A dialogue on death penalty dignity
| Published date | 01 April 2011 |
| Author | Helen J. Knowles |
| DOI | 10.1177/1748895811398457 |
| Date | 01 April 2011 |
| Subject Matter | Articles |
Criminology & Criminal Justice
A dialogue on death
11(2) 115–128
© The Author(s) 2011
penalty dignity
Reprints and permission: sagepub.
co.uk/journalsPermissions.nav
DOI: 10.1177/1748895811398457
crj.sagepub.com
Helen J. Knowles
Whitman College, USA
Abstract
The concept of ‘dignity’ has always played an important role in the opinions written by members
of the US Supreme Court in capital punishment cases. However, the justices have failed to
agree about either the type or nature of dignity involved. This article identifies and analyzes the
three main categories of dignity that have appeared in the justices’ death penalty opinions. Justice
Brennan’s concurrence in Furman v. Georgia (1972) is used to explore the abolitionist argument
that capital punishment cannot constitutionally coexist with respect for innate human dignity. By
contrast, Justice Kennedy’s majority opinion in Roper v. Simmons (2005) argues that human dignity
is not threatened by a heavily regulated death penalty. Final y, Chief Justice Roberts’s opinion in
Baze v. Rees (2008) focuses our attention on an institutionalized formulation of dignity that
emphasizes respect for the dignity of the State that employs the death penalty.
The Supreme Court’s dialogue on death penalty dignity is ongoing. Consequently, this article’s
analysis will aid us when we seek to understand future opinions in which the justices debate the
role that the concept of ‘dignity’ can and should play ‘when the State kills’.
Keywords
capital punishment, death penalty, dignity, Eighth Amendment, US Constitution, US Supreme
Court
Introduction
The concept of ‘dignity’ is an omnipresent component of debates about capital punish-
ment. It is a ‘vague but powerful idea’ (Dworkin, 1977: 198) that influences and defines
the direction of the death penalty dialogue, in no small part because its vagueness and
power enable it to be invoked in support of myriad different views. Abolitionists,
death penalty defenders, and neutral observers; practitioners, politicians, and academics;
Corresponding author:
Helen J. Knowles, Visiting Assistant Professor of Politics, Whitman College, 345 Boyer Avenue, Walla
Walla, WA 99362, USA
Email: h.j.knowles@gmail.com
116
Criminology & Criminal Justice 11(2)
‘dignity’ is useful to all of these groups. It should therefore come as no surprise that in
the United States, where capital punishment remains a divisive and controversial subject,
it is rare for the US Supreme Court to issue a decision in a death penalty case without at
least one accompanying opinion that speaks of dignity or one of that word’s etymological
relations.
‘Dignity’ does not appear in the text of the Constitution; however, like other
concepts – such as ‘privacy’ and ‘diversity’ – it enjoys ‘non-partisan’ support because
people do not have to agree about its actual content and boundaries (Goodman, 2006:
746). Consequently, there is much truth to the argument that the concept’s meaning is
fluid and evolving, adaptable to ‘dynamic patterns of human expectation and interaction’
(Paust, 1984: 147). This fluidity is reflected in the Supreme Court’s opinions. Members
of that institution invariably feel the need to speak using the language of dignity when
they give voice to their interpretations of the ‘cruel and unusual punishments’ language
of the Eighth Amendment to the US Constitution. However, as we will see, these
interpretations frequently expose the philosophical and constitutional complexities of
both the concept and capital punishment.
The boundaries of the specific concept with which I am interested here have been
drawn so as to include ‘dignity’ and the following related words: ‘indignity’, ‘dignified’,
‘undignified’, ‘dignities’, ‘indignities’, ‘indignation’, ‘indignant’, and ‘dignifies’.1 In order
to give substance and meaning to a concept, one needs to look at the usage of related
words that suggest or imply a violation or betrayal of the original concept. For example,
when a newspaper runs an article with the headline ‘How Abu Ghraib torture victim
faces final indignity: An unmarked grave’, one might argue that it is implicitly inform-
ing its readers about its understanding of the meaning and substance of the term ‘dignity’
(Harding, 2004). Additionally, there are both negative and positive ways in which to
‘treat someone with dignity’ – negatively ‘exclud[ing] certain interrelated kinds of
attitude and actions’, positively ‘accord[ing]’ someone ‘certain kinds of consideration’,
and I wanted my analysis of the usage of the concept in capital cases to acknowledge
these differences (Gewirth, 1992: 15). Similarly, I included ‘indignant’ and ‘indignation’ –
what we might call reactionary relations of ‘dignity’ – because much of the conceptual
meaning that I sought to uncover is related to emotions and feelings.2 My analysis is also
confined to ‘standalone references’ to the concept of dignity in US Supreme Court
opinions. When a judge writes an opinion in which he or she uses the concept of ‘dignity’
to make a distinct point about his or her own arguments, this is considered a standalone
use. These differ from ‘dependent’ ones – which might include, for example, quotations
from other opinions or from secondary sources, the descriptions of the holdings of other
cases that explicitly rely on ‘dignity’ or a related word, or simply references (usually
negative ones in a separate opinion) to a judicial colleague’s invocation of the concept.
When we examine the justices’ usage of this concept, we find general agreement that
it plays a valid role in debates about the death penalty. However, at the same time there
are deep disagreements about the nature of that role. Consequently, as Michael C. Dorf
observes, there is a temptation ‘to conclude that “dignity,” is simply a weasel word used
by the Court when convenient to cover the lack of real interests at stake’. In this article I
take seriously Professor Dorf’s request that we ‘resist that temptation’ (Dorf, 2008a). In
so doing, I identify three main categories of dignity in death penalty opinions – human
Knowles
117
dignity requiring abolition of the death penalty (dignity without death); human dignity
coexisting with a heavily regulated death penalty (dignified coexistence); and state
dignity (institutionalized dignity). In the pages that follow, I use opinions from three
cases to explain these categories. Each case has been chosen because it contains an
opinion that stands as a strong statement of, and justification for one of the categories
of dignity.
Justice Brennan’s concurrence in Furman v. Georgia (1972) is used to explore the
first category of dignity – the abolitionist interpretation, which argues that capital
punishment cannot constitutionally coexist with innate human dignity. Justice Kennedy’s
majority opinion in Roper v. Simmons (2005) provides an opportunity to explore the
second category of dignity – which believes that a heavily regulated death penalty can
maintain respect for human dignity. Third, and finally, Chief Justice Roberts’s opinion in
Baze v. Rees (2008) focuses our attention on an institutionalized formulation of dignity
that emphasizes respect for the dignity of the institutional apparatuses of the State that
employs the death penalty. Analysis of these opinions will enable us to identify the most
important elements of the Supreme Court’s dialogue on death penalty dignity. This is an
ongoing dialogue; consequently, the results of this analysis will aid us when we seek to
understand future death penalty opinions in which the justices debate the role that the
concept of ‘dignity’ should play ‘when the state kills’ (Sarat, 2002).
Deontology, Consequentialism, and the
Death Penalty Dialogue
Running through all of these opinions are elements of deontology and consequentialism,
the two predominant theories of criminal punishment. However, none of the three
categories of death penalty dignity identified in this article contains opinions which make
arguments that are either exclusively deontological or exclusively consequentialist. This
is inevitable, reflecting the constitutional and philosophical complexities of the death
penalty dialogue.
At the heart of deontology lies a belief that there are certain things that are morally
right, and certain things that are morally wrong. Deontology evaluates an action’s right-
ness without regard to its consequences: ‘The goodness of the ultimate consequences
does not guarantee the rightness of the actions which produced them. The two realms are
not only distinct for the deontologist, but the right is prior to the good’ (Fried, 1978: 9). A
deontological justification for a punishment, therefore, is not determined by the societal
benefit that will accrue, but rather by the degree to which an individual has done some-
thing to deserve the punitive treatment. As such, deontology emphasizes the importance
of evaluating the culpability of the individual – because this will affect our evaluation of
the extent to which the individual deserves a punishment; it also strongly believes in
punishment that is proportional to the offense committed. In terms of the death penalty, it
is useful to keep in mind the deontological, Kantian observation that an individual who
voluntarily commits a crime exposes themselves to morally justified societal punishment
because they have voluntarily broken the social contract. As expressed by Louis P. Pojman
(2004: 56), this argument can...
To continue reading
Request your trial