Tuesday, December 13, 2005

To kill or not to kill?

As you all have probably seen in the news, the Crips gang founder Tookie Wilson was executed for murders he was convicted of in 1979. Let's assume for a second that the death penalty is a proper punishment for his crimes. Many people felt that he should not be executed because of how his life had changed (because he seemingly completely abandoned his gang life and ties) and he had become a Nobel Peace Prize nominee for his anti-gang work and children's books.

So the argument (aside from the death penalty being inherently wrong) for commuting his sentence was: he has done a lot of good (and thus redeemed himself) and he still has a lot of good to do in his anti-gang work.

The courts saw no reasons to overturn the penalty because he was found guilty of the crimes and sentenced to the penalty with no apparent flaws in the trial or case. There was basically no judicial reason to prevent the sentence.

The Governator refused a stay because he had doubts about his convictions, primarily on the fact that he never showed much remorse: he never admitted to the killings (and hence showed no remorse for those crimes), as well as said little about gang violence and remorse for what he had caused and other crimes he had committed (although he did regret his founding of the Crips).

So we are left with the question: assuming that the good he has done and will do is enough to consider sparing his life, is remorse a necessary component? The Governator (and others) seemed to think so.

Here's another argument for sparing his life: Tookie himself said, "There is no part of me that existed then that exists now." While there is some part of that man that committed the crimes still with him, it does seem possible that he has changed enough so that the person who committed those crimes is no longer in existence. A new person, who emerged from the old one through gradual change, was the one executed.

Again, assuming that the penalty of death imposed on Tookie Wilson in 1979 was appropriate, was killing this man today justified or right?

(My very brief take on this: I don't think remorse is a necessary component, and because he still has good to do and is significantly different from the man who committed the crimes, a man was perhaps unjustly punished and it is likely that his staying alive would have caused more good than bad, so I think I'd fall on the side of keeping him alive.)

CORRECTION: Tookie's last name was Williams, not Wilson. His full name was Stanley Tookie Williams.


  1. Two minor points. First, the Governator has once more advanced the remorse Catch-22: Wilson showed no remorse for his crimes, but if he were innocent, he couldn't be expected to have done so (and there was some possibility of Wilson's innocence, given (a) his constant denials of guilt, and (b) two witnesses who came forward two days ago to suggest Wilson was wrongfully convicted). In other words, it's a bit like the olde tyme witch trials: if the woman was a witch, she'd float (and live to be burned), but if she wasn't, she'd drown. Similarly, if Tookie showed remorse, he was guilty (and so his execution was just, allegedly); if he didn't, then he hadn't been redeemed, and so we'd need to go through with the execution (to teach him a lesson?).

    Second issue (a bit more substantive): if we allow considerations of personal identity in the mix, as Noah seems to do, a tricky question is raised, namely, if the executed Wilson (EW) was a different person from the criminal Wilson (CW), how can we make sense of the notio of redemption at all? That is, if CW's dead, he can't have been redeemed *as* EW; he could only have sacrificed himself to "give birth" to EW. But that's not redemption; it's, well, sacrifice.

  2. I see no reason to keep him alive. He is the founder of one of the two largest and most violent gangs in the US. The Crips. Should we take his word that "I'm a changed man" and excuse his crimes? I think not.

    Identity is an interesting issue here, but what about the issue of responsibility? Tookie started the Crips. The Crips are a huge gang that murders people every day. They are not the Boyscouts. They don't have pot-luck lunches, they have drive-by shootings and gang rape. I have serious trouble believing that he founded this group without getting his hands dirty. he has undoubtedly committed many, many more crimes than the ones he was convicted of in 1979.

    Assuming that death is an appropriate punishment for crimes, who is a better candidate than Tookie the Crip?

  3. I agree with Mike that Tookie had probably done some bad deeds.

    Maybe the more interesting question, Mike, is this: Lately he had actually been a positive influence on children (talking them out of joining gangs) and gang members themselves (helping to broker peace agreements). If it was the case that the world was a better place with him alive, would you still want him dead for purely retributive reasons?

  4. Arthur's question to Mike is interesting and deserves to be extended somewhat.

    Let's assume that most murders are really crimes of passion. I don't kno wif this is the case, but I suspect it is. The people who commit them probably will never do so again (guy comes home, finds wife in bed with secret lover, goes into rage, etc.) Nothing comes from executing a person like that. Hell, nothing comes, probably, out of even locking him up for life.

    The law does recognize differences between premeditated murder, etc, but what I'm concerned about is the rationale of ANY penalty for the murderer in my example. It's one thing to say that passionate murder deserves a lesser penalty than the premeditated variety; it is quite another to agree that the law actually tracks this difference adequately. And I'm suggesting that it might not.

    I recall an argument for retributive punishment a while back that was intruiging to me, at least as a starting place for further discussion.

    Society requires us all to accept certain limitations on our behavior. Sometimes because of these limitations we have to forgo certain advantages, but in exchange we get lots of social goodies. Anyway, a person who breaks the law gets the social goodies without accepting the corresponding limitations.

    From here, we can take the argument in a purely consequentialist direction: we have to punish such law-breakers not only to keep them from committing future crimes, but because the maintenance of our social norms requires public gestures to show everyone that they are still active. So, on this view, the symbolic aspect of punishment is vital when determining an appropriate response.

    Thus, if we are consequentialists and still think the guy in my example deserves punishment, we might be drawn to the symbolic importance of treating all killings relatively the same, of showing that social norms have teeth, etc.

    Non-consequentialists can make a similar argument, I suppose. The upshot is that, regardless of the good Tookie might do if allowed to live, it's more important to maintain the credibility of our commitment to the symbols, rituals, etc of justice. To myself, I don't call it justice.. though, in public, I might call it "justice."

    My point, however, is that if we've accepted the necessity of symbolic, public gestures of punishment, for whatever reason, then arguably for the case of murder the death penalty uniquely fits the bill.

    Even in the way the death penality is applied, we recognize the importance of ritual: the family of the victim is always the last to arrive, the first to leave; we provide last meals, and so on. It's only recently that it began to be applied in a way that didn't allow everyone to see for themselves that justice was being done.

    My question, I suppose, is whether we have grounds for going back to that kind of public punishment, not only in the case of the death penalty but in the application of other punishment as well. I'm suggesting we do have grounds, and they MIGHT even be defensible on consequentialist reasoning.


  5. "Most murders" aside, there are major three types of people on death row and an important fourth type.

    1. Career criminals (most likely to be on death row for the wrong murder -- not that they haven't murdered or been guilty of death penalty offenses, just that they are the most likely to be on the row for the wrong murder).
    2. Serial killers.
    3. Compulsively emotionally violent people.
    4. Innocent people who are caught up in the aftermath of heinous crimes.

    Almost all people on death row become socialized to the death row culture while they are in the relative isolation of death row and the cultural group that interacts with death row inmates. The longer the delay in execution, the more the socialization, though it often fades quickly when they leave death row.

    I don't have an answer, just wanted to note that comments that pass on the realities are not going to persuade people who deal with the system.

  6. This list of people seems far too simplistic. I can think of (at least) two other types of people who might make up a significant portion of those on death row:

    (1) Someone who carefully plots and kills his father for his inheritance would seem to fit into none of the above categories. This person is not a career criminal or a serial killer; in fact they are, like the "compulsively emotionally violent" killer, unlikely to kill again. However, such a person would not need to have killed "in the throws of passion," so to speak; they may simply have killed to further their own interests.

    (2) Someone who commits felony murder. This person may not be a career criminal; in fact, they may commit only this one crime (e.g., holding up a liquor store with their high school buddies), but murder someone in the process.

  7. Yeah, Faraci makes a good point.. that a person killed once in the name of self-interest shouldn't tell us much about the likelihood that they will do so again. In the case of the inheritance, if we suppose that a million dollars were on the line, then should we then conclude that the person is equally likely to kill when only five dollars is up for grabs?

    It's interesting that we don't have much to go on when it comes to the comparative likelihood of we normal people engaging in this kind of killing, since most of us will never have the opportunity to make a few million dollars by killing a rich relative. Maybe the country is full of people who would be willing to kill under such "unfortunate" circumstances.

    In any event, I wasn't concerned only with the death penalty. What I wanted to say is that except by resorting to the kind of symbolic-gesture argument I suggested, we don't have grounds for punishing the people who fit my description (or Faraci's) at all (or hardly at all: why life in prison? Why not a large fine for the person in the inheritance case, since he is evidently so susceptible to monetary motivation?)

    But in that case, why should the death penalty be off the table as a potentially symbolic act? In the case of murder, the death penalty is a uniquely appropriate symbol.

  8. I would also like to briefly address Noah's question. It seems that we have fallen prey to the punishment debate as a whole, rather than addressing the particuarly question of remorse raised in the original post. These are just a few cursory remarks:

    (1) It would seem that a pure retributivist, perhaps someone like Matteson, would see no value in considering someone's level of remorse. If certain acts simply warrant retribution (or at least certain acts done intentionally), then questions of remorse would seem to be moot.

    (2) On the other side of things, should the consequentialist consider the effect someone's level of remorse might have on the consequences of some punishment? For example, do the consequences of executing someone change if that person does or does not feel remorse for their crimes? It would seem that it might; for instance, it might affect whether or not the execution will function (in part) as insurance that the person will not commit further crimes. If they feel remorse for their original crime, a repeat offense may be less likely.

    (3) Peter has elsewhere brought up the consideration of informal punishment. That is, when devising formal punishments for a crime, should we take into account informal punishments as well? For example, should someone who swindled his company out of millions of dollars be given a less harsh sentence because he may also be suffering as a social outcast? If informal punishments are to be considered, does remorse count? For instance, let us say (in a wonderful oversimplification) that certain types of criminal deserve -1000 utils in retribution for their actions. Now say that the internal torture one suffers when feeling remorse works out to about -100 utils. If we punish the remorseful and the unremorseful criminal in the same manner, it would seem that one gets more or less than he or she deserves. (I think we could have a similar case in consequential rather than retributive terms, but I won't bother with it here.)

    (4) Assuming we think that someone's level of remorse should affect their sentence, what implications does this have about the amount of time they should spend on death row? Imagine that, at the last moment, Tookie proclaimed his remorse and was then not executed. Would this be unfair to those who have been executed in a more timely fashion? If, instead of Tookie, someone who committed murder five years ago was executed last night, would that person be able to claim it unfair that they were not given the time to properly show their remorse? For that matter, ignoring remorse, what does this say about all of the anti-gang work Tookie did? Couldn't others argue that they, too, would show themselves to be useful to the community if they were only given more time on death row before their execution? Wouldn't some, particularly consequentialists, have to take into consideration the fact that perhaps, if given enough time, those on death row would be more useful alive than dead?

    Anyway, that's just a few things to mull over. Oh, and that would be "'throes' of passion" in my last comment. Yay spelling.

  9. Terrence:

    I think there is a good case to be made for public punishment but I don't see the use of particular symbolic punishment unless it has a deterrent effect. It looks like the death penalty has no deterrent effect on homicides, so while it may be an appropriate symbol in some poetic way, it's not a very useful symbol.

    This is just to say, if there's a consequentialist reason for keeping Williams alive, I'm not yet convinced of a consequentialist reason to execute him.

  10. I am opposed to the death penalty on general principle. It is still interesting to address this case on its own:

    Remorse is necessary.

    By committing a crime, Williams objectively manifested a denial of rights. Universalizing the principle of his action, Williams denied rights as such, thus implicitly authorizing by his action the denial of his own rights, which in this case took the form of execution. Crime authorizes punishment.

    Remorse, however, mitigates the authorization; it is to reacknowledge rights as such. Since punishment is meant to bring the universalized principle of the criminal's action home to the criminal, and the criminal who is remorseful is saying "I get it," he partly reduces authority of others to punish him.

  11. I also tend to be opposed to the death penalty. Not on principle, however, but on the grounds that the extent of how certain we have to be that some individual actually did commit those crimes is likely to fail in a significant enough amount of cases. And I consider the putting to death of an innocent to count a great deal, while the putting to death of the guilty--regardless of the nature of the crime--to be a very, very minor benefit (especially considering what else we might do instead. Like life in prison.)

    But putting that issue aside, I can't agree with your assessment, "Anonymous," of the justification. For one, I think the whole story of universalization of a principle is a big mistake. Just what principle are we universalizing? How fine-grained are we allowed to make it? Take this case. Suppose the principle is "when you are Tookie, you can kill this person, that one, and the third." Then universalizing it will apply to all and only those things which are identical to Tookie. You might say that's not fair on the grounds that it can't be that specific, and has to apply to more cases, or the thing we are universalizing has to be something that captures the relevant features of the situation, but drops the irrelevant bits. The fact that it's Tookie is irrelevant, but all the murdering is.

    So why can't the principle be "kill those who stand in your way"? That's universalizable, seems to capture relevant information, and looks like it makes it all right for Tookie to kill (let's just stipulate that these people "stood in his way" or whatever), but not all right for the state to do so to Tookie since he isn't "standing in their way."

    Obviously we won't like that one, but we can't build normativity into the principle, or else we'll beg the question. Normativity is what we're supposed to get out of the principle. If we can build normativity into the principle of universalization, then what do we need to go through all of the universalization for? We already know what's right and wrong in the formation of the principle to universalize, and so needn't bother with the onerous task.

    In short, it looks to me like we'll get the answer we want by appropriately tailoring the principle we think is the "actual" or "real" principle of his action to be universalized. Or, in cases where constructing the principle to get what we want is too obviously wrong, we can at least reasonably fiddle with it to get as close as possible to what we want. Not very much is just obviously relevant or obviously irrelevant, so it looks to me like this method of getting at ethics is doomed to failure.

    Then again, the universalizability test seems wrong for other reasons too. Suppose I want to be a doctor. If we universalize that, the outcome would be terrible. Everyone's a doctor, and so now we have no plumbers, electricians, professors of philosophy, and so on. So it looks like it would be unethical for me to be a doctor.

    Further, plenty of our actions that we probably all agree are ethical crucially depend on non-universalizability, on being exceptions to general rules. Like choosing to be a doctor. The right response to "what if everyone did that?" is "not everyone will do that. And so I'm justified in doing it on the grounds that only some subset of people can be reasonably expected to do that."

    On a separate point, even supposing that we agree about rights (which we probably don't, but that's neither here nor there), did Tookie's actions really deny rights? Why can't someone uphold rights but make exceptions? I don't deny rights when I make an exception of myself, I simply make an exception of myself. Why is this illegitimate?

    So consider this confounding instance. Supposing Tookie was really innocent, does the court's action, and the state's action, of taking Tookie's life justify our taking the lives of state bureaucrats, the relevant judges, and Schwarzenneger? Won't we be loading the dice if we decide that the principle they've universalized contains some epistemological constraints (like "kill when you are certain to some reasonable extent that the person you are killing is guilty of some set of crimes")? Why wouldn't the principle just be "don't kill the innocent"? (The answer here is "ought implies can," and since we can't ever know this, it can't be an ethical principle. Fine. Just use your own imagination to construct a principle that makes it look like Schwarzenneger and the rest "denied rights as such." And don't tell me it's impossible. Because I'm sure it is).

    For two, it is not absurd to say that Tookie didn't deny his own rights, just the rights of those others. We exclude animals from rights, but why can't an animal rights supporter (like Herman) chime in by saying that our killing of a dog manifestly denies rights as such and thereby warrants our killing of you? I'm sure there's a story about how rights only apply to humans in virtue of something or other. I sincerely doubt, however, that this justification will capture all of the humans we'll probably want to capture under that rubric. Suppose the standard is "rational creatures." What do we do about people who fail to meet that test? There are plenty of them. (Of course you can bite the bullet here and say that these people don't have rights. I'm just saying it should make us a bit uncomfortable, that's all. We should probably also be skeptical about just what the standard for rights should be. Why not "ability to feel pain," say?)

    Finally, what do you say to someone who believes rights are nonsense on stilts but feels remorse after a crime? How are you justified in saying that they've acknowledged rights, specifically, when they could instead feel that what they've done is wrong for other reasons? If the person does not, in fact, acknowledge rights, but merely that what they've done is wrong for whatever reason, does that sort of remorse fail your test or not count?

  12. Inspired by Faraci's example questioning the fairness of the remorseful convict experiencing 100 more negative utils than his indifferent counterpart: a related issue for those amenable to tangents...

    As currently practiced, our criminal justice system includes a highly unfair feature: for many convicts, the extent of their real-i.e. as experienced-punishment is a function of their ability to survive the violent environment of most prisons. For example, prisoners A and B are correctly convicted of identical crimes and given identical sentences. Prisoner A is physically imposing and "street-smart"; he is affiliated with a gang that has a significant presence in the prison. Prisoner B is physically weak and is relatively unfamiliar with criminal or prison society; he has no useful connections. Prisoner A's real punishment may be fairly consistent with his sentence: incarceration for X years. Prisoner B's real punishment may far exceed his sentence by including frequent degradation or terror, physical assault, or rape. In fact, his best strategy while incarcerated may be to trade sexual services for protection. These two real punishments are grossly unequal and fairly predictable (if not on an individual basis, then, at least, with regard to larger samples). These punishments are unfair, arbitrary (relevantly defined), and (at a minimum, arguably) unconstitutional.

    Note 1: Not only is this argument of the highest moral character, it has also gotten me out of jury duty - perk of being applied ethicist; don't worry, I put the time not served to substantially more until productive use.

    Note 2: See Amnesty International. (1998). Violations in Prisons and Jails: Needless Brutality. In "United States of America--Rights for All."

  13. I just re-read your post, anonymous, and have much more to say about the last bit you said with respect to remorse.

    "Remorse, however, mitigates the authorization; it is to reacknowledge rights as such."

    I've already said that I can see cases where remorse does no reacknowledging of any kind. I'm sure Jeremy Bentham sometimes felt remorse, for instance. But here's a separate question: If the justification for punishment is denial of rights as such, and remorse is the reacknowledgment of rights as such, why does that only mitigate and not fully exonerate? If the relevant basis for punishment is denial of rights, aren't we only justified in punishing you until you reacknowledge those rights? And if remorse does that, then on what grounds do we impose further punishment?

    "Since punishment is meant to bring the universalized principle of the criminal's action home to the criminal,"

    Is that really the purpose of punishment? After all, we have deterrence theories of punishment. Some parents, for instance, may punish their kids for all and only future deterrent effects. They don't mean to bring home any recognition of rights at all. And do you believe that only violations of rights warrant punishment? What about unpaid parking tickets? What about prohibitions on building nuclear arsenals in our backyard when we only mean to look at them? What about speeding on the highway? What about things that are likely to cause harm in general but are not rights violations as such?

    Can we deny rights only in our deeds, and not by saying so? Doesn't Jeremy Bentham deny rights as such when he says that they are nonsense on stilts? Should we punish him until he feels the right sort of remorse (the "now I see that we really do have rights" kind of remorse)?

    "and the criminal who is remorseful is saying "I get it," he partly reduces authority of others to punish him."

    Right. I've objected to this bit above.

  14. Yeah, Herman, I agree. I also happen to think that we should count informal punishment like a community's response to violations of some norm in the sentencing portion of a case. The fact that rape actually occurs in prison and is predictable means, to me at least, that prison time is, generally, grossly disproportional to the crime.

    But we should separate matters of principle and matters of practicability. Convicted criminal A should get X years in prison in principle. In practice, however, maybe A shouldn't get any time at all, since he's likely to get raped in prison and that would be worse all things considered (including diminished deterrent effects on others should we let this guy go, likely vigilanteeism amongst the community, and so on).

    I think it terrible that we don't consider these outcomes, and pretend like the punishment a person is receiving really is just X years in prison without all those other probable things. It makes me think that we should try to avoid prison time whenever possible, and instead punish by some other method where we can tailor the punishment to meet with at least some proportionality requirement.

  15. Peter, I am particularly interested in what you think about (3) in my comment above. You mention here your arguements concerning informal punishment, which I referred to there. Do you think that remorse should count as a self-inflicted informal punishment? If so, do we need to somehow measure the degree of remorse, or at least the degree to which that remorse causes mental or emotional "anguish" for the criminal?

  16. Hey late-night blogging Faraci -

    Yes, I think remorse is a self-inflicted informal punishment that should count. In fact, it does count, at least to some extent. Lawyers sometimes argue that their clients "feel remorse" and so should have their sentences mitigated. Juries and judges sometimes agree, and sometimes are more lenient on account of it.

    I don't really know the details of what a practical measure of remorse would be. I'm just certain that we should count it, and think that it is possible to some extent.

    One caveat: That's only within an account that includes proportionality as a desideratum. If we don't care about proportionality in some cases, then informal punishments won't matter. And if we don't care about proportionality at all, then we're crazy! QED.

  17. Faraci,

    Lots of hypos are possible. But if you want the actual numbers, the people that actually end up on death row, the categories I've provided you are the reality.

    Most felony murders are committed by people with histories. Most prosecutors don't go after a death penalty conviction without a serious criminal history to back it up.

    Yes, there are random incidents, but for the most part, people don't commit murder as often as one would think.

    Appreciate your theorising. Never let reality get in the way.

  18. Stephen,

    I am not surprised to learn that most felony murder convictions are of repeat offenders, though I am surprised that crimes like killing-dad-for-the-money don't land a significant number of people on death row. You are quite right, however, that I wrote that without checking the facts, and I appreciate your corrections.

  19. Sorry I was short with you.

    Most people who kill dad (or step-mom) for the money have compulsive anger. If they are true sociopaths, they often don't get caught or don't end up with a death penalty.

    I've enjoyed this discussion, am linking to it from my blog, lest you get the wrong impression of my over all thoughts about your site.

  20. It seems to me that the death penalty doesn't serve so much as an implication of justice toward a specific criminal but rather an incentive to avoid murdering someone. Whether or not this actually works is highly debatable, but this case simply points out the reasons why it shouldn't be considered specific justice: there are too many cases where it simply can't be so. If that's the case, then this case does certainly illustrate the point: to be blunt, "if you murder, we will kill you." I'm not saying any of this is right, but that seems to be the goal, rather than the individual person "getting what they deserve." This, of course, does fall into the problem of becoming a witch trial in itself, because if you take into account the number of people executed and later shown to be innocent the message becomes "if we think you murder, we will kill you," which in itself seems to support a ban on the death penalty in light of what it can easily become if our idea of justice becomes too lax. Nothing definitive, just some points to think about.

  21. Arthur wrote:

    "This is just to say, if there's a consequentialist reason for keeping Williams alive, I'm not yet convinced of a consequentialist reason to execute him."

    Yeah, me neither, Arthur. If we stipulate, like you did above, that the world would be a better place with Tookie in it, than without him, then I think defending his death is difficult to uphold. Few things, in my mind, can beat "the world being a better place" as a reason for action.

    This might fit what you mean by "gobbledygook" in your complaint in the comments on an earlier post, but couldn't we say that "people getting what they deserve" sometimes makes the world a better place? It's gobbledygook probably because it elides the point that undergirds what you're trying to say. Namely, do we do it for desert reasons, or for world being a better place reasons? If we accede to desert on the grounds that it makes the world a better place, then we're ultimately consequentialists, and desert stories gain their force on the basis of it, not independently. That is, all the work is being done by the world will be a better place story, and ensuring people get what they deserve is just a means toward that end.

    I suppose, for a consequentialist, it will matter what does, in fact, make the world a better place. Does our sense of the "fittingness" of killing killers contribute to making the world a better place? Does the neat symmetry somehow contribute something tangible to each of our enjoyment of our own lives? In short, does countenancing desert or retribution promote a better world?

    You tell me, I don't know.

    Nick wrote:

    "If that's the case, then this case does certainly illustrate the point: to be blunt, "if you murder, we will kill you." I'm not saying any of this is right, but that seems to be the goal, rather than the individual person "getting what they deserve.""

    I'm beginning to be more and more of a pluralist, Nick, about ethics. Jonathan Miles presented a paper about art saying that there isn't just one thing that justifies our calling a thing art, but many things. Art has desiderata, and so long as anything meets at least one of these, we are justified in calling it art. He drew on an analogy to epistemology. Some dude (I can't remember who) thinks that there is desiderata for epistemology and not just one desideratum [is that the singular of desiderata? I'm new to this word, so don't scoff too loudly if I've misused it]. I'm beginning to think that the same sort of thing is true of ethics. Utility is good, more benefit than harm is good, 'fittingness' is good, countenancing desert seems good, matching most people's intuitions seems good, some deontology seems good. I can't always see how each of them reduce to some smaller set, or to some singular, overarching principle. One really unsatisfying thing about this position is the apparent arbitrariness of choosing either one or another of them when, in practice, they sharply conflict. But that's a discussion for another day.

    This precursor is just to say this: It seems to me like we're trying to meet several goals at once here. I'm sure many of us think Tookie deserves to die, and that's one reason to kill him (although it may be insufficient). I'm sure others think there's a nice symmetry here, apart from desert, and maybe symmetry is another reason to kill him. Some might also think that killing Tookie acts as a deterrent, and so that's a reason, for them, to kill him. Standing in the way is skepticism about the effectiveness of the death penalty at deterrence (I think the death penalty does no deterring at all. The process is just too long and the prospect too distant, remote, and--probably most killers think--unlikely in their case for it to even come to mind.), skepticism about any greater good coming from his death than could be had by his continuing to live. Skepticism about his actually committing the crime in question (we just can't know for absolutely certain. Just to a "no reasonable doubt" extent, which is not the same as certainty), and so on. I also worry about, not just this particular case, but other death penalty cases. We cannot tailor an institution to meet your preferred set of reasons for a particular action (like putting to death), we can only get to the point where the institution receives the acquiescence of all those who are in a position now to undermine the institution, or, since institutions of this sort want some stability over time, all those who we have reason to believe might come to be in a position to undermine the institution in a period of time into the future that the current "controllers" of the institution care about. Thus I might think that Tookie should die, but would hate to see any institution built up to make it happen given that I'm reasonably certain it will put to death others that I won't think should be put to death. Like "druglords."

    I am fairly confident that we have reasons to kill Tookie, and reasons that are ethical. But I don't think that the balance of the reasons falls on the "kill Tookie" side. I don't know enough about the particular case, but I'm confident that in any case where the death penalty is obviously appropriate, I can say "Yes, this person should be put to death. No, I don't believe in the institution of the death penalty. Therefore this institution cannot actually kill this guy, even though he should die."

  22. Here's an interesting death penalty case that eliminates one particular factor in our considerations about whether or not we actually should put someone to death.

    As some might argue, the death penalty may not serve as a deterrent to future crimes by other people, it at least prevents the further committing of crime by the individual in question. It is perhaps less controversial that we put to death those who are really likely to commit further heinous crimes (like murder), but what of those who are highly unlikely to do so?

    Consider the caes of Clarence Ray Allen, a 75-year-old, wheelchair-bound and blind career criminal who is to be executed for his crimes.

    His lawyer contends that this is an outrage, and is quoted as follows: "He presents absolutely no danger at this point, as incapacitated as he is. There's no legitimate state purpose served by executing him. It would be gratuitous punishment."

    One argument in this quote runs as follows:

    P(1): No DP (things worthy of death penalty) are non-D (things presenting no danger) [By (validity maintaining) obversion: All DP are D]

    P(2): A (Allen) is non-D

    C: A is not DP

    Another (that state interest bit) might run:

    P(1): No S (matters of legitimate state interest) are non-D
    P(2): A is non-D
    C: A is not S

    Interestingly, if we obvert P(1) we get 'All non-D are non-S,' and then, taking the contrapositive, we get 'All D are S.' Notice that if we had formalized P(1) as 'No non-D are S,' took the obverse then contraposed that we would end up with 'All S are D.' Saying the former seems all right, but the latter seems all wrong. There is the question of which of the two formulations better captures the lawyer's intent. I was charitable, although I'm skeptical that the formulation is right.

  23. While the discussion is probably stale, I wanted to respond to Arthur, who asks:

    "I think there is a good case to be made for public punishment but I don't see the use of particular symbolic punishment unless it has a deterrent effect. It looks like the death penalty has no deterrent effect on homicides, so while it may be an appropriate symbol in some poetic way, it's not a very useful symbol."

    Deterrence consequences aren't the only consequences that matter -- or shouldn't be, anyway, without an argument to that effect.

    I can spell out what I was saying in more perspicuous manner:

    1. First, I don't think the practice of punishment tracks consequences, especially not those solely related to deterrence. That's not to say that such consequences are irrelevant, merely that they don't explain the whole story.

    2. In any event, I don't know why "raw deterrence" should be the only kind of consequence taken into account when it comes to punishment. We want the best consequences over all, not the best consequences in just some respect.

    Specifically, I was suggesting that arguments focused purely on the raw deterrent impact of punishment not only don't track our actual practices, but they leave out a particular aspect of punishment that should not be forgotten.

    To describe the death penality as a mere "poetic symbol" leaves out the role that such symbols play in our institutional lives. To take a related example, symbols, rituals, and the trappings of authority inevitably have an impact on the way people interpret their identity within that community. The presence of symbol and ritual is a huge factor in determining whether a person will feel well-integrated with their community or alienated from it.

    The formation of adequate symbols and rituals requires time and consistency in our practices. I won't argue here that the death penality is definitely appropriately symbolic. I would feel better about the possibility if punishment were still a public affair.

    To ignore the symbolic features of punishment and other practices only strengthens the observation -- made by Peter, I think -- that consequentialists already have a certain moral outcome in mind and surreptitiously count consequences in a way that will lead to that outcome.