Philosophy and Public Policy
256
Philosophy and Public Policy
256eBook
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Product Details
| ISBN-13: | 9781786605252 |
|---|---|
| Publisher: | Rowman & Littlefield Publishers, Inc. |
| Publication date: | 08/21/2018 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 256 |
| File size: | 864 KB |
| Age Range: | 18 Years |
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CHAPTER 1
Moral Reasoning and the Death Penalty
Claire Finkelstein
TWO ASPECTS OF FAIRNESS IN SENTENCING
For many years the U.S. Supreme Court struggled to reconcile two conflicting arguments in death penalty litigation, arguments that have generated two lines of cases that stand in sharp opposition to one another. The first line says that the assignment of the death penalty should not be arbitrary: which cases receive the death penalty and which do not should be predictable, fair, and consistent with substantive norms of justice. According to this way of thinking, the death penalty can be fairly imposed only when dictated by clear, well-publicized, and consistently administered rules. Among other things, the open-ended nature of the permissible jury discretion in some state schemes was found to invite racial discrimination to play a significant role in determining who from among the many death-eligible defendants actually receive the penalty of death.
As Justice Potter Stewart concluded in 1972 in the case of Furman v. Georgia, which struck down Georgia's unguided discretion statutes:
These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race. ... But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed. (Furman v. Georgia, 408 U.S. 238 [1972]) Furman established that the unguided discretion statutes of many American jurisdictions were constitutionally unacceptable, in view of the door they opened for racial discrimination. The result was the requirement that death penalty statutes enumerate a series of "aggravating" factors to be identified before the imposition of a death sentence in order to ensure consistency across cases and the exclusion of constitutionally impermissible factors such as race, and that the death penalty cannot be imposed without a jury finding at least one aggravating circumstance.
A second line of cases, however, says that the death penalty should not be imposed without considering the particular circumstances of the defendant, since these may warrant leniency in individual cases. Indeed, according to the famous case of Lockett v. Ohio:
[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. ... Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of that individual is far more important than in noncapital cases. (Lockett v. Ohio 1978, 602)
On this way of thinking, fairness in sentencing requires individualization, since there is no way to predict what will lead a jury to believe the defendant merits leniency, and the defendant is constitutionally entitled to benefit from the intuitive reactions of his or her peers. But this simultaneously requires that consideration of mitigating evidence should not be excessively rule-bound, and that it should be fluid, individualized, and subject to case-by-case analysis. The cases articulating concern with individualization maintain that because justice is so highly particularized, there can be no limitation on the factors that the defendant is entitled to insist the jury to consider by way of mitigation.
The obvious difficulty, one with which the Court has struggled for many years, is that these two concerns and their associated jurisprudence appear to dictate diametrically opposed approaches. The first line of thought suggests that the death penalty should be entirely rule-bound, with as little scope for discretion on the part of judge and jury as possible. The second line of thought suggests the opposite: treating all defendants whose crimes meet certain objectively definable criteria the same is a denial of justice, on this view, since this would not permit defendants to present reasons for mercy that apply specifically to their cases. The thinking is that if judges and juries hear the individual circumstances surrounding the crime as well as learn the particular features of the defendant that set him or her apart from others, they will often perceive grounds for mercy that could not play a role on a mandatory or more regimented scheme. While the debate has played out in a constitutional context in the United States, the same question poses itself as an abstract matter of justice for any system that assigns criminal penalties under the rule of law. Which form of moral reasoning is a better representation of our intuitions of justice?
Many believe that the death penalty cannot be made just under any circumstances or according to any statutory scheme. For the abolitionists, the tension between highly rule-governed schemes and individualized discretionary schemes may seem like empty rumination. They think the death penalty is morally unacceptable under any configuration, and for entirely different reasons. For non-abolitionists, however, the point is crucial: Can the demands of rule-governed consistency be reconciled with the demands of individual justice? How can we make criminal penalties generally, and the death penalty in particular, consistent in its administration, free from bias, and predictable in its application, at the same time that we adhere to the idea that justice is a highly individual matter? Whether or not one believes the death penalty incurably constitutionally and morally flawed, the challenge presented by the need to reconcile these two compelling lines of argument may tell us something important about the nature of moral reasoning in matters of desert and punishment. The hold that both have on our intuitions suggests that the requirements of individual justice may be fundamentally inconsistent: justice may require both rule-governed predictability, and particularistic reasoning tailored to each individual's situation. What ought we to conclude, then, if it turns out that the conflicting demands of individual justice simply cannot be reconciled?
In the wake of the Furman case, it looked as though the death penalty was over in the United States. The Supreme Court had finally clearly confronted the tension between these two lines of cases and concluded that both were required in order for the death penalty to pass constitutional muster. At the same time, however, it was clear that these two criteria could not be met at once. The inevitable conclusion, as expressed in Furman, was that the death penalty simply could not be made constitutional, and that it would likely have to be abandoned. Undeterred, however, former death penalty states scrambled to revise their statutes to find a way to thread the needle and meet Furman's requirements. Four years later, in Gregg v. Georgia (428 U.S. 153 [1976]), the Court upheld what is now known as "guided discretion" statutes: as long as the jury's discretion is guided under the statutory scheme by requiring it to find one or more "aggravating factors" from a list of possible factors, the death penalty can be consistently administered.
There is a coda to the story, however, that complicates the picture immensely. In a series of cases after Gregg, the Court also held that mitigating factors could not be limited. In other words, statutory schemes could not contain a finite list of mitigating factors, in the way that they typically do with aggravating factors. In the context of this requirement, the apparently irreconcilable demands of justice reappear, and threaten to undo the effectiveness of the Court's middle-of-the-road solution that balances the predictability of mandatory sentences against the critical importance of individualized evidence: Why treat aggravating and mitigating factors differently? Why should anything count as a mitigating factor while very few items can count as aggravating factors? Most importantly, does allowing anything at all to count as a mitigating factor reintroduce the arbitrariness that guided discretion statutes were designed to avoid?
In what follows, I shall suggest that there may be significant reasons for treating aggravating and mitigating factors differently, and for allowing broad latitude when it comes to the admissibility of mitigating factors. In drawing the distinction as it has over the years, the U.S. Supreme Court has identified something important in the way we think about individual justice and how it interacts with justice across persons. Yet from the standpoint of moral reasoning, this issue matter is more complicated than the Supreme Court precedent suggests. If we try to make sense of the Supreme Court's logic from the standpoint of moral psychology, it is not clear that we can make sense of a system of justice that functions in the way the Court has required from state death penalty schemes. If this turns out to be true, it is hard to see how we could maintain the "guided discretion" statutes as a requirement of criminal just, since the very concept would be flawed. Thus despite the fact that combining rule-bound reasoning about aggravating circumstances with discretionary reasoning about individual mitigating factors may be the best representation of retributive justice currently available to us, it would nevertheless be inadequate to justify the death penalty as a form of punishment.
ABSTRACT VERSUS PARTICULARISTIC MORAL REASONING
There is little agreement in the philosophical and psychological literature about the nature of moral reasoning. Two basic views on this question have persisted over time. The first treats moral reasoning as a method for applying quite general moral principles. On this view, morality consists in a set of highly general and abstract moral norms. Consider Kant's categorical imperative in its various formulations. Perhaps the most intuitive of the three formulations is the second, often translated as the command to "act that you use humanity, whether in your own person or in the person of another, always at the same time as an end, never merely as a means" (Kant 1999, 80). This is the well-known injunction to treat human beings as intrinsically valuable, and to reject a conception of value according to which human beings are of merely instrumental utility. Moral reasoning, on this view, consists in the application of principles of a highly general sort to specific situations. The challenge lies primarily in the application of the principle, namely in the need to determine which situations constitute violations of the categorical imperative in practice and which do not. Call this the "top down view" of moral reasoning.
The second type of reasoning, by contrast, could be described as "bottom up." It sees moral reasoning as involving a weighing of morally salient features, often in comparison with weighing similar features in situations calling for a comparable exercise of moral decision making. A person reasoning in this way might notice that there is a finite number of morally relevant aspects of a situation, and he or she might recall similar situations in which these same elements were present. The person might then implicitly assign weights to these different elements, and consider how the result in this case, based on such assignments, would compare to the results in similar cases. Moral reasoning on this view is particularistic and context-sensitive. It is also analogical, that is, based on drawing analogies between the current situation and other situations in which those features play a role.
One aspect of the Court's struggles in capital punishment cases has to do with the nature of individual reasoning about justice: Is moral reasoning about retributive desert fundamentally top down or bottom up? On the one hand, the list of aggravating factors the jury must consider is abstract and categorical: it asks the jury to identify whether the defendant's action was of a certain type, with the understanding that identifying an action as having certain abstract characteristics makes the defendant subject to greater punishment than he or she would be if his or her action did not belong to that type. Reasoning relating to aggravating factors is in short "categorical." The assumption behind the Court's approach to mitigation, on the other hand, is that factors that deservedly mitigate punishment cannot be reduced to general categories. To develop a list of mitigating circumstances, as we do with aggravation, would be overly restrictive if we are trying to capture our ordinary thinking about exoneration, as it would deprive the defendant of the possibility that members of the jury would see him or her in a better light because of some unusual or idiosyncratic feature of his or her experience or behavior that they believe would speak in favor of leniency. Moreover, what counts in mitigation will arguably be highly context-sensitive. Consider evidence that suggests that the defendant came from an abusive home with little parental support or supervision, and that as a result he or she fell into a crowd of individuals who exerted a negative influence over him or her. Is this mitigating information? Often we are inclined to think it is, but there might be cases where it cements our view negatively, given that it confirms our view that he or she does not see the world as we do, even if it explains where his or her outlook originated. Moreover, factors that mitigate our view of a defendant's culpability or desert for punishment may have a different impact in different circumstances. The same factor could speak in favor of mitigation in one context but confirm our punitive intuitions in another. We would obscure important nuances were we to take the categorical approach to mitigation we take with aggravation.
A point of methodology is in order. I may seem to be mixing apples and oranges in comparing the structure of the guided discretion format the Supreme Court has endorsed to the debate about whether moral reasoning in the context of retributive justice is categorical or particularistic, top down or bottom up. The constitutional debate is about whether juries should have bounded or unfettered discretion in identifying morally relevant factors for sentencing purposes. The more discretion juries possess, the more likely it is that "morally irrelevant" factors will affect a jury's decision making. Thus in a society beset by racial discrimination, racism is more apt to inform jury deliberations if discretion is allowed to operate than where discretion is narrowed by a compulsory statutory scheme. In the context of the U.S. Constitution's Fifth and Fourteenth Amendments' due process and equal protection jurisprudence, a substantial risk of racial bias impacting the jury's verdict is legally unacceptable. This appears to be a straightforward matter of constitutional interpretation, and may have little, if anything, to do with the intrinsic nature of moral reasoning.
On the other hand, the debate about abstract versus particularistic reasoning about justice is a moral, as well as a psychological, one. It asks whether our intuitions about retributive justice are better explained as a matter of abstract reasoning from general rules to particular situations to which they apply, or as a matter of highly particularistic intuitions about moral desert that cannot be captured in a set of rules or generalized beyond the particular judgments in specific cases. At best we can analogize from one situation to another, but reasoning from analogy cannot be captured in a set of abstract rules. Does the topic of the constitutional requirements concerning the machinery of criminal justice have anything to do with the moral topic of how people reason about retributive justice?
(Continues…)
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