Philosophy Test Notes Essay

Philosophy Test 3 Notes: Death Penalty
***Notes about Test, one mandatory question that is about your opinion, it could possibly be about last test’s material****

3. Abolitionist Rebuttal
a. the moral argument
b. constitutional issues—(a) due process, (b) 8th amendment (cruel and unusual punishment)
c. problem of rectification (due to the qualitatively distinct nature of capital punishment, if you make a mistake, in regards to executing people, you can’t undo it or rectify it)
d. denial of deterrence (look at the statistics and you will see that capital punishment doesn’t deter crime any more than life imprisonment does)

Gregg v. GA
1. Background
-Gregg was found guilty of armed robbery and murder (murdered the store owner)
-the jury said a count on each count, this double count happened b/c in Georgia it was retained that in 6 categories of crime the death penalty was due
-supreme court said that it was going to declare the death penalty for murder was constitutional, but not for armed robbery, in their view, robbery (b/c it didn’t kill anyone) didn’t deserve the death penalty
-Gregg appeals again and this case restores the death penalty within the U.S.
-his lawyer said that the death penalty is cruel and unusual and should never be allowed
-they admit that it was not resolved in furman v. Georgia that the death penalty was or was not cruel or unusual
Majority Opinion:
-the majority opinion says that the death penalty is not cruel and unusual punishment and Georgia just has to apply it justly by rewriting its statues
-it the penalty does not accord to the dignity of man then it is cruel and unusual, at the very least it should not be excessive for the severity of the crime, an excessive penalty must not involve torture
-proportionality argument: you have to proportion the penalty to how severe the crime is, this seems to be what we try to do
-it is at least reasonable to believe that capital punishment deters more than life imprisonment
-if it deters, is it still not cruel or unusual? Answer to that, is that it depends on the situation. (Krecz’s problem) –if it deters it is not cruel of unusual may not be true
a. Furman v. Ga: disgression of jury, unconstitutional
-Supreme court ruled (5 to 4), that the death penalty in Georgia was unconstitutional and also by implication that all other states’ death penalty was dismissed
-the majority of the 5 that said it was unconstitutional, 2 of them said it was unconstitutional b/c the death penalty is cruel and unusual per say, the other three said that they weren’t sure if it was cruel of unusual, but since it is unfairly applied they will declare it unconstitutional
-thus, the death penalty was struck down b/c of its “arbitrary and capricious” manner not b/c it was cruel and unusual punishment, the question of it being that was still up in the air, doesn’t settle it, they just don’t like the way it was administered in Georgia
-after this ruling 35 states went back to write it back into legislation
b. Woodson v. North Carolina: no disgression of jury, unconstitutional
-this says that for a set of determined crimes there will be the death penalty, eliminating jury disgression that could possibly cause controversy
-this was declared unconstitutional b/c it was seen that automatic killing, without reasoning, was not okay, in their view, reasoning and case by case differences needed to be included
c. Facts and questions of the case

2. Majority Opinion
a. regarding cruel and unusual punishment
b. regarding due process

3. Lecturer’s Problems:
a. problem regarding deterrence
-Marshall gave a ton of statistics to show that it did not deter crime
b. what is the relation between “cruel and unusual” and “social function?”
-so what if it has a “social function” like deterrence, it can still be cruel and unusual (i.e. torture serves a function, but it is cruel and unusual)
c. other problems of due process
-are we fit to pick who should die? And is it possible

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