Capital Punishment
Capital Punishment
Synopsis
Capital Punishment: A Balanced Examination challenges readers to carefully evaluate their beliefs and assumptions on each of the various issues surrounding this controversial subject. The book is an innovative, balanced, and comprehensive overview of the death penalty. It probes the implications of its implementation in America, and ponders some of the hard questions concerning its applications. This examination of capital punishment requires the reader to think about basic philosophical questions, such as: Would you ever kill? Are human beings and the legal system capable of distinguishing between murderers who deserve to die and those who do not? Is revenge a legitimate aim of the criminal justice system.
Each chapter begins with a primer of the issue at hand, followed by the data and critical documents necessary to make an educated assessment, ending with essays offering differing viewpoints by some of the best minds in the country, including Stephen Nathanson, Hugo Adam Bedau, Michael Radelet, Scott Turow, Carol Steiker, Jordan Steiker, and Franklin Zimring.
Professor Mandery, a former litigator who represented an Alabama death-row inmate, is the author of fifteen law review articles on subjects relating to capital punishment and the criminal justice system. Many of these articles can be accessed here.
Praise
“This book has excellent in-depth coverage of the major topics relating to the death penalty. The chapters are very thorough, and, where relevant, they include excerpts from landmark cases. Also, the additional reading material is in-depth and thoughtful, addressing a broad range of issues related to the topic.” —Professor Jeffrey L. Kirchmeier, City University of New York School of Law
“As a professor of criminal justice I have had the ocassion to read numerous texts on the death penalty, and Evan Mandery’s, Capital Punishment in America: A Balanced Explanation, is by far the most comprehensive and balanced examination of the topic I have seen. I highly recommend it to any serious student of the death penalty, particularly to those who already have their minds made up. Professor Mandery’s book is an outstanding compilation of the best research and scholarship on this controversial topic.” —Mark A. Stelter, Professor of Criminal Justice, Montgomery College, Houston, TX
Excerpt
Moral Arguments About the Death Penalty – An Introduction
The ethical debate over capital punishment is strikingly and uniquely robust. In most matters of public policy, those on different sides usually can find some consensus among them. In the debate over affirmative action, for example, it is not seriously disputed that affirmative action leads to violations of the right to equal treatment. Those who nevertheless support affirmative action believe that it is permissible, or required, to depart from the principle of merit in order to achieve broader social aims: they believe that preferential treatment is required to compensate past wrongs, or to create role models to attract young minorities to professions previously viewed as unavailable to them, or that the whole notion of merit and qualification is itself riddled with prejudice. But across one axis there is agreement: affirmative action departs from the principle of merit in selection and substitutes grounds generally regarded as unacceptable, namely race and sex. In the best of all worlds, both sides agree, affirmative action would be unnecessary.
Death penalty proponents and abolitionists share no such common ground.
Many different kinds of arguments are made about the death penalty. They are usefully divided into three broad classes: utilitarian arguments, retributive arguments, and egalitarian arguments. Utilitarian arguments are appeals to the common good. Such arguments are forward-looking – they seek to punish offenders for the future benefit that might be gained from punishment: for the deterrent effect the punishment might have against other prospective offenders and the offender himself, for the benefit to public safety from having the offender incapacitated. In short, utilitarian arguments consider the costs and benefits of competing forms of punishment.
Retributive arguments, by contrast, are appeals to desert. These arguments are backwards-looking – the future benefit that might be gained from punishment is irrelevant, all that matters is that the offender is given what he deserves. To retributivists, the costs and benefits of punishment are inconsequential. Religious arguments might usefully be grouped under this heading. The ultimate source of authority in religious arguments is God, whereas retributivists appeal to reason, but the ultimate aim of retributivists and those appealing to religion is the same: to do the right thing regardless of the consequences.
Egalitarian arguments are appeals to equity; people in the same position should be treated the same. There is some logic to thinking of egalitarian arguments as subset of retributive arguments: people, of course, deserve to be treated fairly. But in the context of the death penalty, at least, egalitarian arguments are persuasive (or unpersuasive) in a different way than basic retributive arguments. Several studies have shown a strong race-of-victim effect in the administration of the death penalty in America: people who kill whites are far more likely to receive the death penalty than people who kill blacks. Some proponents of capital punishment offer a classic retributivist response: this means only that justice is not being done in the black-victim murder cases. Pointing to an injustice in other similar cases – that is, too little punishment – does not mean that an injustice has been done in this case. Other proponents reject the desirability of equity entirely: evenhandedness is not generally a goal of the criminal justice system. Police and prosecutors do not succeed in capturing all offenders, and all convicted defendants are not treated the same way. Yet no one seriously contends that the distribution of criminal penalties should be halted because it is anti-egalitarian. It thus seems useful to consider egalitarian arguments as a separate grouping.
These are the clearly differentiable modes of discourse, the different battlefields upon which this war is fought. Neither side is inclined to give an inch in any theatre. Some advocates may emphasize the significance of retributive arguments, others utilitarian concerns, but neither side has made any meaningful concessions. Abolitionists tend to say things such as: “It violates the dignity of man for the state to take a human life. Thus the death penalty would be wrong even if it did deter and save money, but in any case it does not deter and costs more than life imprisonment.” Opponents say things like “The death penalty gives murderers what they deserve, and thus would be the proper punishment even it causes a brutalization effect – that is, it led to more murders – but in any case it does not lead to more murders; it deters murder and saves the public the cost of keeping inmates in prison for long terms.” And so it goes. The only subject of consensus is that the death penalty is conclusively incapacitory. Executed defendants will never kill again, though even here there is debate. Abolitionists dispute that incapacitation is a special concern for murderers. Some evidence suggests that they are no more likely to recidivate than other kinds of criminals, hence abolitionists say people who emphasize incapacitation should either support the death penalty for all criminals or none.