What is the difference between corporal punishment and capital punishment

8CHAPTER Punishment and Corrections What Should Be Done with Offenders?

learning objectives: � To understand the

distinctions among the four purposes of criminal sanctions: retribution, incapacitation, deterrence, and rehabilitation.

� To recognize the issue of disparity in sentencing, how sentencing guidelines were designed to reduce disparity, and the ethical issues involved.

� To assess the issue of correctional ethics and the situations in which ethical decisions become crucial in correctional settings.

� To understand how corporal punishment and innovative sentences can be evaluated from an ethical perspective.

� To distinguish the issue of punishment under the Eighth Amendment, and how capital punishment and life in prison can be evaluated using ethical principles.

His lack of education is more than compensated for by his keenly developed moral bankruptcy.

—Woody Allen (b. 1935)

104

THE ETHICS OF PUNISHMENT

In South Carolina, a young mother, Susan Smith, killed her two children by leaving them in a car she rolled into a lake. Smith could have been convicted of involuntary manslaughter or murder and received a death sentence, or she could have been found guilty but mentally ill. At trial, the defense pointed out that she came from a troubled background. Her parents had divorced and her father had committed suicide when she was 6. She had been molested by her stepfather at age 15 and later, even after she was married. Her mother covered up the molestation. After her divorce, her new boyfriend rejected Smith because she had

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two children. She had a long history of depression. The defense also noted that she had confessed to her crime and showed deep remorse.1

Which of these factors should be considered in deciding on a sentence? And how should an appropriate sentence be determined? In the actual case, Smith was convicted of murder and sentenced to 30 years in prison. It is easy to see that other sentencing choices were available to the judge, and that other sentences could have been imposed and defended rationally. This case illustrates why it is important to understand the underlying rationale or philosophy of sentencing.

When an offender violates the law, society attempts to accomplish some combination of retribution, incapacitation, deterrence, or rehabilitation.

• Retribution is punishment and is applied simply in proportion to the seriousness of the offense. The “eye for an eye” system of justice described in the Old Testament is an early form of retribution.2 According to this concept, the more serious the crime, the more serious the punishment should be.

• Incapacitation aims to prevent further criminal behavior by physically restraining the offender from engaging in future misconduct. The primary method of incapacitation in the United States is incarceration, although other methods also are used, such as suspending a driver’s license or license to practice law in cases of crimes committed by drivers or lawyers.

• Deterrence aims to prevent crime through the example of offenders being punished. General deterrence is directed at preventing crime among the general population, whereas special (or “specific”) deterrence is aimed at preventing future crimes by the offender.

• Rehabilitation or “reformation” sees criminal behavior as a consequence of social or psychological shortcomings. The purpose of the sentence is to correct or treat these shortcomings in order to prevent future crimes.

A utilitarian rationale would clearly support sentences justified by deterrence, incapacitation, and rehabilitation if it was determined that they would benefit society in ways that would override (produce more total happiness) the harm to the offender. Formalism would support retribution only because it justifies punishment solely for the offender’s past conduct. Each of the other justi- fications aims to prevent future crimes, using punishment as a means to another end. Formalism believes using current offenders in this way is unethical. Virtue ethics supports punishment that is designed to achieve civil peace and does not deprive one of liberty unjustly (seeking real goods via moral virtues). Rehabilitation that seeks to instill moral virtue in offenders would be especially appealing for virtue ethics. Retribution and incapacitation would be less appealing because they do nothing to improve the offender’s ability to act morally. Which of these rationales (i.e., retribu- tion, incapacitation, deterrence, and rehabilitation) do you think was used by the judge in the case of Susan Smith?

In a 2003 case, Overton v. Buzzetta, the U.S. Supreme Court held that regulations limiting visitors to prisoners did not violate the Eighth Amendment because “the regulations bear a rational relation to legitimate penological interests” relating to internal prison security. Restrictions on visits by minor children, adult children, and former prisoners, as well as elimination of most visits to inmates who commit two substance abuse violations, were, therefore, upheld because they had a “valid, rational connection” to a legitimate governmental interest in operating the prison securely.3 If you were a prison warden, or policy maker, how would you balance the competing interests of operating a secure prison (ensuring retribution and incapacita- tion) with your interest in inmates maintaining close ties with their families and the community (which experience shows reduce the likelihood of recidivism—improving the likelihood of reha- bilitation and deterrence)? Which ethical principles would you rely on in resolving this dilemma?

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In moral terms, the ethics of punishment lie primarily in whether justice is done. As Aristotle said, justice consists of giving a person no more or less than he or she is due. It is difficult to determine the justice of punishment in the abstract because each offender and offense involves different motivations and circumstances. Determining the appropriate severity of punishment is a difficult task. In the case of Susan Smith, could a judge reasonably have found that she was emotionally unstable and sentence her to a prison term as punishment and then required her to undergo rehabilitation to correct her mental condition? Is it likely that deterrence or incapacitation is a significant issue in her case? Formalism would argue for punishment based solely on the severity of the offense (retribution), but if she was mentally unstable or otherwise impaired, she would not meet the “reasonable person” standard and not be blameworthy. Virtue ethics would seek justice (a moral virtue) giving her no more or less than she is due, so her background and circumstances would be relevant, especially if there was likelihood that she could become, or be restored to, a morally virtuous person. Utilitarianism would weigh the total good produced by a severe retributive sentence, a less severe punishment, or a punishment focused more on her rehabilitation. All relevant considerations, especially general deterrence and the likelihood of reoffending, would be important to weigh.

THE PROBLEMS OF SENTENCING

The lack of empirical evidence to support the four basic purposes of sentencing has contributed to concern about disparity in sentences. Disparity occurs when offenders with similar histories commit similar crimes but receive widely different sentences. Disparity must be expected, of course, when there is little agreement regarding what a sentence should accomplish. A result of disparity has been a trend toward mandatory and fixed sentences. This move toward uniformity in sentencing can be attributed to the widespread adoption of retribution and incapacitation as guiding sentencing philosophies in most jurisdictions.

Sentencing guidelines attempt to reduce disparity in sentencing by recommending a “guideline sentence” based on the seriousness of the crime and the offender’s prior record. The guidelines are developed by examining averages of past sentences imposed on various com- binations of offenders and offenses. Guideline sentences achieve the goals of proportionality and uniformity without mandating specific sentences for certain crimes or offenders. The U.S. Supreme Court ruled in 2005 that federal sentencing guidelines are not binding on judges but only advisory.4 Judges usually deviate from the guideline sentence, however, only if they provide written reasons for doing so. For example, if a sentence of 5–7 years is typical for past robbery offenders, judges may sentence outside this range only if they state their reasons for doing so. These reasons might include a particularly serious prior record or severe injury to a victim.

Sentencing guidelines make possible more accurate predictions of prison populations, and prison populations can be controlled by modifying the guidelines.5 It can be argued, however, that the size of prison populations should not be a factor in sentencing guidelines because it is unrelated to a particular crime in question. Prison populations are a utilitarian concern, having nothing to do with what the offender deserves, which is a fundamental consideration of both formalism and virtue ethics. Nevertheless, the public’s fear of crime and willingness to support longer prison sentences has resulted in high prison expenses and new construction when, at the same time, there is pressure to reduce government spending (utilitarian concerns). Sentencing guidelines may help to limit the use of incarceration so that available prison capacity is restricted to serious offenders and habitual offenders, rather than being used for nonserious offenses (concerns central to formalism and virtue ethics).6

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Consider the case of Bernard Madoff who at age 71 was sentenced to 150 years in prison for fraud—a Ponzi scheme where he had individuals and institutions allow him to invest their money for a high interest return, while Madoff simply kept the money for himself, keeping the scheme alive only by continually adding more new investors. His scam went on for many years, resulting in losses estimated at $13 billion. The judge defended the very long prison sentence on grounds of the scheme’s many victims, its size, and also deterrence, arguing “the symbolism is important here because the strongest possible message must be sent to those who would engage in similar conduct . . . that they will be punished to the fullest extent of the law.” On the other hand, Madoff’s defense attorney called the long prison sentence “absurd” because “there’s noth- ing in the sentencing guidelines that talks about making symbols of people.”8 This disagreement over both the nature and purpose of the sentence reflects differences in ethical reasoning (sum- marized in Table 8.1). Whereas formalism looks at past conduct and punishes solely on the seriousness of the crime committed, utilitarianism looks to the future in punishing for purposes of deterrence. Virtue ethics justifies punishment only when specific real goods (such as civil peace) are achieve in a way consistent with the moral virtues.

CORRECTIONAL ETHICS

Once convicted and sentenced, there are a range of ethical issues that arise regarding the state’s obligation to supervise the offender until his or her release from custody or supervision. These issues center on the proper treatment of the offender and the ethical obligations of those entrusted with their supervision.

TABLE 8.1 Ethical Issues in Corrections

Ethical Issues in Corrections Types of Unethical Conduct

Preferential or selective treatment

• Undeserved favors (smuggling, transfers) • Selective punishment or harsh treatment (unwarranted use of force, verbal abuse)

Misuse of authority • Exploitation of offenders under supervision (sex, extortion) • Concealment of rule violations (failure to act upon known violations among

offenders or between offenders, visitors, or supervisors)

ETHICS CHECKUP Punishment by Electric Shock

It has been argued that an alternative punishment is needed that is “properly painful,” proportional to the offense, humane, and less expensive than incarceration. Such a punishment would be used to sentence those offenders who fall between minor criminals and those who are violent. “Corporal punishment which applies a nonlasting intense pain, such as electric shock, can do the job. It can be over

in seconds, not years” [like prison], and it would not have “the severe long term effects of prison.” It punishes the offender, and only the offender, for the offense. “Prison in contrast punishes innocent people, such as the offender’s family by depriving it of support.”7

Applying ethical principles, what is the moral permissibility of punishment by electric shock?

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Preferential or selective treatment of offenders and misuse of one’s official position are the two largest categories of ethical difficulty. Preferential or selective treatment of offenders includes provision of undeserved favors or selective punishment or harsh treatment. Undeserved favors most often include smuggling of contraband, such as cigarettes, cash, or drugs in exchange for money or favors the offender can provide. Selective punishments and harsh treatments involve the unwarranted use of physical force or verbal abuse to control an offender, assert one’s authority, or obtain an advantage to be used against the offender.

Misuse of authority include exploitation of offenders under supervision or concealment of rules violations. Exploitation of offenders most often involves sex or extortion. The sex can be for purposes of control or gratification, and the extortion involves threat of physical or reputational harm in the future in exchange for money. Another kind of misuse of authority is concealment of known rule violations between offenders or between offenders and visitors or other supervisors. Known sexual relationships, extortion, or abuses that are not reported are examples. These types of unethical conduct in corrections are summarized in Table 8.1.

It is clear that each type of ethical misconduct in corrections can occur in prisons or jails or to probationers or paroles. Those in prison or jail have their liberty revoked, so they are more subject to abuse given their captivity, but those on probation or parole have more access to others in the community, making them greater targets for extortion. The correctional misconduct described here cannot be justified under any ethical perspective, and laws and court decisions have been developed over the years to circumscribe the legal rights of offend- ers. Nevertheless, interactions between corrections personnel and offenders are of low visibil- ity, less visible than police–public interactions. As a result, there must be an even greater reliance on ethical conduct, because there are fewer empowered witnesses to these interac- tions, making discovery less likely.

The American Correctional Association has a code of ethics (see Appendix D). It consists of seventeen principles, which, if followed by all correctional personnel, would result in univer- sal ethical conduct on the job. In fact, every legal or ethical violation that occurs in corrections violates one or more of these principles, because they address the ethical issues described in Table 8.1. Whether the issue is unwarranted use of force, prison rape, extortion of inmates, or concealment of rule violations, the conduct is unethical under all three ethical perspectives. Virtue ethics requires the pursuit of real goods via the moral virtues, formalism requires pursuit of conduct consistent with the categorical and practice imperatives, and utilitarianism requires conduct that results in the greatest total happiness objectively considered. It is difficult to imagine a circumstance in which correctional misconduct can be justified in ethical terms. Nevertheless, there are unusual pressures in corrections that can contribute to a climate that fosters unethical conduct. These influences can include unqualified supervisory personnel, persistent deviant subcultures of staff or offenders, and failure of authorities to act on past reports or complaints.9 A system of accountability that is not working properly directly pro- motes unethical conduct through its failure to hold individuals responsible for their actions as either offenders or staff.

With regard to offender treatment, there is some evidence that programs that endeavor to change the moral thinking of offenders has some impact on their subsequent conduct and reduces recidivism (compared to other offenders).10 These cognitive-behavioral programs employ techniques such as Moral Reconation Therapy or attempt to move clients from selfish, hedonistic conduct to higher levels of thinking involving concern for others and longer-term outcomes. There is some evidence, therefore, that improvements in ethical

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thinking by offenders can lead to lower recidivism. This is likely due to increased apprecia- tion for the wrongfulness of illegal conduct and the impact of that conduct on others, which ethical thinking promotes.

CORPORAL PUNISHMENT

An Ohio teenager, Michael Fay, committed acts of vandalism while visiting Singapore. Along with some friends, he spray painted and threw eggs and bricks at eighteen cars over a 10-day period. Singapore police also found stolen flags and signs in Fay’s Singapore apartment. Fay was sentenced to 4 months in prison, a $2,320 fine, and six lashes with a wet rattan cane. This kind of caning, administered by an expert in martial arts, breaks the skin and leaves permanent scars on the buttocks.11 The sentence caused an uproar in the United States, with some people defending it and others vehemently opposing it.

Corporal punishment is physical punishment short of the death penalty. It has often been associated with torture and mutilation, and most forms of corporal punishment are illegal in the United States under the Eighth Amendment’s prohibition against cruel and unusual punishment. During the 1990s, however, legislation was introduced in Texas that would result in a finger being amputated for each conviction of a drug dealer.12 This bill was an effort to imitate the penalty for theft in some Islamic countries, which is amputation of the offender’s right hand.13

Although such a penalty would seem to constitute a violation of the Eighth Amendment, it is up to the courts to decide whether it is within the “limits of civilized standards” or “totally without penological justification.”14 Do statements such as these make implied assumptions about ethical standards?

The U.S. State Department protested Michael Fay’s punishment in Singapore, claiming that it was too severe. President Clinton called the punishment extreme and asked that it be reconsidered. This reaction is interesting in view of the long history of whipping as a form of punishment in the United States and elsewhere. Whipping was used as a form of punishment as far back as ancient Egypt, where Hebrew slaves were whipped by their Egyptian masters if they failed to produce enough bricks.15 The Romans, and later the English, used whipping to punish slaves and vagrants. During the early 1800s, England prohibited the whipping of women, but it was not until 1948 that whipping was abolished altogether as a form of punishment.16 Whipping was employed more often in the American colonies than it was in England. Lying, swearing, failure to attend church services, stealing, selling rum to Indians, adultery (for women), and drunkenness were among the offenses for which people could be whipped. After the American Revolution, incarceration came into use as an alternative to whipping. By 1900, all states except Maryland and Delaware had abolished whipping. The last known “floggings” occurred around 1950 in those two states, and the Delaware law was not repealed until 1972.17

Despite the U.S. protests of the caning in Singapore, the penalty is still used in many countries. A bill to permit whipping of drug dealers was introduced in the Delaware legisla- ture in 1990 but was not passed. Similar legislation was introduced in California and St. Louis to punish vandals.18 Amnesty International has reported that whipping is legal in at least thirteen countries, including countries in the Middle East, Africa, the Caribbean, and the Far East.19

Singapore responded to criticism of its use of corporal punishment by stating that “it is because of our tough laws against anti-social crime . . . that we do not have a situation like, say New York, where even police cars are not spared by vandals.”20 This leads to the question of

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whether whipping is effective as a deterrent to crime. An evaluation of the impact of whipping on subsequent criminal behavior of offenders in the United States found that 62 percent of offenders who were whipped were later convicted of another offense. Further, 65 percent of those who were whipped twice were convicted a third time.21 Despite its failure as a deterrent, whipping and other forms of corporal punishment, such as paddling of schoolchildren, continue to attract attention from the public and some policy makers.22 There are two reasons for this: Corporal punishment more directly imitates the pain suffered by the victim, and it is of short duration and, therefore, much less expensive to administer than traditional incarceration. The line must be carefully drawn between sanctions that attempt to be more authentic in relation to the crime committed and those that are simply cruel or vindictive.

Try to evaluate whipping or caning of offenders on ethical grounds. Singapore’s claim of low crime suggests that caning might be an effective deterrent. Which ethical perspective would see this as an important consideration? Why did Emmanuel Kant believe deterrence of others in the future was a violation of the practical imperative? Is it a good universal rule that those who commit certain crimes be caned? Finally, are there any grounds on which virtue ethics might find caning of an offender ethical?

INNOVATIVE PENALTIES

Darlene Johnson, a mother of four children and pregnant with a fifth, was convicted of three counts of child abuse. The judge sentenced her to a year in jail, to be followed by implantation of a birth con- trol device that would prevent her from conceiving any more children. According to the judge, “It is not safe for her to have children.”23 Is such a sentence cruel and unusual, or is it appropriate and just?

The contraceptive Norplant was approved by the U.S. Food and Drug Administration in 1990 for public use. Norplant prevents conception when six small rods containing hormones are placed under the skin in a woman’s arm. The rods can be implanted for up to 5 years.24 The question for criminal justice is whether such a device can or should be used for sentencing in cases involving mistreatment of children. Norplant may prevent abuse of new victims, but it does not address the current or future harm done to present victims. Those who advocate use of Norplant believe it forces the offender to suffer the consequences of misconduct in the parental role and prevents the offender from continuing in that role in the future. Once again, however, existing victims are not protected, only future victims.

Norplant was made available in school clinics in Baltimore in response to the city’s high teenage pregnancy rate. A similar program was initiated in Washington, D.C., where teenage mothers accounted for 18 percent of all births.25 This use of Norplant outside the criminal justice system points to growing acceptance of this form of contraception, although the coercion inherent in criminal sen- tencing poses important legal and social issues. Is forced birth control a weak technological attempt to solve a problem that is educational, social, and cultural in nature? Does the use of Norplant discrimi- nate against women inasmuch as it holds them entirely responsible for parenting and abuse, even though males also play significant roles in this process? Is it used in discriminatory fashion against minorities and the poor? Can the use of Norplant be extended beyond the length of a normal jail or probation sentence? These questions have yet to be addressed by the criminal justice system as it looks for sentences that more directly mirror the nature of the harm inflicted by offenders.

What is the moral permissibility of using Norplant applying the three major ethical perspectives? Does it contribute more to the greater total happiness than other penalties? Is it a good universal rule for use in cases of maltreatment of children? Does it do justice without being excessive? These are the questions that ethics would ask, and thoughtful answers to them show

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TABLE 8.2 Major Ethical Perspectives and Punishment

Ethical Perspective Founder

How Should a Person Act? Limitations

Why Punish Wrongdoers?

Virtue Aristotle Moral virtue is the habit of right desire—wanting what is really good for you and nothing else. We are obliged to seek real goods common to all humans guided by the moral virtues.

Focuses on being a good person versus good acts. Moral behavior depends more on one’s motivation than on the act committed.

Purpose of society is to provide civil peace and protect liberty from those who would infringe on it by rendering justice. This must be carried out in accord with the moral virtues.

Formalism Immanuel Kant

Moral worth comes from doing one’s duty. Act in a way so that your conduct can become a universal rule. People are never to be treated as a means to another end.

If something is wrong, it is wrong all the time—there are no exceptions. Morality is limited to duty—the baseline, not the highest aspiration of morality.

Because wrongdoers deserve punishment (are blameworthy), punishment should be proportionate based solely on the seriousness of the conduct.

Utilitarianism John Stuart Mill

Act in a way that results in the greatest good for the greatest number.

Morality is determined by the consequences of an action, leading to problems of measurement and speculation regarding its future impact.

Punishment should deter others, thereby obtaining a greater good. Punishment is aimed at its future impact.

how ethical thinking can inform and enlighten criminal justice decisions, especially as innovative penalties are increasingly sought for offenders.

Table 8.2 illustrates the differences among the three major ethical perspectives and their implications for criminal punishment. Note that formalism looks backward, basing punishment solely on the seriousness of the crime committed, whereas utilitarianism looks forward, with punishment aimed at its deterrent impact in the future. According to virtue ethics, punishment is justifiable only when it promotes the real good of civil peace and the protection of liberty of others in a manner consistent with the moral virtues.

CAPITAL PUNISHMENT

The Eighth Amendment to the U.S. Constitution deals largely with the final stages of the criminal justice process. It is also one of the shortest amendments. It reads as follows: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

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The portion of the Eighth Amendment that has been most rigorously scrutinized is the prohibition of cruel and unusual punishment. A punishment is considered cruel and unusual if it violates “evolving standards of decency that mark the progress of a maturing society.”26 Thus, torture is cruel and unusual punishment under the Eighth Amendment. In extreme cases of solitary confinement, corporal punishment, mechanical restraints, and poor medical and sanitary conditions for prisoners, these practices sometimes have been held to be cruel and unusual.27

No penalty has received more attention than capital punishment—that is, the death penalty. The penalty of death for the commission of a crime is controversial, yet it is permitted in

most states. Proponents argue that death serves as just retribution for murder, prevents future murders, and costs less than life imprisonment. Opponents argue the opposite: It does not serve as just retribution, does not deter murders, and costs more than life in prison. These are empirical arguments that can be resolved with the use of objective evidence. To what extent has the death penalty been used as retribution in the past? What impact does it have on homicide rates? How expensive is an execution compared to life imprisonment?28 The important moral question is whether capital punishment is morally permissible as a form of punishment.

According to utilitarianism, the empirical issues previously noted would be significant because they would help determine the total good (in balancing pain versus pleasure) produced by capital punishment. If greater total happiness was increased through the use of capital punishment, then it would be a good policy according to utilitarianism. Its economic cost and whether it deters future crimes would weigh heavily in this decision. Formalism would determine the moral permis- sibility of capital punishment on entirely different grounds, depending on whether it would make a good universal rule to employ in all cases of murder. The ethics of the penalty would never include deterrence because that aims to prevent the future crimes of others—using the current offender as a means to another end (violating the practical imperative). A third view would examine the imposi- tion of capital punishment using virtue ethics. Does capital punishment seek a real good via the moral virtues? If it was determined that capital punishment contributes to the civil peace (a real good) and that its imposition is just (i.e., gives an offender what she or he is due, not more, not less), then it would be morally permissible. The contemporary issue of errors in a number of capital cases is serious for virtue ethics because it creates doubt about whether justice (a moral virtue) is served by capital punishment, especially considering that there is no way to correct a mistake.29 An unjust capital sentence cannot be undone once an execution occurs.

LIFE IMPRISONMENT MORE SEVERE THAN DEATH?

An interesting question has been raised in contemporary society that was raised 250 years ago: Is life imprisonment a more severe punishment than the death penalty? During the 1960s, a majority of Americans opposed the death penalty, but today public opinion polls show widespread support for capital punishment. This support is manifested in the death penalty laws of thirty-seven states and the federal government. The current support continues despite concerns about the deterrent effect of capital punishment and despite the fact that most other nations have abolished it. Even South Africa abolished capital punishment in 1995 after it had been in effect for 350 years. This leaves the United States among the few countries in the world that still carries out death sentences.30

In death penalty cases, a jury often may choose between the death penalty and life imprisonment. Supporters of capital punishment argue that life imprisonment is a less severe penalty than the death penalty. An argument can be made, however, that life imprisonment is actually a more severe sentence than the death penalty. This argument was made most

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persuasively by Cesare Beccaria in his 1764 book, An Essay on Crimes and Punishments. Beccaria argued, “It is not the terrible yet momentary spectacle of the death of a wretch, but the long and painful example of a man deprived of liberty . . . which is the strongest curb against crimes.” He believed that the impression left by an execution is mitigated by a tendency to forget the event because of its brevity. In addition, some offenders may desire death because they are vain or fanatic or because they simply wish to escape their misery. Beccaria goes on to argue that life imprisonment is a better deterrent to crime than the death penalty. An execution provides only a single deterrent example, whereas “the penalty of a lifetime of servitude for a single crime supplies frequent and lasting examples” to others. “Adding up all the moments of unhappiness and servitude,” Beccaria concludes, life imprisonment “may well be even more cruel; but [it is] drawn out over an entire lifetime, while the pain of death exerts its whole force in a moment.”31

Beccaria also states that the death penalty is not useful “because of the example of barbarity it gives men.” He notes, “It seems to me absurd that the laws, which are an expression of the public will, which detest and punish homicide, should themselves commit it, and that to deter citizens from murder, they order a public one.”

Former New York state governor Mario Cuomo opposed capital punishment on grounds similar to those set forth by Beccaria. His opposition to the death penalty was seen by many as a major cause of his failure to win reelection. A year before the election, Cuomo refused to send an inmate serving a life sentence from New York state to Oklahoma, where the inmate faced the death penalty, despite the inmate’s stated wish to die. After the election, the new governor sent the inmate to Oklahoma to be executed. Ironically, prior to execution the inmate wrote a statement that said, “Let there be no mistake, Mario Cuomo is wright [sic]. . . . All jurors should remember this. Attica and Oklahoma State Penitentiary are living hells.” Cuomo later remarked about the inmate, “He admitted that being allowed to die was an act of clemency for a double murderer, relieving him of the relentless confinement he dreaded more than death.”32

These are fascinating arguments to assess in moral terms. Given the comments of Beccaria and Cuomo, can you determine their ethical perspectives?

Controversy regarding capital punishment in recent years focused on whether execu- tions of juveniles violate the Eighth Amendment of the U.S. Constitution. From an ethical perspective, the interesting aspect of the appeal to the U.S. Supreme Court was the court’s increasing willingness to cite international law and foreign judgments to support its decisions. For example, a friend-of-the-court brief was written on behalf of forty-eight countries that urged the Supreme Court justices to declare the death penalty for juveniles unconstitutional, a position that the Court ultimately adopted.33 Critics argue that this trend is a bad idea because judges might use international decisions to support their preferences rather than following the original intent of the Constitution’s founders. Supporters of this trend see it as a safeguard from narrow parochial views, reflecting recognition of international legal norms and shared values across the world not contemplated by the writers of the U.S. Constitution more than 200 years ago. In ethical terms, the trend toward citing international laws and decisions reflects growing international consensus on issues of crime and justice and the decline of moral relativism, lead- ing nations in the contemporary world to judge one another’s laws and policies in moral terms. For example, the international Convention on the Rights of the Child entered into force in 1990, and it has since been ratified by 192 nations, including all UN members plus one nonmember country.34 No other international agreement relating to justice has such universal support. This suggests international movement toward common legal and ethical standards in the jus- tice process.

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ETHICS IN BOOKS

Ethics is everywhere, even in the books we read, which sometimes are written without ethics specifically in mind. Here is a summary of such a book, followed by questions that ask you to reflect on the ethical connections.

The Prince

by Niccolo Machiavelli (written in 1512) (Bantam, 1984)

Niccolo Machiavelli was born in 1469 and spent his entire life in Florence, Italy. He worked for the ruling Medici family, which maintained power during most of his life, and he was in a position to observe and interact with major political and military leaders of Europe of that period.

The Prince offers advice on how a prince should obtain and stay in power. His approach is pragmatic to the extreme, emphasizing power, advantage, and success over truth and virtue— coining the phrase “politics is the art of the possible.” Whereas Aristotle (and Plato before him) makes a connection between being good and being successful, Machiavelli sees them as contradictory. He has none of the idealism of the earlier writers, arguing that only practical goals are achievable, and ideals should be lowered so they can be attained. Machiavelli observes that “unarmed prophets have failed, armed prophets have succeeded,” making the point that those with high moral principles often become martyrs. Thus, according to Machiavelli, the goal to be achieved is not virtue, but success.

Assumptions that underlie The Prince are that the greatest good is success, and that honest men do not survive: “a prudent ruler cannot and should not honor his word when it places him at a disadvantage.” He also states that for a leader “it would be best to be both loved and feared. But because the two rarely come together, anyone compelled to choose will find greater security in being feared than in being loved.” Machiavelli argues further that without penalties the law has no value because there is no strong moral force in individuals that exists outside the law. His views of success without moral constraint separate him from most writers in the fields of ethics and politics.

Machiavelli’s views are challenging and some find them offensive, but no one has been more influential, yet more despised, than Machiavelli. His book forces us to examine our assumptions about human nature and to defend our expectations of an often disappointing political system. Although written 20 years earlier, The Prince was published in 1532, 5 years after Machiavelli died.

QUESTIONS

1. What would Aristotle and Kant say of Machiavelli’s views? What specifically would they object to?

2. Are there areas in which John Stuart Mill would agree on some of Machiavelli’s positions? Can you offer a controversial example of the exercise of political power that both Mill and Machiavelli would accept?

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ETHICS IN THE MOVIES

Movies seek to entertain and inform the audience about a story, incident, or person. Many good movies also hit upon important ethical themes in making significant decisions that affect the lives of others. Read the movie summary here (and watch the movie if you haven’t already), and answer the questions to make the ethical connections.

Dead Man Walking

Tim Robbins, Director (1996)

The movie opens with Sister Helen Prejean (Susan Sarandon), a nun from Louisiana, who receives a letter from an inmate on Death Row asking for a visit. Prejean works in an inner- city neighborhood and decides to visit the inmate. She is warned by the prison chaplain about being manipulated, and the inmate Matthew Poncelet (Sean Penn) wants her to help him with his appeal. At one point Poncelet says that he and Prejean have nothing in common, but Prejean says, “We both live with the poor,” something that apparently never occurred to the inmate before. Prejean agrees to help him with his last-minute appeal before his pending execution.

Dead Man Walking is based on the nonfiction book by Sister Helen Prejean. The movie is notable for its objectivity about capital punishment. There is no intention to change the viewer’s mind about capital punishment. Instead, it forces you to reflect on the facts, emotions, and beliefs of the offender, the victims, and all those involved in cases like this. The inmate is on Death Row for a rape and murder of a couple on a lover’s lane. The film is absorbing as Prejean meets the parents of the murdered girl, the father of the dead boy, and the inmate’s family; she even faces the anger of her own mother, who resents her befriending a murderer. These scenes are emotional and sometimes troubling, but they are thoughtful, looking to provide insight rather than shock or sensationalism.

As a nun, Sister Prejean believes in the Christian principle that all sins can be forgiven because God’s love is available to everyone, but she does not push Poncelet, hoping only that he will die understanding the impact of his crimes and his life. The movie’s theme might be “finding meaning”—how people strive to move on after tragedy strikes (as a victim or parent) and how to find meaning when your life has been devoid of meaning (Poncelet). Susan Sarandon won the Academy Award for Best Actress for her performance, and both Sean Penn (Best Actor) and Tim Robbins (Best Director) received Oscar nominations.

QUESTIONS

1. Is it morally permissible to execute a murderer if he truly is remorseful and apologizes for his actions?

2. The imposition of capital punishment has been marred by errors in convictions, racial discrimination, and other problems in its administration over the years. Do you believe these problems will ever be eliminated? If they were eliminated, would it be permissible to use capital punishment more frequently as a penalty for major crimes?

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Discussion Question

Find an example of an innovative kind of sentence imposed in a criminal case. Apply the three major ethical perspectives to evaluate its moral permissibility.

Critical Thinking Exercises

All ethical decisions affect others (by definition) and, as Aristotle points out, ethical decision making is achieved con- sistently only through practice. Given the outline of virtue ethics, formalism, and utilitarianism, evaluate the moral permissibility of the conduct in question in each scenario.

Important note on method: Critical thinking requires the ability to evaluate viewpoints, facts, and behaviors objectively to assess information or methods of argumen- tation to establish the true worth or merit of an act or course of conduct. Please evaluate these scenarios, first analyzing pros and cons of alternate views, before you come to a conclusion. Do not draw a conclusion first, and then try to find facts to support it—this frequently leads to narrow (and incorrect) thinking.

To properly evaluate the moral permissibility of a course of action using critical thinking skills:

1. Begin with an open mind (no preconceptions!), 2. Isolate and evaluate the relevant facts on both sides, 3. Identify the precise moral question to be answered, and 4. Apply ethical principles to the moral question based on

an objective evaluation of the facts, only then drawing a conclusion.

8.1 Ethics of Sniping and Negotiating

With disturbing regularity we hear of a person, usually a man, who takes his family hostage and provokes a standoff with the police. Often the man has a gun and fires shots out the window in the direction of the police. In some cases, members of the family are killed, bystanders wounded, and police officers shot. These hostage-takers usually have significant family problems, employment problems, substance abuse problems, and sometimes are mentally unstable. When surrounded by police, they have little to negotiate for other than to surrender because their loved ones are being held hostage with them.

You are a hostage negotiator for the police department in the middle of such a situation in which you are talking by telephone with a man who is holding his own family hostage, is making unreasonable demands, and is shooting out the window. One bystander has already been hit by

gunfire. After many hours of unsuccessful attempts to get the man to surrender, you are asked by your supervisor to try to lure the man near a window at the rear of the house because a police sharpshooter has a clear shot to that position. The intention is to kill the hostage-taker.

• Evaluate the moral permissibility of luring the hostage- taker into a position to be shot.

8.2 Ethics and Mandatory Minimums

A 27-year-old African American accepted $500 from a neighbor for sending in the mail what he knew was a package of drugs, although he did not know the kind of drugs or their value. He did it because he faced mounting debts. He has a college education, a job, and no prior criminal record. He pleaded guilty to the federal crime, which requires a mandatory minimum sentence for anyone convicted of trafficking more than 50 grams of crack cocaine.

You are the federal judge assigned this case. The defendant faces a mandatory minimum sentence of 10 years in federal prison with no possibility of parole. A mandatory minimum requires anyone convicted of the crime to receive the minimum sentence prescribed by law, regardless of any others factors that may be present in the case.35

Mandatory minimum sentences increased dramatically in the 1980s as a result of the so-called war on drugs during the Reagan administration. The issue posed by mandatory minimums is that any features of the defendant’s character, history, or circumstances that might call for a lesser punishment must be ignored. The sentence can be increased, however, if the defendant has a criminal record, sells drugs to children, or sells very large amounts of drugs.

You are having trouble with this case because it appears that the mandatory minimum sentence law treats all drug law violations of this type as if they were the same; however, offenders and circumstances dramatically differ in terms of seriousness and dangerousness, and you do not believe this offender is dangerous or deserving of 10 years in prison.

• Evaluate the moral permissibility of your decision to impose the mandatory minimum sentence in this case.

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8.3 Lawyer-Assisted Suicide

Although the death penalty has been abolished in most countries around the world, thirty-seven states in the United States allow capital punishment for the conviction of certain crimes. These usually involve cases of homicide or treason. There are a record number of prisoners on death row in the United States, and successful appeals to reduce death sentences or review the facts of cases are rare. Courts and legislators have also restricted the possible grounds and opportunities for appeal in recent years.36

This situation has led some death row inmates to give up hope and not pursue the appeals allotted to them by law. Even though there are hundreds of documented cases of death sentences of innocent persons, the lack of hope for offenders on death row is pervasive.37 The U.S. Supreme Court held in 1997 that terminally ill patients have no constitutional right to assisted suicide, but death row inmates appear to have the legal right to expedite their own executions by foregoing appeals.38

What should the offender’s lawyer do if his or her client does not wish to appeal? Should that choice be respected? If it is, can this be considered lawyer-assisted suicide?

The choice by a death row inmate to expedite the execution process may be a rational one. Life on death row is both undesirable and uncertain.39 Expediting the state’s execution is much more certain and perhaps unavoidable, given trends in the outcomes of death penalty appeals. As one attorney has characterized the situation, “In the real world this death row client has only two options: the state can kill him now, or it can kill him later. He chooses now.”40

Should a lawyer pursue appeals, despite the wishes of his or her client? If so, can this be considered state-assisted suicide? If the offender’s attorney does not challenge the case facts or the penalty, it could make future executions easier by lowering further the legal and procedural barriers to executions. Should the attorney represent the client’s wishes, even if those wishes lead to certain death?

• Evaluate the moral permissibility of the lawyer’s possi- ble actions under these circumstances.

• What would you do as an attorney in this situation? What would you do as an offender in this situation?

8.4 Predisposed to Re-offend?

The New York State legislature passed a law that permits the state to lock up individuals for crimes they might commit, rather than for crimes they have already committed. The law requires mental health professionals to screen all prison inmates doing time for sex offenses and determine if they are disposed to committing more sex crimes upon

release. Those found likely to re-offend would be placed on trial, and if a jury agrees they are dangerous, they would be confined or placed under very strict supervision in the community.41

This law is a departure from traditional criminal procedure, which requires a crime to be committed before a person can be held legally responsible and punished. It also assumes as fact the controversial proposition that mental health professionals can accurately predict future dangerousness of offenders. Nevertheless, the law responds to public fears regarding potential repeat crimes by sex offenders.

• Is it morally permissible to punish offenders for future crimes that they are found to be at high risk of committing?

8.5 An Affair, a Trial, and an Execution

With less than a week to go before the scheduled execution of a man who contended his murder trial was tainted by a love af- fair between the judge and the prosecutor, a state judge or- dered a hearing into the accusation. It was argued that if the love affair occurred, the condemned man did not receive a fair trial. Several prominent former judges and prosecutors urged the governor to delay the execution to allow more time for a hearing to determine if the affair took place. “It is an irrevoca- ble wrong to send a man to his death without ever hearing this critical evidence,” the group said in a letter to the Governor.

In a separate letter to local prosecutors, the Texas Attorney General said the state would ask the district court to “thoroughly review the defendant’s claims before the execution proceeds” in order to “protect the integrity of the Texas legal system.”

The convicted murderer, Charles Hood, age 39, was to be executed for the murder and robbery of a couple he lived with in Plano, just north of Dallas. Fingerprints linked Mr. Hood to the murders, and he was arrested the next day in Indiana driving a car belonging to the murdered man, who had been Mr. Hood’s supervisor at a strip club where they both worked. The supervisor’s girlfriend, Tracie Lynn Wallace, a former dancer at the club, was also killed in this incident.

Having exhausted all other appeals, Mr. Hood’s lawyers have tried to prove in recent months that Mr. Hood’s trial was tainted because the judge, Verla Sue Holland, and the Collin County district attorney at the time, Thomas S. O’Connell Jr., were having an affair.

Lawyers for Mr. Hood contend that the affair was long rumored in Collin County’s legal circles, but no one with evidence about it had been willing to testify under oath. Mr. Hood’s lawyers got a sworn affidavit from a former

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assistant district attorney, who said the romantic relation- ship “was common knowledge in the district attorney’s office, and the Collin County bar, in general,” at the time of the trial.42 With this testimony in hand, Mr. Hood’s lawyers asked the Texas Court of Criminal Appeals, the state’s highest court, to stay the execution.

• Evaluate the moral permissibility of a judge and prosecutor having a romantic affair while working the same case.

• Assess any potential remedies for the offender(s) in the case(s).

Key Concepts

Retribution 105 Incapacitation 105 Deterrence 105

Rehabilitation 105 Disparity in sentences 106 Sentencing guidelines 106

Corporal punishment 109 Norplant 110 Eighth Amendment 111

Notes

1. Susan Estrich, “A Just Sentence for Susan Smith,” USA Today (August 3, 1995), p. 11.

2. Exodus 21:12–25; Leviticus 24:17–21; Numbers 35:30–1; Deuteronomy 19:11–12.

3. Overton v. Buzzetta, 123 S.Ct. 2162 (2003). See also Turner v. Safley, 107 S.Ct. 2254 (1987).

4. United States v. Booker, 125 S.Ct. 738 (2005). 5. Don M. Gottfredson, Effects of Judges’ Sentencing

Decisions on Criminal Careers (Washington, DC: National Institute of Justice, 1999); Jeffrey Y. Ulmer and John H. Kramer, “The Use and Trans- formation of Formal Decision-Making Criteria: Sentencing Guidelines, Organizational Contexts, and Case Processing Strategies,” Social Problems, vol. 45 (May 1998), p. 248.

6. Dale Parent, Terence Dunworth, Douglas McDonald, and William Rhodes, The Impact of Sentencing Guidelines (Washington, DC: National Institute of Justice, 1996), p. 5.

7. Kevin McCoy, “Appeal of Madoff’s 150-year Sentence Wouldn’t Matter,” USA Today (July 2, 2009).

8. Scott D. Camp, Gerlad G. Gaes, Neil P. Langan, and William G. Saylor, “The Influence of Prisons on Inmate Misconduct: A Multilevel Investigation,” Justice Quarterly, vol. 20 (September 2003), pp. 501–533; Maureen Buell and Susan W. McCampbell, “Preventing Staff Misconduct in the Community Corrections Setting,” Corrections Today, vol. 65 (February 2003), p. 90.

9. Gregory L. Little, Kenneth D. Robinson, Katherine D. Burnette, and E. Stephen Swan, “Twenty-Year Recidivism Results for MRT-Treat Offenders,” Cognitive Behavioral Treatment Review, vol.

19 (2010), pp. 1–9; Sally F. Stevenson, Guy Hall, and J.M. Innes, “Rationalizing Criminal Behaviour: The Influence of Criminal Sentiments on Sociomoral Development in Violent Offenders and Nonoffenders,” International Journal of Offender Therapy & Compa- rative Criminology, vol. 48 (April 2004), pp.161–174.

10. Graeme Newman, Just and Painful: A Case for the Corporal Punishment of Criminals, 2nd ed. (Albany, NY: Harrow & Heston, 1983), p. 6.

11. Andrea Stone, “Whipping Penalty Judged Too Harsh—by Some,” USA Today (March 10, 1994), p. 3.

12. Tom Squitieri, “Proposals Seek More Drastic Punishments,” USA Today (February 14, 1990), p. 3.

13. Sam S. Souryal and Dennis W. Potts, “The Penalty of Hand Amputation for Theft in Islamic Justice,” Journal of Criminal Justice, vol. 22 (1994), pp. 249–265.

14. Trop v. Dulles, 356 U.S. 86 (1958); Rhodes v. Chapman, 452 U.S. 337 (1981).

15. W. M. Cooper, A History of the Rod in All Countries (London, UK: John Camden Hotten, 1870).

16. L. A. Parry, The History of Torture in England (Montclair, NJ: Patterson Smith, 1934); Graham Newman, The Punishment Response (New York, NY: J. B. Lippincott, 1978).

17. S. Rubin, The Law of Criminal Correction (St. Paul, MN: West Publishing, 1973).

18. Paul Leavitt, “Calls for Caning Keep on Coming,” USA Today (May 25, 1994), p. 3.

19. Amnesty International, 1995 Report (New York, NY: Amnesty International, 1995).

20. Cited in Stone, “Whipping Penalty Judged Too Harsh—by Some.” p. 3.

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21. R. G. Caldwell, Criminology, 2nd ed. (New York, NY: Ronald Press, 1965).

22. Tamara Henry, “Groups Seek to Lay Down Law on Corporal Discipline,” USA Today (March 8, 1994), p. 6D; Graham Newman, The Punishment Response (New York, NY: J. B. Lippincott, 1978).

23. Paul Leavitt, “Birth Control Sentence,” USA Today (January 7, 1991), p. 3.

24. Kim Painter, “Norplant Gets a Shot in the Arm,” USA Today (August 22, 1995), p. 4D.

25. Paul Leavitt, “Baltimore Schools Offer Teens Norplant,” USA Today (December 4, 1992), p. 3.

26. Thompson v. Oklahoma, 108 S.Ct. 2687 (1988). 27. See French v. Owens, 777 F.2d 1250 (7th Cir. 1985). 28. See Jay S. Albanese, Criminal Justice, 3rd ed. (Boston,

MA: Allyn & Bacon, 2005); Hugo Adam Bedau and Paul Cassell, Eds., Debating the Death Penalty (New York, NY: Oxford University Press, 2003).

29. Barry Scheck, Peter Neufeld, and Jim Dwyer, Actual Innocence (New York, NY: Signet, 2001); Stanley Cohen, The Wrong Men (New York, NY: Carroll & Graf, 2003).

30. Charles Lane, “Why Japan Still Has the Death Penalty,” The Washington Post (January 16, 2005), p. B1.

31. Cesare Beccaria, Essay on Crimes and Punishments (1764) (Indianapolis, IN: Bobbs-Merrill, 1984), ch. 16.

32. Doug Ferguson, “Grasso, Just before Dying, Says Cuomo Is Right: Life in Prison Would Be Worse,” The Buffalo News (March 21, 1995), p. 14.

33. Warren Richey, “Global Legal Trends Make Waves at High Court,” The Christian Science Monitor (October 25, 2004), p. 1; Roper v. Simmons, 543 U.S. 551 (2005).

34. UN Convention on the Rights of the Child. (1990). http://www.unicef.org/crc/ (accessed August 1, 2004).

35. David Dolinko, “Ethical Problems of Mandatory Minimum Sentences,” Tikkun (March–April 1998), p. 3.

36. Stephen B. Bright and Patrick Keenan, “Judges and the Politics of Death,” Boston University Law Review, vol. 75 (May 1995), pp. 759–765; Vivian Berger, “Herrera v. Collins: The Gateway of Innocence for Death-Sentenced Offenders Leads Nowhere,” William & Marry Law Review, vol. 35 (Spring 1994), p. 943.

37. Micahel Radelet, Hugo Adam Bedau, and Constance E. Putnam, In Spite of Innocence: Erroneous Convictions in Capital Cases (Boston, MA: Northeastern University Press, 1992); John McCormick, “The Wrongly Condemned,” Newsweek (November 9, 1998), p. 64; Stanley Cohen, The Wrong Men: America’s Epidemic of Wrongful Death Row Convictions (New York, NY: Carroll & Graff, 2003).

38. Vacco v. Quill, 117 S.Ct. 36 (1997). 39. Richard M. Rossi, Waiting to Die: Life on Death Row

(New York, NY: Vision Books, 2004); Jan Arriens, Welcome to Hell: Letters and Writings from Death Row (Boston, MA: Northeastern University Press, 1997).

40. Michael Mello, “Representing Death Row: An Argument for Attorney-Assisted Suicide,” Criminal Law Bulletin, vol. 34 (January–February 1998), pp. 48–64; Michael Mello, Deathwork: Defending the Condemned (Minneapolis, MN: University of Minnesota Press, 2002).

41. “Punishment without Crime,” Newsday (New York) (March 2, 2007); see also Bill Mears, “Can Sex Offenders be Held After Serving Criminal Sentences?” CNN (January 12, 2010).

42. James C. McKinley, Jr. “As Texas Execution Nears, Hearing Is Set on Claim Judge and Prosecutor Had Affair,” The New York Times (September 5, 2008), p. 15.

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