Abstract
Although capital punishment has been gradually disappearing from liberal democracies, philosophers remain divided as to its permissibility. The first part of this chapter considers arguments in favor of retention and abolition, with particular attention to recent contractualist arguments. I then consider the United States Supreme Court’s incrementalist approach, under the rubric of “evolving standards of decency.” On this view, the Constitution is limited to sweeping up stragglers; like Minerva’s owl, the Constitution announces a philosophy of punishment only in hindsight. The final section draws on Feinberg’s suggestion that punishment reflects a society’s particular “symbols of infamy.” A society may come to rethink its symbols of infamy, such as capital punishment, but that is unlikely to be because philosophical argument has silenced all reasonable doubt.
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Notes
- 1.
Garrett suggests much of this decline can be attributed to improved defense lawyering (Garrett 2017, ch. 4–5).
- 2.
As Franklin Zimring has pointed out, the process of abolition in Europe was not the result of reasoned consideration of philosophical principles; it was, rather, “an era of change without discourse” (Zimring 2003, p. 26).
- 3.
Although Kramer repeatedly invokes the resources used to sustain the life of an extravagantly evil person sentenced to life imprisonment, he ultimately concedes that this is not a concern about inefficiency but rather about discharging a society’s responsibility for negating an extravagantly evil person’s repudiation of humankind. Hence, Kramer’s invocation of resources—like his invocation of the minimal invasion principle—is a red herring (see Kramer 2015, p. 386).
- 4.
Kramer is clear that he does not expect his defense of capital punishment to “convert staunch opponents … into supporters” (Kramer 2015, p. 379).
- 5.
As Alice Ristroph has emphasized, on Hobbes’ view, the right to resist, while perhaps most clearly exemplified in the case of capital punishment, extends more broadly, encompassing imprisonment and assault as well (Ristroph 2009, p. 617). After all, as Hobbes puts it, “[a] covenant not to defend myself from force by force, is always void” (Hobbes 1994, pt.1, ch. 14). By “force,” Hobbes seems to have in mind “death, wounds, and imprisonment.”
- 6.
On Finkelstein’s view, what one’s continued presence in a country establishes is consent “to a general institution of punishment,” rather than a particular imposition of punishment upon an individual (Finkelstein 2006, p. 1313).
- 7.
The commandment that the innocent are not to be punished cannot be interpreted to be an absolute bar on practices that have the effect of punishing the innocent since that would rule out all punitive practices, given that error is always possible. It is more reasonably understood as the principle that evidence of actual innocence is always material.
- 8.
Contra Brooks, who appears to suggest that a person on death row is morally entitled to an infinite number of appeals (Brooks 2011, p. 239).
- 9.
Termination of civic membership does not necessarily entail execution. But if we take the idea of “civil death” seriously, then this may just boil down to the difference between killings committed by the state and killings committed by private citizens (Chin 2012).
- 10.
Abolition in earlier generations was less court centric. Over the course of the nineteenth century, legislatures in five American states (New York, Pennsylvania, Rhode Island, Michigan and Wisconsin) abolished the death penalty (McGowen 2016, p. 622).
- 11.
This is what Lee refers to as a “norm-centric,” as opposed to a “reason-centric,” approach (Lee 2007).
- 12.
“Philosophy, as the thought of the world, does not appear until reality has completed its formative process, and made itself ready. … When philosophy paints its grey in grey, one form of life has become old, and by means of grey it cannot be rejuvenated, but only known. The owl of Minerva takes its flight only when the shades of night are gathering” (Hegel 2005, p. xxi).
- 13.
Concerns that the categorical moral question does not admit of a rational answer may have contributed to the turn toward procedural arguments about fairness in its imposition. But, as David Dolinko showed long ago, the procedural turn did not yield the hoped-for rational certainty (Dolinko 1986).
- 14.
Of the nearly 56,000 felony defendants processed through the 75 largest counties in the United States in 2009, only 374—approximately 0.7%—were charged with murder (Bureau of Justice Statistics 2009, table 1, “Felony Defendants in Large Urban Counties, 2009”).
- 15.
This chapter grew out of an extended discussion with Chad Flanders about capital punishment. I am grateful as well to Steve Garvey, Adam Kolber and Youngjae Lee for detailed comments and suggestions on an earlier draft.
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Chiao, V. (2019). Capital Punishment and the Owl of Minerva. In: Alexander, L., Kessler Ferzan, K. (eds) The Palgrave Handbook of Applied Ethics and the Criminal Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-22811-8_11
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