Race, Injustice, Inequality, and the Death Penalty
Ernest Van Den Haag, “The Ultimate Punishment: A Defense”
“Discriminatory or capricious distribution could not justify abolition of the death penalty. Further, maldistribution inheres no more in capital punishment than in any other punishment.”
“Maldistribution of any punishment among those who deserve it is irrelevant to its justice or morality.”
“Punishments are imposed on persons, not on racial or economic groups. Guilt is personal. The only relevant question is: does the person to be executed deserve the punishment? Whether or not others who deserved the same punishment, whatever their economic or racial group, is irrelevant.”
“If the death penalty were imposed on guilty blacks, but not on guilty whites, or, if it were imposed by a lottery among the guilty, this irrationally discriminatory or capricious distribution would neither make the penalty unjust, nor cause anyone to be unjustly punished. Despite the undue impunity bestowed others.”
“Recent data reveal little direct racial discrimination in the sentencing of those arrested and convicted of murder.”
Stephen Nathanson, “Does It Matter If the Death Penalty Is Arbitrarily Administered?”
“In this article, I will examine the argument that capital punishment ought to be abolished because it has been and will continue to be imposed in an arbitrary manner.”
Furman v. Georgia (1972), “Standardless Discretion,” and Arbitrary Executions
Gregg v. Georgia (1976) and “Guided Discretion: Has the arbitrariness noted in Furman been fixed?
Background Assumptions: (a) Race is an important (if elicit) factor in death penalty determinations, and (b) Race is a morally irrelevant factor.
“van den Haag claims that the justice of individual punishments depends on individual guilt alone and not on whether punishments are equally distributed among the class of guilty persons… [in short] he believes that the justice of a particular punishment is a non-comparative matter. It depends solely on what a person deserves and not on how others are treated.”
Two Cases that support van den Haag: (a) Speeding tickets, and (b) Heroism both sung and unsung
Two Arguments from Arbitrariness: (a) Judgments concerning who is guilty enough to be deserving of the death penalty are arbitrary, and (b) Judgments concerning who amongst those deserving of the death penalty ought to be executed are arbitrary. Nathanson points out that van den Haag focuses exclusively on (b) and neglects to address (a) altogether.
“It is clear, then, that simply knowing that someone is factually guilty of killing another person is far from sufficient for determining that he deserves to die, and if prosecutors, juries, and judges do not have criteria which enable them to classify those who are guilty in a just and rational way, then their judgments about who deserves to die will necessarily be arbitrary and unprincipled.”
“What these findings strongly suggest us that officials and jurors think that the killing of a white by a black is a more serious crime than the killing of a black by a white. Hence, they judge that blacks killing whites deserve a more serious punishment than whites killing blacks.”
“Let us assume that there is a class of people whom we know to be deserving of death. Let us further assume that only some of these people are executed and that the executions are arbitrary in the sense that those executed have not committed worse crimes than those not executed.”
Van den Haag: “How can it possibly by unjust to punish someone if he deserves the punishment?”
Two cases that support Nathanson: (a) Plagiarism, and (b) Birthday party puzzles and prizes.
“In these cases, the justice of giving them what they deserve appears to be affected by the treatment of the offenders.”
“It is better that everyone in those instances be treated ‘unjustly” than that only some get what they deserve.”
Question: How ought we remedy (a) and (b)? Two options: First, we could punish/reward all three equally. Second, we could refrain from punishing/rewarding all three. Nathanson prefers the second option whereas van den Haag prefers the first. How ought we to decide between the two?
Capital Crimes and the Days of the Week
“For, surely, the race of the criminal or victim, the economic or social status of the criminal or victim, the location of the crime or trial and other such factors are as irrelevant to the gravity of the crime and the appropriate severity of the punishment as is the day of the week on which the crime is committed.”
“Supporters of the death penalty might concede that serious questions of justice are raised by the influence of arbitrary factors and still deny that this shows that capital punishment ought to be abolished.”
The Retentionist Argument: The same problems associated with the death penalty are associated with all punishments. Hence, if these problems give us grounds for doing away with the death penalty, they give us grounds for doing away with all punishment.
Nathanson’s Reply: “The argument from arbitrariness counts against the death penalty with special force. There are two reasons for this. First, death is a much more severe punishment than imprisonment….second, though death is the most severe punishment in our legal system, it appears to be unnecessary for protecting citizens, while punishments generally are thought to promote our safety and well-being.”