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November 11, 2004

Ultimate punishments

Will Baude writes:

Former guest blogger Douglas Berman, at his home blog, begins a post on the Court's latest oral arguments thus:

I know death is different, and I know we should always be especially careful in the administration of society's ultimate punishment . . .

I don't wish to pick at Professor Berman's actual post, but his opening phrase has made me wonder:

Is the execution of people by lethal injection, electric chair, etc., really the "ultimate punishment"? As Jack Balkin points out, our society in fact has more severe punishments to mete out than our modern form of execution.

So when we say that modern execution is the "ultimate punishment" we must mean only that it is the "ultimate punishment" that we currently allow. Which forces the question (s)-- if anti-death-penalty forces some day get their way and take the death penalty out of the box of feasible punishments, will some new thing (life without parole? something else?) become our new "ultimate punishment"? And if so, will it still be the case that new "ultimate punishment" be one we should treat with special care and use only in the most unusual of cases? Is it possible to not have an "ultimate punishment"?

Interesting questions. In some contexts, "ultimate punishment" is synonymous with "harshest punishment". Painless execution isn't the most severe punishment. We can imagine worse fates including painful execution and life without parole under torture.

"Ultimate" has other connotations in conjunction with the death penalty, though. To say that execution is society's ultimate punishment may underscore the finality of death or the irrevocability of execution. In these senses, it is trivially true that execution is the ultimate punishment. Execution is the last act of retribution that can be extracted from anyone. Obviously, capital punishment can't be reversed. Execution is ultimate because it closes the door to exculpation, restitution, or reconciliation.

When people argue that death is different, I take them to be leaning more heavily on the latter senses of "ultimate." Will asks what would happen if life without parole (LWOP) became the ultimate punishment. If "ultimate" just means "most severe," there would be no special moral implications. We wouldn't have to be more circumspect about sentencing people to LWOP just because LWOP happens to be our society's ultimate punishment.

If "ultimate" refers to severity, and punishments can be ranked by severity, then there must be an ultimate punishment. On the other hand, if "ultimate" also points finality or irrevocability, a society may reject such ultimate punishments. Some of the most powerful arguments against the death penalty reject this remedy precisely because it is an ultimate punishment.


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We can imagine worse fates including painful execution and life without parole under torture.

Given the crew that's in power at the moment, I'd appreciate your not giving them any ideas, thank you.

I think the problem here is the idea of "punishment". The idea that we should punish, rather than rehabilitate, criminals always rings false with me, but the death penalty specifically is an odd sort of "punishment" in that there's nothing really to be learned from it by the target. Maybe I'm taking too Pavlovian a view of punishment, but the death "penalty" (another odd choice of words) seems more to me of a decision that there's nothing we can do to stop someone from comitting a crime and we can't risk the chance of their escaping jail.

I'm not philosophically opposed to the death penalty, but I do think the U.S. applies it in an inconsistent, blatantly racist manner. We really need to get past the idea of "punishing" people with it, though; any principled execution by the state would be done on the assumption that the criminal was patently too dangerous to be left capable of committing the same crime, as well as clearly unable to be rehabilitated.

Reading over that, I guess it's all a terribly naive idea of how our justice system works, or should work.

You mention, "In these senses, it is trivially true that execution is the ultimate punishment." Of course, if one considers death as a final ending the worst thing that can happen to one, then it's not trivially true--it is true in the most important sense.

Regarding the 'death penalty as punishment' thread brough up by Nick: I don't think proponents of the death penalty consider it only because we might not keep somebody from committing another crime--it's retribution, the way of getting revenge. Because of the actual statistics regarding the crime rate and capital punishment, it's hard to support any aregument that it's any kind of deterrent, for instance.

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