ethical investigation of this principle to be found. Crime Seriousness and the OffenderVictim Relationship.

Dangerousness and Citizenship. Sentencing Young Offenders 1 Desert Proportionality and the Seriousness. Doing Justice to Difference. Sentencing Equal Treatment and the Impact.