Term
Question 3)A)
Describe Justice Marshall’s dissent in Gregg v. GA |
|
Definition
| a. Describe Justice Marshall’s dissent in Gregg v. GA: which they also articulated in Furman, that the death penalty does not deter crime and that our society has evolved to the point that it is no longer an appropriate vehicle for expressing retribution. In every subsequent capital case that would come before the Court during their tenures, they would refer to their opinions in Gregg in support of their vote against the death penalty. |
|
|
Term
Question 3)B
Describe two of Primoratz’s responses to objections to the retributive argument: |
|
Definition
b. Describe two of Primoratz’s responses to objections to the retributive argument:
(1)Some people say capital punishment denies right to lifehe says for other crimes you give up some of your rights when you commit the crime. You give up freedom if you go to prison… so he says if you kill you lose the right to live
(2)The right to life is not absolute
***Proportionality is not a mathematical concept. We weigh out lives
We can’t say whose life was more valuable
Well he took away everything, so we will take away everything from him |
|
|
Term
| Question 2) Does the death penalty present any real advantages over the penalty of life imprisonment? Why or why not? In your answer you may consider any of the sources provided by your book, but you must consider the positions of Loius Pojman and Jeffrey Reiman. |
|
Definition
a. ***Pojman position on advantages of DP >live imprisonment Pojman agrees with the “best bet” argument (from van de Haag) and thinks one should look at the options…
-“benefit analysis”—If capital punishment DOES deter and you do use it, you will get 4 stars for that because by executed a murderer you have in fact saved someone’s life. If it DOES’NT deter, what have you lost? Well, you’ve killed a murderer. You uselessly killed a murder; bad guy anyways, one star. You can’t compare killing an innocent guy to a murderer.
The best bet…if it deters, than use it! It doesn’t claim that we KNOW but there’s a reason that it might deter. Make your best bet, execute.
@@@@Pojman’s answer: Beliefs there are advantages… if someone doesn’t get the DP they could go kill others!
***Reiman position on advantages of DP>live imprisonment
*****Reiman directly counters the commonsense argument for the death penalty as a uniquely effective deterrent, and he also takes issue with the best bet argument. He initially considers the commonsense argument ina version put forth by Hagg and presents three counterarguments. In developing his third counterargument, Reiman relies on the claim that abolition of the death penalty would have a civilizing impact on society, and this he speaks of “a detterent effect from NOT EXECUTING”. Subsequently, in formulating a reply to the views of Pojman in the previous selection, Reiman deepens his critique of the commonsense argument by focusing attention on what he calls “the continuously rising disinclination premise.” (This part of Reiman’s overall critique is best understood in conjunction with the first of his three initial counterarguments.) Reiman concludes by advancing two counterarguments against the best bet argument.
*****Conceding that it has not been proven that the death penalty deters more murders than life imprisonment, Ernest van den Haag has argued that neither has it been proven that the death penalty does not deter more murders. This his argument goes, we must follow common sense, which teaches that the higher the cost of something, the fewer the people who will choose it. Therefore, at least some potential murderers who would not be deterred by life imprisonment will be deterred by the death penalty. |
|
|
Term
Question 3)C)
Describe the lecturer’s counter-example to Primoratz’s retributive argument |
|
Definition
C. Describe the lecturer’s counter-example to Primoratz’s retributive argument:
His response is we don’t levy a lighter sentence because we might be wrong in other cases, so why should muders be privedliged…the answer: capital punishment is unique, you ended a persons life. Murder is unique. Cp is unique.
****When you say lighter sentence...krecz thinks “life in prison”. He doesn’t know if anyone would think that is a lighter prison.
***Racism and due process: problem is that people have rewritten laws and there is still racism. There are far more other problems…jury selection, innocence.
****It cant be life for life
****Two cases- one is a man rapes and tortues victum—dies
****One man rapes tortures---that women ends up being saved
Same acts were done…torture…rape…leaving for dead…you who called 911 allows that person to live. Shes paralyzed…psychological wreck but didn’t die.
If the first guy gets the dp, then why doesn’t the second guy??
****The 2nd guy morally doing did the same thing, yet he gets to live! Is that fair?
Cant be life for life
*****Retribution is an important type of criminal law |
|
|
Term
Question 3)D)
Describe Nathanson’s two senses of retribution |
|
Definition
D. Describe Nathanson’s two senses of retribution
Nathanson: “An Eye for an Eye” (agrees with Krecz) –abolitionist—against DP/CP
******Two senses of retribution, equality and proportionality: the sense of equality “eye for eye, tooth for tooth”.
*****So if someone rapes someone, do you rape them? You cant do to the criminal what he did to his victim because that is silly. Blind for blind? That would violate 8th amendment
*****If you understand this argument as equality thing.
*****Whats left? Same idea of what we were just talking about. Proportionality. The punishment should be proportional to the crime. It’s got to be proportionality. You reserve the worst sort of punishment for the worst sort of crimes. The problem there is nathanson thinks that is correct, you should reserve worst punishment for worst crimes. The problem is that it does not follow that you should have the dp in place. The worst punishment we give is “life in prison” for murder…you could kill them, but you could have proportionality without killing them.
*****Weakness of paper—he doesn’t say it’s a deterrent factor
*****Its on the table—dp—because someone may just argue
*****He thinks not only does dp not deter, but in terms of this argument, he wants to abolish cp bc of a symbol for our respect for life. “You murdered someone, but were not going to kill you…we’re not going to be like you, were going to respect life unlike you.” Were going to resolve the problem of violence without resorting to more violence. Basic reason for being an abolitionist
*****Some people believe violence is the solution
******The point is that you won’t do that, we will show the world; people … that u don’t have to kill
*****How do we solve the problem?
*****If you have young people in this country you might get the idea that its okay to kill
*****Message people are getting is that you can solve problems with violence.
*****Krecz thinks he has a point to make. We should not enhance violence! |
|
|
Term
Question 4)A)Describe the deterrence argument for the death penalty. Then state how each of the following views deterrence:
Describe the deterrence argument for the death penalty: The deterrence argument for the death penalty is the idea that holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done.
a. Majority opionion in Gregg v. GA: |
|
Definition
| In Gregg the U.S. Supreme Court, by a seven-to-two vote, upheld Georgia's guided-discretion approach to capital punishment, although in companion decisions the Court invalidated other states' mandatory death-penalty statutes as "unduly harsh and unworkably rigid." The decisive opinion in Gregg, joined by justices Potter Stewart and John Paul Stevens, reasoned that Georgia had adequately addressed the problem of unfettered jury discretion and added that "respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude that . . . [it] . . . is not unconstitutionally severe." The "guided discretion" approach to the death penalty, upheld by the Court in Gregg, has been adopted in a large majority of states and continues to control capital sentencing in murder cases throughout the nation to the present day. |
|
|
Term
Question 4)B)Describe the deterrence argument for the death penalty. Then state how each of the following views deterrence:
b. Louis PojmanPojman on Deterrence |
|
Definition
b. Louis PojmanPojman on Deterrence
The “best bet” argument (from van de Haag): They don’t make the claim they know it deters.
Look at your opinions, “benefit analysis”…if Cp DOES deter and you do use it, you will get 4 stars for that because by executed a murderer you have in fact saved someone’s life. If it DOES’NT deter, what have you lost? Well, you’ve killed a murderer. You uselessly killed a murder; bad guy anyways, one star. You can’t compare killing an innocent guy to a murderer.
*****The best bet…if it deters, than use it! It doesn’t claim that we KNOW but there’s a reason that it might deter. Make your best bet, execute.
USE CP DON’T USE CP
Cp deters ***** -(*****)
Cp does not deter -(*) *
The “common sense” (intuitive) AND anecdotal argument: CS: deterrence does work for many crimes, would capital punishment deter any more than life in prison? He says that it’s intuitive…as you increase harshness of penalty; the more likely the act will not be done. The greater the punishment the less likely someone will do it!
Intuitive: “Oh! No more DP just LiP…I’m going to kill my aunty now!!” there is no reason to think, intuitively, that LiP would not be enough
Anecdotal: a situationa burglar …one anecdote does not change opinion of the Dp … it is reasonal to believe that if we rise from LiP to Dp the crime would go down for that act.
Problems: the best bet argument assumes there is no limit .. the more you increase it, the more you will get results… it also has the premise the further you go legally, with more extreme punishment, the more you get benefits. Unfortunately, it’s not clear that its true. Author disagrees…he says Once you get to the level of LiP, the punishment does not deter anymore… |
|
|
Term
Question 4)D)
Jeffrey ReimanReiman on Deterrence |
|
Definition
@@@Needs more information!
D. Jeffrey ReimanReiman on Deterrence
b. Critique of the common sense argument: a problematic premise: the continuously rising disinclination premise. Also, the “death on the street” argument.
c. Critique of best bet argument: without common sense
d. The deterrent effect of not executing.
e. Evaluation of Reiman
DOTSA He goes to the scene with a gun…to use it…hes a bad guy…he has a record. It didn’t stop him from going out there, even though he knows the owner will or might have a gun.
Critique of best bet argument: without common sense
The deterrent effect of not executing
Evaluation of Reiman |
|
|
Term
Question 4)C)Describe the deterrence argument for the death penalty. Then state how each of the following views deterrence:
c. Primoratz: Views deterrence: |
|
Definition
c. Primoratz: Views deterrence:
Primoratz endoreses a retributive rationale for the retention of the death penalty and defends this rationale against commonly made abolitionist arguments. He rejects the idea that the death penalty violates a murderer’s right ot life and insists that there is no contradiction involved in a system of criminal law that prohibits murder and yet allows the state to administer the DP. He also defends the retributive rationale against arguments claiming to show that the DP is in reality a disproportionate penalty for the crime of murder. Finally, Primoratz argues that neither the possibility of executing an innocent person nor the discriminatory application of the death penalty can provide a credible basis for abolition.
****Deterrence is often contrasted with retributivism, which holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done. |
|
|
Term
Question 6)Main Question
Describe the retributive argument for the death penalty. |
|
Definition
*****Retributive Justice: Is a theory of justice that considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society.
*****In ethics and law, “Let the punishment fit the crime” is the principle that the severity of penalty for a misdeed or wrongdoing should be reasonable and proportional to the severity of the infraction. |
|
|
Term
Question 6)A)
Primoratz view of the retributive argument for the dp |
|
Definition
A. Primoratz view of the retributive argument
Primoratz—“A Life for a Life.”—biblical quote about human life
Why he thinks the death penality is appropriate for certain types of crimes.
c. Primoratz’s version of the retributive argument
d. Primoratz’s response to objections to Cp. responds to. Some people say capital punishment denies right to lifehe says for other crimes you give up some of your rights when you commit the crime. You give up freedom if you go to prison… so he says if you kill you lose the right to live
*The right to life is not absolute
*Proportionality is not a mathematical concept. We weigh out lives
We can’t say whose life was more valuable
Well he took away everything, so we will take away everything from him
e. Problems
His response is we don’t levy a lighter sentence because we might be wrong in other cases, so why should muders be privedliged…the answer: capital punishment is unique, you ended a persons life. Murder is unique. Cp is unique. When you say lighter sentence..krecz thinks “life in prison”. He doesn’t know if anyone would think that is a lighter prison.
*Racism and due process: problem is that people have rewritten laws and there is still racism. There are far more other problems…jury selection, innocence.
*It cant be life for life
*Two cases- one is a man rapes and tortues victum—dies
*One man rapes tortures---that women ends up being saved
Same acts were done…torture…rape…leaving for dead…you who called 911 allows that person to live. Shes paralyzed…psychological wreck but didn’t die.
If the first guy gets the dp, then why doesn’t the second guy??
*The 2nd guy morally doing did the same thing, yet he gets to live! Is that fair?
Cant be life for life
*Retribution is an important type of criminal law |
|
|
Term
Question 6)B)
Nathanson's view of the retributive argument for the dp |
|
Definition
B. Nathansonview of the retributive argument
Nathanson: “An Eye for an Eye” (agrees with Krecz) –abolitionist—against DP/CP
1. Two senses of retribution, equality and proportionality: the sense of equality “eye for eye, tooth for tooth”.
So if someone rapes someone, do you rape them? You cant do to the criminal what he did to his victim because that is silly. Blind for blind? That would violate 8th amendment
*If you understand this argument as equality thing.
*Whats left? Same idea of what we were just talking about. Proportionality. The punishment should be proportional to the crime. It’s got to be proportionality. You reserve the worst sort of punishment for the worst sort of crimes. The problem there is nathanson thinks that is correct, you should reserve worst punishment for worst crimes. The problem is that it does not follow that you should have the dp in place. The worst punishment we give is “life in prison” for murder…you could kill them, but you could have proportionality without killing them.
*Weakness of paper—he doesn’t say it’s a deterrent factor
*Its on the table—dp—because someone may just argue
*He thinks not only does dp not deter, but in terms of this argument, he wants to abolish cp bc of a symbol for our respect for life. “You murdered someone, but were not going to kill you…we’re not going to be like you, were going to respect life unlike you.” Were going to resolve the problem of violence without resorting to more violence. Basic reason for being an abolitionist
*Some people believe violence is the solution
*The point is that you wont do that, we will show the world, people … that u don’t have to kill
*How do we solve the problem?
*If you have young people in this country you might get the idea that its okay to kill
*Message people are getting is that you can solve problems with violence.
*Krecz thinks he has a point to make. We should not enhance violence!
*Problems:
good to go after terrorists 911
Should talk before you fight
2. Attack on equality
3. Analysis of proportionality and CP.
4. On deterrence –why abolish CP
5. Problems
^^^Continued from Nathanson view--notes |
|
|
Term
Question 6)C)
The Lecturer's view of the retributive argument for the dp |
|
Definition
|
|
Term
Question 6)D)
Dissenting opinion (Marshall) in (Gregg v. GA)--->The retributibe argument for the death penalty |
|
Definition
D. Dissenting opinion (Marshall) in (Gregg v. Ga.)—
Dissenting opinion (Marshall) in (Gregg v. GA)
Overall criticism of RetributionAccording to some theories of ethics, punishment (or proportional punishment) is self-contradictory in the sense that “Two wrongs don’t make a right”.
--Some hold that the motive behind the Christian sanction for interpersonal relations (“Turn the other cheek” before seeking retribution for wrong), and the motive behind the sanctions for social magistrates (which include the application of retributive justice, e.g., “just stoning”), conflict. On the other hand, the motives for the social sanctions can be attributed to other justifications beyond simple retaliation.
--One more++ |
|
|
Term
Question 1)
Write an essay on Gregg v. Ga., first providing the background by discussing the outcomes of Furman v. Ga. And Woodson v. North Carolina, then discussing the arguments and conclusion of the majority opinion in Gregg v. Ga. |
|
Definition
Write an essay on Gregg v. Ga., first providing the background by discussing the outcomes of Furman v. Ga. And Woodson v. North Carolina, then discussing the arguments and conclusion of the majority opinion in Gregg v. Ga.
MAJORITY OPINION------(????)HOLDING IN GREGG V. GEORGIA: The imposition of the death penalty does not, automatically, violate the 8th and 14th Amendments. If the jury is furnished with standards to direct and limit the sentencing discretion, and the jury’s decision is subjected to meaningful appellate review, the death sentence may be constitutional. If, however, the death penalty is mandatory, such that there is no provision for mercy based on the characteristics of the offender, then it is unconstitutional.
ARGUMENTS AND CONCLUSIONS IN GREGG V. GA----above?
Furman v. GaImportant because here the death penalty was deemed to be unconstitutional. Strange because in one sentence there was an agreement and another there was not. Concludes with some confusion…arises because the court was divided on why it was deemed to be unconstitutional.
It was obvious, during this time, that people of color were being killed more.
5 to 4 majority to declare that it was unconstitutional.
***Justice Brendon and Justice Marshall”We should abolish…” They don’t think any capital punishment would be okay and that it would mess with the 8th amendment.
2/5 said you can’t have one, period, because it is “cruel and unusual” (8th) and that it was unfair (racisism, due process and fairness problems)
1. Cruel and unusual
2. It’s not done right!
The other 3 justices in the court that agreed it was wrong though: Capital punishment is ___ with the right of equal protection. Did not say it was per say “cruel and unusual” but “cruel and unusual” with the way it is administered.
***Because of Gregg v. GA we didn’t have the death penalty for awhile…at this time the American public was slightly against the death penalty.
***What to do about this: general reason for what they think went wrong with Georgia’s law.
---there is a phase where they do guilt
---there is a phase where there is punishment
The problem is: the instructions were deficient. The jury didn’t know how to discover if they should get the death penalty or not.
You can see why a minority would be executed at a greater rate than white people.
DP or life in prison? VAGUE and allowed for all types of reasons to be unfair/racist/etc.
Lacking in the state’s instructions to the jury…so at this point there was no death penalty. DEFICIENT instructions to jury, unbelievable lack…
The “penalty” unconstitutional
What to do? Supreme court shuts down death penalty. 35 (?) states want to have it though.
Woodson v. North Carolina
*(???????) We’ll have “capital crime” so that if you are found guilty than execution is likely. This takes away power from jury. The Supreme Court said NO because you can’t take away jury discretion. Not all murder is alike!
*People were saying that damn liberal Supreme Court will not let us have the death penalty.
In Gregg V. GA you had the idea that jury discretion was the problem, in Woodson v. NC you got rid of it.
*You got to have jury discretion and you have to let the jury be rational when they come to a conclusion. It’s clear what is needed…
*GA is going to say there is jury discretion, but it must have standards for discretion. Precisely informed on what types of things must be looked at before coming to the death penalty. |
|
|
