Abstract
What does it mean to say that the infliction of some punishment P is wrong in principle? Getting at this question is to get at the core of the Eighth Amendment ban on cruel and unusual punishments. I shall argue that the best way to explicate the concept of a punishment’s being wrong in principle is through a retributive conception and justification of punishment — i.e., a conception and, justification resting upon the concepts of justice, rights and desert (and not social utility). Before arguing positively for this, however, let me first briefly suggest why other ways of proceeding (other conceptions of cruel and unusual) will not work.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment VIII
The Constitution of The United States of
America
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Reference
A somewhat longer version of this paper may be found in my book Retribution, Justice, and Therapy (Dordrecht and Boston: Reidel, 1979), pp. 223249. (This book is referred to hereafter as RJT.) The best general treatment of the constitutional issues surrounding an application of the Eighth Amendment — with special focus on the death penalty — will be found in Margaret Jane Radin, ‘The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause’, University of Pennsylvania Law Review 126 (1977/8): 989–1064. My own treatment of the topic has been enormously influenced by her essay.
See Chief Justice Burger’s discussion (with respect to cruelty) in Furman v. Georgia, 408 US 238, 392 (1972) ( Burger C. J., dissenting).
Furman v. Georgia, 408 US 238, 418 (Powell J., dissenting).
Trop v. Dulles, 356 US 86, 101 (1958) (plurality opinion) ( Warren, C. J.).
Furman v. Georgia, 408 US 360 ff. (Marshall J., concurring). Justice Marshall considers and rejects the opinion poll model and adopts a version of an élitist model involving a prediction of what people would deplore if fully informed.
One is reminded of John Stuart Mill’s “competent judge” test in Utilitarianism (Chapter 2). Mill attempts to show that contemplative pleasures are superior to sensual pleasures because persons who have experienced both (competent judges) prefer the former to the latter. Any person who has experienced both and does not judge in this way, however, would obviously pose a problem for Mill’s test. How does he deal with this? In the following circular way: such persons reveal that they have lost their capacities for finer feelings and thus lose their status of competence.
This, of course, is logically similar to Socrates’s puzzle in Plato’s dialogue Euthyphro: Is that which is pious pious because the gods approve of it; or do the gods approve of it because it is pious?
The élite, of course, may be epistemologically relevant — i.e., they may get
Cruel and Unusual Punishments 377
Consider persons in an “original position” of the kind described by John Rawls. It seems reasonable to suppose that they would choose a system in which penalties were no more severe than necessary to accomplish whatever purpose they set as reasonable. If Rawls is correct in claiming that choices in such a constrained setting yield principles of justice, then we have a non-utilitarian foundation for a least restrictive alternative principle.
For more on this, see my `Rights and Borderline Cases’, Arizona Law Review 19 (1977): 228–241, reprinted in RJT.
It is highly doubtful that the state has a moral right to punish at all in a society which is highly unjust. See my `Marxism and Retribution’, Philosophy and Public Affairs 2 (1972/3): 217–243, reprinted in RJT.
It has been argued, for example, that capital cases bring out the worst and the most irrational in juries and judges. See Charles L. Black, Jr., Capital Punishment: The Inevitability of Caprice and Mistake ( New York: Norton, 1974 ).
I have elaborated this Kantian account more fully in my `Marxism and Retribution’, supra note 14. See also my Kant: The Philosophy of Right (London: Macmillan, 1970).
See my `Marxism and Retribution’, supra note 14.
For more on punishment as a right of the criminal, see Herbert Morris, `Persons and Punishment’, Monist 52 (1968): 475–501. This is reprinted in my Punishment and Rehabilitation ( Belmont, Calif.: Wadsworth, 1973 ).
The retributive theory of punishment is, fortunately in my judgment
For an argument that utilitarianism also tends to treat persons as children, see Adrian M. S. Piper, `Utility, Publicity, and Manipulation’, Ethics 88 (1977/8): 189–206.
Hegel’s Philosophy of Right, translated by T. M. Knox ( Oxford: Clarendon Press, 1952 ), p. 72.
I. Kant, The Metaphysical Elements of Justice, translated by John Ladd ( Indianapolis: Bobbs-Merrill, 1965 ), p. 132.
One interesting attempt to work something like this out may be found in Claudia Card, `Retributive Penal Liability’, American Philosophical Quarterly Monograph Series 7 (1973): 17–35. According to Card, a retributively just punishment exposes the offender to hardship that is comparable to the worst
Supra note 22, p. 102.
Supra note 22, p. 100.
As I shall later argue, the mere fact (if it is a fact) that people tend to believe that death is horrendous is not a morally relevant property of death. (What people believe about death is surely not a property of death at all.) Such beliefs about death, however, might be relevant in a Rawlsian “original position” in that they might prompt the rational choosers to place special constraints on its intentional causation.
For an expansion of this sort of argument (or of a defense for not giving an argument), see my `The Killing of the Innocent’, Monist 57 (1973): 527–550, reprinted in RJT.
I say radical for the following reason: Any departure from proportionality is less than ideal justice would demand, but it may be impossible to grade these matters in a very fine way. We should still want to condemn, however, cases where the gap in seriousness between punishment and offense is clearly too wide.
Obvious examples here are severe punishment for drug use, or consensual homosexual activity among adults, or any other “victimless crimes”.
See Lockett v. Ohio, 98 S. Ct. 2981 (1978) ( White J., dissenting in part and concurring in part ). Justice White articulates both the utilitarian and the retributive analyses of “excessive”.
Robinson v. California, 370 US 660 (1962).
Andrew von Hirsch has made a start toward developing a framework for a theory of objective seriousness. See his Doing Justice: The Choice of Punishments (New York: Hill & Wang, 1976 ). Though von Hirsch believes that such devices as the Sellin-Wolfgang survey technique for measuring degrees of seriousness have a use, he sees clearly that objective criteria for seriousness cannot be ultimately based on popular judgments. Von Hirsch has not (as I believe he would be the first to admit) given us very much, but he has given us a start — and a start in the right direction (toward just retribution).
Reasonable“ may equal ”would be chosen by parties in a Rawlsian original position“.
For an excellent survey of the history of the Eighth Amendment and its interpretation, see Furman v. Georgia, 408 US 314 (Marshall J., concurring).
Coker v. Georgia, 433 US 584 (1977). In my judgment, the Court erred in not considering degrees of rape and aggravating circumstances which might render a punishment of death proportional — a point well made by Justice Powell in the dissenting part of his judgment.
Albert Camus argued in this way in his essay `Reflection on the Guillotine’. One other serious problem about long delays is the following: during the delay a prisoner can in a very real sense become a “new person” by morally transforming himself. Is it fair that this new person be executed for a crime committed by a different and previous self? As I shall argue later in the paper, the possibility of self-transformation is a very good reason against the penalty of death.
There is, of course, the utilitarian reason: we wish to give the torturer an incentive for not killing his victim after the torture session is over.
There are three bad arguments (addressed to me in various public discussions) that the infliction of the death penalty is intrinsically wrong which — since they may be widely used — are perhaps worth a brief attack. (1) Punishing people by killing them degrades us — we are demeaned in the process. But we shall be demeaned by doing this only if doing it is wrong; it cannot be wrong because it demeans us. This begs the question. (2) “Two wrongs do not make a right” — a favorite cliché of Americans, particularly undergraduate students. This, of course, begs the question also. The very point at issue is whether capital punishment is a wrong. (3) We must defend the value of the “sanctity of human life” — a value compromised when we execute. This bare slogan is of little help, because it can plausibly cut both ways on the capital punishment issue. Looking at the condemned person, we shall cite sanctity of life as a reason for not killing him. If we look at the victim (of murder), however, we could just as well cite sanctity of life as a reason for capital punishment — i.e., our use of a punishment this serious is our way of expressing how seriously we take the crime of murder. With analysis, however, this slogan can be turned into an argument — one which I shall develop later in the paper. Even analysed, however, it will rest on a controversial assumption — namely that killing is morally worse than letting die. For a defense of this assumption, see my The Killing of the Innocent’, supra note 27.
This book (based on a factual murder and execution) was made into a successful Hollywood movie. Both the book and the movie depict two marginal human beings of unclear responsibility who, after being convicted of murder and sentenced to death, arouse our pity and compassion as they reveal both their humanity and animality in touching ways. Their route to death (except for their contact with Capote) is cold and impersonal.
For more on the distinction between death and the terrible circumstances which may surround death, see my `Rationality and the Fear of Death’, Monist 59 (1975/6): 187–203, reprinted in RJT.
This is not to say that some persons — e.g., Church martyrs, soldiers who will not betray comrades under torture, etc. — cannot rise above the inherent degradation of what is being done to them. Their animal nature is being addressed, but they hold out for a very long time (perhaps until death) before allowing that nature to answer.
We would be more inclined to regard as insane a person who voluntarily tortured himself than a person who voluntarily took his own life.
This is the suspicion expressed by Justice Rehnquist in his dissent in Furman v. Georgia — a suspicion shared by some of the other dissenting Justices.
The major relevant cases, other than Furman v. Georgia, are: Gregg v. Georgia, 428 US 153 (1976); Woodson v. North Carolina 428 US 280 (1976); Roberts v. Louisiana, 428 US 325 (1976); Jurek v. Texas, 428 US 276 (1976); Coker v. Georgia, supra note 35; and Lockett v. Ohio, supra note 30.
This is also the central argument of Charles Black’s widely read book on capital punishment, supra note 15.
The Justices are clearly divided on which alternative is preferable.
Again, see Black (supra note 15) for a clear statement of and an attempt to meet this objection.
The Eighth Amendment was included in the Bill of Rights to assure that certain types of punishments would never be imposed, not to channelize the sentencing process. The approach of these concurring opinions has no antecedent in the Eighth Amendment cases. It is essentially and exclusively a procedural due process argument [dealt with and dismissed in McGautha v. California, 402 US 207]… and it would be disingenuous to suggest that today’s ruling has done anything less than overrule McGautha in the guise of an Eighth Amendment adjudication“ (Furman v. Georgia, 408 US 399 and 400) (Burger C. J., dissenting).
Again, it is perhaps worth noting (for those who are impressed, as I am, by his theoretical machinery) that Rawls’s contractors would surely adopt such a principle in the original position.
Conway v. O’Brien (2 Cir. 1940) 111 F. 2d 611, 612. See also United States v. Carroll Towing Co. (2 Cir. 1947) 159 F. 2d 169.
Mr Justice Harlan wrote: “I do not concede that whatever process is `due’ an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital case” (Reid v. Covert, 354 US 1) (1957).
See Erving Goffman, Asylums (New York: Doubleday, 1961 ). See also my `Rationality and the Fear of Death’, supra note 40. Of course, even one day in prison is irrevocable in the sense that all past events and their resultant effects on human beings are irrevocable. Yet, although it might be difficult to articulate, most people intuitively recognize a distinction between the irrevocability of everything and the irrevocability of death or mutilation. The latter is the strong sense of irrevocability referred to here. It encompasses irreversible deprivations of attributes or capacities essential to, or at least closely connected with, complete personhood. 55
It is not uncommon for federal courts to declare the prison systems of entire states (e.g., Arizona) to be in violation of the Eighth Amendment — the primary reason usually being overcrowding. But what is the matter with overcrowding? Presumably the effects it has on prisoners. But what if longterm incarceration has the same or similar effects?
As noted above, attitudes toward death as opposed to other punishments could be relevant in the Rawlsian original position; but, unless these attitudes are absolutely uniform for all persons, it is hard to see how the application of the punishment could be fair — i.e., some will be more hurt by it than others. Again, one needs an objective account.
Radin, supra note 1, p. 1022. Irrevocability is probably the most frequently cited reason in defense of the claim that death is more serious than loss of liberty. See Black, supra note 15. And Justice Marshall: “Death is irrevocable; life imprisonment is not” (Furman v. Georgia, 408 US 346 ).
For an excellent discussion of the distinction between compensable and incompensable injuries, see R. Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), chapter 4.
We do, of course, have the concept of a Faustian contract. But we also take these to be perverse.
I have elaborated this point in great detail in my `Rationality and the Fear of Death’, supra note 40. I am very grateful to Ellen Canacakos for discussion of this closing portion of the paper.
I say can instead of must because some persons (e.g., Socrates and other exceptionally rare individuals) seem to have attained personal excellence prior to their execution. The Justices in Furman v. Georgia who seem to me closest to the view I am here articulating are Marshall and Brennan. Marshall (at 346) writes “Death, of course, makes rehabilitation impossible.” And Brennan (at 272, 273) writes: “When we consider why [certain punishments] have been condemned, however, we realize that the pain involved is not the only reason. The true significance of these punishments is that they treat members of the human race as nonhumans, as objects to be toyed with and discarded.”
Lockett v. Ohio, supra note 30. There is, of course, a social cost of having stricter procedures to prevent error — Hand’s third factor in his algebra of negligence. The primary social costs for criminal due process will be expense, court time, and — of course — the greater possibility that guilty and dangerous persons will be freed to prey again upon innocent victims and that others will be less effectively deterred from crime. I have had little to say about these matters — not because I think they are unimportant but because I wanted to see how far one could go via a different route. On the capital punishment question, however, this issue will not be too central for the following reason: Probably no one would want to grant less due process than existed prior to Furman. But, even with that amount, executions had become so infrequent as to have (probably) very insignificant deterrence value. Studies seem to indicate that it is certainty of punishment (and not severity) which tends to deter. See Jack P.,Gibbs, Crime, Punishment, and Deterrence ( New York: Elsevier, 1975 ).
Some criminals (e.g. the psychopathic killer) are perhaps best regarded as wild animals or other non-responsible natural forces of destruction. Such a way of looking at them is not to regard them as persons; but this is all right because, from the moral point of view, they are not persons. If drastic steps (e.g., execution) are advocated for them, this cannot coherently be regarded as capital punishment (since they are not responsible and thus not legitimately open to punishment) but must be regarded simply as painless extermination — something done in the same spirit in which we destroy a mad dog. I see nothing intrinsically wrong about such steps (i.e., see no reason for believing that psychopaths have a moral right to life); but the practical dangers of acting in this way (i.e., letting legal authorities — as in Nazi Germany — decide who is and who is not a person) are so grave that it is irresponsible even to consider this as a legal option. For more on this, see my `Moral Death: A Kantian Essay on Psychopathy’, Ethics 82 (1971/2): 284–298, reprinted in RJT.
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Murphy, J.G. (1979). Cruel and Unusual Punishments. In: Stewart, M.A. (eds) Law, Morality and Rights. Synthese Library, vol 162. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-2049-6_23
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