Abstract
Matthew Kramer has recently defended a novel justification for the death penalty, something he calls the purgative rationale. According to this rationale, the death penalty can be justifiably implemented if it is necessary in order to purge defilingly evil offenders from a moral community. Kramer claims that this rationale overcomes the problems associated with traditional rationales for the death penalty. Although Kramer is to be commended for carving out a novel niche in a well-worn dialectical space, I argue that his rationale falls somewhat short of the mark. By his own lights, a successful justification of the death penalty must show that death is the minimally invasive, most humane means to some legitimate moral end. But even if we grant that his rationale picks out a legitimate moral end, there are at least three alternatives to death, either ignored or not fully considered by Kramer, which would seem to satisfy that end in a less invasive, more humane manner.
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Notes
Note I use the term “prima facie” in an epistemic sense here, not a moral one. In other words, I am claiming that, at a first glance or initial level of inspection, to kill another human being is wrong. Further scrutiny may reveal this to be mistaken. This clarification is necessary since I am engaging with the work of Matthew Kramer, who has written extensively about the different uses of the term “prima facie” in ethical discourse and the tendency for this to confuse. See Kramer “Michael Moore on Torture, Morality and the Law” (2012) 25 Ratio Juris 472–495.
See, for an overview, Bedau and Cassell (eds) Debating the Death Penalty (Oxford: OUP, 2005) and Reiman, J. and Pojman, L. The Death Penalty: For and Against (Oxford: Rowman and Littlefield, 1997).
See, for example, Stephen Nathanson An Eye for and Eye? (2nd Edn, Oxford: Rowman and Littlefield, 2001).
Kramer, M. The Ethics of Capital Punishment: A Philosophical Investigation of Evil and Its Consequences (Oxford: OUP, 2011), hereinafter Ethics of Capital Punishment.
Kramer acted as a reviewer for this paper and made clear to me in his review which version of the argument he endorsed and felt could be reconciled with his writings. I will occasionally refer to comments made in his review elsewhere in this article. I do so by referring to “Kramer, Personal Correspondence”.
Ibid and The Ethics of Capital Punishment, p. 114 which rejects the notion that capital punishment occupies the foundational level of morality.
In total, Kramer critiques four rationales for the death penalty: (i) the deterrence rationale; (ii) the retributive rationale; (iii) the incapacitative rationale; and (iv) the denunciatory rationale. Although I only review the first two here, the critiques of the other two follow similar lines.
For general discussions, see Boonin The Problem of Punishment (Cambridge University Press, 2008), chapter 2, Zimmerman, M. The Immorality of Punishment (London: Broadview Press, 2011), chapter 2. Although both Boonin and Zimmerman are both very critical of deterrence theories, they give good outlines of them.
Kramer’s basic discussion of this rationale can be found on pp. 20–23. For a defence of this position see Sunstein, C. and Vermeule, A. “Is Capital Punishment Morally Required? Acts, Omissions and Life–Life Tradeoffs” (2005) 58 Stanford Law Review 703. Of course, proponents of the deterrence rationale need to adduce evidence which proves the presence of the claimed marginal deterrent effect. See Donohue, J. and Wolfers, J. “Uses and Abuses of Empirical Evidence in the Death Penalty Debate” (2005) 58 Stanford Law Review 791 for a discussion of this.
See, generally, Moore “Justifying Retributivism” (1993) 27 Israel Law Review 16, and Placing Blame (Oxford: Clarendon Press, 1997).
See Corlett, J. A. Responsibility and Punishment (4th Edn, Dordrecht: Springer, 2012) for an extreme endorsement of this. See also Waldron, J. “Lex Talionis” (1992) 34 Arizona Law Review 25, on the lex talionis.
Ethics of Capital Punishment, Chapter 3 for his discussion and critique of retributive justifications of the death penalty.
It is not my desire to cast doubt on the legitimacy of the ends in this particular article. The bracketed “supposedly” was inserted merely in deference to the fact that there are those who think punishment cannot be morally justified. For two recent defences of this thesis see Boonin and Zimmerman (n. 8).
Ethics of Capital Punishment, chapter 3, sections 3.3 and 3.4 for this critique. These sections are quite long (approximately 30 pp.), so a representative example of his criticisms (relating specifically to qualitative matching) can be found on pp. 130–135.
Ethics of Capital Punishment, p. 127.
He repeats this at several points. The most general discussion can be found in Ethics of Capital Punishment s. 2.4.2.2.2 and later in 3.2.2.
Ethics of Capital Punishment p. 61 (and clarified further on p. 62).
Kramer seems particular hung-up about punishments which exploit the capacity to feel intense pain, see Ethics of Capital Punishment p. 62 and, later, pp. 112–113 with the capacity to feel pain.
Corlett (n. 11) is the one who, in recent memory, has endorsed something like this.
I have added this to my specification of the test, even though the preceding discussion did not couch the HTP in terms of degrees of humaneness. The reasons for this will become clear in Sect. 4, below.
Most attention is dedicated to outlining a secular concept of evil and specifying what the rationale does not entail. Ethics of Capital Punishment pp. 188–223 and the majority of 230–262.
Ethics of Capital Punishment: (i) pp. 181–187, in which Kramer presents the “gist” of the purgative rationale by reference to biblical example of the execution of Achan; (ii) pp. 226–230, in which Kramer re-states the gist of the rationale, now shorn of its religious connotations; and (iii) pp. 232–237, in which Kramer explains why the community is the focus of the purgative rationale and why only death will do as a punishment. Other aspects of Kramer’s discussion of defilement and purgation (section 6.3 of chapter 6) are relevant too, but those three seemed key to me.
Kramer, Personal Correspondence.
Kramer makes it clear that he rejects the notion that capital punishment occupies the foundational level of morality (Ethics of Capital Punishment, p. 114). Kramer makes this assertion while criticizing Dan Markel’s view that the inconsistency between capital punishment and human dignity, rejected by some retributivists, is a self-evident and foundational fact of morality. When I eventually critique the notion that the purgative duty is ethically basic, I make a somewhat similar move to Markel by suggesting that it is implausible to think this is so because such a duty is strongly inconsistent with another ethically basic fact: that killing is prima facie wrong. However, my arguments are based on the links between moral epistemology and moral ontology, and allow for the possibility of overturning or overriding such facts. Indeed, the restorative version of the purgative rationale may do exactly that, which is something to bear in mind when assessing its merits.
By strongly justified, Kramer means that the death penalty is (at least sometimes) both obligatory and permissible. The distinction between strong and weak justification has been a long-standing feature of Kramer’s work. See Ethics of Capital Punishment, pp. 256–260. Kramer holds that something is weakly justified when it is obligatory but impermissible, and strongly justified when it is both obligatory and permissible. Kramer’s conceptualisation of weak justification may seem slightly perverse to some because they accept, what he calls, the “Permissibility Theorem” of deontic logic. According to this theorem, if something is obligatory then it is necessarily permissible. In other words, it is not possible for something to be both obligatory and impermissible. But Kramer rejects the Permissibility Theorem. See Kramer, M. Where Law and Morality Meet (Oxford: OUP, 2004) at pp. 282–283.
Ethics of Capital Punishment p. 225 on this point.
Ethics of Capital Punishment, p. 226. This seems to be why Kramer dedicates so much attention to the procedural problems associated with the death penalty in chapter 7 of his book.
They are not morally corrupted by Richard and Joseph’s acts, unless public officials are somehow implicated in them, e.g. by negligently performing law enforcement duties. This focus on the continued existence of the morally depraved offenders, as opposed to their acts, is an important feature of Kramer’s rationale, and provides an obvious counterpoint to retributive rationales, which focus more directly on the wrongdoer’s actions. The focus does raise the question: are acts of wrongdoing needed at all on Kramer’s account? He says that they are, that merely expressing or having an attitude of moral contempt is not enough. (Ethics of Capital Punishment, pp. 231–232) His defence of that view is sketchy, seemingly arguing (p. 232) that, for example, Richard’s moral depravity would not be possible without, and could not be detached from, his evil acts. A critic of Kramer might be able to challenge this by identifying an empirically plausible possible person who has an equivalent level of moral depravity but with no concomitant actions. This would throw open some interesting avenues of debate. But I tend to think that the link between the kind of extreme moral depravity singled out by Kramer’s rationale and morally evil actions is modally robust, and so I leave the development of such a critique to others.
Ethics of Capital Punishment, pp. 228–229.
Ethics of Capital Punishment, p. 230.
I should note in passing that some of the foundational metaphysical claims here—e.g. that there really is a defensible notion of moral besmirchment or that the tainting relation is a real one—strike me as implausible, but I am going to concede these claims to Kramer. My critique will focus on the internal coherence of his rationale, not on the plausibility of its foundations.
See the discussion of vagueness in The Ethics of Capital Punishment pp. 252–256; see also Kramer, M. “When is there not one right answer?” (2008) 53 American Journal of Jurisprudence 49.
Ethics of Capital Punishment, p. 254.
Though he would probably prefer the term “overtopped”, see Where Law and Morality Meet (n. 24) and “Moore on Torture, Morality and the Law” (n. 1).
Ethics of Capital Punishment, pp. 256–264 and Chapter 7 on this point.
Ethics of Capital Punishment pp. 61–62.
I say this somewhat facetiously: of course the community may be morally corrupted by other persons or other factors. But at least one source of corruption has been removed.
Ethics of Capital Punishment, p 234–235.
Kramer notes (Ethics of Capital Punishment, p. 235) that banishment to a place that would result quickly in death might be acceptable, but only because it is to implement the death penalty by another means. However, it would probably run afoul of the humane treatment principle.
Ethics of Capital Punishment, p. 234. Additional comments are made on pp. 236–237, addressing the shortcomings of life in prison in extremely grim circumstances relative to the purgative aim.
Here I echo Marquis “Future Like our’s Argument”, which holds that death is wrong because it deprives someone of the capacity to have positive future experiences like us.
Waldron in his attempt to identify the wrong-making property of murder that needs to be replicated by retributive punishment refers to the total violation of autonomy. Kramer discusses this (Ethics of Capital Punishment p. 134) and critiques it. It is telling that he thinks punishments short of death could replicate that wrong-making property.
Ethics of Capital Punishment, p. 114. See also p. 58, n. 21 where Kramer implies that inhumaneness is not a linear function of punitive severity. That may well be, but Kramer also admits that there is some tracking between the two. If this is right, the more rounded, all things considered, assessment that I call for in the text is still called for.
Kramer has suggested to me (Personal Correspondence) that his argument is not that everything designed to impinge on those three elements contravenes dignity. On the contrary, he holds that rights concomitant with dignity (such as the right not to be imprisoned and not to be killed) can be forfeited through serious wrongdoing. I am not sure exactly what the distinction between “impinge” and “contravene” is taken to be, but in any event nothing I say here denies Kramer’s claim. I accept that one can legitimately violate aspects of dignity and/or forfeit concomitant rights, when certain moral ends are at stake. All I am saying is that if there is a method of achieving those ends that is less violative of those aspects of dignity, it is to be preferred.
See Boonin (n. 8), chapter 1, and Zimmerman (n. 8) chapter 1 on this type of definition.
By “lobotomy” I do not necessarily intend to denote the procedure that was popular in the middle part of the twentieth century (and pioneered by Egas Moniz and Walter Freeman). Rather, I refer to any type of psychosurgery that will have the impairing effects referred to in the text.
Ethics of Capital Punishment pp. 237–240 discuss the possibility of repentance.
Ethics of Capital Punishment, pp. 244–248, in particular 247–248 which discuss insanity after conviction. Kramer seems committed here to the view that in order for execution to be justified, the offender must remain mentally whole right up until the moment of execution.
One thinks here of the situation experienced by Henry Molaison, the famous patient H.M. who lacked the ability to form new long-term memories.
McMahan, J. The Ethics of Killing (Oxford: OUP, 2003).
Tooley, Shoemaker “Personal Identity and Ethics” (2012) Stanford Encyclopedia of Philosophy, available at http://plato.stanford.edu/entries/identity-ethics. Accessed 31 May 2013.
A good overview article, looking at this research programme, and its possible implications for the law is O. Carter Snead “Memory and Punishment” (2011) 64 Vanderbilt Law Review 1195.
I would concede, however, that since Personality Replacement is probably the most humane of the alternatives I sketched, and since it builds upon the interventions envisaged by Memory Erasure, it may be worth looking into.
Kramer does briefly consider the possibility of induced insanity, Ethics of Capital Punishment, p. 247, n. 37. The extent of his comments are: “The reasons for a negative answer to this question (i.e. the question as to whether induced insanity would be acceptable) are largely similar to the reasons for the illegitimacy of any punitive practice of torturing or mutilating monstrous prisoners. I expound those reasons at length in my forthcoming book on torture.” One awaits that book with interest.
I use the term “moral grounding” as opposed to just ‘grounding” in recognition of the fact some people think that necessary or self-evident truths of this sort may be grounded in other, non-moral facts. I think this view is probably mistaken, but it is there nonetheless.
Moore “Justifying Retributivism” (n. 10).
McMahan, J. The Ethics of Killing (Oxford: OUP, 2003). Of course, certain Epicureans disagree and argue that death is not as bad as we might first think (for example, see Smuts, A. “Less Bad but not Good: In Defence of Epicureanism about Death” (2012) 93 Pacific Philosophical Quarterly 97. However, even defenders of the Epicurean position are at pains to point out that their theory does not have the counterintuitive implication that killing is, in general, morally acceptable. See Hershenov, D. “A More Palatable Epicureanism” (2007) 44 American Philosophical Quarterly 171 for more on this important point.
Pleasants, N. “Wittgenstein and Basic Moral Certainty” (2009) 37 Philosophia 669–679; and “Wittgentstein, ethics and basic moral certainty” (2008) 51 Inquiry 241–267.
I take the suggestion from Gwiazda, J. “Worship and threshold obligations” (2011) 47 Religious Studies 521, who uses it to argue in favour of a duty to worship a supreme being.
Danaher, J. “Stumbling on the Threshold: A Reply to Gwiazda on Threshold Obligations” (2012) 48 Religious Studies 469 .
The ideas might be thought to continue their existence eternally in some abstract Platonic realm, but since such free-floating existence could not affect the real world without some physical medium in which it can be stored and propagated, I assume that the ideas are purged once all physical media in which they are stored have been destroyed.
The kind of destruction involved here may also be analogous to the memory wiping examples discussed in Sect. 4, but that then leads into the problems with the exclusivity claim discussed in that section. Furthermore, one might wonder whether banishment of persons could “totally remove” them from a community, but we already saw how this was rejected by Kramer in Sect. 4.
Gross, H. Crime and Punishment: a concise moral critique (Oxford: OUP, 2012).
I would like to thank Matthew Kramer and Tsachi Keren-Paz for their helpful comments on earlier drafts of this paper. I would also like to thank attendees at a seminar in Keele University for their engaging questions and perceptive critiques of the original draft of this paper.
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Danaher, J. Kramer’s Purgative Rationale for Capital Punishment: A Critique. Criminal Law, Philosophy 9, 225–244 (2015). https://doi.org/10.1007/s11572-013-9251-8
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DOI: https://doi.org/10.1007/s11572-013-9251-8