25
Jan
11

The Death Penalty and Moral Proportionality

Here’s a quick (I hope) post on an argument you hear sometimes for the death penalty. The argument is that punishment must be proportional to the crime so that life imprisonment for the worst murders would fail to treat the crimes with the right severity. The idea is that distinctively bad crimes need to be punished with a distinctively severe punishment.

I’m not necessarily an opponent of the death penalty (though I’m trending that way), but I do think this argument proves less than it seems.

First, moral proportionality between crime and punishment could be either ORDINAL or CARDINAL.

An ordinal proportionality would be secured if the punishment for the worst crime were worse than the punishment for the second worse crime — all that matters is there is a ranking of punishments and a ranking of crimes and that they match up. But of course this is unattractive, because matching crimes with punishment purely ordinally would allow for a system of punishment that was not severe at all. Theft could be punished by a light slap, armed robbery by 10 such slaps, and murder one with 20 such slaps.

So, those defending proportionality must have something more robust in mind. That the severity of a punishment should fit the severity of the crime, not just in terms of how the crime ranks compared to other crimes (better or worse), but how bad it actually is. The extreme version of this would be Hammurabi’s code. Murder would be met with murder.

This seems to me implausible because a fit of spontaneous anger that resulted in a violent and then fatal altercation would result in the offender’s execution. In essence, it just seems too harsh. But maybe the linkage is softer. Maybe the proportional response to crimes is something less than the exact crime committed by the criminal.

Still though, there would be problems, but rather than precise and meticulous abut it, I’ll just come out and say it: if the death penalty is the ULTIMATE punishment reserved for the worst crimes, then it seems that it couldn’t be applied to mere murderers or even really nasty murderers, because we can always think of worse crimes. If we execute capital murderers, then what should we do about serial killers and war criminals (Eichmann was put to death, and that seems pretty reasonable to me, and surely we would have put Hitler to death? Is that right?).

One might say that there are worse punishments than execution, such as torture, but as I’ve argued before, torture seems to be too far again. It seems wrong (almost) no matter what. If that’s true though, then execution is the most severe punishment we can tolerate and then it must be reserved for the most sever crimes.

But then back to the original point: what is the class of “most severe crimes” composed of? Is it just murder, multiple murder, hate-crime, war crimes, genocide?

Notice that my argument doesn’t say that the proportionality argument for the death penalty cannot justify any executions, but just that it is an open questions about who really deserves it. If the idea is that the death penalty allows us to match our societal response to the horror of the crime, then its place may be significantly circumscribed.

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6 Responses to “The Death Penalty and Moral Proportionality”


  1. February 2, 2011 at 5:04 am

    How about: “Each criminal should be punished as severely as possible without this severity exceeding either the severity of the crime or violating other moral prohibitions (such as on torture, violations of dignity, etc.).”

    Saying that the death penalty is the ultimate punishment reserved for the worst crimes doesn’t mean that we can’t use the death penalty in response to a given crime if there are worse possible crimes. That is, the existence of a set of crimes worse than some crime doesn’t mean that that crime can’t be one of the “worst crimes.” The expression “the worst crimes” is indefinite. Suppose there are ten possible crimes, and each is worse than the last, such that 1 the least bad and 10 is the worst. Then you could define the worst crimes as crimes 9 and 10 or crimes 8 through 10 or crimes 5 through 10 or even crimes 2 through 10 (or vacuously as crimes 1 through 10).

    So murder (say) could be one of the worst crimes, punishable by the maximum permissible punishment, even if there were infinitely many worse possible crimes.

  2. 2 questionbeggar
    February 2, 2011 at 5:19 am

    I think you’ve summed up this post with a high degree of precision. But I agree, “But then back to the original point: what is the class of “most severe crimes” composed of? Is it just murder, multiple murder, hate-crime, war crimes, genocide? Notice that my argument doesn’t say that the proportionality argument for the death penalty cannot justify any executions, but just that it is an open questions about who really deserves it. If the idea is that the death penalty allows us to match our societal response to the horror of the crime, then its place may be significantly circumscribed.”

    As you point out, the death penalty could be a response to all of the “worst possible crimes” whatever they turn out to be. My point then would be to take your formulation and give the following argument which would, as I claim, show that the place of the death penalty might end up being circumscribed if the proportionality argument is true.

    1. the death penalty is the most severe acceptable penalty and should only be applied to crimes that fall into the set of “worst possible crimes.” (proportionality thesis)
    2. there is an important moral difference between murder and genocide.
    3. Therefore, the set of worst possible crimes contains genocide but not murder.
    conclusion: the death penalty is not appropriately applied to murderers

    Of course, you will likely deny 2 or claim that all it points to is that genocide is worse than murder, but not in any qualitatively different way. That would be a substantive disagreement and I would claim that murder and genocide should not be treated as both belonging to the same set of “worst possible crimes” because genocide, as opposed to murder, involves the targeted elimination of a whole race of people and is guided by judgments of inferiority about a whole group of people. (this may show that hate crimes should be punished with death).

    • 4 questionbeggar
      February 2, 2011 at 6:31 am

      Ok well help me out. Why invalid?

      1. If the DP is justly applied for murder –> murder is part of the set of “worst possible crimes” ( A –> B)
      2. murder is not part of the set of “worst possible crimes” (~B)

      Conclusion: DP is not justly applied for murder (~A)

  3. February 2, 2011 at 7:08 am

    That’s a different argument. Call the argument you posted in your first comment “A” and the argument you posted in your second comment “B.” (Sorry that this overlaps with your use of those letters to show your modus tollens; let’s just ignore that you did that.)

    A3 doesn’t follow from A1 and A2; that’s what I meant when I said it was invalid. There isn’t a premise specifying what effect an “important moral difference” between two crimes has on one of the crimes being part of the set of the worst possible crimes.

    B is valid; I deny B2.

    I’ll be more constructive when I’m less tired.


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