In this case analysis you have five tasks: Explain your understanding of the case.Give a thorough, philosophical exegesis of the relevant aspects of the ACLU paper, Kant and Van den Haag’s arguments.

In this case analysis you have five tasks: Explain your understanding of the case.Give a thorough, philosophical exegesis of the relevant aspects of the ACLU paper, Kant and Van den Haag’s arguments.
The American Civil Liberties Union’s “The Case Against the Death Penalty” Excerpts THE CASE AGAINST THE DEATH PENALTY by American Civil Liberties UnionLinks to an external site. The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. Furthermore, we believe that the state should not give itself the right to kill human beings – especially when it kills with premeditation and ceremony, in the name of the law or in the name of its people, and when it does so in an arbitrary and discriminatory fashion. Capital punishment is an intolerable denial of civil liberties and is inconsistent with the fundamental values of our democratic system.  The death penalty is uncivilized in theory and unfair and inequitable in practice.  Through litigation, legislation, and advocacy against this barbaric and brutal institution, we strive to prevent executions and seek the abolition of capital punishment.  The ACLU’s opposition to capital punishment incorporates the following fundamental concerns: The death penalty system in the US is applied in an unfair and unjust manner against people, largely dependent on how much money they have, the skill of their attorneys, race of the victim and where the crime took place.  People of color are far more likely to be executed than white people, especially if thevictim is white The death penalty is a waste of taxpayer funds and has no public safety benefit. The vast majority of law enforcement professionals surveyed agree that capital punishment does not deter violent crime; a survey of police chiefs nationwide found they rank the death penalty lowest among ways to reduce violent crime.  They ranked increasing the number of police officers, reducing drug abuse, and creating a better economy with more jobs higher than the death penalty as the best ways to reduce violence.  The FBI has found the states with the death penalty have the highest murder rates. Innocent people are too often sentenced to death.  Since 1973, over 156 people have been released from death rows in 26 states because of innocence.  Nationally, at least one person is exonerated for every 10 that are executed…   ACLU OBJECTIONS TO THE DEATH PENALTY Despite the Supreme Court’s 1976 ruling in Gregg v. Georgia, et al, the ACLU continues to oppose capital punishment on moral, practical, and constitutional grounds: Capital punishment is cruel and unusual. It is cruel because it is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace. Like those barbaric practices, executions have no place in a civilized society. It is unusual because only the United States of all the western industrialized nations engages in this punishment.  It is also unusual because only a random sampling of convicted murderers in the United States receive a sentence of death. Capital punishment denies due process of law. Its imposition is often arbitrary, and always irrevocable – forever depriving an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction, or the setting aside of a death sentence. The death penalty violates the constitutional guarantee of equal protection. It is applied randomly – and discriminatorily. It is imposed disproportionately upon those whose victims are white, offenders who are people of color, and on those who are poor and uneducated and concentrated in certain geographic regions of the country. The death penalty is not a viable form of crime control. When police chiefs were asked to rank the factors that, in their judgment, reduce the rate of violent crime, they mentioned curbing drug use and putting more officers on the street, longer sentences and gun control. They ranked the death penalty as least effectiveLinks to an external site..  Politicians who preach the desirability of executions as a method of crime control deceive the public and mask their own failure to identify and confront the true causes of crime. Capital punishment wastes limited resources. It squanders the time and energy of courts, prosecuting attorneys, defense counsel, juries, and courtroom and law enforcement personnel. It unduly burdens the criminal justice system, and it is thus counterproductive as an instrument for society’s control of violent crime.  Limited funds that could be used to prevent and solve crime (and provide education and jobs) are spent on capital punishment. Opposing the death penalty does not indicate a lack of sympathy for murder victims. On the contrary, murder demonstrates a lack of respect for human life. Because life is precious and death irrevocable, murder is abhorrent, and a policy of state-authorized killings is immoral. It epitomizes the tragic inefficacy and brutality of violence, rather than reason, as the solution to difficult social problems. Many murder victims do not support state-sponsored violenceLinks to an external site. to avenge the death of their loved one.  Sadly, these victims have often been marginalized by politicians and prosecutors, who would rather publicize the opinions of pro-death penalty family members. Changes in death sentencing have proved to be largely cosmetic. The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s, have not been appreciably altered by the shift from unrestrained discretion to “guided discretion.” Such so-called “reforms” in death sentencing merely mask the impermissible randomness of a process that results in an execution. A society that respects life does not deliberately kill human beings. An execution is a violent public spectacle of official homicide, and one that endorses killing to solve social problems – the worst possible example to set for the citizenry, and especially children. Governments worldwide have often attempted to justify their lethal fury by extolling the purported benefits that such killing would bring to the rest of society. The benefits of capital punishment are illusory, but the bloodshed and the resulting destruction of community decency are real.   CAPITAL PUNISHMENT IS NOT A DETERRENT TO CAPITAL CRIMES Deterrence is a function not only of a punishment’s severity, but also of its certainty and frequency. The argument most often cited in support of capital punishment is that the threat of execution influences criminal behavior more effectively than imprisonment does. As plausible as this claim may sound, in actuality the death penalty fails as a deterrent for several reasons. A punishment can be an effective deterrent only if it is consistently and promptly employed. Capital punishment cannot be administered to meet these conditions. The proportion of first-degree murderers who are sentenced to death is small, and of this group, an even smaller proportion of people are executed. Although death sentences in the mid-1990s increased to about 300 per yearLinks to an external site., this is still only about one percent of all homicides known to the policeLinks to an external site.. Of all those convicted on a charge of criminal homicide, only 3 percent – about 1 in 33 – are eventually sentenced to death.  Between 2001-2009, the average number of death sentences per year dropped to 137Links to an external site., reducing the percentage even more.   This tiny fraction of convicted murderers do not represent the “worst of the worst”. Mandatory death sentencing is unconstitutional. The possibility of increasing the number of convicted murderers sentenced to death and executed by enacting mandatory death penalty laws was ruled unconstitutional in 1976 (Woodson v. North Carolina, 428 U.S. 280). A considerable time between the imposition of the death sentence and the actual execution is unavoidable, given the procedural safeguards required by the courts in capital cases. Starting with selecting the trial jury, murder trials take far longer when the ultimate penalty is involved. Furthermore, post-conviction appeals in death-penalty cases are far more frequent than in other cases. These factors increase the time and cost of administering criminal justice. We can reduce delay and costs only by abandoning the procedural safeguards and constitutional rights of suspects, defendants, and convicts – with the attendant high risk of convicting the wrong person and executing the innocent.  This is not a realistic prospect: our legal system will never reverse itself to deny defendants the right to counsel, or the right to an appeal.  Persons who commit murder and other crimes of personal violence often do not premeditate their crimes. Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. Many capital crimes are committed by the badly emotionally-damaged or mentally ill. In such cases, violence is inflicted by persons unable to appreciate the consequences to themselves as well as to others. Even when crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated. Furthermore, the death penalty is a futile threat for political terrorists, like Timothy McVeigh, because they usually act in the name of an ideology that honors its martyrs. Capital punishment doesn’t solve our society’s crime problem. Threatening capital punishment leaves the underlying causes of crime unaddressed, and ignores the many political and diplomatic sanctions (such as treaties against asylum for international terrorists) that could appreciably lower the incidence of terrorism. Capital punishment has been a useless weapon in the so-called “war on drugs.” The attempt to reduce murders in the drug trade by threat of severe punishment ignores the fact that anyone trafficking in illegal drugs is already risking his life in violent competition with other dealers. It is irrational to think that the death penalty – a remote threat at best – will avert murders committed in drug turf wars or by street-level dealers. If, however, severe punishment can deter crime, then permanent imprisonment is severe enough to deter any rational person from committing a violent crime. The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states. Use of the death penalty in a given state may actually increase the subsequent rate of criminal homicide.  Why? Perhaps because “a return to the exercise of the death penalty weakens socially based inhibitions against the use of lethal force to settle disputes…. “Links to an external site. In adjacent states – one with the death penalty and the other without it – the state that practices the death penalty does not always show a consistently lower rate of criminal homicide. For example, between l990 and l994, the homicide rates in Wisconsin and Iowa (non-death-penalty states) were half the rates of their neighbor, Illinois – which restored the death penalty in l973, and by 1994 had sentenced 223 persons to death and carried out two executionsLinks to an external site.. Between 2000-2010, the murder rate in states with capital punishment was 25-46% higherLinks to an external site. than states without the death penalty. On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between 1976 and 1989, for example, lethal assaults against police were not significantly more or less frequent in abolitionist states than in death-penalty states.  Capital punishment did not appear to provide officers added protection during that time frame.Links to an external site.  In fact, the three leading states in law enforcement homicide in 1996 were also very active death penalty statesLinks to an external site.: California (highest death row population), Texas (most executions since 1976), and Florida (third highest in executions and death row population).  The South, which accounts for more than 80% of the country’s executions, also has the highest murder rateLinks to an external site. of any region in the country.  If anything, the death penalty incited violence rather than curbed it. Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners.  The vast majority of those inmates (84%) were killed in death penalty jurisdictions. During the same period, about 2% of all inmate assaults on prison staff were committed in abolition jurisdictionsLinks to an external site..  Evidently, the threat of the death penalty “does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states.”  Furthermore, multipleLinks to an external site. studiesLinks to an external site. have shown that prisoners sentenced to life without parole have equivalent rates of prison violence as compared to other inmates. Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion. Furthermore, there are documented cases in which the death penalty actually incited the capital crimes it was supposed to deter. These include instances of the so-called suicide-by-execution syndrome – persons who wanted to die but feared taking their own lives, and committed murder so that the state would kill them.  For example, in 1996, Daniel ColwellLinks to an external site., who suffered from mental illness, claimed that he killed a randomly-selected couple in a Georgia parking lot so that the state would kill him – he was sentenced to death and ultimately took his own life while on death row. Although inflicting the death penalty guarantees that the condemned person will commit no further crimes, it does not have a demonstrable deterrent effect on other individuals. Further, it is a high price to pay when studies show that few convicted murderers commit further crimes of violence. Researchers examined the prison and post-release records of 533 prisoners on death row in 1972 whose sentences were reduced to incarceration for life by the Supreme Court’s ruling in Furman. This research showed that seven had committed another murder. But the same study showed that in four other cases, an innocent man had been sentenced to death. (Marquart and Sorensen, in Loyola of Los Angeles Law Review 1989) Recidivism among murderers does occasionally happen, but it occurs less frequently than most people believe; the media rarely distinguish between a convicted offender who murders while on parole, and a paroled murderer who murders again. Government data show that about one in 12 death row prisoners had a prior homicide convictionLinks to an external site.. But as there is no way to predict reliably which convicted murderers will try to kill again, the only way to prevent all such recidivism is to execute every convicted murderer – a policy no one seriously advocates. Equally effective but far less inhumane is a policy of life imprisonment without the possibility of parole.   CAPITAL PUNISHMENT IS UNFAIR Constitutional due process and elementary justice both require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved. In murder cases (since 1930, 88 percent of all executions have been for this crime), there has been substantial evidence to show that courts have sentenced some persons to prison while putting others to death in a manner that has been arbitrary, racially biased, and unfair.  Racial Bias in Death Sentencing Racial discrimination was one of the grounds on which the Supreme Court ruled the death penalty unconstitutional in Furman. Half a century ago, in his classic American Dilemma (1944), Gunnar Myrdal reported that “the South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions.” A study of the death penalty in TexasLinks to an external site. shows that the current capital punishment system is an outgrowth of the racist “legacy of slavery.” Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half (53%) were blackLinks to an external site.. Our nation’s death rows have always held a disproportionately large population of African Americans, relative to their percentage of the total population. Comparing black and white offenders over the past century, the former were often executed for what were considered less-than-capital offenses for whites, such as rape and burglary. (Between 1930 and 1976, 455 men were executed for rape, of whom 405 – 90 percent – were black.) A higher percentage of the blacks who were executed were juveniles; and the rate of execution without having one’s conviction reviewed by any higher court was higher for blacks. (Bowers, Legal Homicide 1984; Streib, Death Penalty for Juveniles 1987) In recent years, it has been argued that such flagrant racial discrimination is a thing of the past. However, since the revival of the death penalty in the mid-1970s, about half of those on death row at any given time have been blackLinks to an external site..  More striking is the racial comparison of victimsLinks to an external site..  Although approximately 49% of all homicide victims are white, 77% of capital homicide cases since 1976 have involved a white victim. Between 1976 and 2005Links to an external site., 86% of white victims were killed by whites (14% by other races) while 94% of black victims were killed by blacks (6% by other races).  Blacks and whites are murder victims in almost equal numbers of crimes – which is a very high percentage given that the general US population is 13% black. African-Americans are six times as likely as white Americans to die at the hands of a murderer, and roughly seven times as likely to murder someone. Young black men are fifteen times as likely to be murdered as young white men. So given this information, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all.  Further, studies like that commissioned by the Governor of MarylandLinks to an external site. found that “black offenders who kill white victims are at greater risk of a death sentence than others, primarily because they are substantially more likely to be charged by the state’s attorney with a capital offense.” The classic statistical study of racial discrimination in capital cases in Georgia presented in the McCleskey case showed that “the average odds of receiving a death sentence among all indicted cases were 4.3 times higher in cases with white victims.” (David C. Baldus et al., Equal Justice and the Death Penalty 1990)   In 1987 these data were placed before the Supreme Court in McCleskey v. Kemp and while the Court did not dispute the statistical evidence, it held that evidence of an overall pattern of racial bias was not sufficient. Mr. McCleskey would have to prove racial bias in his own case – a virtually impossible task. The Court also held that the evidence failed to show that there was “a constitutionally significant risk of racial bias….” (481 U.S. 279) Although the Supreme Court declared that the remedy sought by the plaintiff was “best presented to the legislative bodies,” subsequent efforts to persuade Congress to remedy the problem by enacting the Racial Justice Act were not successful. (Don Edwards & John Conyers, Jr., The Racial Justice Act – A Simple Matter of Justice, in University of Dayton Law Review 1995)   In 1990, the U.S. General Accounting Office reported to the Congress the results of its review of empirical studies on racism and the death penalty. The GAO concludedLinks to an external site.: “Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision” and that “race of victim influence was found at all stages of the criminal justice system process…” Texas was prepared to execute Duane Buck on September 15, 2011.  Mr. Buck was condemned to death by a jury that had been told by an expert psychologist that he was more likely to be dangerous because he was African American.   The Supreme Court stayed the case, but Mr. Buck has not yet received the new sentencing hearing justice requires. These results cannot be explained away by relevant non-racial factors, such as prior criminal record or type of crime, as these were factored for in the Baldus and GAO studies referred to above.  They lead to a very unsavory conclusion: In the trial courts of this nation, even at the present time, the killing of a white person is treated much more severely than the killing of a black person. Of the 313 persons executed between January 1977 and the end of 1995, 36 had been convicted of killing a black person while 249 (80%) had killed a white person. Of the 178 white defendants executed, only three had been convicted of murdering people of colorLinks to an external site.. Our criminal justice system essentially reserves the death penalty for murderers (regardless of their race) who kill white victims. Another recent Louisiana study found that defendants with white victims were 97% more likely to receive death sentences than defendants with black victims.[1]Links to an external site. Both gender and socio-economic class also determine who receives a death sentence and who is executed.  Women account for only two percent of all people sentenced to deathLinks to an external site., even though females commit about 11 percent of all criminal homicides.Links to an external site. Many of the women under death sentence were guilty of killing men who had victimized them with years of violent abuseLinks to an external site.. Since 1900, only 51 women have been executed in the United StatesLinks to an external site. (15 of them black). Discrimination against the poor (and in our society, racial minorities are disproportionately poor) is also well established.  It is a prominent factor in the availability of counsel.  Fairness in capital cases requires, above all, competent counsel for the defendant. Yet “approximately 90 percent of those on death row could not afford to hire a lawyer when they were tried.”) Common characteristics of death-row defendants are poverty, the lack of firm social roots in the community, and inadequate legal representation at trial or on appeal. As Justice William O. Douglas noted in Furman, “One searches our chronicles in vain for the execution of any member of the affluent strata in this society”(408 US 238). Failure of Safeguards The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. “Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without discrimination.”(Gross and Mauro, Death and Discrimination 1989) Justice John Marshall Harlan, writing for the Court in Furman, noted “… the history of capital punishment for homicides … reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die…. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history…. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.” (402 U.S. 183 (1971)) Yet in the Gregg decision, the majority of the Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the new guided-discretion statutes could accomplish the impossible. The truth is that death statutes approved by the Court “do not effectively restrict the discretion of juries by any real standards, and they never will. No society is going to kill everybody who meets certain preset verbal requirements, put on the statute books without awareness of coverage of the infinity of special factors the real world can produce.”Links to an external site. Evidence obtained by the Capital Jury ProjectLinks to an external site. has shown that jurors in capital trials generally do not understand the judge’s instructions about the laws that govern the choice between imposing the death penalty and a life sentence. Even when they do comprehend, jurors often refuse to be guided by the law. “Juror comprehension of the law… is mediocre. The effect [of this relative lack of comprehension of the law]… is to reduce the likelihood that capital defendants will benefit from the safeguards against arbitrariness built into the… law.” Even if the jury’s sentencing decision were strictly governed by the relevant legal criteria, there remains a vast reservoir of unfettered discretion: the prosecutor’s decision to prosecute for a capital or lesser crime, the court’s willingness to accept or reject a guilty plea, the jury’s decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant’s sanity, and the governor’s final clemency decision, among others. Discretion in the criminal justice system is unavoidable. The history of capital punishment in America clearly demonstrates the social desire to mitigate the harshness of the death penalty by narrowing the scope of its application. Whether or not explicitly authorized by statutes, sentencing discretion has been the main vehicle to this end. But when sentencing discretion is used – as it too often has been – to doom the poor, the friendless, the uneducated, racial minorities, and the despised, it becomes injustice. Mindful of such facts, the House of Delegates of the American Bar Association (including 20 out of 24 former presidents of the ABA) called for a moratorium on all executions by a vote of 280 to 119 in February 1997Links to an external site.. The House judged the current system to be “a haphazard maze of unfair practices.” In its 1996 survey of the death penalty in the United States, the International Commission of Jurists reinforced this point. Despite the efforts made over the past two decades since Gregg to protect the administration of the death penalty from abuses, the actual “constitutional errors committed in state courts have gravely undermined the legitimacy of the death penalty as a punishment for crime.” (International Commission of Jurists, Administration of the Death Penalty in the United States 1996) In 2009, the American Law Institute (ALI), the leading independent organization in the U.S. producing scholarly work to clarify, modernize and improve the law, removed capital punishment from its Model Penal Code. The ALI, which created the modern legal framework for the death penalty in 1962, indicated that the punishment is so arbitrary, fraught with racial and economic disparities, and unable to assure quality legal representation for indigent capital defendants, that it can never be administered fairly. Thoughtful citizens, who might possibly support the abstract notion of capital punishment, are obliged to condemn it in actual practice.   CAPITAL PUNISHMENT IS IRREVERSIBLE Unlike any other criminal punishments, the death penalty is irrevocable. Speaking to the French Chamber of Deputies in 1830, years after having witnessed the excesses of the French Revolution, the Marquis de Lafayette said, “I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.” Although some proponents of capital punishment would argue that its merits are worth the occasional execution of innocent people, most would hasten to insist that there is little likelihood of the innocent being executed. Since 1900, in this country, there have been on the average more than four cases each year in which an entirely innocent person was convicted of murder. Scores of these individuals were sentenced to death. In many cases, a reprieve or commutation arrived just hours, or even minutes, before the scheduled execution. These erroneous convictions have occurred in virtually every jurisdiction from one end of the nation to the other. Nor have they declined in recent years, despite the new death penalty statutes approved by the Supreme Court. Disturbingly, and increasingly, a large body of evidence from the modern era shows that innocent people are often convicted of crimes – including capital crimes – and that some have been executed. In 2012, a new report in the Columbia Human Rights Law Review chronicled the horrifying case of Carlos DeLuna, a man executed in Texas in 1989 for a murder that it was “common knowledge” had been committed by another man.[2]Links to an external site. DeLuna’s story demonstrates so many of the factors that can go wrong in a capital case: faulty eyewitness identification, prosecutorial misconduct, police misconduct, a botched crime scene, destroyed DNA evidence, a poor person represented by ineffective by an ineffective inexperienced defense attorney overmatched by a professional prosecutor, and insufficient oversight from the bench.[3]Links to an external site.  In its case against DeLuna, the State presented no blood or DNA evidence, no crime scene fingerprints, and no proof of hair or fibers from the victim having been found on the defendant. He was convicted largely based on eyewitness testimony made from the back of a police car in a dimly lit lot near the crime scene. Meanwhile, a violent criminal named Carlos Hernandez—a man who not only shared DeLuna’s name, but also looked like him—repeatedly boasted about how he had committed the murder and gotten away with it.[4]Links to an external site.  These disturbing facts about DeLuna’s case, brought to light more than two decades after his execution, refute the claim, made by some proponents of capital punishment, that the United States has never executed an innocent person…[5]Links to an external site. …And when the system does go wrong, it is often volunteers from outside the criminal justice system – journalists, for example – who rectify the errors, not the police or prosecutors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty.   CAPITAL PUNISHMENT IS BARBARIC Prisoners are executed in the United States by any one of five methods; in a few jurisdictions the prisoner is allowed to choose which one he or she prefers: The traditional mode of execution, hanging, is an option still available in Delaware, New Hampshire and Washington. Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be torn off.  Two states, Idaho and Utah, still authorize the firing squad. The prisoner is strapped into a chair and hooded. A target is pinned to the chest. Five marksmen, one with blanks, take aim and fire. Throughout the twentieth century, electrocution has been the most widely used form of execution in this country, and is still utilized in eleven states, although lethal injection is the primary method of execution. The condemned prisoner is led – or dragged – into the death chamber, strapped into the chair, and electrodes are fastened to head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals retain consciousness. In 1983, the electrocution of John Evans in Alabama was described by an eyewitness as follows: “At 8:30 p.m. the first jolt of 1900 volts of electricity passed through Mr. Evans’ body. It lasted thirty seconds. Sparks and flames erupted … from the electrode tied to Mr. Evans’ left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of grayish smoke and sparks poured out from under the hood that covered Mr. Evans’ face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead. “The electrode on the left leg was re-fastened. …Mr. Evans was administered a second thirty second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. [They] reported that his heart was still beating, and that he was still alive. At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace, to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request …was denied. “At 8:40 p.m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans’ body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes.” Afterwards, officials were embarrassed by what one observer called the “barbaric ritual.” The prison spokesman remarked, “This was supposed to be a very clean manner of administering death.” The introduction of the gas chamber was an attempt to improve on electrocution. In this method of execution the prisoner is strapped into a chair with a container of sulfuric acid underneath. The chamber is sealed, and cyanide is dropped into the acid to form a lethal gas. Execution by suffocation in the lethal gas chamber has not been abolished but lethal injection serves as the primary method in states which still authorize it. In 1996 a panel of judges on the 9th Circuit Court of Appeals in California (where the gas chamber has been used since 1933) ruled that this method is a “cruel and unusual punishment.”Links to an external site. Here is an account of the 1992 execution in Arizona of Don Harding, as reported in the dissent by U.S. Supreme Court Justice John Paul Stevens: “When the fumes enveloped Don’s head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes. “At this point Don’s body started convulsing violently…. His face and body turned a deep red and the veins in his temple and neck began to bulge until I thought they might explode. After about a minute Don’s face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched. “After several more minutes, the most violent of the convulsions subsided. At this time the muscles along Don’s left arm and back began twitching in a wavelike motion under his skin. Spittle drooled from his mouth. “Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete. “Don Harding took ten minutes and thirty one seconds to die.” (Gomez v. U.S. District Court, 112 S.Ct. 1652) The latest mode of inflicting the death penalty, enacted into law by more than 30 states, is lethal injection, first used in 1982 in Texas. It is easy to overstate the humaneness and efficacy of this method; one cannot know whether lethal injection is really painless and there is evidence that it is not. As the U.S. Court of Appeals observed, there is “substantial and uncontroverted evidence… that execution by lethal injection poses a serious risk of cruel, protracted death…. Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own asphyxiation.” (Chaney v. Heckler, 718 F.2d 1174, 1983). Its veneer of decency and subtle analogy with life-saving medical practice no doubt makes killing by lethal injection more acceptable to the public. Journalist Susan Blaustein, reacting to having witnessed an execution in Texas, comments:Links to an external site. “The lethal injection method … has turned dying into a still life, thereby enabling the state to kill without anyone involved feeling anything…. Any remaining glimmers of doubt – about whether the man received due process, about his guilt, about our right to take life – cause us to rationalize these deaths with such catchwords as ‘heinous,’ ‘deserved,’ ‘deterrent,’ ‘justice,’ and ‘painless.’ We have perfected the art of institutional killing to the degree that it has deadened our natural, quintessentially human response to death.” Botched Lethal Injections Nor does execution by lethal injection always proceed smoothly as planned. In 1985 “the authorities repeatedly jabbed needles into … Stephen Morin, when they had trouble finding a usable vein because he had been a drug abuser.”Links to an external site. In 1988, during the execution of Raymond Landry, “a tube attached to a needle inside the inmate’s right arm began leaking, sending the lethal mixture shooting across the death chamber toward witnesses.” Although the U.S. Supreme Court has held that the current method of lethal injection used is constitutional, several people have suffered because of this form of execution. In Ohio, Rommel Broom was subjected to 18 attempts at finding a vein so that he could be killed by lethal injection. The process to try to execute him took over two hours. Finally, the governor had to stop the execution and grant the inmate a one week reprieve. Mr. Broom has not been executed because he is challenging the state’s right to hold a second execution attempt.  Nor was he the only Ohio inmate so maltreated.  During his 2006 execution Joseph Clark screamed, “it don’t work” and requested to take something by mouth so the torture would end when his executioners took thirty minutes to find a vein. Christopher Newton’s execution took over two hours – so long that he had to be given a bathroom break…   CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim does not bear scrutiny, however. By its nature, all punishment is retributive. Therefore, whatever legitimacy is to be found in punishment as just retribution can, in principle, be satisfied without recourse to executions. Moreover, the death penalty could be defended on narrowly retributive grounds only for the crime of murder, and not for any of the many other crimes that have frequently been made subject to this mode of punishment (rape, kidnapping, espionage, treason, drug trafficking). Few defenders of the death penalty are willing to confine themselves consistently to the narrow scope afforded by retribution. In any case, execution is more than a punishment exacted in retribution for the taking of a life. As Nobel Laureate Albert Camus wrote, “For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.” (Reflections on the Guillotine, in Resistance, Rebellion, and Death 1960) It is also often argued that death is what murderers deserve, and that those who oppose the death penalty violate the fundamental principle that criminals should be punished according to their just desserts – “making the punishment fit the crime.” If this rule means punishments are unjust unless they are like the crime itself, then the principle is unacceptable: It would require us to rape rapists, torture torturers, and inflict other horrible and degrading punishments on offenders. It would require us to betray traitors and kill multiple murderers again and again – punishments that are, of course, impossible to inflict. Since we cannot reasonably aim to punish all crimes according to this principle, it is arbitrary to invoke it as a requirement of justice in the punishment of murder. If, however, the principle of just deserts means the severity of punishments must be proportional to the gravity of the crime – and since murder is the gravest crime, it deserves the severest punishment – then the principle is no doubt sound. Nevertheless, this premise does not compel support for the death penalty; what it does require is that other crimes be punished with terms of imprisonment or other deprivations less severe than those used in the punishment of murder. Criminals no doubt deserve to be punished, and the severity of the punishment should be appropriate to their culpability and the harm they have caused the innocent. But severity of punishment has its limits – imposed by both justice and our common human dignity. Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy…   INTERNATIONALLY, CAPITAL PUNISHMENT IS WIDELY VIEWED AS INHUMANE AND ANACHRONISTIC An international perspective on the death penalty helps us understand the peculiarity of its use in the United States. As long ago as 1962, it was reported to the Council of Europe that “the facts clearly show that the death penalty is regarded in Europe as something of an anachronism….” 1962) Today, either by law or in practice, all of Western Europe has abolished the death penalty. In Great Britain, it was abolished (except for cases of treason) in 1971; France abolished it in 1981. Canada abolished it in 1976. The United Nations General Assembly affirmed in a formal resolution that throughout the world, it is desirable to “progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment.” By mid-1995, eighteen countries had ratified the Sixth Protocol to the European Convention on Human Rights, outlawing the death penalty in peacetime. Underscoring worldwide support for abolition was the action of the South African constitutional court in 1995, barring the death penalty as an “inhumane” punishment. Between 1989 and 1995, two dozen other countries abolished the death penalty for all crimes.  Since 1995, 43 more abolished it.  All told, 71% of the world’s nation’s have abolished the death penalty in law or practice; only 58 of 197 retain itLinks to an external site.. International Law A look at international trends and agreements sheds light on the peculiarity of the United States’ continued imposition of capital punishment. Today, over 140 nations have abolished the death penalty either by law or in practice and, of the 58 countries that have retained the death penalty, only 21 carried out known executions in 2011.[35]Links to an external site.  Furthermore, capital punishment has compelled the United States to abstain from signing or ratifying several major international treaties and perhaps to violate international agreements to which it is a party:  In 1989, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political RightsLinks to an external site. (ICCPR), one of the UN’s primary human rights treaties.[36]Links to an external site.  Parties to the Protocol must take all necessary measures to abolish the death penalty and protect their citizens’ right not to be executed, although signatories may reserve the right to apply the death penalty for serious military criminals during wartime.[37]Links to an external site.  The United States has yet to join the 35 signatories or 75 parties to the Protocol, trailing behind the world’s leading democracies in the protection of human rights. Although the Second Protocol to the ICCPR is the only worldwide instrument calling for death penalty abolition, there are three such instruments with regional emphases.  Adopted by the Council of Europe in 1982 and ratified by eighteen nations by mid-1995, the Sixth Protocol of the European Convention on Human Rights (ECHR) provides for the abolition of capital punishment during peacetime.  In 2002, the Council adopted the Thirteenth Protocol to the ECHR, which provides for the abolition of the death penalty in all circumstances, including times of war or imminent threat of war.   In 1990, the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which provides for total abolition but allows states to reserve the right to apply the death penalty during wartime.[38]Links to an external site. The United States has ratified the Vienna Convention on Consular Relations (VCCR), an international treaty setting forth a framework for consular relations among independent countries.  Under Article 36 of the VCCR, local authorities are obligated to inform all detained foreigners “without delay” of their right to request consular notification of their detention and their right to demand and access opportunities to communicate with their consular representatives.[39]Links to an external site.  Local authorities have repeatedly disregarded this obligation, resulting in the International Court of Justice holding in 2004 that states had violated the VCCR by failing to inform 51 named Mexican nationals of their rights.  All 51 were sentenced to death.  When the State of Texas refused to honor this judgment and provide relief for the 15 death-row inmates whose VCCR rights it had violated, President George W. Bush sought to intervene on the prisoners’ behalf, taking the case to the United States Supreme Court. The Court denied the President’s appeal, and Texas has gone on to execute inmates whose VCCR rights it had failed to honor. In 1994, the United States signed the United Nations (UN) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or PunishmentLinks to an external site. (CAT).[40]Links to an external site.  The treaty, which has now been ratified or signed by 176 nations, outlaws the imposition of physical or psychological abuse on people in detention. While it does not explicitly prohibit capital punishment, the treaty does forbid the intentional infliction of pain. Since 1976, however, more than 20 executions in the United States have involved prolonged, painful, or shocking errors, such as an inmate’s head catching fire or a lengthy and torturous search for a vein suitable for lethal injection.  Additionally, accidents aside, our methods of execution—lethal injection, electrocution, firing squad, gas chamber, and hanging—may be inherently painful.  The CAT also forbids the infliction of pain and suffering “based on discrimination of any kind,” [41]Links to an external site. yet racial inequality is endemic to our death rowsLinks to an external site..  Also in 1994, the United States ratified the International Convention on the Elimination of all forms of Racial DiscriminationLinks to an external site. (ICERD), a treaty intended to protect against racial discrimination, whether intentional or resulting from seemingly neutral state policies. To meet its obligations as a party to ICERD, the United States must take steps to review and amend policies and procedures that create or perpetuate racial discrimination, including capital punishment.[42]Links to an external site. Once in use everywhere and for a wide variety of crimes, the death penalty today is generally forbidden by law and widely abandoned in practice, in most countries outside the United States. Indeed, the unmistakable worldwide trend is toward the complete abolition of capital punishment. In the United States, opposition to the death penalty is widespread and diverse. Catholic, Jewish, and Protestant religious groups are among the more than 50 national organizations that constitute the National Coalition to Abolish the Death Penalty. The Case Against the Death Penalty was first published by the ACLU as a pamphlet in 1973.  The original text was written by Hugo Adam Bedau, Ph.D., who also contributed to several subsequent editions of the pamphlet.  This version was most recently revised by the ACLU in 2012. [1]Links to an external site. Glenn L. Pierce & Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990-2008, 71 La. L. Rev. 647, 671 (2011), available at http://www.deathpenaltyinfo.org/documents/PierceRadeletStudy.pdfLinks to an external site.. [2]Links to an external site. Liebman et. al, Los Tocayos Carlos, 43 Colum. Hum. Rts. L. Rev. 711, 1104 (2012). [3]Links to an external site. See Andrew Cohen, Yes, America, We Have Executed an Innocent Man, Atlantic, May 14, 2012, http://www.theatlantic.com/national/archive/2012/05/yes-america-we-have-executed-an-innocent-man/257106/Links to an external site.. [4]Links to an external site. See id. [5]Links to an external site. See id.; Carlos DeLuna Case: The Fight to Prove an Innocent Man Was Executed, PBS Newshour, May 24, 2012, http://www.pbs.org/newshour/bb/law/jan-june12/deathpenalty_05-24.htmlLinks to an external site.. [6]Links to an external site. A Three-Drug Cocktail, WashingtonPost.com, Sep. 26, 2007, http://www.washingtonpost.com/wp-dyn/content/graphic/2007/09/26/GR2007092600116.htmlLinks to an external site.; see also Victoria Gill, The Search for a Humane Way to Kill, BBC News, Aug. 7, 2012, http://www.bbc.co.uk/news/magazine-19060961Links to an external site.. [7]Links to an external site. See Carol J. Williams, Maker of Anesthetic Used in Executions is Discontinuing Drug, L.A. Times, Jan. 22, 2011, http://articles.latimes.com/2011/jan/22/local/la-me-execution-drug-20110122Links to an external site.; John Schwartz, Death Penalty Drug Raises Legal Questions, N.Y. Times, Apr. 13, 2011, http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=allLinks to an external site.. [8]Links to an external site. See Brandi Grissom, Texas Will Change its Lethal Injection Protocol, Tex. Tribune, July 10, 2012, www.texastribune.org/texas-dept-criminal-justice/death-penalty/texas-changing-its-lethal-injection-protocol/Links to an external site.; Rob Stein, Ohio Executes Inmate Using New, Single-Drug Method for Death Penalty, Wash. Post, Mar. 11, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/03/10/AR2011031006250.htmlLinks to an external site.; David Beasley, Georgia Delays Execution Amid Drug Protocol Change, Reuters, July, 17, 2012, http://www.reuters.com/article/2012/07/17/us-usa-execution-georgia-idUSBRE86G14L20120717Links to an external site.; Rhonda Cook & Bill Rankin, State Changes Lethal Injection Protocol, Reschedules Execution, Atlanta Journal-Constitution, July 17, 2012, http://www.ajc.com/news/atlanta/state-changes-lethal-injection-1479424.htmlLinks to an external site.; Steve Eder,  A Texas First: Single-Drug Used to Execute Inmate, WSJ Law Blog, http://blogs.wsj.com/law/2012/07/19/a-texas-first-single-drug-used-to-execute-inmate/Links to an external site.; Idaho Switches Execution Protocol to Single-Drug Lethal Injection, Spokesman.com, May 18, 2012, http://www.spokesman.com/blogs/boise/2012/may/18/idaho-switches-execution-protocol-single-drug-lethal-injection/Links to an external site.. [9]Links to an external site. See Carol J. Williams, California’s New Lethal Injection Protocol Tossed By Judge, L.A. Times, Dec. 17, 2011,  http://articles.latimes.com/2011/dec/17/local/la-me-executions-20111217Links to an external site.; Kathy Lohr, New Lethal Injection Drug Raises Concerns, NPR, Jan. 29, 2011, http://www.npr.org/2011/01/29/133302950/new-lethal-injection-drug-raises-concernsLinks to an external site.; Steve Eder, Virginia Adds New Drug for Lethal Injections, WSJ Law Blog, July 27, 2012, http://blogs.wsj.com/law/2012/07/27/virginia-adds-new-drug-for-lethal-injections/Links to an external site.. [10]Links to an external site. Laura Vozzella, Virginia opts for One-Drug Lethal Injection Protocol, Wash. Post, July 27, 2012, http://www.washingtonpost.com/local/dc-politics/virginia-opts-for-one-drug-lethal-injection-protocol/2012/07/27/gJQA8jxiEX_story.htmlLinks to an external site.. [11]Links to an external site. See Linda Greenhouse, Supreme Court Allows Lethal Injection for Execution, N.Y. Times, Apr. 17, 2008, http://www.nytimes.com/2008/04/17/us/16cnd-scotus.html?pagewanted=allLinks to an external site.. [12]Links to an external site. See Michael Kiefer, State is Sued Again Over Its Lethal-Injection Procedure, USA Today, Feb. 7, 2012, http://www.usatoday.com/USCP/PNI/Valley%20&%20State/2012-02-07-PNI0207met–executionsART_ST_U.htmLinks to an external site.; Court Gives Arizona Warning About Execution Protocol, Associated Press, Feb. 28, 2012, available at http://www.azcentral.com/community/pinal/articles/2012/02/28/20120228arizona-moorman-execution-death-row-inmate-lawyers-seek-stays.htmlLinks to an external site..  Notably, however, the panel did not halt Arizona’s scheduled executions. Id. [13]Links to an external site. David Beasley, Georgia Inmate Gets Stay Hours Before Scheduled Execution, Reuters, July 23, 2012, http://www.reuters.com/article/2012/07/23/us-usa-execution-georgia-idUSBRE86M1F720120723Links to an external site.. [14]Links to an external site. Steve Eder, Missouri Executions on Hold Amid Concerns About New Drug, Aug. 15, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/15/missouri-executions-on-hold-amid-concerns-about-new-drug/Links to an external site.. [15]Links to an external site. Melissa Anderson, ACLU Challenges Montana’s Lethal Injection Protocol, KXLH.com, Aug. 1, 2012, http://www.kxlh.com/news/aclu-challenges-montana-s-lethal-injection-protocol/Links to an external site.. [16]Links to an external site. See Eder, supra note 3; Steve Olfason, Oklahoma to Execute Man Who Killed Ex-Girlfriend and Her Two Kids, Chicago Tribune, Aug. 14, 2012, http://articles.chicagotribune.com/2012-08-14/news/sns-rt-us-usa-execution-oklahomabre87d0s8-20120814_1_jerry-massie-method-of-lethal-injection-three-drug-protocolLinks to an external site.; Steve Eder, Oklahoma Execution Set After Lethal Injection Challenge Fails, Aug. 13, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/13/oklahoman-set-for-executution-after-lethal-injection-challenge-fails/Links to an external site.. [17]Links to an external site. See Grissom, supra note 3; Ed Pilkington, Texas Executions Threatened As Stocks of Death Penalty Drug Run Low, Guardian, Feb. 14, 2012, http://www.guardian.co.uk/world/2012/feb/14/texas-executions-threatened-stocks-run-lowLinks to an external site.; John Schwartz, Seeking Execution Drug, States Cut Legal Corners, N.Y. Times, Apr. 13, 2011,  http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=allLinks to an external site.; Kiefer, supra note 7. [18]Links to an external site. EU Imposes Strict Controls on ‘Execution Drug’ Exports, BBC News, Dec. 20, 2011, http://www.bbc.co.uk/news/world-europe-16281016Links to an external site.; Matt McGrath, FDA Goes to Court to Secure Drugs for Lethal Injections, BBC World, June 1, 2012, http://www.bbc.co.uk/news/science-environment-18253578Links to an external site.. [19]Links to an external site. See Jeremy Pelofsky, U.S. Wants Lawsuit Over Execution Drug Dismissed, Reuters, Apr. 20, 2011, http://www.reuters.com/article/2011/04/20/us-usa-execution-lawsuit-idUSTRE73J7MH20110420Links to an external site.; Michael Kiefer, Execution Drugs: Arizona Inmate Lawsuit Seeks FDA Policing, Ariz. Republic, Feb. 3, 2011, http://www.azcentral.com/news/articles/2011/02/02/20110202arizona-execution-drug-fda-lawsuit-brk02-ON.htmLinks to an external site.l; Kevin Johnson, Lawsuit Seeks to Block Imports of Key Execution Drug, USA Today, Feb. 2, 2011, http://content.usatoday.com/communities/ondeadline/post/2011/02/lawsuit-seeks-to-block-imports-of-key-execution-drug/1#.UA2pmKBCzGcLinks to an external site.; Ryan Gabrielson, Lethal Injection Drug Tied to London Wholesaler, California Watch, Jan. 7, 2011, http://californiawatch.org/dailyreport/lethal-injection-drug-tied-london-wholesaler-7888Links to an external site.; Ryan Gabrielson, California Lethal Injection: Prison Officials Refuse to Hand Over Lethal Injection Drug, California Watch, May 30, 2012, available at http://www.huffingtonpost.com/2012/05/30/california-lethal-injection_n_1556155.htmlLinks to an external site.. [20]Links to an external site. Pelofsky, supra note 14. [21]Links to an external site. See Raymond Bonner, FDA’s Immoral Stance on Lethal Injection Drugs, Bloomberg, July 29, 2012, http://www.bloomberg.com/news/2012-07-29/fda-s-immoral-stance-on-lethal-injection-drugs.htmlLinks to an external site.. [22]Links to an external site. See Elizabeth Rapaport, A Modest Proposal: The Aged of Death Row Should be Deemed Too Old to Execute, 77 Brook. L. Rev. 1089 (Spring 2012);  Michael J. Carter, Wanting to Die: The Cruel Phenomenon of “Death Row Syndrome”, Alternet, Nov. 7, 2008, http://www.alternet.org/rights/106300/waiting_to_die%3A_the_cruel_phenomenon_of_%22death_row_syndrome%22/Links to an external site. ; Dr. Karen Harrison and Anouska Tamony, Death Row Phenomenon, Death Row Syndrome, and Their Affect [sic.] on Capital Cases in the U.S., Internet Journal of Criminology 2010, available at http://www.internetjournalofcriminology.com/Harrison_Tamony_%20Death_Row_Syndrome%20_IJC_Nov_2010.pdfLinks to an external site.. [23]Links to an external site. See Stop Solitary – The Dangerous Overuse of Solitary Confinement in the United States, ACLU.org, https://www.aclu.org/stop-solitary-dangerous-overuse-solitary-confinement-united-states-0Links to an external site.. [24]Links to an external site. See Harrison and Tamony, supra note 25. [25]Links to an external site. See Carter, supra note 25; Death Penalty Information Center, Time on Death Row (2006), at http://www.deathpenaltyinfo.org/time-death-rowLinks to an external site.. [26]Links to an external site. See id. [27]Links to an external site. Amy Smith, Not “Waiving” But Drowning: The Anatomy of Death Row Syndrome and Volunteering for Execution, 17 B.U. Pub. Int. L.J. 237, 243, available at http://www.bu.edu/law/central/jd/organizations/journals/pilj/vol17no2/documents/17-2SmithArticle.pdfLinks to an external site.. [28]Links to an external site. Lackey v. Texas, 115 S. Ct. 1421, 1421 (1995) (Stevens, J., concurring in the denial of certiorari). [29]Links to an external site. Stephen Blank, Killing Time: The Process of Waiving Appeal – The Michael Ross Death Penalty Cases, 14 J.L. & Pol’y 735, 738-39 (2006). [30]Links to an external site. Soering v. UK, App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989), available at http://eji.org/eji/files/Soering%20v.%20United%20Kingdom.pdfLinks to an external site.. [31]Links to an external site. See David Wallace-Wells, What is Death Row Syndrome?, Slate, Feb. 1, 2005, http://www.slate.com/articles/news_and_politics/explainer/2005/02/what_is_death_row_syndrome.htmlLinks to an external site.; Smith supra note 30. [32]Links to an external site. Smith supra note 30. (quoting Soering, 11 Eur. H. R. Rep. at 475-76). [33]Links to an external site. Id.  at 239. [34]Links to an external site. Carol J. Williams, Death Penalty: Exhaustive Study Finds Death Penalty Costs California $184 Million a Year, L.A. Times, June 20, 2011, http://articles.latimes.com/2011/jun/20/local/la-me-adv-death-penalty-costs-20110620Links to an external site.. [35]Links to an external site. Figures on the Death Penalty, Amnesty International, http://www.amnesty.org/en/death-penalty/numbersLinks to an external site.. [36]Links to an external site. UN General Assembly, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, Dec. 15, 1989, A/RES/44/128, available at: http://www.unhcr.org/refworld/docid/3ae6b3a70.htmlLinks to an external site. [accessed 15 August 2012] [hereinafter Second Optional Protocol]. [37]Links to an external site. See Pierre Desert, Second Optional Protocol: Frequently Asked Questions, World Coalition Against the Death Penalty, June 27, 2008, http://www.worldcoalition.org/Second-Optional-Protocol-Frequently-Asked-Questions.htmlLinks to an external site.; Pierre Desert, Second Optional Protocol: The Only Global Treaty Aiming at the Abolition of the Death Penalty, World Coalition Against the Death Penalty, June 24, 2008, www.worldcoalition.org/UN-Protocol-the-only-global-treaty-aiming-at-the-abolition-of-the-death-penalty.htmlLinks to an external site.; Second Optional Protocol, supra note 21.  [38]Links to an external site. Desert, Second Optional Protocol: Frequently Asked Questions, supra note 22.  [39]Links to an external site. Vienna Convention on Consular Relations, Mar. 19, 1967, 596 U.N.T.S. 261, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdfLinks to an external site.. [40]Links to an external site. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://treaties.un.org/doc/publication/UNTS/Volume%201465/v1465.pdfLinks to an external site.. [41]Links to an external site. Richard C. Dieter, Introduction: Ford Foundation Symposium, Nov. 12, 1998, available at http://www.deathpenaltyinfo.org/us-death-penalty-and-international-law-us-compliance-torture-and-race-conventionsLinks to an external site.. [42]Links to an external site. International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195, available at http://treaties.un.org/doc/publication/UNTS/Volume%20660/v660.pdfLinks to an external site.. Van den Haag’s “On Deterrence and the Death Penalty” Excerpts “On Deterrence and the Death Penalty” by Ernest Van den Haag Source: Journal of Criminal Law and CriminologyLinks to an external site. I. If rehabilitation and the protection of society from unrehabilitated offenders were the only purposes of legal punishment the death penalty could be abolished: it cannot attain the first end, and is not needed for the second. No case for the death penalty can be made unless “doing justice,” or “deterring others,” are among our penal aims.1 Each of these purposes can justify capital punish­ment by itself; opponents, therefore, must show that neither actually does, while proponents can rest their case on either. Although the argument from justice is intellec­tually more interesting, and, in my view, decisive enough, utilitarian arguments have more appeal: the claim that capital punishment is useless be­ cause it does not deter others, is most persuasive. I shall, therefore, focus on this claim. Lest the argument be thought to be unduly narrow, I shall show, nonetheless, that some claims of injustice rest on premises which the claimants reject when arguments for capital punishment are derived therefrom; while other claims of injustice have no independent standing: their weight depends on the weight given to deterrence. II. Capital punishment is regarded as unjust be­ cause it may lead to the execution of innocents, or because the guilty poor (or disadvantaged) are more likely to be executed than the guilty rich. Regardless of merit, these claims are relevant only if “doing justice” is one purpose of punish­ment. Unless one regards it as good, or, at least, better, that the guilty be punished rather   than the innocent, and that the equally guilty be punished equally,2 unless, that is, one wants penalties to be just, one cannot object to them because they are not. However, if one does in­clude justice among the purposes of punishment, it becomes possible to justify any one punish­ment — even death-on grounds of justice. Yet, those who object to the death penalty because of its alleged injustice, usually deny not only the merits, or the sufficiency, of specific arguments based on justice, but the propriety of justice as an argument: they exclude “doing justice” as a purpose of legal punishment. If justice is not a purpose of penalties, injustice cannot be an objection to the death penalty, or to any other; if it is, justice cannot be ruled out as an argument for any penalty. Consider the claim of injustice on its merits now. A convicted man may be found to have been innocent; if he was executed, the penalty cannot be reversed. Except for fines, penalties never can be reversed. Time spent fu prison cannot be re­ turned. However a prison sentence may be re­ mitted once the prisoner serving it is found inno­cent; and he can be compensated for the time served (although compensation ordinarily cannot repair the harm). Thus, though (nearly) all penalties are irreversible, the death penalty, un­ like others, is irrevocable as well. Despite all precautions, errors will occur in judicial proceedings: the innocent may be found guilty; or the guilty rich may more easily escape conviction, or receive lesser penalties than the guilty poor. However, these injustices do not reside in the penalties inflicted but in their maldistribution. It is not the penalty-whether death or prison-which is unjust when inflicted on the innocent, but its imposition on the innocent. In­ equity between poor and rich also involves distribu­tion, not the penalty distributed. Thus injustice is not an objection to the death penalty but to the distributive process-the trial. Trials are more likely to be fair when life is at stake-the death penalty is probably less often unjustly inflicted than others. It requires special consideration not because it is more, or more often, unjust than other penalties, but because it is always irrevocable. Can any amount of deterrence justify the possi­bility of irrevocable injustice? Surely injustice is unjustifiable in each actual individual case; it must be objected to whenever it occurs. But we are concerned here with the process that may produce injustice, and with the penalty that would make it irrevocable — not with the actual individual cases produced, but with the general rules which may produce them. To consider objections to a general rule (the provision of any penalties by law) we must compare the likely net result of alternative rules and select the rule (or penalty) likely to produce the least injustice. For however one defines justice, to support it cannot mean less than to favor the least injustice. If the death of innocents because of judicial error is unjust, so is the death of  innocents by murder. If some murders could be avoided by a penalty conceivably more deterrent than others-such as the death, penalty-then the question becomes: which penalty will minimize the number of innocents killed (by crime and ,by punishment)? It follows that the irrevocable injustice, sometimes inflicted by the death penalty would not significantly militate against it, if capital punishment deters enough murders to reduce the total number of innocents killed so that fewer are lost than would be lost without it. In general, the possibility of injustice argues against penalization of  any kind only if the ex­pected usefulness of penalization is less important than the probable harm (particularly to innocents) and the probable inequities. The possibility of injustice argues against the death penalty only inasmuch as the added usefulness (deterrence) expected from irrevocability is thought less important than the added harm. (Were my argu­ment specifically concerned with justice, I could compare the injustice inflicted by the courts with the injustice-outside the courts-avoided by the judicial process. I.e., “important” here may be used to include everything to which importance is attached.) We must briefly examine now the general use and effectiveness of deterrence to decide whether the death penalty could add enough deterrence to be warranted. III. Does any punishment “deter others” at all? Doubts have been thrown on this effect because it is thought to depend on the incorrect rationalistic psychology of some of its 18th and 19th century proponents. Actually deterrence does not depend on rational calculation, on rationality or even on capacity for it; nor do arguments for it depend on rationalistic psychology. Deterrence depends on the likelihood and on the regularity-not on the rationality-of human responses to danger; and further on the possibility of reinforcing internal controls by vicarious external experiences. Responsiveness to danger is generally found in human behavior; the danger can, but need not, come from the law or from society; nor need it be explicitly verbalized. Unless intent on suicide, people do not jump from high mountain cliffs, however tempted to fly through the air; and they take precautions against falling. The mere risk of injury often restrains us from doing what is otherwise attractive; we refrain even when we have no direct ·experience, and usually without explicit computation of probabilities, let alone conscious weighing of expected pleasure against possible pain. One abstains from dangerous acts because-of vague, inchoate, habitual and above all, pre­-conscious fears. Risks and rewards are more often felt than calculated; one abstains without account­ ing to oneself, because “it isn’t done,” or because one literally does not conceive of the action one refrains from. Animals as well refrain from painful or injurious experiences presumably without calculation; and the threat of punishment can be used to regulate their conduct. Unlike natural dangers, legal threats are con­structed deliberately by legislators to restrain actions which may impair the social order. Thus legislation transforms social into individual dangers. Most people further transform external into internal danger: they acquire a sense of moral obligation, a conscience, which threatens them, should they do what is wrong. Arising originally from the external authority of rulers and rules, conscience is internalized and becomes independent of external forces. However, con­ science is constantly reinforced in those whom it controls by the coercive imposition of external authority on recalcitrants and on those who have not acquired it. Most people refrain from offenses because they feel an obligation to behave lawfully. But this obligation would scarcely be felt if those who do not feel or follow it were not to suffer punishment. Although the legislators may calculate their threats and the responses to be produced, the effectiveness of the threats neither requires nor depends on calculations by those responding. The predictor (or producer) of effects must calculate; those whose responses are predicted (or produced) need not. Hence, although legislation (and legis­lators) should be rational, subjects, to be deterred as intended, need not be: they need only be re­sponsive. Punishments deter those who have not violated the law for the same reasons-and in the same degrees (apart from internalization: moral obliga­tion) as do natural dangers. Often natural dangers — all dangers not deliberately created by legisla­tion (e.g., injury of the criminal inflicted by the crime victim) are insufficient. Thus, the fear of injury (natural danger) does not suffice to control city traffic; it must be reinforced by the legal punishment meted out to those who violate the rules. These punishments keep most . people observing the regulations. However, where (in the absence of natural danger) the threatened punish­ment is so light that the advantage of violating rules tends to exceed the disadvantage of being punished (divided by the risk), the rule is violated (i.e., parking fines are too light). In this case the feeling of obligation tends to vanish as well. Elsewhere punishment deters. To be sure, not everybody responds to threat­ened punishment. Non-responsive persons may be a) self-destructive orb) incapable of responding to threats, or even of grasping them. Increases in the size, or certainty, of penalties would not affect these two groups. A third group c) might respond to more certain or more severe penalties. If the punishment threatened for burglary, rob­bery, or rape were a $5 fine in North Carolina, and 5 years in prison in South Carolina, I have no doubt that the North Carolina treasury would be­ come quite opulent until vigilante justice would provide the deterrence not provided by law. Whether to increase penalties (or improve en­forcement), depends on the importance of the rule to society, the size and likely reaction of the group that did not respond before, and the ac­ceptance of the added punishment and enforce­ment required to deter it. Observation would have to locate the points — likely to differ in different times and places — at which diminishing, zero, and negative returns set in. There is no reason to believe that all present and future offenders belong to the a priori non-responsive groups, or that all penalties have reached the point of diminishing, let alone zero returns. IV. Even though its effectiveness seems obvious, punishment as a deterrent has fallen into disrepute. Some ideas which help explain this progressive heedlessness were uttered by Lester Pearson, then Prime Minister of Canada, when, in opposing the death penalty, he proposed that instead “the  state seek to eradicate the causes of crime-slums, ghettos and personality disorders.” “Slums, ghettos and personality disorders” have not been shown, singly or collectively, to be “the causes” of crime. The crime rate in the slums is indeed higher than elsewhere; but so is the death rate in Slums are no more “causes” of crime, than hospi­tals are of death; they are locations of crime, as hospitals are of death. Slums and hospitals attract people selectively; neither is the “cause” of the condition (disease in hospitals, poverty in slums) that leads to the selective attraction. As for poverty which draws people into slums, and, sometimes, into crime, any relative disad­vantage may lead to ambition, frustration, re­sentment and, if insufficiently restrained, to crime. Not all relative disadvantages can be eliminated; indeed very few can be, and their elimination increases the resentment generated by the re­maining ones; not even relative poverty can be removed altogether. (Absolute poverty-what­ ever that may be-hardly affects crime.) However, though contributory, relative disadvantages are not a necessary or sufficient cause of crime: most poor people do not commit crimes, and some rich people do. Hence, “eradication of poverty” would, at most, remove one (doubtful) cause of crime. In the United States, the decline of poverty has not been associated with a reduction of crime. Poverty measured in dollars of constant purchas­ing power, according to present government standards and statistics, was the condition of ½ of all our families in 1920; of ¼th in 1962; and of less than ¾ in 1966. In 1967, 5.3 million families out of 49.8 million were poor-½ of all families in the United States. If crime has been reduced in a similar manner, it is a well kept secret. Those who regard poverty as a cause of crime often draw a wrong inference from a true proposi­tion: the rich will not commit certain crimes­ Rockefeller never riots; nor does he steal. (He mugs, but only on T.V.) Yet while wealth may be the cause of not committing (certain) crimes, it does not follow that poverty (absence of wealth) is the cause of committing them. Water extin­guishes or prevents fire; but its absence is not the cause of fire. Thus, if poverty could be abolished, if everybody had all “necessities” (I don’t pretend to know what this would mean), crime would remain, for, in the words of Aristoteles “the greatest crimes are committed not for the sake of basic necessities but for the sake of superfluities.” Superfluities cannot be provided by the govern­ment; they would be what the government does not provide… Whether any activity, be it lawful or unlawful,­ takes place depends on whether the desire for it, or for whatever is to be secured by it, is stronger than the desire to avoid the costs involved. Ac­cordingly people work, attend college, commit crimes, go to the movies-or refrain from any of these activities. Attendance at a theatre may be high because the show is entertaining and because the price of admission is low. Obviously the at­tendance depends on both-on the combination of expected gratification and cost. The wish, motive or impulse for doing anything-the experienced, or expected, gratification-is the cause of doing it; the wish to avoid the cost is the cause of not doing it. One is no more and no less “cause” than the other. (Common speech supports this use of “cause” no less than logic: “Why did you go to Jamaica?” “Because it is such a beautiful place.” “Why didn’t you go to Jamacia?” “Because it is too expensive.”-“Why do you buy this?” “Be­ cause it is so cheap.” “Why don’t you buy that?” “Because it is too expensive.”) Penalties (costs) are causes of lawfulness, or (if too low or uncertain) of unlawfulness, of crime. People do commit crimes because, given their conditions, the desire for the satisfaction sought prevails. They refrain if the desire to avoid the cost prevails. Given the desire, low cost (penalty) causes the action, and high cost restraint. Given the cost, desire be­ comes the causal variable. Neither is intrinsically more causal than the other. The crime rate in­ creases if the cost is reduced or the desire raised. It can be decreased by raising the cost or by reduc­ing the desire. The cost of crime is more easily and swiftly changed than the conditions producing the in­clination to it. Further, the costs are very largely within the power of the government to change, whereas the conditions producing propensity to crime are often only indirectly affected by govern­ment action, and some are altogether beyond the control of the government. Our unilateral emphasis on these conditions and our undue neglect of costs may contribute to an unnecessarily high crime rate. V. The foregoing suggests the question posed by the death penalty: is the deterrence added (return) sufficiently above zero to warrant irrevocability (or other, less clear, disadvantages)? The question is not only whether the penalty deters, but whether it deters more than alternatives and whether the difference exceeds the cost of irrevocability. (I shall assume that the alternative is actual life imprisonment so as to exclude the complication produced by the release of the unrehabilitated.) In some fairly infrequent but important circum­stances the death penalty is the only possible deterrent. Thus, in case of acute cmps d,’etat, or of acute substantial attempts to overthrow the government, prospective rebels would altogether discount the threat of any prison sentence. They would not be deterred because they believe the swift victory of the revolution will invalidate a prison sentence and turn it into an advantage. Execution would be the only deterrent because, unlike prison sentences, it cannot be revoked by victorious rebels. The same reasoning applies to deterring spies or traitors in wartime. Finally, men who, by virtue of past acts, are already serving, or are threatened, by a life sentence, could be deterred from further offenses only by the threat of the death penalty. What about criminals who do not fall into any of these (often ignored) classes? Prof. Thorsten Sellin has made a careful study of the available statistics: he concluded that they do not yield evidence for the deterring effect of the death penalty. Somewhat surprisingly, Prof. Sellin seems to think that this lack of evidence for deterrence is evidence for the lack of deterrence. It is not. It means that deterrence has not been demonstrated statistically-not that non-deterrence has been… Homicide rates do not depend exclusively on penalties any more than do other crime rates. A number of conditions which influence the pro­pensity to crime, demographic, economic or generally social, changes or differences-even such matters as changes of the divorce laws or of the cotton price-may influence the homicide rate. Therefore variation or constancy cannot be at­tributed to variations or constancy of the penalties, unless we know that no other factor influencing the homicide rate has changed. Usually we don’t. To believe the death penalty deterrent does not require one to believe that the death penalty, or any other, is the only, or the decisive causal vari­able; this would be as absurd as the converse mis­ take that “social causes” are the only, or always the decisive factor. To favor capital punishment, the efficacy of neither variable need be denied. It is enough to affirm that the severity of the penalty may influence some potential criminals, and that the added severity of the death penalty adds to deterrence, or may do so. It is quite possible that such a deterrent effect may be offset (or intensified) by non-penal factors which affect propensity; its presence of absence therefore may be hard, and perhaps impossible to demonstrate… A constant homicide rate, despite abolition, may occur because of unaware­ ness and not because of lack of deterrence: people remain deterred for a lengthy interval by the severity of the penalty in the past, or by the severity of penalties used in similar circumstances nearby. I do not argue for a version of deterrence which would require me to believe that an individual shuns murder while in North Dakota, because of the death penalty, and merrily goes to it in South Dakota since it has been abolished there; or that he will start the murderous career from which he had hitherto refrained, after abolition. I hold th.at the generalized threat of the death penalty may be a deterrent, and the more so, the more generally applied. Deterrence will not cease in the particular areas of abolition or at the particular times of abolition. Rather, general deterrence will be some­ what weakened, through local (partial) abolition. Even such weakening will be hard to detect owing to changes in many offsetting, or reinforcing, factors. For all of these reasons, I doubt that the presence or absence of a deterrent effect of the death penalty is likely to be demonstrable by statistical means…there is no statistical proof for the deter­rent effect of the death penalty. But they do not show that there is no deterrent effect. Not to demonstrate presence of the effect is not the same as to demonstrate its absence; certainly not when there are plausible explanations for the non-demon­strability of the effect. It is on our uncertainty that the case for deter­rence must rest. VI. If we do not know whether the death penalty will deter others, we are confronted with two uncer­ tainties. If we impose the death penalty, and achieve no deterrent effect thereby, the life of a convicted murderer has been expended in vain (from a deterrent viewpoint). There is a net loss. If we impose the death sentence and thereby deter some future murderers, we spared the lives of some future victims (the prospective murderers gain too; they are spared punishment because they were deterred). In this case, the death penalty has led to a net gain, unless the life of a convicted murderer is valued more highly than that of the unknown victim, or victims (and the non-imprisonment of the deterred non-murderer). The calculation can be turned around, of course. The absence of the death penalty may harm no one and therefore produce a gain-the life of the convicted murderer. Or it may kill future victims of murderers who could have been deterred, and thus produce a loss-their life. To be sure, we must risk something certain-the death (or life) of the convicted man, for something uncertain-the death (or life) of the victims of murderers who may be deterred. This is in the nature of uncertainty-when we invest, or gamble, we risk the money we have for an uncertain gain. Many human actions, most commitments — includ­ing marriage and crime-share this characteristic with the deterrent purpose of any penalization, and with its rehabilitative purpose (and even with the protective). More proof is demanded for the deterrent effect of the death penalty than is demanded for the deterrent effect of other penalties. This is not justified by the absence of other utilitarian pur­poses such as protection and rehabilitation; they involve no less uncertainty than deterrence.  Irrevocability may support a demand for some reason to expect more deterrence than revocable penalties might produce, but not a demand for more proof of deterrence, as has been pointed out above. The reason for expecting more deterrence lies in the greater severity, the terrifying effect inherent in finality. Since it seems more important to spare victims than to spare murderers, the burden of proving that the greater severity in­herent in irrevocability adds nothing to deterrence lies on those who oppose capital punishment. Pro­ponents of the death penalty need show only that there is no more uncertainty about it than about greater severity in general. The demand that the death penalty be proved more deterrent than alternatives can not be satis­fied any more than the demand that six years in prison be proved to be more deterrent than three. But the uncertainty which confronts us favors the death penalty as long as by imposing it we might save future victims of murder. This effect is as plausible as the general idea that penalties have deterrent effects which increase with their severity. Though we have no proof of the positive deterrence of the penalty, we also have no proof of zero, or negative effectiveness. I believe we have no right to risk additional future victims of murder for the sake of sparing convicted murderers; on the con­trary, our moral obligation is to risk the possible ineffectiveness of executions. However rationalized, the opposite view appears to be motivated by the simple fact that executions are more subjected to social control than murder. However, this applies to all penalties and does not argue for the abolition of any. Notes on Van den Haag Van Den Haag Pro-Death Penalty VDH responds to 7 arguments against the DP (5 substantive, 2 moral)  Distribution: The death penalty is bad because it is unfairly distributed among people who are convicted of murder.  Response: Don’t conflate the morality of the death penalty with its unjust distribution among those who are guilty If CP is immoral, then how it’s distributed does nothing to change its morality.  Misdistribution is no more of a problem with CP than it is with any other punishment.  Misdistribution between the guilty is unjust, but in this case, the difference is among how we treat guilty people in different groups. Misdistribution among those who deserve the punishment is irrelevant. Equality is less important, morally, than justice Misdistribution actually favor African American murders over white murders, because the misdistribution Is explain by the race of the victim, and murders tend to kill people that are the same race as them. Miscarriages of Justice:  Innocent people have been executed in the past and it is likely to happen again.  Response: All human activities sometimes cost the lives of innocent bystanders, but we still do these activities. Driving. Kills more innocent people than CP does. Deterrence:  There’s no conclusive evidence that CP is a deterrent Response: Even if there is no evidence for deterrence, VDH would still argue the DP from the point of retribution. It doesn’t have to deter everyone in order to deter SOME one.  CP is worthwhile even if it just deters ONE person.  He feels that, because of its finality, the DP is a better deterrent than life in prison. It is not worth saving the lives of murders because their execution might not deter others.  Relative Suffering:  The person sentenced to death suffers more than the victim of murder suffered, and this excessive suffering is not justified.  Response: We can’t know how much the victim suffered. The victim didn’t deserve to suffer The goal of punishment isn’t to offset victim suffering, it’s to punish the criminal.  Encouraging Brutality:  By executing someone we are endorsing the very behaviour (killing) that we are punishing. Response: Punishment is meant to be bad. We don’t think that imprisonment endorses kidnapping, or that fines endorse robbery. The difference is that someone DESERVES to be imprisoned, they don’t deserve to be kidnapped.  Excessive Retribution:  No crime, ever, can justify the death penalty Response: article of faith, there’s no argument to contend with, so we don’t need to consider this objection. Morally Degrading:  it dehumanizes the criminal Response:  Appeals Kant and Hegel, humanity requires proportional punishment The criminal is degrading him/herself by committing the crime in the first place. Kant on Punishment Kant on Capital Punishment Judicial or juridical punishment (poenaforensis ) is to be distinguished from natural punishment (poena naturalis ), in which crime as vice punishes itself, and does not as such come within the cognizance of the legislator. Juridical punishment can never be administered merely as a means for promoting another good, either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. For one man ought never to be dealt with merely as a means subservient to the purpose of another, nor be mixed up with the subjects of real right. Against such treatment his inborn personality has a right to protect him, even although he may be condemned to lose his civil personality. He must first be found guilty and punishable, before there can be any thought of drawing from his punishment any benefit for himself or his fellow-citizens. The penal law is a categorical imperative; and woe to him who creeps through the serpent- windings of utilitarianism to discover some advantage that may discharge him from the justice of punishment, or even from the due measure of it, according to the pharisaic maxim: ‘It is better that one man should die than that the whole people should perish.’ For if justice and righteousness perish, human life would no longer have any value in the world.— What, then, is to be said of such a proposal as to keep a criminal alive who has been condemned to death, on his being given to understand that if he agreed to certain dangerous experiments being performed upon him, he would be allowed to survive if he came happily through them? It is argued that physicians might thus obtain new information that would be of value to the commonweal. But a court of justice would repudiate with scorn any proposal of this kind if made to it by the medical faculty; for justice would cease to be justice, if it were bartered away for any consideration whatever.   But what is the mode and measure of punishment which public justice takes as its principle and standard? It is just the principle of equality, by which the pointer of the scale of justice is made to incline no more to the one side than the other. It may be rendered by saying that the undeserved evil which any one commits on another, is to be regarded as perpetrated on himself. Hence it may be said: ‘If you slander another, you slander yourself; if you steal from another, you steal from yourself; if you strike another, you strike yourself; if you kill another, you kill yourself.’ This is the right of retaliation (Jus talionis ); and properly understood, it is the only principle which in regulating a public court, as  distinguished from mere private judgment, can definitely assign both the quality and the quantity of a just penalty. All other standards are wavering and uncertain; and on account of other considerations involved in them, they contain no principle conformable to the sentence of pure and strict justice. It may appear, however, that difference of social status would not admit the application of the principle of retaliation, which is that of ‘like with like.’ But although the application may not in all cases be possible according to the letter, yet as regards the effect it may always be attained in practice, by due regard being given to the disposition and sentiment of the parties in the higher social sphere. Thus a pecuniary penalty on account of a verbal injury, may have no direct proportion to the injustice of slander; for one who is wealthy may be able to indulge himself in this offence for his own gratification. Yet the attack committed on the honour of the party aggrieved may have its equivalent in the pain inflicted upon the pride of the aggressor, especially if he is condemned by the judgment of the court, not only to retract and apologize, but to submit to some meaner ordeal, as kissing the hand of the injured person. In like manner, if a man of the highest rank has violently assaulted an innocent citizen of the lower orders, he may be condemned not only to apologize but to undergo a solitary and painful imprisonment, whereby, in addition to the discomfort endured, the vanity of the offender would be painfully affected, and the very shame of his position would constitute an adequate retaliation after the principle of like with like. But how then would we render the statement: ‘If you steal from another, you steal from your- self? In this way, that whoever steals anything makes the property of all insecure; he therefore robs himself of all security in property, according to the right of retaliation. Such a one has nothing, and can acquire nothing, but he has the will to live; and this is only possible by others supporting him. But as the state should not do this gratuitously, he must for this purpose yield his powers to the state to be used in penal labour; and thus he falls for a time, or it may be for life, into a condition of slavery.— But whoever has committed murder, must die. There is, in this case, no juridical substitute or surrogate, that can be given or taken for the satisfaction of justice. There is no likeness or proportion between life, however painful, and death; and therefore there is no equality between the crime of murder and the retaliation of it but what is judicially accomplished by the execution of the criminal. His death, however, must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable. Even if a civil society resolved to dissolve itself with the consent of all its members—as might be supposed in the case of a people inhabiting an island resolving to separate and scatter themselves throughout the whole world—the last murderer lying in the prison ought to be executed before the resolution was carried out. This ought to be done in order that every one may realize the desert of his deeds, and that bloodguiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of justice. The equalization of punishment with crime, is therefore only possible by the cognition of the judge extending even to the penalty of death, according to the right of retaliation. Kant on Capital Punishment Notes Notes on Kant on Capital Punishment Kant: Two Fundamental moral principles that require equal punishment: proportionality (lex talionis) human dignity Remember the 2 formulations on the categorical imperative: 1st) act only on that maxim that you can will at the same time to become a universal law 2nd) treat humanity, yourself included, always as an end in itself, never merely as a means.   Proportionality Principle: The only way we can respect that dignity of the criminal is to give him or her a proportional punishment   Requirement of Punishment Treating the criminal with respect as an autonomous agent requires that we hold him or her accountable for his or her actions Holding him/her responsible requires seeing his or her actions as one that attempts to determine a universal law. 3) So in killing, the criminal essentially “asks” that we kill him or her return. 4) Therefore, no other punishment besides death is appropriate Treating the criminal as a center of dignity requires proportional punishment   Equality of All Persons “one man ought never to be dealt with merely as a means subservient to the purpose of another.” Justice requires equality (no one’s ends should count for any more than anyone else’s) Utilitarian plans of justice are immoral because they punish the criminal as a means The punished person must invite the punishment by wrongful behaviour “undeserved evil which anyone commits on another is to regarded as perpetrated on himself.”   Proportionality:  doesn’t require that we rape the rapist The ONLY purpose for punishment is “in order that everyone may realize the desert of his deeds”