Theory and Practice of Corrections

BCJ 2002, Theory and Practices of Corrections 1

Course Learning Outcomes for Unit VIII Upon completion of this unit, students should be able to:

1. Define terms related to correction. 1.1 Define key terms that relate to the death penalty in this unit.

8. Appraise the legal rights of inmates and the use of capital punishment.

8.1 Examine the appeals process as it relates to the death penalty. 8.2 Recognize both sides of the argument for and against the death

penalty.

Unit Lesson There are many arguments both for and against the use of the death penalty. In the criminal justice system as a whole, there are very few topics that evoke such strong feelings, discussions, and debates as the use of the death penalty as a punishment, sanction, retribution, or a deterrent. One of the areas that we need to explore in further detail is the philosophy behind the use of the death penalty. The Enlightenment Era produced many political philosophers. Some of their published work is actually the genesis for the Constitution of the United States of America and the Declaration of Independence. Two of the major political philosophers of the Enlightenment Era that wrote about the use of the death penalty were John Locke and Jean-Jacques Rousseau. While they both agree with the use of the death penalty, as students you need to understand some political thought behind the issue and form your own opinion. John Locke lived from 1632 to 1704, and is known as the “Father of Liberalism,” however, he also made large contributions to classical republicanism as well (Glough, 1950). His philosophical origins can be seen in the Declaration of Independence. He influenced the teaching and writings of Voltaire, and Rousseau. John Locke wrote the Second Treatise of Civil Government, where he discussed the limits of legitimate political authority and a concept called “the laws of nature.” It is important to understand that in philosophical teaching and writing, these people are writing about what they believe should be, not what is actually going on at the time. John Locke believed that the “laws of nature” were available to all people through appropriate refection. Locke believed that individuals were equal and free. He also believed that any individual could punish another individual for wrong doing. Locke believed that the right to punish extended to those people that learned of the wrong doing but were not directly affected by the action (Warburton, 2001). John Locke’s belief that people had the right to punish other people, even though they were not directly affected by the crime, is a key point in the American legal system and in the administration of the death penalty. When the crime of homicide is committed, there is a trial by one’s peers. These people are not directly affected by the crime but

Reading Assignment Chapter 15: Death: The Ultimate Sanction

Learning Activities (Non-Graded) See information below.

Key Terms 1. Aggravating

circumstances 2. Bifurcated trial 3. Capital crime 4. Capital punishment 5. Death row 6. Exonerate 7. Guided discretion 8. Mandatory death

penalty 9. Mitigating

circumstances 10. Serious error

UNIT VIII STUDY GUIDE

The Death Penalty

BCJ 2002, Theory and Practices of Corrections 2

are tasked with rendering a verdict. The judge imposes the death penalty, and the state then exercises the authority to carry out the death penalty (Glough, 1950). As you can see, the jury, the judge, and the state are not acquainted with the defendant. This could be said to be the beginning of the death penalty. Should each individual state have the right to take a life? Should people who have no connection to the victim be able to carry out the death penalty? Do you think there would be more satisfaction from the victims’ families if they were able to carry out the punishment, or do you think that this would taint the process? Why do you feel this way? Examine this quote from John Locke on his view of the death penalty from his work, The Second Treatise of Civil Government:

A criminal who, having renounced reason ... hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or tiger [sic], one of those wild savage beasts with whom men can have no society nor security. (as cited in Laslett, 1988, p. 275)

Upon this is grounded the great law of Nature, "Whoso sheddeth [sic] man's blood, by man shall his blood be shed” (as cited in Laslett, 1988, p. 278). While it is important to understand that the English language was slightly different during this time, we can see what John Locke is saying about the death penalty in this quote. He seems to view a criminal who kills someone without cause as an animal. He states that men and society have nothing in common with someone that commits this act, and as such it is an act of war on all mankind. Do you feel that this is true? Do civilized people have anything in common with uncivilized people, and can they coexist with each other? Locke does not appear to believe that they can because the last sentence in that quote means that if a person sheds a man’s blood, his blood shall be shed as well. In essence, John Locke believes in the death penalty on the basis of an eye for an eye. This is somewhat biblical from the Old-Testament viewpoint, but you need to consider the time period and the acceptance of religion in the Enlightenment Era. What do you think of this quote and Locke’s apparent view of the death penalty as punishment? The next Enlightenment Era philosopher we will discuss is Jean Jacques-Rousseau. He lived between 1712 and 1778, and his most well-known work is titled The Social Contract (Warburton, 2001). Rousseau’s primary purpose for this publication was to explain the sources and limits of power by legitimate government. He believed that the social contract stemmed from people’s desire to unite with each other (form society) and their government for the common good of mankind. Rousseau believed that people had much to gain from uniting under one body as a state. He believed that the state could provide better protection of life and property than someone living alone. Rousseau believed that the state had the right to decide who should live and who should die. He thought that when a person commits a crime he or she violates the social contract that he or she has with society and the state. Therefore, it is the state’s responsibility to take a life (Warburton, 2001). By this thinking, a person who commits the crime of homicide becomes an enemy of the state as well. Once they violate the social contract they need to be either exiled or killed. Rousseau also believed that to pardon a criminal is to show weakness. Can you see the origins of punishment in this philosophy? How often do you hear of criminals being pardoned in this country? Let us examine a quote from Rousseau’s Social Contract, as again, it is important to understand the time period that this work was written and understand that the English language was still evolving:

Again, every rogue who criminously attacks social rights becomes, by his wrong, a rebel and a traitor to his fatherland. By contravening its laws, he ceases to be one of its citizens: he even wages war against it. In such circumstances, the State and he cannot both be saved: one or the other must perish. In killing the criminal, we destroy not so much a citizen as an enemy. The trial and judgements [sic] are proofs that he has broken the Social Contract, and so is no longer a member of the State. (as cited in Warburton, 2001, p. 124)

BCJ 2002, Theory and Practices of Corrections 3

Rousseau states in this quote that when a person violates or attacks the social rights of others, he or she becomes a traitor to the state. By going against law, a person gives up his or her rights as a citizen, and he sees this as an act of war. Rousseau is inferring that the state and the criminal cannot coexist, and one has to be saved. By killing a criminal, you are killing the enemy of the state and the social contract. The trial and the judgment is the proof that the person broke the social contract he or she had with society and the state (Warburton, 2001). Many times in this course, you have discussed opposing points of view regarding punishment. You can see that even as far back as the Enlightenment Era there are opposing viewpoints to even some of the most forward thinking philosophers of that time period. There is one criticism of Rousseau’s work from other philosophers of the Enlightenment Era and even more modern philosophers as well. It could be said that Rousseau supports oppression by allowing the state to take a life. If the state is allowed to take a life, does that infringe on a person’s right to be free or for society to be free in the larger sense. Is taking a life, even of a person that has engaged in the criminal act of taking a life, working in favor of society and upholding the “social contract” that citizens have with the state? As you read through the chapter on the death penalty, it is important to keep an open mind on the statistics and information as they relate to the death penalty. This lecture is meant to give you the understanding of the origin of the thought behind punishment and specifically the genesis of the death penalty. There are several other philosophers that have well published thoughts on the issue, such as John Stuart Mill, Thomas Hobbes, Emmanuel Kant, Plato, and John Rawls. However, the two philosophers discussed in this lecture were chosen because of their significance to the Declaration of Independence and the Constitution of the United States of America. It is as important to understand all sides of an argument, as it is the very beginnings of the issue. As you think about the argument for or against the death penalty, ask yourself if there are any valid points to the other side of the argument. Do you think that a philosopher’s viewpoint in the Enlightenment Era could hold its validity today? By understanding opposing viewpoints and engaging in constructive dialogue on this topic, you as the student will grow by understanding, and not necessarily agreeing with, opposing points of view as they relate to a topic of this nature.

References

Glough, J. W. (1950). John Locke’s political philosophy: Eight studies. New York, NY: Oxford University Press.

Laslett, P. (1988). John Locke: Two treatise of government. New York, NY: Cambridge

University Press. Warburton, N. (2001) Philosophy: The classics (2nd ed.). New York, NY: Routledge.

Learning Activities (Non-Graded) Flash Cards For a review of the Key Terms of the unit, click here to access the interactive Unit VIII Flash Cards in PowerPoint form. (Click here to access a PDF version.) Non-graded Learning Activities are provided to aid students in their course of study. You do not have to submit them. If you have questions, contact your instructor for further guidance and information.