1. The puzzle of punishment

There is an air of paradox that surrounds legal punishment: we punish people for offenses that they have committed (or at least have been convicted of having committed); what prompts this response on our part is the victim’s harm or suffering; we take the offender’s imposition of this harm or suffering to have been wrong; and yet our response consists in deliberately imposing further harm or suffering! How could two wrongs make a right?

The answer is of course that the second “wrong” is not (or at least is not supposed to be) a wrong at all. But how is this (supposed to be) the case? There are a number of possibilities, a number of rationales that have been offered as justification for punishing offenders. Here are six leading contenders.

First, there is deterrence. Punishment (or, more accurately, the prospect of punishment) might either deter the offender from committing further crimes in the future, or deter other members of the general public from committing crimes in the first place, or both. You are perfectly familiar with deterrence. Just think of the last time you were driving and thought you saw a cop in the rearview mirror. I bet you quickly eased up on the accelerator! Why? Because you wanted to avoid being punished for speeding, of course.

Second, there is rehabilitation. This is supposed to involve treating the offender in such a way that he (or she) will not commit further crimes, because the desire (or impulse, or temptation) to do so has been diminished or, possibly, eradicated. There are in principle a number of ways in which this might be accomplished. For example, if the offender turned to crime in order to make ends meet, then teaching him a useful skill while in prison might help him get an honest job after he is released. Or if the offender turned to crime for kicks, then forcing him to associate criminal activity with something highly unpleasant might quash the desire to engage in criminal activity in the future. (Think of the aversion therapy inflicted on Alex in A Clockwork Orange that was designed to make him feel nauseous at the very thought of violence.)

Third, there is reformation. This is closely related to rehabilitation, but in this case the aim is to treat the offender in such a way that he comes to appreciate that his past criminal behavior was morally wrong and, on this basis, will decide not to engage in such behavior in the future.

Notice that all three rationales mentioned so far involve treating the offender in a way that is intended to prevent crime by bringing it about that someone (either the offender himself or a member of the general public) will choose not to commit an offense that, in the absence of the treatment, he would choose to commit. It is this fact that is supposed to justify the treatment. The fourth rationale − incapacitation − likewise involves treating the offender in a way that is intended to prevent crime, but this time the idea is not that it will do so by causing him to choose not to commit an offense that he would otherwise commit; rather, it’s that he won’t be able to commit an offense that he would otherwise commit. Incarceration, for example, makes it impossible for offenders to commit certain crimes that they could commit on the outside. Likewise, various forms of corporal punishment (cutting off someone’s hands, for example) make it impossible, or at least very difficult, to commit certain crimes that one could otherwise commit. (Try picking someone’s pocket without using your hands.)

A fifth rationale is restitution. In our current criminal justice system, the victim of a crime gets “lost in the mix.” Punishment of the offender does nothing to help the victim get back on his feet; at most, it will give him some satisfaction at seeing justice (or what he takes to be justice) done. Not so with our current system of civil justice. If your boss has been harassing you and you successfully sue him, you are the one who will receive restitution (compensation). Some people advocate a system of punishment for crimes that would accomplish the same thing. Such a system might not prevent crimes from occurring, but, if successfully carried out, it would help restore victims of crime to the position they were in before the crime occurred.

Sixth, and finally, there is retribution, which is supposed to involve treating the offender in accordance with his deserts. It is very commonly held that someone who has committed a crime deserves to be punished for having done so. On this view, punishment might not prevent crime, and it might not restore the victim to his prior state. Still, it would be justified because it would be just, and it would be just because it would ensure that the offender would “get what’s coming to him,” that is, be treated as he deserves to be treated.

Our present concern is not with punishment in general but with capital punishment in particular. Some of the rationales just mentioned apply more readily to capital punishment than others.

Two of the rationales are in fact wholly inapplicable to capital punishment. These are the rationales of rehabilitation and reformation. You cannot rehabilitate or reform someone by killing him. In order to succeed in rehabilitating or reforming someone, that person must continue to live after receiving the relevant treatment.

Another rationale − restitution − is also highly problematic when it comes to capital punishment. If such punishment is given in response to murder (which is almost always the crime that people first think of when considering the question whether capital punishment can be justified), it’s evident that the victim is not in a position to be compensated in any way. Perhaps the victim’s family or friends would receive some comfort (or “closure”) from the offender’s execution, but that would seem to be meager compensation, at best. In other cases (such as capital punishment for rape, for example), the victim might also receive some compensation from the fact that the offender has been executed but, again, it would seem to be meager at best.

There is much more to be said in favor of the remaining three rationales as providing some measure of justification for capital punishment.

First, it seems very plausible to say that the prospect of being executed can and sometimes does deter people from committing crimes that they would otherwise commit. (This is not to say that it is easy to tell just who is deterred by this prospect, or when, or how much. On the contrary, trying to figure this out, and trying to compare capital punishment with other forms of punishment in terms of their ability to effectively deter people from committing crimes, is fraught with difficulties.)

Second, it’s clear that capital punishment is an effective incapacitator. Indeed, nothing could be more effective in terms of making people unable to commit crimes in the future.

Finally, it’s also clear that many people take capital punishment to be uniquely suitable to giving those who have committed certain crimes what they deserve. Indeed, so far as I can tell, it is this consideration above all others that is likely to be the one that proponents of capital punishment rely on when they advocate the use of such punishment − and it is this consideration that I want now to investigate in detail.

***Here is a good place to stop and consider Questions 8 and 9 on the Practice Questions for Module 5.***

2. Desert and punishment

There are several closely related claims or principles about the desert of punishment that are often confused with one another but which we should be careful to distinguish. They can be put as follows:

Principle 1:     The guilty do not deserve not to be punished
Principle 2:     The guilty deserve to be punished
Principle 3:     The innocent do not deserve to be punished
Principle 4:     The innocent deserve not to be punished.

It may be difficult at first for you to see just how these principles differ from one another, so let me explain.

Consider, first, Principle 4. The idea that something terribly unjust occurs whenever an innocent person is punished is powerful and familiar. Just think of Richard Kimble in The Fugitive, who was wrongly convicted of having murdered his wife. The audience, sensing keenly the injustice of his conviction, cheers him on in his effort to clear his name. Or think of the all-too-many real-life cases that routinely come to light, in which someone is released from prison on the basis of new evidence (DNA evidence, perhaps) that shows that they are innocent of the crime of which they were originally convicted. The release is surely good news, but the wrongful conviction is a tragedy that cannot be undone.

What is it that renders innocent people deserving of not being punished? Their innocence, of course. (I say “of course,” but − of course − it should come as no surprise that not everyone accepts Principle 4. Still, I think it safe to say that almost everyone does, and I certainly won’t challenge it here, for it has very strong intuitive appeal. Indeed, I take it that all four principles are intuitively very appealing.) Now contrast Principle 4 with Principle 1. Principle 1 says that the guilty do not deserve what the innocent do, namely, not to be punished. Why? Because they’re not innocent! In this way, Principle 1 is an obvious corollary of Principle 4.

Now turn to Principle 2. The idea (captured in the rationale of retribution) that something truly just occurs whenever a guilty offender is punished is also powerful and familiar. Think now of the one-armed man who is the real killer in The Fugitive. When he and the doctor who hired him finally get caught, the audience once again cheers. (I hope that wasn’t a spoiler.) The audience cheers not just because they’re glad to see that Kimble is finally being treated as he deserves, but also because the bad guys are about to get what they deserve. This delight that people typically feel when they see some wrongdoer get what’s coming to him is something that Hollywood is adept at exploiting (think of all the vigilante movies), and it appears to be something that is deeply rooted in human nature. “Retribution” literally means “paying back,” and the theme that wrongdoers should be paid back “in kind,” that they should be the target of retaliation, is an ancient one. One of the first recorded instances of this theme is to be found in the Code of Hammurabi, the sixth king of ancient Babylon, who famously proclaimed around 1760 BC that, if a man were to put out another man’s eye, then his own eye should be put out, and, if a man were to knock out another man’s teeth, then his own teeth should be knocked out. This idea of “an eye for an eye, a tooth for a tooth” is of course also to be found in certain passages of the Old Testament, written some 300 years later, and it has survived undiluted to this day. It is this very common and very natural idea, I think, that almost always underlies the call for capital punishment.

What is it that (supposedly) renders guilty people deserving of punishment? Their guilt, of course. Now contrast Principle 2 with Principle 3. Principle 3 says that the innocent do not deserve what the guilty do, namely, to be punished. Why? Because they’re not guilty! In this way, Principle 3 is an obvious corollary of Principle 2.

You may still be wondering just what the difference is between Principles 1 and 2 and between Principles 3 and 4. It’s this.

Principle 1 says that the guilty do not deserve something, namely, not to be punished. This is roughly the same as saying that there is no good reason not to punish them. Principle 2, however, goes one step further and says that the guilty do deserve something, namely, to be punished. This is roughly the same as saying that there is good reason to punish them.

Likewise, Principle 3 says that the innocent do not deserve something, namely, to be punished. This is roughly the same as saying that there is no good reason to punish them. Principle 4, however, goes one step further and says that the innocent do deserve something, namely, not to be punished. This is roughly the same as saying that there is good reason not to punish them.

I have said that, given that whoever is guilty of something is not innocent of that thing, Principle 1 follows from Principle 4, and also that, given that whoever is guilty of something is not innocent of that thing, Principle 3 follows from Principle 2.  I must now confess, though, that this is a little misleading. To be more precise, what I should have said is this. If you accept Principle 4 on the understanding that being innocent renders someone deserving of not being punished and you also accept that whoever is innocent of something is not guilty of that thing, then you must accept that someone who is guilty does not deserve for that reason − i.e., because he is innocent − not to be punished. But you could still maintain that someone who is guilty does, for some other reason, deserve not to be punished. This, in fact, is not an uncommon view, and it shows how it is in fact perfectly possible to accept Principle 4 without accepting Principle 2 − despite the fact that, as I have noted, both principles would seem intuitively pretty appealing. (Likewise, I should have said that, if you accept Principle 2 on the understanding that being guilty renders someone deserving of being punished and you also accept that whoever is guilty of something is not innocent of that thing, then you must accept that someone who is innocent does not deserve for that reason − i.e., because he is guilty − to be punished. But you could still maintain that someone who is innocent does, for some other reason, deserve to be punished. This, though, would seem to be a decidedly odd view, and I can’t think of anyone who has held it.)

One final point. Instead of saying

Principle 1:     The guilty do not deserve not to be punished
Principle 4:     The innocent deserve not to be punished,

it would seem just as natural to say

Principle 1*:     The guilty do not have a right not to be punished
Principle 4*:     The innocent have a right not to be punished.

This makes it seem that the difference between “deserve” and “have a right” is merely verbal. Yet, if instead of saying

Principle 2:     The guilty deserve to be punished
Principle 3:     The innocent do not deserve to be punished,

we said

Principle 2*:     The guilty have a right to be punished
Principle 3*:     The innocent do not have a right to be punished,

it seems we would have said something radically different. (Think of a judge saying to a defendant who has been found guilty of a crime, “Before I pass sentence, do you have anything you want to say?” The defendant replies, “Yes, Your Honor, thank you. I know I have a right to be punished, but after careful consideration I have decided to waive that right. You see, I don’t want to cause you any more trouble than I already have. So, if it’s all the same to you, I’d like to request that you put an end to these proceedings and set me free.” The judge is not likely to be impressed.) This makes it seem that the difference between “deserve” and “have a right” is not merely verbal after all. This is an intriguing point, but we don’t have time to investigate it further here. From now on, I’ll focus on the relation between desert and punishment and will not be concerned with the relation between rights and punishment (other than to note that, if you accept Principle 4*, as I expect you do, then one reason that might be given for also accepting Principle 1* is that a guilty person has forfeited the right that he would otherwise have not to be punished).

***Here is a good place to stop and consider Question 10 on the Practice Questions for Module 5.***

3. Reiman on capital punishment

Reiman begins his article by saying that he will assume that “the” retributivist principle is true (see p. 599, left column). (The phrase “lex talionis” is Latin for “law of retaliation.”) It seems clear that he has at least Principle 2 in mind, but the rest of his article indicates he also accepts Principles 1, 3, and 4.

One key passage occurs on the next page (see p. 600, right column). In this complicated passage, Reiman appears to be saying that Principle 2 is true because either the victim or the state has a right that a guilty offender be punished “in kind.” The underlying idea seems to be this.

First, we should try to make sure that the punishment “fits” the crime. (This is of course a very common and popular idea.) The point might be put schematically as follows:

This is supposed to represent the idea that a crime that is “serious to degree 10” warrants punishment that is correspondingly “severe to degree 10.” (We can suppose that level 10 is the highest level in both columns.) Likewise a crime that is “serious to degree 9” warrants punishment that is correspondingly “severe to degree 9,” a crime that is “serious to degree 8” warrants punishment that is correspondingly “severe to degree 8,” all the way down to level 1, the lowest level of crime and punishment, respectively. (I have included a level 0 in the diagram. This is supposed to represent the idea that no crime warrants no punishment. Compare Principle 4.) Notice that the arrow goes both ways. There should be a strict correlation between the levels. This is because any deviation constitutes some kind of injustice. Suppose, for instance, that a level-8 crime were punished at level 9. Such punishment would not treat the offender as he deserves to be treated; it would be excessive and constitute an injustice to the offender. Or suppose that a level-8 crime were punished at level 7. Such punishment would once again not treat the offender as he deserves to be treated; it would be too lenient and constitute an injustice. (In this case, we would not say that the injustice is one that is done to the offender. Reiman says that it is done to the victim of the offense.)

Second, however, Reiman holds that punishment “in kind” is consistent with there being a range of punishments. Suppose, for example, that first-degree murder is a level-8 crime, along with other crimes, perhaps. (Why not level 10? Well, presumably there are crimes even worse than first-degree murder, such as first-degree murder preceded by torture.) One punishment that Reiman clearly agrees would fit this crime is execution. However, he also holds that other punishments could be equally fitting. (They may not be precisely as severe as execution, but they will be close enough in terms of severity to ensure that no injustice is done.) Reiman doesn’t specify just what these other punishments would be, but at one point (on p. 601) he suggests that life in prison without parole might do the job, and perhaps he would same the same about 40 years’ hard labor. The picture would then be this:

		Crime		Punishment
		10	↔	10
		9	↔	9		life in prison
murder		8	↔	8		execution
		.		.		40 years’ hard labor
		.		.
		.		.
		1	↔	1
		0	↔	0

At this point, Reiman makes a crucial and challenging move. Given that there may be many different but equally severe punishments that match a crime, we must decide which of these punishments to inflict. Since they each match the crime, we must reach our decision on some other basis. In the case of punishment for a “capital offense,” Reiman claims that our decision should be based at least in part on a consideration of what it would be civilized to do. To force home what he’s driving at, he asks us to consider the crimes of rape and torture.

The lex talionis indicates that it would be perfectly just, perfectly in keeping with what an offender deserves, to punish a murderer by executing him. Reiman accepts the lex talionis and thus accepts this claim. He points out, though, that the lex talionis also indicates that it would be perfectly just to punish rape with rape, and to punish torture with torture. Since he accepts the lex talionis, Reiman also accepts these claims as well. But he believes (and believes that you, the reader, will agree) that, although it would be just to punish rape with rape and torture with torture, it would not be overall justifiable to do this. Why? Because any such punishment would be uncivilized. (Imagine someone who multi-tasks. He is not only the state executioner but also the state rapist and the state torturer. Is this the sort of position we think anyone should hold?) Given the uncivilized nature of such punishments, we must seek some alternative that is equally fitting but not uncivilized. (See p. 602, left column – p. 603, left column.) Although Reiman doesn’t commit himself on this issue, I suspect that for each of first-degree murder, rape, and torture he would claim that some lengthy, perhaps very lengthy term in prison would fit the bill.

***Here is a good place to stop and consider Question 11 on the Practice Questions for Module 5.***

Reiman acknowledges that there could be exceptional circumstances in which capital punishment proved uniquely effective as a deterrent and was necessary to rid our society of some danger, in which case, given that such punishment constituted a just response to some offense, it might be overall justifiable to impose it, despite its uncivilized nature. (See p. 604, left column.) But he takes it that present-day circumstances are not exceptional in this way, and so this possible justification of capital punishment has no current application. His argument can be summarized as follows:

4. Critical evaluation of Reiman’s article

In his article, van den Haag in effect rejects both of premises (3) and (4) of Arg. 1. Let’s consider these premises in reverse order.

Premise 4:

Van den Haag agrees with Reiman that using torture as a means of punishment is “repulsive” (although he declines to use the term “uncivilized”). But he denies that the death penalty is either repulsive or uncivilized. (See p. 596, right column.) Reiman gives his reasons for declaring capital punishment uncivilized on pp. 604-5 (see the final paragraph on p. 605 for a summary). Van den Haag dismisses these reasons on p. 595 but offers no positive reasons of his own for declaring capital punishment civilized. What we should make of this clash of intuitions is unclear. Even if we leave this clash unresolved, though, there is reason to think that Reiman has the upper hand. For if van den Haag agrees that torture, even if in keeping with an offender’s desert, is nonetheless repulsive and ought not to be inflicted on the offender, then he is acknowledging that a punishment that is just (in that it treats the offender as he deserves) can nonetheless be overall unjustified, due to some other consideration (such as its being repulsive or uncivilized). As soon as this door is opened, it highlights the fact that it is at least possible that the same should be said of capital punishment, and hence that, even if such punishment does treat an offender as he deserves to be treated, still it might be that some alternative punishment ought to be imposed instead.

Premise 3:

Some of van den Haag’s remarks suggest that he rejects Reiman’s claim that there are alternatives to capital punishment that are equally in keeping with what it is that a murderer deserves − that execution is uniquely fitting as a response to such a crime. If so, that might provide sufficient reason to impose such punishment on murderers even if doing so is in some way repulsive or uncivilized.

This position forces us to confront head-on the question of what makes a punishment fitting or unfitting to a crime. This question would appear to be much more difficult than either van den Haag or Reiman recognizes.

Consider again the lex talionis, the ancient and always popular idea of “an eye for an eye, a tooth for a tooth”:

Popular though it may be, application of this idea that we should “return like for like” very quickly runs into a host of difficulties. What would the prescribed punishment for serial murder be? Execution, followed by resurrection, followed by execution, followed by resurrection, followed…? That is patently absurd. What about the punishment for attempted murder? Being shot at by a firing squad that just misses its target? That, too, is absurd. What about pollution, or tax evasion, or embezzlement? Just a little thought makes it clear that returning like for like, paying back in kind, is simply impossible in many cases of criminal behavior, regardless of whether it might be desirable. But presumably we still find some punishments fitting, which means that to fit the crime a punishment need not match it exactly. But then what counts as “matching”?

One answer is that we need not try to duplicate the criminal’s behavior in all its details and put him on the receiving end of such behavior. Rather, all we need do is make him suffer to the extent he made his victim suffer, whether by doing to him what he did to his victim or by doing something else. But this, too, is quickly seen to be unacceptable as a general rule. Compare shooting someone in the kneecaps with killing him gently in his sleep. The former is likely to entail much more suffering than the latter, but we don’t think that the latter should therefore be punished much more leniently than the former.

Perhaps, then, we should move from suffering to harm, since gently murdering someone clearly counts as harming him. But again this won’t do. Attempted murder may involve no harm at all, and yet we think it merits punishment nonetheless.

The problem is that so far we’ve been focusing exclusively on what might be called the “external act,” whereas we need to take the offender’s “internal state of mind” into account. (This corresponds to some degree with a distinction that the law draws between what it calls actus reus (Latin for “guilty act”) and mens rea (“guilty mind”).) To appreciate the distinction, consider a variety of ways of committing homicide. You might kill someone (a) accidentally (as when you run over a child who has suddenly and unpredictably dashed out in front of your car), or (b) negligently (as when you give a patient an overdose of some medication, having read the instructions too quickly), (c) or recklessly (as when you don’t even bother to read the relevant instructions), or (d) in the heat of the moment (as when you catch your spouse cheating on you), or (e) with malice aforethought (as when you meticulously plot and plan and carry out a murder). The external act is in every case the same: you cause someone’s death. What’s different between the cases is your state of mind, and this difference seems to make all the difference. It is on your state of mind that your degree of guilt depends. No one would seriously consider capital punishment for accidental homicide, although the victim in such a case is equally as dead as the victim of first-degree murder.

So what we need to try to do is match degree of guilt (rather than harm) with degree of severity of punishment. But how on earth do we even begin to do this? Isn’t it like trying to compare apples and oranges? Or rather (since apples and oranges surely can be compared in meaningful ways: they’re both fruits, both round, but have different colors) isn’t it like trying to compare apples with, say, numbers? What could such a comparison consist in?

To see how daunting this task is, consider what it entails.

First, we must draw up a list of ways to incur guilt and rank them in terms of degree of guilt. It’s not easy to see how this might be done.

Next, we must draw up a list of punishments and rank them in terms of degree of severity. This seems a little easier; 1 day in prison is pretty clearly not as bad as 1 week, which is not as bad as 1 month, which is not as bad as 1 year, and so on. But even here there are difficulties. One week in prison A may be worse than 1 month in prison B. Moreover, it’s not easy to know how to compare different kinds of punishment. Is 1 month in prison better or worse than 40 lashes of a cat o’ nine tails? Is execution better or worse than life without parole?

Finally, we must correlate the items on the two lists. Such correlation does not merely involve proportionality. To see this, consider the following two proposals:

Even if we ignore the important question of how to determine what degree of guilt is to be associated with a “typical” crime, I would be surprised if you found either proposal acceptable, even though each of them preserves a kind of proportionality between punishment and guilt. As for Proposal 1: isn’t 100 days in prison for “typical” first-degree murder much too lenient? As for Proposal 2: isn’t 10 years in prison for “typical” petty theft much too harsh? If you think so, then something else than mere proportionality is driving your intuition. Some kind of “absolute” standard is doing so. But what standard, precisely, and how is it justified?

Unless and until you can answer the question I have just posed, you should surely be hesitant to declare this or that punishment to be what an offender deserves.

***Here is a good place to stop and consider Questions 12 and 13 on the Practice Questions for Module 5.***

5. Nathanson on capital punishment

Like Reiman, Nathanson is also an opponent of capital punishment, but for reasons that are quite different and more limited. He presses the case for abolition of the death penalty as it is presently administered, on the grounds that it is imposed unequally, betraying an unacceptable racial bias. (I say “presently” because, although Nathanson’s article was published some time ago (in 1985), I suspect that matters haven’t changed appreciably since.) Notice that Nathanson is not basing his opposition on some more general claim, such as that capital punishment is “uncivilized” or “cruel and unusual.” On the contrary, if the bias that he alleges were eliminated, his opposition (at least insofar as it is grounded on the allegation of bias) would cease.

Nathanson makes reference to a case that went before the U.S. Supreme Court in 1972, the case of Furman v. Georgia, in which the Court ruled against Georgia’s imposition of the death penalty in three cases, on the grounds that this imposition was unacceptably arbitrary. Since he published his article in 1985, Nathanson of course does not make reference to a later case, that of McCleskey v. Kemp in 1987, in which the Court ruled in favor of Georgia’s imposition of the death penalty in another case. But it’s worth considering this later case, because certain data were explicitly cited in the majority opinion which would appear to be similar to the data that were implicitly at issue in the earlier case. Here they are, culled from over 2,000 murder cases that occurred in Georgia in the 1970s:

Presumably it is just these kinds of statistics that Nathanson has in mind (see p. 606, right column).

Now, statistics like these are treacherous, since they admit of a variety of interpretations. (It’s a well-known fact that statistics are misinterpreted 65.3% of the time. Just kidding.) Nonetheless, it seems fairly safe to say that these particular statistics are a strong indication of two things: first, that black victims of murder (in Georgia in the 1970s) tended to be treated less seriously than white victims; second, that black murderers (or blacks convicted of murder) tended to be treated more harshly than white murderers. I don’t suppose that either of these findings will come as a great surprise to you. (It’s noteworthy that, despite these statistics, the Supreme Court upheld McCleskey’s sentence.)

Nathanson acknowledges that capital punishment may be in keeping with the desert of the offender. (See Principle 2.) This is a matter of what is sometimes called non-comparative justice − non-comparative because, in determining what it is that an offender deserves in this regard, we need only look at him (in particular, at the degree of guilt he exhibited when committing the offense of which he has been convicted) and do not need to compare him with anyone else. But he says that justice also has a comparative dimension that must not be ignored. It is captured in what I have called the Principle of Comparative Justice, which I introduced early on in this course:

The Principle of Comparative Justice:
It is morally wrong to engage in discrimination based on irrelevant differences.

And here again is what I said when I first presented this principle.

The fundamental idea here, one with which we are all familiar, is that cases that are equal in relevant respects ought to be treated equally (while cases that are unequal in relevant respects ought to be treated according to their relevant differences). In one way or another, the issue of discrimination will crop up repeatedly in our discussions. Notice that, although the word “discriminate” usually has a bad connotation, the Principle of Comparative Justice does not condemn all discrimination. It only condemns unjust discrimination − discrimination that is based on irrelevant differences. (Of course, a very important question then arises: when is a difference relevant, and when is it irrelevant? This is not always an easy question to answer.)

As an illustration of the interplay between non-comparative and comparative justice, consider the matter of ticketing drivers for speeding (an issue that Nathanson himself raises). Suppose that we are charged with the task of devising a ticketing policy. We know that we have the manpower to catch only 1 in 10 speeders, and we’re trying to choose between three different policies, as follows:

Let’s grant that speeders deserve to be ticketed. Notice that it then follows that none of these policies would involve treating anyone in a way in which he deserves not to be treated. At least, this is so as far as non-comparative justice is concerned. Nonetheless, isn’t there very good reason not to adopt Policy 3? (I’ll leave open the question which of Policies 1 and 2 to adopt, although the answer seems pretty clear.) Why? Because, even though it treats no one in a way in which he non-comparatively deserves not to be treated, it does treat those who are ticketed in a way in which they comparatively deserve not to be treated, since it singles them out on the basis of a feature that is, presumably, irrelevant to whether they should be ticketed rather than someone else.

So says Nathanson, at least. Better, he thinks, not to ticket any speeder than to ticket someone in accordance with Policy 3. Likewise, better, he says, not to execute anyone than to impose the death penalty in the arbitrary way in which Georgia did during the 1970s, even if those who were executed non-comparatively deserved to be executed.

***Here is a good place to stop and consider Question 14 on the Practice Questions for Module 5.***

6. Critical evaluation of Nathanson’s article

In criticism of Nathanson, van den Haag claims that the best response to cases in which the demands of non-comparative justice are not fully met is to try our best to meet these demands; the best response is not to aim for some sort of equality that will take us even further away from meeting these demands.

To see what van den Haag is after, consider a case in which two people, A and B, have been convicted of having committed the same kind of offense. Let us suppose that the punishment that each of them non-comparatively deserves is 10 years in prison. And now consider three possible situations:

Van den Haag notes that Situation 1 is clearly the best: each of A and B fully gets what he deserves. He acknowledges, though, that in real life such perfect justice is never fully attained, since not all offenders are caught and convicted, and different courts sometimes hand down different sentences. “Equal justice,” he says (p. 598, left column), “is best, but unattainable. Unequal justice is…the only justice we have, and certainly better than equal injustice.” That is, Situation 2 is certainly better than Situation 3. And yet Nathanson is in effect advocating moving from Situation 2 to Situation 3; that is, he’s advocating moving from a situation in which some but not all are treated as they deserve to a situation in which none are!

But surely Nathanson has a point that van den Haag is overlooking. Everyone (including both van den Haag and Nathanson) can agree that Situation 1 is best (given that it is indeed the case that both A and B non-comparatively deserve 10 years in prison). For when the demands of non-comparative justice are fully met, those of comparative justice are also automatically fully met. But it doesn’t follow from this that Situation 2 is better than Situation 3. The terminology that van den Haag uses to describe these situations is loaded. In saying that “unequal justice” is done in Situation 2 whereas “equal injustice” is done in Situation 3, he is using the terms “justice” and “injustice” to refer solely to non-comparative (in)justice. He is ignoring the comparative injustice involved in Situation 2 and the comparative justice involved in Situation 3. Situations 2 and 3 are thus both “mixed” when it comes to (in)justice being done. In Situation 2, some non-comparative justice is done (A gets 10 years), some non-comparative injustice is done (B gets only 5 years), and comparative justice is not done (A and B are not treated equally, even though there is no relevant difference between them). In Situation 3, non-comparative justice is not done (since A and B get only 5 years, instead of the 10 they deserve), but comparative justice is done (since A and B are treated equally). It therefore seems not at all clear which of Situations 2 and 3 is preferable in terms of justice. Contrary to what van den Haag says, Situation 2 is not obviously better. Contrary to what Nathanson seems to suggest, Situation 3 is not obviously better, either.

So what should we say about the death penalty in particular? If there is the sort of racial bias in its implementation that Nathanson alleges, is that sufficient reason to abolish it (which would be like moving from Situation 2 to Situation 3) unless and until this bias is eliminated, or should we nonetheless proceed with the present system (which would be like sticking with Situation 2)? I will leave that to you to ponder.

***Here is a good place to stop and consider Question 15 on the Practice Questions for Module 5.***