Afterword: Proportionality and the difference death makes

Proportionality

and the Difference Death Makes

Advocates and Abolitionists

Abolitionist: Life imprisonment without parole is morally permissible, but

execution is not.

Advocate: Capital punishment is morally permissible, but torture is

not.

Ignore those who deny there is any moral limit to permissible punishment.

Ignore those who deny that punishment is ever morally permissible.

Immanuel Kant

“Ius talionis…is the only principle which … can definitely assign both the quality and quantity of a just penalty….

“[W]hoever has committed murder must die. There is no juridical substitute that can be given…. There is no likeness or proportion between life, however painful, and death….

“His death, however, must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable.”

Two Questions

All must answer:

1. How, in general, is punishment justified?

• How does death fit into one’s general justification?

Retributive and Deterrence Rationales

Retributivism: Punishment is justified because it is deserved, but only in proportion to desert.

Deterrence: Punishment is justified to reduce crime, but only the “minimum invasion” sufficient to deter.

Advocate’s Predicament

If it is an empirical question whether torture deters more effectively than death, then

a) It really is an empirical question; and b) If there is a deterrent shortfall, torture’s efficacy could be

improved.

So, the Advocate had better articulate a retributive principle that rules out torture, but not death, for the gravest crimes.

Advocate’s Dilemma

The death-penalty Advocate has either to: a) derive the simultaneous rejection of torture and validation of

death from a general retributive principle of proportionality

–in short, give a general account,

or

b) justify the differential treatment of torture and death on grounds unconnected to and possibly in conflict with a principle of proportionality needed as part of a general account of just punishment

–in short, go ad hoc.

Abolitionist’s Predicament

If it is an empirical question whether death deters more effectively than the most effective non-death alternative, then

a) it really is an empirical question; and b) if there is a deterrent shortfall, death’s deterrent effect could be

improved.

So, the Abolitionist had better articulate a retributive principle that rules out death, but not harsh punishment, for the gravest crimes.

Abolitionist’s Dilemma

The Abolitionist has either to: a) derive the simultaneous rejection of death and validation of

severe punishment from a general retributive principle of proportionality

–in short, give a general account or

b) justify the differential treatment of death and severe punishment on grounds unconnected to and possibly in conflict with a principle of proportionality needed as part of a general account of just punishment

–in short, go ad hoc.

Both advocate and abolitionist have either to: a) articulate a general retributive principle of proportionality, and

derive their treatment of death, torture, and other extreme punishments from it

–that is, give a general account or b) justify the differential treatment of permitted and forbidden

punishments on grounds unconnected to and possibly in conflict with a principle of proportionality needed as part of a general account of just punishment

–that is, go ad hoc.

Same Boat

TheIn

The Prize

The disputant who can derive her position on capital punishment from a plausible general account of proportionality wins out over her competitor

Weems v. United States (U.S. 1910)

Offense: Falsifying official records Exposure: Twelve years and a day at hard labor, minimum.

Question: “It is a precept of justice that punishment for crime should be graduated and proportioned to offense. Is this also a precept of the fundamental law?”

Answer: Yes.

Weems v. United States (U.S. 1910)

“There are degrees of homicide that are not punished so severely, nor are:

• misprision of treason, • inciting rebellion, • conspiracy to destroy the government by force, • recruiting soldiers to fight against the United States, • forgery of letters patent, • forgery of bonds, • robbery, • larceny, • and other crimes.”

Overtime parking

Aggravated murder

12 years hard labor

$50 fine

Falsifying records

Murder

Robbery

12 months

“It is cruel in its excess of imprisonment.”

Overtime Parking

Aggravated murder Worst permissible

Next to worst

12 years hard labor

$50 fine

Falsifying records

Murder

Robbery

12 months

The Proportionality Schema

Falsifying records is to

12 years hard labor in irons

just as

Overtime parking

Aggravated murder

12 years hard labor

$50 fine

Falsifying records

Murder

Robbery

12 months

Rummel v. Estelle (U.S. 1980)(dictum)

life in prison

Overtime parking

Aggravated murder

12 years hard labor

$50 fine

Falsifying records

Murder

Robbery

12 months

Coker v. Georgia (U.S. 1977)

life in prison

Aggravated rape

death

One Component of a Proportionality Principle

A is disproportionately severe with respect to X,and B is not, only if A is worse than B.

Corollary

With respect to any crime,

Death is disproportionately severe, and Life without parole is not, only if Death is worse than Life without parole.

Torture is disproportionately severe, and Death is not, only if Torture is worse than Death.

Torture

Confinement

Death

Comparing Death, Torture, and Confinement

Shorter periods of torture are not as bad as life without parole, but longer periods become worse.

Ceaseless torture is worse than death, but shorter periods of torture are not.

Most think death is worse than life imprisonment, but many do not.

Death and Torture

Death is worse than low degrees (time x intensity) of torture, but some degrees are surely worse –most clearly, endless torture.

Death

Torture

Torture and Confinement

Some long period of confinement could be worse than any given degree of torture –clearly so for torture in low degree and

confinement for life.

Torture

Confinement

Confinement and Death

Death is worse than some long periods of confinement, but some longer periods may be worse.

Death

Confinement

You

Rock, Paper, Scissors?

Worse than

Key:

Intrapersonal Intransitivity

Death is scary!

Pain hurts, and we die anyway!

I get my freedom back!

Worse than

Key:

Intransitivity, going the other way

Live free or die!

Pain hurts, and I

could read!

I’ll be free when it’s over!

Worse than

Key:

Voter A Voter B Voter C

Worst Pain Death Confinement

Less Bad Death Confinement Pain

Least Bad Confinement Pain Death

A Condorcet [a/k/a Arrow] Voting Paradox ?

Worse than

Key:

Frustrating Result

An ordering of punishments from bad to worse is –for all we can tell– impossible.

A coherent Principle of Proportionality is –for all we can tell– impossible.

Conclusion

I. The Death Penalty Debate won’t be settled before there is a good general account of proportionality.

II. A good general account of proportionality requires that there be an ordering of crimes, and an ordering of punishments, in terms of badness.

III. There are excellent reasons to deny that there is an ordering of punishments if confinement, torture, and death are all candidates.

IV. Therefore, the Death Penalty Debate cannot be settled, unless maybe politically.

FINIS