The least cruel method of execution?

Frank Apisa wrote:

But in this thread, you are being insufferable -- and, in my opinion, wrong-headed.

And "pompous." Don't forget "pompous."

Frank Apisa wrote:

Well, I'm not sure what circles you travel in, Joe, but I certainly know many MANY people who do not consider death the worst punishment.

All this is really beside the point. It doesn't matter if many, some, most, or a few people believe there are worse punishments than death: what matters is that death penalty proponents believe that it is the worst possible punishment. Now, if those proponents believed that some other form of punishment would better serve the twin goals of deterrence and retribution, then I suppose they should be pushing for the implementation of that form of punishment instead.

Frank Apisa wrote:

Way, way over the top. I can only assume this is coming from some anger you have toward Craven rather than from the clear-headed thinking you normally display.

I have no animosity toward Craven. He's one of the most thoughtful and intellectually challenging people in these forums (and I'd include you, Frank, in that select company). But, in this case, he's wrong. And so are you. But I don't hate you for it.

Frank Apisa wrote:

There are people who consider the death penalty to be mainly about following the dictates of the god of the Bible -- who decrees death as punishment for various crimes.

That may very well be the case, and there might be some people out there who honestly maintain that capital punishment is required in order to fulfill "God's will" or some such divine command. I've never heard such an argument raised by anyone, at any time, but I suppose it's theoretically possible. For those few people, then, I will concede that they would not be inconsistent in favoring "humane" executions unless their theology held that it was the divine will, or God's plan, or whatever, to make capital punishment both deterrent and retributive here on Earth.

Frank Apisa wrote:

The god may indeed consider the death penalty to be retribution -- but the people who support capital punishment because of devotion or allegiance to this god -- support it because of that devotion and allegiance -- not as retribution.

I'd like to meet such a remarkable person.

Frank Apisa wrote:

I'm sure Craven will cover many of these things -- but I wanted to at least mention that I disagree with your position here -- and agree, in large part, with Craven's.

Your objections have been duly noted.

[EDIT: corrected a typo]

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Craven: I'll respond in detail to your lengthy post, but first I need some clarification. You wrote:

Quote:

But three's enough to illustrate the point. The third goal is to balance their first two goals with their mitigating criteria.

It seems you misunderstood me. When I challenged you to identify three "other goals" to capital punishment, I meant three goals in addition to deterrence and retribution, not including deterrence and retribution. After all, you had suggested that there were other goals when you were responding to me, and I have consistently maintained that there were only two, so there must be at least two more goals beside the two that I mentioned. Now, if you can't come up with three, I'll understand: it's not that easy. But I'd like to establish the universe of "other" goals now, in an orderly fashion, rather than deal with them on an ad hoc basis later.

And since I'm such a nice guy, I'll even spot you Frank's "divine will" goal, so that leaves you with only two more goals to identify.

In addition, before I respond, I need to know more about this mysterious "mitigating criterion." As it stands, I have no clue what it is, and so I can't very well address your argument (which hinges on this concept) before knowing what it means. Could you, then, please give some sort of definition of this "mitigating criterion" (or the multiple "criteria")?

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I'd like to chip in here again, and address the notion of "retributive justice," which in my estimation approaches oxymoron. Prior to the theorizing of Bentham, there were commonly a great many capital offenses. In Enland, according to The Fatal Shore by Robert Hughes, there were 160 or more capital statutes. It should be noted that this does not mean that the English commonly hanged a boy for stealing a handkerchief. But the offense being capital was used as a sufficient reason to transport the child for life.

America's early days are marked by a fervor for reforming all previously respected institutions along "republican" lines. Hence, naval officers dispensed with the use of the lash, even though it remained legal under the articles of war, and opposed the continuation of the Marine Corps, on the grounds that they did not fear their men nor needed any guard to prevent their desertion. With the arrival of Bentham on the scene, the concept of rehabilitation began to take hold, although Bentham's notions of how that ought to be effected were bizarre to say the least. His ideal prison had every inmate in solitary confinement. Again, in Hughes, he makes mention of just such a prison established on an island off shore from Hobart, in which adolescent boys were put in such confinement. His conclusion is that it was a human tragedy.

Nevertheless, Bentham's idea that society should reahabilitate the criminal lead, at the turn of the 19th to the 20th century, to a spate of laws in the states which gave a theretofore unprecedented discretion to jurists to hand down "flexible" sentences. Previously, society had, through state legislatures, assigned a value of the hienousness (zat a word?) of a crime, and a set sentence in terms of a number of years incarceration was established, from which it was not understood that a judge could depart in the event of a conviction. With the introduction of the concept of rehabilitation, sentences would be expressed in a range of years--some of the earliest statutes had completely open-ended sentences, the convict in question subject to the judgement of a parole board's decision about whether or not he or she had been rehabilitated.

This is also the period in which the nature of what constitutes capital crime came under scrutiny. We (meaning the educated mass of people in industrial societies which arose in the 19th century) continue to prefer to believe that we become more "enlightened" as time passes. We are now arrived at a situation in which murder, and possibly (although rarely) treason seem to be the only crimes for which we would execute. If we are not just flapping our jaws on the subject of more "enlightened" and more humane concepts of crime and punishment, ought not retributive justice be abandoned altogether?

Several pragmatic considerations occur to me. One is that elected legislators respond to estimates of their "electability" when giving consideration to questions such as capital punishment. We (now meaning those of us who consider ourselves well educated and humane, often such consideration being of an elitist character in which we compare ourselves to the rest of the members of our society) may deplore capital punishment as a cruel and fanatic tribal and religious vestige, but legislators will act based upon their best estimate of what the most of voters will applaud or deplore. Another such consideration, to my mind, is the simple cost of all of this. I have read on many occassion (with what accuracy i cannot state) that it is in fact more expensive to house death row inmates, because of the cost the state incurs in the appeals, and in special housing facilities as well as much lower ratios of guards to prisoners.

All just more grist for this mill.

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It's definitely not just one criterion. I haven't slept in a few days now so I can't make it much clearer than I had previously done but will try

I'll have to use analogies but will try to make them less flippantly couched in hopes they are taken into more serious consideration.

The concept I speak of is that if you do not isolate the goals and consider them as part of the greater picture there is not the inconsistency you speak of. The best analogy I can come up with right now is the corporal punishment analogy. It's a decidedly different form of punishment than capital punishment but I am not comparing punishments, just illustrating mitigation of a goal or goals because of another set of goals or criteria.

If we assume that the purpose of corporal punishment is deterrence and retribution we can also posit that the more brutal the form of corporal punishment the better it will serve those two goals.

But those aren't the only goals that exist, a parent might not wish to cause hematomas and get in trouble with social workers. A parent might not want to brutalize the child. A parent might not wish to damage the child's psyche.

With those other considerations the corporal punishment's severity will be mitigated, and will not be as brutal as it could be. The parent might still think it serves the goals of deterrence and retribution even though the severity is mitigated by other concerns.

This next example will be a bit of a simplistic one but is honestly forwarded, since Frank's around I'll use golf.

When striking the ball with the club one goal is to make the ball move forward. The more power used to hit the ball the better it will move forward. But in golf there is another more important goal, to get the ball in the hole. So if the ball is close to the hole the goal of moving the ball forward must consider the goal of getting it in the hole, and therefore the goal of getting it into the hole might trump the goal of moving the ball.

In the case of capital punishment the "umbrella" goal might be to prevent barbarism in society with capital punishment being seen as a means to that end. While a more brutal execution can be argued to better deter and 'retribute' it's also inconsistent with the goal of preventing barbarism.

So the goals of deterrence and retribution are mitigated by the criterion of preventing barbarism in this example.

If the goals of deterrence and retribution are isolated from any overriding concerns that might mitigate the brutality of the execution they can be called inconsistent with a mitigated form of execution. But if they are considered together with the other criteria that the big picture include it is not inconsistent but merely inclusive of existing and mitigating concerns.

My qualm is that I don't think you have justified the isolation of the two goals from any other mitigating criteria or goals.

I will make a haphazard list of possible mitigating criteria or goals that can serve as an overriding and mitigating factor and do not, in my opinion, merit automatic exclusion.

Prevention of barbarism in society
Viability of capital punishment with the sensibilities of others being considered
Their own sensibilities
Their perception of capital punishment not being barbaric (this is where an earlier concession of yours is relevant)
Incompatibility of brutal forms of punishment and their moral compass
A perception of incompatibility of justice and barbarism

It's not a great list but you get the point, they may have concerns that override the goals of deterrence and retribution and that by their nature mitigate the severity of the execution. They may simply consider it enough to use the specter of death without adding torture etc.

Similarly someone might be hungry and eat the bread, but not the spinach with the distaste for spinach mitigating the satisfaction of their appetite.

Basically, I see no reason to exclude other mitigating factors. The one of preventing barbarism in society would actually be inconsistent with barbaric executions.

As to the three other possible goals executions can serve here is a quick list:

Exemplification (for reasons apart from deterrence)
Closure
Economy (if the procedure is expedited)

I agree with the justification of none of them, but you did not qualify it asone with which i'd agree.

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Craven de Kere wrote:

I haven't slept in a few days now so I can't make it much clearer than I had previously done but will try

You have explained your position sufficiently well. I will respond in due course. Now get some sleep.

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Bi-Polar Bear wrote:

buns I have an idea...why don't we pick an entire continent and just drop the criminals off there to fend for themselves?.....oh wait...already did that....look what happened....... :wink:

LOL! hey - we only got invented cos you guys stopped letting the Brits drop their convicts off at your place....

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Port Arthur you are talking about, Setanta - a terrifying place.

Even the chapel was built with lots of little cubicles, so that prisoners could see the priest but not each other - with little corridors between them so that they could be moved into the cubicles one by one.

Exercise was solitary. The cells were built so that the guards could always see the men, but they could never see each other.

Lots of it still stands - and it is a haunted place to visit - built out on a little spit of land, with only a narrow causeway to the mainland - guarded by men and dogs - and surrounded by wild ocean.

There is a great account of it in Marcus Clarke's "For the Term of His Natural Life."

Mind you, lots of ex-convicts went on to become solid citizens - but not because of the prison. A more normal one was built on the site, too.

Sadly we are now imprisoning at rates more nearly approaching those of the US - since crime has become one of those obscene pieces of political currency, where parties vie with each other as to who is "harder on crime". Western Australia even introduced a "three strikes and you're in" policy for juveniles - which a subsequent government has dismantled.

I don't think that much has improved, really, since the days of Port Arthur - which is a salutory lesson in how dumb today's theories are gonna look tomorrow.

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Thank you for your response, Our Dear Wabbit . . . i believe i'll start a thread on crime and punishment, with the "fatal shore" as a point of departure, since it affords so many examples--mostly bad . . .

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that would be interesting, as I am way off topic here.

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Here it is, a Crime and Punishment[/color] thread . . .

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Joe

I'd like to comment on just one small part of your last post:

You quoted me saying: "Well, I'm not sure what circles you travel in, Joe, but I certainly know many MANY people who do not consider death the worst punishment"...

...and then responded:

Quote:

All this is really beside the point. It doesn't matter if many, some, most, or a few people believe there are worse punishments than death: what matters is that death penalty proponents believe that it is the worst possible punishment.

Well, I'm not sure how either of us can state categorically what "death penalty proponents" "believe" or do not "believe" about whether or not the death penalty is the worst possible punishment -- but I will go out on the same limb you are perched on and disagree with your comment.

Seems to me more likely that while SOME death penalty proponents (obviously) believe it to be the worst possible punishment -- MANY may feel as I do that its main "efficiency" is that it is the most effective way to ensure that a murderer will not kill again. They may not take a specific

stand on whether life in prison or execution is the "worst possible punishment" at all -- and some might actually consider the release of death as being humane than being boxed up for the remainder of one's life.

I do want to acknowledge, though, that your original statement was about what death penalty opponents (not what society in general) considers as the worst punishment -- and that the wording I used in my response, in effect, created a straw man.

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dlowan

Without getting too deep into specifics -- I want at least to acknowledge your comments that we might all want to rethink a position that considers the ONLY solution to be either execution or life in prison.

Your point is well taken.

My guess is that everyone here realizes that there are times, even in cases of murder, where a more proper response from society could logically and reasonably be something in between death and life in prision.

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Craven: I, along with about a million other people, will be doing some shopping today, but I want to give a partial response to your posts. For now, I'd like to focus on the uniqueness of capital punishment, which is fundamental to my position and which you have questioned. In a subsequent post I will comment directly on your "mitigating criteria."

In your last detailed response in this thread you wrote:

Craven de Kere wrote:

The stated reason you gave for rejection of the analogies is that capital punishment is unique. What you do not even attempt to substantiate is why you disallow mitigating goals to be included. Its perceived uniqueness to you does nothing to justify the exclusion of mitigating criteria from the ratiocination of those who support the death penalty.

As you repeated this point a number of times and in different ways, I'll just use this excerpt as a condensed version of your entire argument.

Let me lay out, in detail, the fundamental premises of my position:

1. Capital punishment is unique: As Justice Potter Stewart stated in Furman v. Georgia:
"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity."
Capital punishment, in other words, isn't simply a more severe form of punishment, it is a fundamentally different form of punishment. As such, the state has two choices when it metes out punishment: either "traditional" forms of punishment (e.g. monetary fines, incarceration) or the death penalty.

2. Because of its uniqueness, the death penalty must be justified: Because the death penalty is unique both in its severity and its irrevocability, there must be some additional justification for utilizing the death penalty, above and beyond the justifications used for traditional punishments. After all, if the same justifications could be used for sentencing someone to prison or to death, that would mean that the death penalty was simply a more severe form of punishment, rather than a fundamentally different form of punishment. Consequently, if the state's goals can be served by sentencing a criminal to prison rather than killing him, then the state is obliged to choose the former rather than the latter.

3. There are four justifiable goals of punishment: Although framed in different ways by different scholars, the consensus is that there are four goals served by punishment: (1) incarceration/incapacitation; (2) rehabilitation; (3) deterrence; and (4) retribution (I'll ignore a fifth -- restitution -- as largely irrelevant to the current discussion).
Incarceration/Incapacitation: This means physically preventing a criminal from committing more crimes, either for a definite period or permanently.
Rehabilitation: This means making the criminal a better person, so that, ideally, he can be reintroduced into society.
Deterrence: This has a double meaning: deterrence of the person who committed the crime, and deterrence of others through the example of the criminal convicted.
Retribution: A somewhat more vague concept than the preceding three, this deals with the state's right, on behalf of its citizens, to exact some form of vengeance on the criminal, either as a means of demonstrating the value placed upon the law or the state's desire, in some fashion, to reflect the wishes of the victim.
Note: I am aware that you, Craven, would dispute this contention, and I will attempt to enlarge upon this point in my subsequent posting.

4. Capital punishment, to be justified, must serve one or more of the foregoing goals: Even though it is a fundamentally different form of punishment, it is still punishment, and so must serve one or more of the permissible goals of punishment. But, as I explained above, it must serve them in a fashion that can only be accomplished through capital punishment. To repeat: if the state's goals can be accomplished through a punishment other than the death penalty, the state is obliged to choose that punishment (see Point 2, above).

5. Capital punishment can only serve the goals of deterrence and retribution: We can quickly dispose of the notion that the death penalty serves to rehabilitate criminals: such a notion could only work in a metaphysical sense, and the state must be agnostic regarding the fate of the condemned in the afterlife.
Capital punishment certainly incapacitates a criminal, in that executed criminals are not likely to commit subsequent crimes. But punishment short of death can also accomplish this goal. Pace the objections raised by Scrat, we can, at least theoretically, devise a system of incarceration that minimizes the likelihood of a prisoner, condemned to life without parole, committing further crimes. As such, given that the goal of incarceration/incapacitation can be served by a punishment short of death, the state is obliged to choose it.

6. Because capital punishment is unique, it must serve the goals of deterrence and retribution in a unique fashion: Once we have decided on the death penalty as the proper form of punishment, we can no longer be satisfied with the normal, traditional justifications. If, for instance, capital punishment merely deterred criminals in the same way that incarceration would deter them, then the state would be obliged to choose incarceration over capital punishment. Thus, capital punishment must deter and demonstrate retribution in a unique fashion, a fashion that can only be accomplished through the death penalty. For if those goals could be accomplished in some other fashion, the state would be obliged to choose that approach.

7. The only way for capital punishment to effect its goals in a unique fashion is through the act of execution itself: In the end, what makes the death penalty unique is the act of execution. Indeed, prior to that act, the condemned's punishment is largely indistinguishable from that of other prisoners. Thus, it is through the act of execution that the state's unique interests in deterrence and retribution must be demonstrated.

8. Therefore, the state must make the act of execution both uniquely deterrent and uniquely retributive: As I have mentioned in a previous post, at the point where the condemned is executed, his death no longer is of interest to him alone. Rather, the state is obligated to make the act of execution serve its goals -- otherwise, it is simply murder. And if the only permissible goals of capital punishment are deterrence and retribution, then the act of execution itself must be uniquely deterrent and uniquely retributive. In other words, it is the act which must, in the end, set capital punishment apart from traditional punishments and serve the interests of the state.

9. Efforts to ameliorate the act of execution are directly contrary to the goals of the state: If the state truly is interested in deterrence and retribution, and it believes that those goals can only be served through the unique punishment of death, then any attempt to mitigate or ameliorate the act of execution are contrary to its goals.

Of course, that last point is the main bone of contention here, so it deserves further elaboration. But it's late, and I have some power shopping to do.

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Joe,

Excellent post. I commend you on your work on this issue.

Craven can have his say after his nap, but a couple of items jump off the page at me while reading your presentation, and. I'd like to take on one such matter:

From paragraph 5:

Quote:

Capital punishment certainly incapacitates a criminal, in that executed criminals are not likely to commit subsequent crimes. But punishment short of death can also accomplish this goal. Pace the objections raised by Scrat, we can, at least theoretically, devise a system of incarceration that minimizes the likelihood of a prisoner, condemned to life without parole, committing further crimes. As such, given that the goal of incarceration/incapacitation can be served by a punishment short of death, the state is obliged to choose it.

This is a very self-serving redition of what you were apparently trying to say, Joe.
Capital punishment does not incapacitate a criminal to the point where they are "not likely to commit subsequent crimes." It incapacitates them to the point where they DAMN WELL WILL NOT commit subsequent crimes. And it might be noted that the types of crimes they WILL NOT SUBSEQUENTLY COMMIT -- are unique crimes in their own rights.

I suggest that there may indeed be crimes so henious, that society can demand that remediation (punishment, if you will) must be of a form that will ENSURE that the criminal not commit that crime again.

Earlier, in paragraph 4, you had written:

Quote:

Capital punishment, to be justified, must serve one or more of the foregoing goals...Incarceration/Incapacitation: This means physically preventing a criminal from committing more crimes, either for a definite period or permanently.

I submit that unless incarceration is in a form so severe as to be as inhumane (in my opinion, more inhumane) than the act of execution -- such incarceration will not serve the purpose of preventing the criminal from commiting that crime again -- if the crime in question is murder.

I further note that all punishments are unique -- periods of incarceration are definitely unique when compared with fines. Crimes come in all shades and colors. Some warrant fines; some warrant incarceration; and some PERHAPS warrant execution.

Some crimes are of a nature that demanding restitution -- and hopefully deterring a recurrance -- is sufficient to society's purposes.

Some crimes are of a nature such that preventing a criminal from engaging in them for a period of time by incarceration, with hopes for rehabilitation, is sufficient to society's purproses.

Some crimes are of a nature such that ensuring that the criminal not commit them again is paramount to society's purpose -- and the only way to ensure that is to remove the person from society permanently and completely.

Execution, arguably, is the only way to do that.

(I agree that paragraph 9 is going to be a major bone of contention -- but I view paragraph 9 as a work in progress rather than a finished product. It might be best to hear you out on that further before commenting.)

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joefromchicago wrote:

I'd like to focus on the uniqueness of capital punishment, which is fundamental to my position and which you have questioned. In a subsequent post I will comment directly on your "mitigating criteria."

I've only questioned why the uniqueness of capital pubishment (which I do not dispute) is used to justify the logical isolation of goals from possible mitigating criteria.

In other words I agree with much of your post and will have to wait for the mitigating criteria part as that's where my position begins.

Quote:

Capital punishment, in other words, isn't simply a more severe form of punishment, it is a fundamentally different form of punishment.

There are logical holes (small) in the argument that you quoted, but they are pointless quibbles as I agree with the overall point.

Capital pubishment is special (or "unique").

Quote:

3. There are four justifiable goals of punishment: Although framed in different ways by different scholars, the consensus is that there are four goals served by punishment: (1) incarceration/incapacitation; (2) rehabilitation; (3) deterrence; and (4) retribution (I'll ignore a fifth -- restitution -- as largely irrelevant to the current discussion).

Thanks for qualifying it with "justifiable". I had suspected that your earlier mention of limited goals was meant to be stated with a qualifier of some sort.

Because capital punishment "can" have other goal, and in fact has.

Even a goal like "entertainment", a clearly unjustified goal has been partial motivation for execution in the past. So as long as you are qualifying it the earlier discussion about possible goals is corrected.

Quote:

Deterrence: This has a double meaning: deterrence of the person who committed the crime, and deterrence of others through the example of the criminal convicted.

This is something I had meant to highlight earlier. You summarized crime and punishment well.

Quote:

Retribution: A somewhat more vague concept than the preceding three, this deals with the state's right, on behalf of its citizens, to exact some form of vengeance on the criminal, either as a means of demonstrating the value placed upon the law or the state's desire, in some fashion, to reflect the wishes of the victim.

Quibble: Retribution is something i'd consider justified, vengance is not (to me).

Paying back a loan is retribution, it is not vengance. < to highlight the difference.

Quote:

Note: I am aware that you, Craven, would dispute this contention, and I will attempt to enlarge upon this point in my subsequent posting.

Which one? I don't really dispute this contention. My main qualm lies soley in the isolation of these factors from others that would mitigate the severity of punishment.

Now I'm responding to the rationale of excluding the goals that execution can't serve (e.g. rehabilitation):

Simply put, I agree. Those are reasons I do not support the death penalty.

Quote:

6. Because capital punishment is unique, it must serve the goals of deterrence and retribution in a unique fashion:

And if it is unique it will inevitably do so.

Quote:

7. The only way for capital punishment to effect its goals in a unique fashion is through the act of execution itself: In the end, what makes the death penalty unique is the act of execution. Indeed, prior to that act, the condemned's punishment is largely indistinguishable from that of other prisoners. Thus, it is through the act of execution that the state's unique interests in deterrence and retribution must be demonstrated.

I disagree here. Earlier you stated deterrence as being two-fold. This ignores one of the 'folds'.

In short some nations use capital punishment as a deterrent to a greater degree of effectiveness than other nations who use it more frequently.

The threat is as important a component as the implementation.

Quote:

8. In other words, it is the act which must, in the end, set capital punishment apart from traditional punishments and serve the interests of the state.

The acts uniqueness (that you earlier cite) inevitably does so.

Quote:

9. Efforts to ameliorate the act of execution are directly contrary to the goals of the state: If the state truly is interested in deterrence and retribution, and it believes that those goals can only be served through the unique punishment of death, then any attempt to mitigate or ameliorate the act of execution are contrary to its goals.

Ameliorate = make better

Start using brutal punishment in our society = make it worse.

Quote:

Of course, that last point is the main bone of contention here, so it deserves further elaboration. But it's late, and I have some power shopping to do.

What the real point of contention is is a bit different.

You clearly delienated the goals for this method of punishment.

But what are the goals to have punishment at all?

I will add one of my goals: to prevent barbarism in society.

So, the goals of the method of punishment should take into account the overring and more inclusive goals.

If we punish to prevent barbarism, and use capital punishment to better deter and retribute there is an inconsistency to intentionally introduce more barbarism into our society.

To do so would require that it be accepted in the overriding goals. Do we wish to fight barbarism with barbarism? To me, capital pubishment is essentially that and as such I already oppose it. But someone who does not consider capital punishment to be barbaric can reject the notion that not making it barbaric is an inconsistency.

When you address the exclusion of mitigating criteria I hope that you can address the separation of a goal for a particular form of punishment and the reasons we have a justice system at all.

An obvious (and excluded) factor is that many consider the justice system as a means to prevent barbarism.

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As promised, here is my follow-up post.

Craven, you've identified your main criticism as follows:

Craven de Kere wrote:

My qualm is that I don't think you have justified the isolation of the two goals from any other mitigating criteria or goals.

I have identified four goals of punishment, in general, as the only ones that are justifiable. That's because punishment, by definition, is a use of force against a person, and thus is unjustifiable (under most conceivable systems of morality) unless there is some overriding interest served by the punishment. Thus "entertainment," for instance, would be unjustifiable as a goal of punishment, since the interests of those in being entertained do not outweigh the interests of the individual in not being the object of force.

The four goals of punishment -- incarceration/incapacitation, rehabilitation, deterrence, and retribution -- are the only ones permissible, because they are the only ones that can be achieved through punishment and which outweigh the interests of the convicted (ignoring, for the purposes of this discussion, the goal of restitution). Other goals, such as "the prevention of barbarism," may be laudable, but they can be achieved through means other than punishment. In other words, if the state's goal is preventing barbarism, the state can devise means apart from, and short of, punishment to achieve this end. Indeed, given the high value we place on individual liberty, I would maintain that the state is obliged to find some means, apart from punishment, to achieve these other aims.

Let me expand upon that point: once the state has determined to use punishment as a means, it has already determined its goals: i.e. the four goals I have already outlined. If the state is aiming at something else, it must not use punishment as a means to achieving that end. For instance, if the state has decided to entertain its citizens, it is forbidden, by the tenets of morality, from using punishment (of any kind) to achieve that end. The choice of punishment as a means, then, automatically limits the goals.

Thus, the four permissible goals of punishment are isolated. The state is not permitted to achieve anything else through the means of punishment, because punishment itself is unjustified except to serve an overriding state interest. If the state can achieve a goal through means short of punishment, it is obliged to choose that means. And similarly, since the state must have additional justification to use capital punishment (as I explained in my previous post), if the state can achieve a goal through means short of capital punishment it is likewise obliged to choose that means.

Now, you've listed the following as possible interests served by capital punishment:

Quote:

Prevention of barbarism in society

Viability of capital punishment with the sensibilities of others being considered

Their own sensibilities

Their perception of capital punishment not being barbaric (this is where an earlier concession of yours is relevant)

Incompatibility of brutal forms of punishment and their moral compass

A perception of incompatibility of justice and barbarism

Yet all of these interests can either be achieved without punishment (of any kind), or are simply mitigated forms of permissible punishment, or else are irrelevant. To the extent that the goals can be achieved through means short of punishment, the state is obliged to choose those means. To the extent that the goals can be achieved through punishment, they are simply versions of the four permissible goals: incarceration/incapacitation; rehabilitation, deterrence; and retribution.

For instance, the notion that fostering "the perception that capital punishment is not barbaric" as a goal of capital punishment largely misses the point. The state can simply achieve this goal by not adopting capital punishment, and since it can, it must. Once the state has decided to use the death penalty, however, it must be used to achieve one of the permissible ends of punishment, and, as I explained before, only two of the four permissible goals can be achieved through capital punishment: deterrence and retribution.

Now, of course, the state can make the death penalty as palatable as possible to the wider public, and it may choose the most "humane" method of execution as a means to this end. But that is a goal apart from the goals of punishment. In effect, then, lethal injection is more a matter of public relations than capital punishment. It does not serve the goals of punishment; indeed, I would maintain, "humane" forms of punishment serve to defeat those goals.

Craven de Kere wrote:

With those other considerations the corporal punishment's severity will be mitigated, and will not be as brutal as it could be. The parent might still think it serves the goals of deterrence and retribution even though the severity is mitigated by other concerns.

I hope, by now, that I have given some insight into why I think your analogies have all been misplaced. To recap briefly:
(1) Capital punishment is unique, in that it serves only two possible goals: deterrence and retribution;
(2) The act of execution itself must embody and further these goals;
(3) Any means of achieving a goal, short of punishment, must be chosen in preference to punishment, and any goal that can be achieved through a punishment short of capital punishment must be chosen in preference to capital punishment.

You posited that corporal punishment, for instance, is analogous to capital punishment, in that it serves the same goals of deterrence and retribution. I'll concede, for the sake of argument, that retribution is a permissible goal in this context (although I have serious doubts about that), but that still doesn't mean that corporal punishment is analogous to capital punishment. After all, the parent intends, under normal circumstances, to permit the child to survive the punishment. As such, the parent is constrained to limit the punishment -- otherwise the punishment itself becomes unjustifiable. No such limitation, however, constrains the state when it executes a prisoner. Indeed, as I have previously set forth, once the state has determined to utilize capital punishment, the interests of the prisoner in the manner of his death are secondary to those of the state.

Moreover, a parent is constrained to obey a higher authority whereas the state is that higher authority. As such, a parent has an interest in mitigating any corporal punishment (because of the parent's obligation to obey the law), whereas the state is under no such comparable restraint (assuming, for the purposes of argument, that death penalty proponents succeed in repealing the Eighth Amendment).

All of your other analogies suffer from the same or related flaws. The golf example, for instance, posits that the "umbrella" goal of getting the ball in the cup is served by varying degrees of force in striking the ball. But that presumes that capital punishment -- the putatively analogous case -- is merely different in degree from other punishments. Life imprisonment is a putt, lethal injection is a chip shot, and a heinous, painful death is a 300-yard drive down the fairway. But that ignores the fact that capital punishment is unique. Life imprisonment may be a putt, but execution is a touchdown pass.

Regarding your list of other possible goals, a few quick remarks:

Craven de Kere wrote:

As to the three other possible goals executions can serve here is a quick list:
Exemplification (for reasons apart from deterrence)
Closure
Economy (if the procedure is expedited)

I have no idea what "exemplification" means, apart from setting an example that serves to deter others. "Closure" is irrelevant. It is something that victims want -- the state, however, must serve its own interests through means of punishment. If victims want closure, they should lobby for the return of the Lex Talionis and the blood feud. And "economy" can be served through means short of capital punishment (as I will explain in another post). As such, by virtue of the priorities I have already set forth, the state is obliged to choose those means in preference to capital punishment.

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Frank Apisa wrote:

Excellent post. I commend you on your work on this issue.

Thanks.

Frank Apisa wrote:

I submit that unless incarceration is in a form so severe as to be as inhumane (in my opinion, more inhumane) than the act of execution -- such incarceration will not serve the purpose of preventing the criminal from commiting that crime again -- if the crime in question is murder.

You have mentioned before, Frank, that you can think of punishments worse than death. Indeed, life imprisonment without the possibility of parole may just be such a punishment. Others, after all, have held the same position. That sort of argument, however, has always struck me as akin to the ante-bellum Southerners who claimed that blacks were happy being slaves. The number of runaway slaves belied that claim, just as the number of death row inmates who are strenuously fighting to remain in prison, I think, belies the claim that life imprisonment is worse than the death penalty.

But I have a solution that can easily solve this apparent dilemma. If life imprisonment is worse than death, then we should expect that prisoners, given the choice, will choose death over imprisonment (as Gary Gilmore and a few others have done). Rather than give the state the choice, however, I think we should give the prisoner the choice. The state, then, should sentence everyone convicted of a capital crime to life imprisonment with the possibility of suicide. Not only would the state get out of the execution business, but this solution would calm the critics who complain that lifetime incarceration is too expensive (presumably, the attrition rate among lifers will serve the interests of economy more efficiently than either life imprisonment without the option of suicide or capital punishment).

Frank Apisa wrote:

I further note that all punishments are unique -- periods of incarceration are definitely unique when compared with fines. Crimes come in all shades and colors. Some warrant fines; some warrant incarceration; and some PERHAPS warrant execution.

No, you're wrong. A one-year sentence differs from a ten-year sentence only as a matter of degree. A life sentence differs from the death penalty as a matter of kind. Different sentences, short of execution, are not unique, they're just different.

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I'm going to focus on the place where the real difference of opinion lies, expediting this exchange.

Joe wrote:

Other goals, such as "the prevention of barbarism," may be laudable, but they can be achieved through means other than punishment.

I disagree, I contend that the system of punishment we use is integral to our efforts to prevent barbarism in our society. While there are other ways to help further this goal I note that for a large society a system of punishment is inherent to the society's efforts. I can't think of any large societies that do not use a system of punishment.

I have already stated that I agree with your process of elimination as it regards to narrowing down the specific goals for capital punishment. but there are even more inclusive motivations, namely the reasons we use a system of punishment in the first place. The motivation for the existence of a system of punishment supercedes the motivation for using a specific form of punishment within that system.

Apart from the motivation of employing a specific form of punishment there is the more important question of why we seek to enact a system of punishment in the first place.

One important motivation I have is that I think it necessary in order to prevent barbarism (think killing and eating someone).

So were I to support the death penalty, for the reasons you state, making the implementation of capital punishment barbaric by, say, killing and eating those condemned to death it would be inconsistent with my superceding reasons for creating a system of punishment in the first place.

Excluding rehabilitation and incarceration as motivation for capital punishment is obviously logical, as capital punishment inherently can't accomplish either, but excluding other motivation for the very system of punishment that would mitigate the desire for retribution and deterrence is still not justified. In my analogies I have repeated that I am not trying to compare forms of punishment, just compare the hierarchy of motivation and influencing factors. But an analogy is comparative by its nature so I will simply use an capital punishment itself as my example.

John Doe wishes to establish a level of decorum in society, forbidding and preventing acts like murder and other barbarism.
John Doe believes that a system of punishment is needed to enforce the behavioral standards of the society.
John Doe believes that capital punishment is an effective way to achieve deterrence and retribution through the mere specter of death.
Joe from Chicago believes that capital punishment would more effectively achieve deterrence and retribution through a more barbaric and cruel form of execution. And that John Doe is inconsistent and hypocritical for not advocating barbarism.
John Doe considers increasing the severity of capital punishment and making it barbaric is inconsistent with his motivation for having a system of punishment in the first place. He wishes to prevent barbarism in society and for this justifies the very existence of the system of punishment.

A motivation to use a specific form of punishment does not supercede the motivation for having a system of punishment in the first place. If one's goal is to prevent barbarism to increase the severity of the punishment through use of barbarism is inconsistent of the superceding motivation for the existence of the system of punishment in the first place.

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Craven de Kere wrote:

I have already stated that I agree with your process of elimination as it regards to narrowing down the specific goals for capital punishment. but there are even more inclusive motivations, namely the reasons we use a system of punishment in the first place. The motivation for the existence of a system of punishment supercedes the motivation for using a specific form of punishment within that system.

No, there you're wrong. Any goal served by the system of punishment in general must first be consistent with the goals served by specific forms of punishment. There can be no thought of supercession if there is first no consistency. Thus, any state that sought, as one of its overarching goals, to reduce barbarism in society would not be justified in choosing the death penalty as one of its permissible punishments in the first place -- not because the death penalty itself is necessarily barbaric, but because the permissible goals of capital punishment (deterrence and retribution) should lead the state ineluctably to the adoption of "barbaric" forms of execution.

Craven de Kere wrote:

So were I to support the death penalty, for the reasons you state, making the implementation of capital punishment barbaric by, say, killing and eating those condemned to death it would be inconsistent with my superceding reasons for creating a system of punishment in the first place.

Quite right. You'd be called a hypocrite, and deservedly so.

Really, it's quite apparent where you go wrong.

Quote:

John Doe wishes to establish a level of decorum in society, forbidding and preventing acts like murder and other barbarism.

John Doe believes that a system of punishment is needed to enforce the behavioral standards of the society.

John Doe believes that capital punishment is an effective way to achieve deterrence and retribution through the mere specter of death.(ERROR)

Joe from Chicago believes that capital punishment would more effectively achieve deterrence and retribution through a more barbaric and cruel form of execution. And that John Doe is inconsistent and hypocritical for not advocating barbarism.

John Doe considers increasing the severity of capital punishment and making it barbaric is inconsistent with his motivation for having a system of punishment in the first place. He wishes to prevent barbarism in society and for this justifies the very existence of the system of punishment.

The reason why I've inserted an "ERROR" in step 3, I think, should be painfully obvious. If Doe wants to set up a system of justice that promotes the reduction of barbarism, he would not be justified in choosing capital punishment under that system. And, to recap, that's because: (1)capital punishment serves only two permissible goals; (2) consistent pursuit of those goals should lead to the adoption of brutal methods of execution. As I pointed out before: "the notion that fostering 'the perception that capital punishment is not barbaric' as a goal of capital punishment largely misses the point. The state can simply achieve this goal by not adopting capital punishment, and since it can, it must."

One cannot cite the justice system's overarching goals as somehow "trumping" any inconsistent results obtained by the methods of punishment utilized by that system. Rather, any inconsistencies between the overarching goals and the subsidiary goals of specific punishments will remain inconsistencies. And if death penalty proponents attempt to ignore the inconsistency, or cover it up by ameliorating the act of execution itself, they do not thereby eliminate the disjunction between the systemic and subsystemic goals.

To sum:
(1) Anyone who seeks, through means of a justice system, the goal of reducing barbarism in society is not entitled to adopt capital punishment as a means of punishment; and
(2) That's because capital punishment, to serve its permissible goals, must be "barbaric"; and
(3) Adoption of "humane" forms of execution does nothing to eliminate the inherent inconsistency between the goals of the system and the goals of capital punishment; thus
(4) Anyone who claims to favor a justice system that both reduces societal "barbarism" and includes capital punishment is a hypocrite.

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Wilso wrote:

The cost argument doesn't hold water. I've seen some stat's on the costs of executing someone, and it's absolutely staggering.

I wonder, what may be so expensive in lethal injection? Even if illicit commercially unavailable drugs like heroin are used for this purpose, the price of execution should not exceed $200-300... Well, if the convict is a drug addict, it may be a bit more costly due to his/her narcotic drug tolerance. By all means, not more expensive than $500. And how much does it take to keep a person in jail for 10-30 years? I guess, much more...

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The least cruel method of execution?

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