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Home > CJ Ethics > Pt 5 Penology & Moral Issues in Punishment | Buy CJ Ethics

Overview, Part 5: Ethical Issues in Punishment & Penology

This section explores ethical issues involved in punishment and the infliction of pain on offenders (penology); it includes chain gangs, corporal punishment, and a variety of issues related to the death penalty

Corporal Punishment
Death Penalty

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Author, Title & summary

Criminal Justice Ethics topics and pages

Chain Gangs

Penology is the study of punishment and is broader in scope than just prisons or ‘corrections.’ Criminal offenders do deserve to suffer, but the question is how and how much? Currently, the U.S. relies heavily on prison and has one of the highest incarceration rates in the world, although the uses and abuses of incarceration raise moral problems in many nations [see Vivien Stern, A Sin Against the Future: Imprisonment in the World (Boston: Northeastern University press, 1998)]. The search for alternatives occurs within a context of getting increasingly harsh and ‘tough on crime,’ so this section examines chain gangs, corporal punishment and the death penalty.

The first article is Tessa Gorman’s “Back on the Chain Gang: Why the Eighth Amendment and the History of Slavery Proscribe the Resurgence of Chain Gangs.” Gorman examines some of the history of race and racism in criminal justice that furnish a backdrop for chain gangs – and for other current concerns about the grossly disproportionate numbers of minorities in prison. Her article reviews current revivals of the chain gang against the Eighth Amendment, which needs to be interpreted in light of ‘evolving standards of decency.’ She concludes that “punishment must reflect the progression of society, not regress to the days of institutionalized racial oppression.”  The Supreme Court cases mentioned in this article can be found at Findlaw, <>. 


Chain Gangs


Corporal Punishment

Graeme Newman also reviews some of the history of punishment and ‘civilization’ in the selections from his book, Just and Painful: A Case for the Corporal Punishment of Criminals. Newman is in favor of implementing corporal punishment in the form of public electric shocks for many minor crimes. His argument does not rest on ‘tough on crime’ attitudes, but on a review of utilitarian and retributive philosophies, as well as a concern that prison is a violent punishment that the U.S. uses to excess. Newman advocates taking responsibility for the punishment by establishing the number of shocks, the voltage and their duration – and attempting to match these to the harm of the crime. For him, this system is more just than sentencing someone to, say, 3 – 5 years in a violent warehouse of a prison that is frequently a ‘school for crime’. See background on Corporal Punishment

The text for the first edition of Just and Painful is available online. For other research on this topic, please see the World Corporal Punishment Research website. 


Corporal Punishment


Death Penalty

Americans remain ambivalent about the death penalty as a punishment for murder; they believe strongly that some murderers deserve the death penalty and yet they are reluctant to impose them. In opinion public polls, a majority insist that they support the death penalty and do not want it abolished.  Nonetheless, in the courts, prosecutors ask for far fewer death sentences than they legally might, and juries return death sentences in only a fraction of the cases in which it has been asked for.  Moreover, when states allow juries the possibility of sending murderers to prison for their whole lives without chance of parole, the rates at which juries return death sentences plummet dramatically.

In the debate that follows, philosophers Stephen Nathanson and Jeffrey Reiman argue for the abolition of the death penalty from unusual angles.  In “Is the Death Penalty What Murderers Deserve?,” Nathanson contends that even if some murderers do deserve to die, the decision as to which ones do is extremely complex and difficult to make, with the result that juries in some jurisdictions will return death sentences for murderers who in other jurisdictions would have been spared.  For Nathanson, this means that death sentences are subject to serious error and handed out arbitrarily.  From this he concludes that “[t]o recognize the likelihood of error and arbitrariness here is to recognize the possibility that people will be executed who do not deserve to die, and this must be something that people who have the highest respect for human life must oppose.

In his “Against the Death Penalty,” Jeffrey Reiman defends the lex talionis (“an eye for an eye,”) as a valid standard of desert--criminals deserve punishment that harms them roughly equivalently to the harm they tried to impose on their victims.  However, he points out that this principle also implies that torturers deserve to be tortured and rapists to be raped, both of which penalties are normally judged to be too brutal to be imposed by a civilized society.  Thus, Reiman concludes that while criminals deserve harm equivalent to what they attempt to cause, it is not unjust to punish them less harshly (down to some limit), and the state’s example in refraining from executing even those murderers who deserve death “contributes to reducing our tolerance for cruelty and thereby fosters the advance of human civilization as we understand it.”  Reiman also contends that the evidence fails to show that capital punishment is necessary to deter murder, and that the continued existence of race and class bias in the handing out of death sentences constitutes an independent reason for refraining from capital punishment.

Ernest van den Haag rejects Nathanson’s idea that, since it is hard to determine desert, society should not try, and he contends that the fact that different juries will issue different sentences is an unavoidable consequence of having different lawyers and different individuals on the juries in different cases.  Van den Haag holds that we take numerous precautions to try to avoid injustice in our courts, but we must accept that they are staffed by fallible human beings and, as in every human endeavor, face some risk of error.  Against both Nathanson and Reiman, van den Haag contends that the fact that some who deserve capital punishment get it and others equally deserving of it do not is not unjust to the ones who were sentenced to death--they still got what they deserved even if others who deserved the same did not.  Also against Reiman, van den Haag rejects the idea that it is just to give criminals less than the punishment they deserve, and he has a different reading of the deterrence research. He claims it is reasonable to suppose that capital punishment will deter some murderers not deterred by imprisonment, so it is both just and prudent to continue the practice.

For many readers, religious principles and ethics furnish the basis for an opinion about capital punishment. Although some scriptural passages can be interpreted to support the death penalty, the high ranking policy bodies within Christian denominations and Judaism have statements opposing executions. The National Council of the Churches of Christ’s statement, “Abolition of the Death Penalty” is one such example. Sister Helen Prejean’s book, Dead Man Walking (New York: Vintage Books, 1993) is a thoughtful application of Catholic social thought to the death penalty and many of the issues that surround it, including racism and poverty. Her opinion about capital punishment is also notable because she has worked extensively with families of murder victims as well as with men on death row.

The existence of a death penalty creates moral dilemmas for individuals who must work with condemned men and must make life and death decisions – or even bring about a premeditated death. Prejean, for examples, ponders the conflicts between being a good Christian and an executioner. The last two articles in this section explore the issues of professional ethics facing doctors who participate in executions and psychiatrists who have condemned men as clients. In “Physician Participation in Capital Punishment,” the Council on Ethical and Judicial Affairs of the American Medical Association states that a physician’s opinion on capital punishment is a personal matter, but as a profession dedicated to preserving life they should not participate. Marianne Kastrup’s article, “Psychiatry and the Death Penalty” reviews a range of ethical concerns including evaluation for competence, predictions of future dangerousness, and the treatment of the incompetent who will be executed when restored to competence.



Death Penalty


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Televising Executions



Televising McVeigh's Execution





Introduction: Religious Ethics



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