Thank you for your message. I'm not sure exactly what you have in mind when you presuppose, in your first sentence, that "we" consider the death penalty immoral in the situation you describe. So far as I can tell, at least in the U.S., a good many people consider the death penalty in such a situation moral. But to continue the line of thought you begin, let's see whether it might be possible to make sense of those people who consider it immoral in that situation.

1. You're right that the sadist might get a lot of benefits at taxpayer expense. On the other hand, it's well known that at least given the current difficulty of prosecuting a death penalty case, and all the hurdles that must be got over after that, lifelong incarceration is actually less expensive than the death penalty. As a result, if your argument rests on the financial considerations, a life sentence is clearly the best option for such a person.

2. You ask whether reluctance to inflict the death penalty is out of fear, and that all moral argumentation is simply rationalization. Of course that's possible, but I have no idea how we would go about settling such a question short of subjecting each person offering this moral argumentation to rigorous psychotherapy. I think that unless you're able to provide evidence of which I'm not aware, you'd have to agree that there's no current way to know the answer to your question. Of course that means that we shouldn't accept any suggestion, whether you're making it or not, that moral argumentation really *is* motivated by fear. The same goes for your rhetorical question whether we are really just moral cowards. My answer would simply be: I don't know, do you?

3. One can be relieved that a dangerous and morally evil person has died, while still valuing his life. Consider another case: A very old and ailing relative might finally pass away, and all of those who were caring for her might find her passing a relief, both because it relieved her suffering and lessened their burden. But I think they would be offended, and rightly so, by someone suggesting that they didn't value her life. Of course they did; it is just that their valuing it didn't mean they wanted it to go on forever no matter its quality. So too, just because I might be relieved that the sadist is dead, doesn't mean that I don't value his life. More generally, many people will say that a person's life has value no matter how evil they are or have been. I'm not saying that those people are definitely correct, but when you describe the sadist's life as one "we obviously do not value at all," I would suggest that view is not obvious; many reasonable people will even deny it.

So I hope you'll consider whether the issues here might be more complex than your question suggests. I should stress that I would share all the repugnance and horror at the sadist that you do; as would most everyone else. I am only stressing, in my reply, that those who would refrain from inflicting the death penalty in such a case might have more to be said on their behalf than you perhaps envision.

Mitch Green

This kind of objection often comes up, but I think is based upon a misunderstanding of what it means to be a "peer" in the required (legal) sense. One is my "peer" if one is a fellow citizen with all associated rights and responsibilities. That person doesn't have to be my equal in strength, or intelligence, or at basketball--he or she simply has to be my equal as a citizen. If their vote counts as much as mine, they're my peer.

In his Republic, Plato said (with evident contempt) that democracy was something like government by "bald-headed tinkers." (I resemble that!) But at the heart of democratic theory is the idea that all people are "created equal," by which the theorist cannot sensibly mean "equal in all things." The point is that we are all, or at least should be all, regarded as politically and legally equal. Other political theories--including especially Plato's--obviously reject this idea. Plato especially thought that political decisions--just like all medical decisions--should be made only by those with appropriate expertise. It is a little difficult to identify just how we would identify this expertise, however, how we could produce it in a class of rulers (or judges), and how we could avoid corruption of such a system.

I'm with you. But for me, the concern is not so much men vs. women and their respective rights, but the nature of punishment and who really ought to become a parent. The crucial problem with this case is that the murderer in question is currently incarcerated. There are certain rights which prisoners maintain, despite their crimes. The right to medical care. The right to worship. The right to have access to legal counsel. The right to live in a place that is safe while incarcerated. Putting someone in a dank hole to rot isn't justice, no matter the crime committed. One of the many social purposes of incarceration is punishment.

Punishment ought to hurt, but not too much (see note on dark hole above). No doubt it is painful for prisoners not to be able to do things that free people otherwise enjoy. But this strikes us as the fair price paid for committing crimes. I think the human right to have a family is on shaky grounds, much more shaky than the right for prisoners to have health, spiritual, and legal care. One reason for this is our tradition of human rights long predates the required biotechnology. Locke and Hobbes just weren't worried about smuggling sperm out of jail. A better reason why we shouldn't think of prisoners as having a human right to have a family while incarcerated is the potential life at stake: the future child. Society should come to the point of admitting that ethically, not everyone ought to become a parent. Who would I ban from parenting? It would be a great list to debate. But people currently incarcerated sounds like a good place to start. It would be taking things too far to say that convicted murderers should never become parents. If someone earns parole, turns his life around, and becomes a model citizen then I think - as far as the law is concerned - a convicted murderer might have the same chance that anyone else has to parent. Of course, would I say the same thing if the person in question was a convicted child molester-murder? Probably not, but my concern again would be ethics and not the reach of the law.

I think it comes down to a question of guilt or innocence. A criminal has committed a major sin, and hence deserves a major punishment: an eye for an eye, a tooth for a tooth, and a life for a life. Even just an ordinary adult will have some track-record of sin behind them -- none of us are perfect. They might not quite be evil enough to deserve to be targetted directly, but nevertheless it wouldn't be such a terrible thing if they were to become the victims of collateral damage in war. But an unborn baby, having had no opportunity to sin, is completely and utterly innocent, an unblemished soul, and consequently of greater moral worth.

As far as I can discern, that's roughly the idea that those fundamentalists have. Speaking for myself, I regard this attitude as wholly abhorrent, both antithetical to the teachings of Jesus and morally repugnant in itself. But, hey, that's just my opinion, and what do I know?

I agree that standard utilitarians would find it hard to justify retribution as such, that is, without appeal to such further effects as you mention: deterrence and satisfaction to injured parties. But I do not agree that this leaves many punishments without a utilitarian justification. The problem you see is that "it is easy to conceive of scenarios in which punishment does not act (1) as a deterrent to crime or (2) to relieve the suffering of any injured parties."

In fact, I believe, this is not so easy. Let's start with (2). Suppose someone murders a man who was a bit of a loner and not much liked by the few people who knew him. He won't be missed. So it may seem that punishing the murderer won't give satisfaction to any injured parties because no one is really injured by the man's demise. But this overlooks that there are others who have lost a loved one to murder and others on whose life an attempt has been made. They, too, are injured parties -- not injured, to be sure, by the murderer of our man, but injured by others with murderous intent. And they are likely to get satisfaction from the fact that murderers get caught and punished appropriately. Or so the utilitarian might say in response to you.

Somewhat similar thoughts apply to your (1). Here you may have in mind, perhaps, very rare crimes that virtually no one has any inclination to commit. It may seem that punishing such a crime would not deter anyone. But now imagine that we accepted your argument and stopped punishing crimes that virtually no one has any inclination to commit. Then those who have such very rare inclinations would take notice and feel much freer to follow them. The utilitarian response then is that, by punishing a crime that virtually no one would want to commit we are deterring not merely crimes of this kind, but also all the many other kinds of crimes that almost no one has any inclination to commit.

Perhaps you had another thought in the deterrence case. Perhaps you thought of crimes whose incidence would not be affected by the prospect of punishment. The law does recognize such cases, and does in fact offer leniency when the accused is shown to have been temporarily insane, for example. Utilitarianism would endorse such leniency, but with caution: there is a genuine danger that such leniency can have deleterious effects on deterrence by encouraging prospective criminals to believe that, with some advance planning and a good lawyer, they'll probably be able later in court to create some reasonable doubt about their sanity at the time of their crime.

In conclusion, I do not think that there really are many scenarios of pure retribution where punishment neither strengthens deterrence of crime nor gives satisfaction to any injured parties. With respect to the problem you pose, utilitarianism can account pretty well for our punitive practices. Utilitarianism does poorly, I think, in accounting for the severity of the punishments we mete out. Utilitarians would impose severe punishments when the extra harm to the criminal brings a larger reduction in the harm done by crime. Utilitarians might then impose a very severe punishment for a very slight crime, so long as this punishment has a dramatic impact on the incidence of this crime. An extreme example: imposing the death penalty for not wearing seat belts might cause a good number of executions annually. But it would also terrify millions of current scofflaws into reliably wearing their seat belts, thus saving perhaps many more persons than get executed from dying in accidents. If this were so, utilitarians might approve the death penalty in this case, while it would strike the rest of us as insanely disproportionate.

My impulse is to say that we're mixing apples and eggnog. It's true that retribution is part of the way we think about punishment. But however we understand retribution, it's hard to see how the State's wrong against you would make it okay for you to rob me or beat me up. After all, even though I'm part of the body politic, qua private citizen, I don't represent the state. And in any case, robbery, embezzlement, assault and various sorts of mayhem are the kinds of things we should shy away from. Giving someone a free pass on future misdeeds because of past mistreatment by the State seems to miss that point.

If Mr. Tankleff is indeed found not guilty, then it's not unreasonable to think that he should receive some sort of compensation. But 17 years (or even 17 days) of punishment-free crime doesn't seem like the right way to go. Things being what they are (no time machines, no guaranteed life-extending potions...) monetary compensation sounds like a much better idea, even though it can't make up for 17 lost years.

The word "right" is generally used more broadly than this, so that rights may give way when a lot is at stake. Some philosophical literature may suggest otherwise -- people talk of rights as "side constraints" or "trumps" -- but when you look more closely, they too agree that most rights should be understood as giving way at some point (though for Nozick this point comes rather late: when there is the threat of "catastrophic moral horror").

How much needs to be at stake, and for whom, are matters that get built into the content of the right. Thus, in some jurisdictions property rights are quite strong (property can be expropriated only for an overwhelmingly important purpose) whereas in other jurisdictions property rights are much weaker. Even in the latter jurisdictions, the word "right" is not out of place, so long as an expropriation is based on more than just a showing that it would be better on the whole for this property right to be infringed. You do not have a property right in your car if you must compete on equal terms with others for its use (e.g., show that you need it today more than they do).

Most rights, both moral and legal, are then of this form: When you have a right to X, then no one is permitted to deprive you of X unless this is done for a purpose of such-and-such kind and importance, and unless compensation of such-and-such kind is offered.

Now let's apply all this to the right that interests you, the right not to be punished unless one is guilty. Here deliberate infringement is rarely at issue (though it may be for a judge who considers sending an innocent person to jail to scare off would-be law-breakers). Rather, the problem is probabilistic infringement, running a risk that we'll be infringing the right in question. A general prohibition on ever running any such risk would be very constraining -- you could never drive a car, for instance, because you're thereby subjecting others to a tiny risk of a right-infringing physical injury. Must we minimize the risk, by reducing the speed limit "as low as possible", for instance? I don't think so. But we must keep the probability below certain thresholds that are determined in part by the cost of lowering these thresholds even further.

In the punishment case, one cost is financial, the cost of sophisticated evidence collection, trials, and so on. But another very important cost is crime: As standards of evidence are raised, more guilty go free, possibly to commit another crime, and more people are insufficiently deterred from choosing a career in crime. Now in accordance with the above analysis, one enjoys a right not to be punished unless one is guilty only if one's interest in not being so punished is given greater weight than the interests of potential crime victims. This is suggested in the famous formulation by William Blackstone: “It is better that ten guilty persons escape than one innocent suffer.” Put more bluntly, it is better that ten innocent persons be victimized by criminals than that one innocent person be officially victimized by us. Now what the correct ratio is here, the ratio at which no strengthening of the protections of the accused are thought to be required by their right, this is a matter of dispute, and philosophy can hardly give a precise answer (such as "8.39:1"). What philosophers can say is that people enjoy something worthy of the name "right" only when this ratio is a good bit above 1:1. What empirical studies can add is that some groups in our society have not enjoyed even the right you speak of in even the weakest sense of the word. In many states, criminal justice has been practiced in ways that foreseeably led to huge numbers of African Americans being innocently convicted and very severely punished, and these wrongs could have been very largely avoided through reforms of these practices that would have had a negligible impact on crime rates or none at all.

A good question! As it turns out, not everyone agrees that the purpose of punishment is to reform people. In fact, some philosophers (Kant is perhaps the foremost) held that the only justification for punishment is that the person deserves it, and if we punish for the sake of making someone better, we fail to show proper respect for them -- we manipulate them for our own ends.

Setting the question of Hell aside for the moment, we can see that the argument you raise, if correct, would also count against capital punishment. But whatever one's views on the rightness of capital punishment, the widespread support it has in some places makes clear that many people see punishment as a matter of giving people what they deserve rather than reforming them. This idea, fleshed oout and elaborated, is often called the retributive theory of punishment, though it's important not to confuse retribution with revenge. Retributive theorists would maintain that the punishment must always be proportional to the crime, and so excessive punishment -- say, sentencing a petty thief to 20 years in prison -- would be wrong. Kant went further. He insisted that even in executing a murderer, we must respect his humanity. "His death... must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable," Kant wrote. Whether executing someone is really consistent with respecting his humanity is open to debate, but Kant insisted that justice demands that the murderer's punishment must fit his crime, and hence nothing short of execution will do. Whether we agree or not, what's clear is that the aim of the punishment here is not to make someone a "better person" but to serve a particular conception of justice.

But now we can return to your worry about hell, and what we see is that no matter what our view of punishment, it's hard to understand how anything a finite human being does could earn them a never-ending stay in Hell. In fact, many religious people agree. Not all believers think that everyone outside of those who confess the proper doctrine are destined for an eternity of torment. Those who do have a conception of punishment that reformers and retributivists alike are bound to find puzzling and repugnant.