A.

AMOUNT OF PUNISHMENTI
The belief that, in most cases, the amount of punishment should vary directly with the
seriousness of the offense is widely accepted. However, utilitarians and retributivists have
different ways of arriving at this general conclusion.

1. UTILITARIANS ON AMOUNT
Bentham, a utilitarian, states that, “The greater the mischief of the offence, the greater is the
expense, which it may be worthwhile to be at, in the way of punishment”. Crime and
punishment both tend to cause unhappiness. Recall that utilitarianism is solely concerned
with the balance of happiness over unhappiness produced by an action. When attempting to
determine the amount of punishment that ought to be permitted for a given offense, it is
necessary to weigh the unhappiness that would be caused by the offense against the
unhappiness caused by various punishments. The greater the unhappiness caused by a given
offense, the greater the amount of punishment that may be inflicted for that offense in order
to reduce its occurrence before the unhappiness caused by the punishment outweighs the
unhappiness caused by the offense.

So, utilitarians would often be committed to abiding by the rule that the amount of
punishment should vary directly with the seriousness of the offense. However, it seems that
there are cases in which they would be committed to violating this rule. Critics argue that
utilitarians would sometimes be committed to inflicting a severe punishment for a relatively
minor offense. Ten asks us to imagine a society in which there are many petty thefts and
thieves are very difficult to catch. Since there are many thefts, the total amount of
unhappiness caused by them is great. Imagine that one thief is caught and the authorities are
deciding how severely to punish him. If these authorities were utilitarians, they would be
committed to giving him a very severe sentence, 10 years perhaps, if this were the only way
to deter a significant number of petty thieves. But surely making an example of the one thief
who was unlucky or unskilled enough to be caught is unjust. Since utilitarians are sometimes
committed to inflicting such harsh punishments for relatively minor offenses, their approach
must be inadequate.

2. RETRIBUTIVISTS ON AMOUNT
Retributivists argue that more serious offenses should be punished more severely because
offenders who commit more serious crimes deserve harsher punishment than those who
commit less serious crimes. Given our previous discussion of retributivism, it should not
come as a surprise that the concept of desert plays a central role here. According to many
classic versions of retributivism, including Kant’s, the deserved punishment is determined by
invoking the lextalionis. The old adage, “An eye for an eye, a tooth for a tooth,” is derived
from the lextalionis, which “requires imposing a harm on a criminal identical to the one he
imposed on his victim”.

Those who argue that murderers ought to be put to death have often invoked this principle,
but it is rarely invoked when attempting to determine the proper punishment for other crimes.
Its lack of popularity can be explained by noting a couple of objections. First, it is difficult to
apply to many offenses, and it seems to be outright inapplicable to some. How should we
punish the counterfeiter, the hijacker, or the childless kidnapper? Applying the lextalionis to
these crimes is, at the very least, problematic. Second, there are many cases in which it would
require that we punish offenders by performing actions that ought not to be carried out by any
government. Surely we should not rape rapists! For these and other reasons, except when the
topic at hand is capital punishment, appeals to the lextalionis in the contemporary literature
are rare.

Many contemporary retributivists hold that the principle of proportionality should be used in
order to determine the amount of punishment to be meted out in particular cases. This
principle states that, “the amount of punishment should be proportionate to the moral
seriousness or moral gravity of offenses.” Different versions of the proportionality principle
call for different ways of establishing how severe a punishment must be in order to meet the
demands set by the principle. Must it merely be the case that there be a direct relationship
between the amount of punishment and the seriousness of the offense, or must offenders
suffer the same amount as their victim(s) in order for the demands of the principle to be met?
Retributivists are not in complete agreement on how to answer this question.

While retributivists seem to have an easier time ensuring that there be a direct relationship
between the amount of punishment and the seriousness of the offense, their position is subject
to criticism. Because they are committed to inflicting the deserved punishment, they must do
so even when a lesser punishment would produce the same social effects. Clearly, this
criticism runs parallel to the objection to retributivism discussed earlier.
if the retributivist is committed to inflicting the deserved punishment regardless of the social
effects, then it seems that he is committed to inflicting gratuitous pain on an offender. Of
course, some resist the idea that inflicting suffering in such a case would be gratuitous, which
is why this debate continues. In any case, the perceived shortcomings of both the utilitarian
and retributive approaches have led theorists to attempt to develop approaches that combine
elements of both. For reasons similar to those cited in support of the aforementioned
“compromise” theories, it seems that these approaches are the most promising.

B. PHILOSOPHICAL JUSTIFICATIONII

There are two aspects tothe question “Should the state have a death penalty?” The first
is ethical: "Is it moral to execute guilty criminals?" The second is epistemological: "What
should be the burden of proof for capital cases?" In order to support the Death Penalty, it
must be moral to execute criminals and the burden of proof must specified and always met.

1. MORALITY OF EXECUTIONS

Once a man has initiated force against an innocent person, he has in effect declared that he
does not live by the principle of individual rights. He does not wish to live among men as a
rational being, but as a predator, to the detriment and destruction of all those around. Rights
stem from man's nature as a rational being, and a man living irrationally has no rights. It is
not only prudent for a society to destroy such a harmful animal, but it is an act of justice:
treating a person according to how they act..

There is a concept in justice called proportionality which states basically that the reaction

should fit the action, (the punishment should fit the crime or the reward should fit the act.)
The justification for proportionality is outside the scope of this article, but it's worth noting
that without proportionality, death would be an appropriate punishment for all who initiate
force. Taking proportionality into account, the premeditated murder of an innocent by a
criminal justly deserves the premeditated execution by the state of that criminal. A lack
justice would encourage citizens to take justice into their own hands.

2. NECESSARY BURDEN OF PROOF - THE EPISTEMOLOGICAL ARGUMENT

The above moral justification for the death penalty in certain situations assumes
absolutecertainty regarding the facts. The problem is that in real-life, despite overwhelming
evidence, juries sometimes make mistakes. The punishment of a criminal is prudence, but the
punishment of an innocent is a tragedy. How much are we willing to risk the life of an
innocent for the punishment of a criminal? If an innocent man is unjustly imprisoned, he can
be set free later when new evidence is discovered, but there is no recovering from an
incorrect execution.

3. CONFLICTING PERSPECTIVES

It is tempting to side with either the moral argument, or the epistemological argument. Both
have an appeal. It is right to punish criminals, and in some cases the death penalty is
appropriate. If the court system isn't capable of doing this, people will take the burden on
themselves. They will make sure justice is dealt. This undermines the objective nature of the
courts. On the other hand, to kill even a single innocent man is reprehensible. Most people try
to pick one argument, while neglecting the other.

This is untenable, though, and will lead to unintended consequences. If there is no death
penalty via the courts, people will take justice into their own hands. This has the disadvantage
of eliminating an objective standard of proof. The likely result will be that more innocent
people will die than if there was confidence in the courts.On the other hand, if there is a death
penalty, and people believe it is being used too loosely, they will avoid convicting people, or
they will obstruct justice.

The courts will seem to be an arbitrary threat, and the people will fight against them in
several ways. Already we see calls for jury nullification in certain cases believed to have a
racial bias. This would have still further consequences, though. As people begin to
understand that certain criminals will be released due to their race, they will be less likely to
trust the courts, having similar problems as officially rejecting the death penalty.
i
Id.
ii
Nietzsche, Friedrich, 1887, On the Genealogy of Morals, tr. Walter Kaufmann, New York: Vintage, 1969