CAPITAL PUNNISHMENT Essay, Research Paper

At present, there are thirty-six states in the United States and over one hundred countries that have legislation enforcing capital punishment for crimes of murder or rape. In Canada the death penalty was abolished in 1976, due to the fact that it infringes on the rights of Canadians as documented by the Charter of Rights and Freedoms.1 Also, there was much influence from the citizens of the country to debate this very serious topic. Capital punishment regardless of the crime committed is legally wrong, and represents a total disregard for human dignity. By examining issues of discrimination, the severity of the punishment, the fact that retribution is unjustified, and concerns with deterrents, illustrates that the death penalty violates the basic rights of individuals. In viewing the legal rights of citizens particularly in Canada supported by the morality of this judgement, it is easy to see why this punishment no longer exists in Canada.

From established statistics it was found that there seems to be a striking correlation between the race of the offenders and the probability of them receiving a death sentence. In capital cases, black defendants statistically receive the death sentence more that the white defendants. This evidence of discrimination is confirmed by a study of the outcome of murder cases in Ohio between 1974 and 1977. “In cases where the victim was white and the offender was black, there was a twenty five percent chance that the punishment will be death. By contrast, during this time period there was no chance that whites who killed blacks would receive the death penalty.” “Thus, judges and juries judge that blacks killing whites deserve more severe punishments that the whites killing blacks.” These results clearly suggest that the sentencers were strongly influenced by discrimination.2

The flagrant racial discrimination that influences the outcomes of capital cases renders the death penalty unconstitutional. The unequal distribution of death sentences between blacks, and whites is arbitrary and inconsistent, and therefore constitutes cruel and an unusual punishment, by means of discrimination. Which encroaches upon section fifteen of the Charter of Rights and Freedoms. Section fifteen states that”every individual is equal before, and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental and physical disability.” Furthermore, the justice system in Canada is based on the fundamental principles of justice which support human dignity, and more specifically equality. When a person is sent to trial all his/her rights are based on the fact that they have the right to a fair trial regardless of their race, status etc.3

This was also further explained by Maurice Tremblay(Lobiniere) in the House of Commons on June 30th, 1987. He said,

“I believe Mr. Speaker that the state has a duty to protect the life of all it’s citizens and as the criminologist Andre Hormandeau so aptly said in an article published in La Presse on March 12 , 1987 ‘In the light of the Charter of Human Rights and Freedoms all citizens are equal and respect for life knows no exception. Therefore the state may not give itself the right to kill, for that would be an encroachment against human rights.”4

The racial discrimination demonstrated by the judges and juries supports the unjust arbitrariness that exists within the legal system. It seems that the likelihood that an individual is executed based on how they are perceived in society and not by the law is quite common. An example of this was the case against O.J. Simpson, who supposedly killed two innocent people. He was found not guilty, with much influence from his reputation in society as a hero.

As an opponent, it is easy to see that the death penalty is an unusually severe punishment, and also disregards section twelve of the Charter of Rights and Freedoms. This section states that no person should be subjected to harsh and unusual punishment proving this issue legally wrong in Canada. The severity of this crime in a whole varies greatly from one country to another. In some countries in the middle east a person can be executed for something as trivial as robbery. Governments’ have been debating this issue for many years to determine whether the punishment is too harsh. 5

One question that arises in most debates is that what happens if the person was wrongly convicted, and an innocent person is sent to death row. In November nineteen-eighty-nine “Toronto lawyer Clayton Ruby told Amnesty International supporters that he has no faith in the infallibly of the Canadian justice system, because it wrongfully condemned innocent people”. He also spoke of Donald Marshall a Mic Mac Indian from Nova Scotia as one example of an innocent man who would have been executed if Canada had the death penalty. After eleven years in prison for a murder he did not commit. He was released in nineteen-eighty-two. More recently David Milgaard was released from prison on an order form the Supreme Court. He had spent twenty three years in jail. The Crown had dropped the case against him and he continues to maintain his innocence, as he should have in the first place. 6

“Fourteen times since nineteen seventy three, justice in amend has come to a close. Judges sentenced innocent men to die. Only the labourious appeals saved them.”7 Unfortunately, not all of the errors made have been corrected. “A nineteen eight seven study shows that at least twenty three innocent people were executed in north America during this century”. At present twenty two hundred inmates await execution in the states, unlike Canada where no one has been sentenced to death since nineteen- sixty- two.8

The idea that a person should have the right to life taken away from them for retributivist motives is unconstitutional, and infringes upon section seven of a Canadian’s rights. The notion of retribution contends that if someone commits a crime, they must receive a punishment that is deserving of that crime. The punishment must fit the crime and cannot exceed the appropriate punishment. Supreme court Justice White demonstrates the importance of appropriate punishment in Lockett v. Ohio: “The infliction of death upon those who had no intent to bring about the death of the victim is not only grossly out of proportion, but fails to meet the goals of the punishment.”9

Retribution and it’s values have been considered for many years. It goes back to the old testament which was in agreement with Hammarabi the King of Babylons’ principles on this subject. The philosophies expressed were based on an equal amount of punishment for crimes committed. Such as, the famous ‘an eye for an eye’. These concepts and all others related, are totally disregarded in today’s society for they are dismissed as basically ridiculous. Today people and justice systems follow the concepts outlined in the new testament of the bible. An example is the philosophy of ‘turn the other cheek’. This therefore symbolises the second chance of individuals. Society should be living the teaching of Christ as presented. For revenge and retribution are not a part of Christs message. Part of his knowledge should be translated and be somewhat ingrained in our laws to avoid a contradiction. This possible contradiction lays on the fact that in the courts it is a rule that the witness’ must swear to oath upon the bible.

“Just as criminal codes so not sanction the raping of rapists of the burning of arsonists homes, still less is the deliberate taking of life by the state as appropriate punishment for murder”.10

For supporters of Capital punishment, retribution is a key argumentive issue. They find it incomprehensible that the victim loses his or her life and that friends and family must live with the loss while the murderer serves a sentence that may end in fifteen years. this whole argument is put to shame when logical and realistic people with moral background come froth to say that retribution is indeed unjust. This was seen when a mother of an eleven year old girl who had been murdered wrote a letter to the House of commons. This letter read,

” I do not want to be a part of a society that brings up future

generations with the belief that killing can be legitimized under

certain circumstances. Let the message be clear and

unconstitutional: Human life is sacred; and killing is always

wrong.”11

Also, logically thinking if one was in the situation where they had to be put behind bars to stare at a wall, when their whole reputation and life are ruined; one would think at that point the person would see capital punishment as an easy way out, and more appealing. In close .. Retribution not only goes against our legal rights, but also our social expectations. Referring to section seven “everyone has the right to life, liberty, and security.”12

“Deterrents in the legal system are defined as a principle of criminal sentencing to discourage both convicted offenders form repeating offenses, and other individuals form committing the same or similar crimes”.13 The theories that capital punishment acts as a deterrents is simply a myth. Society as a whole must understand that the majority of criminals have many psychological disorders.”very often violence comes out of emotional wounds, psychiatric troubles of inadequate moral development.” The criminals are doubtfully going to contemplate their crimes before they commit them. They do not contemplate what punishment they will face for they are more controlled by the heat for emotions or passions. Therefore there is no need for a serious punishment of death to scare a criminal from either committing a crime of from doing it again.14

Hopefully, Canadians are assured enough to believe in the success of the justice system that it will prevent from crimes being repeated without such a horrid deterrent. “It should be noted that sixty one point eight percent of murders in Canada are serving a first jail term. When they are paroled very few of them actually commit a second crime. Also, ninety-eight percent of all murders are a result of fights, crimes of passion, or family quarrels,. Only a small percent fall into the category where capital punishment may be valid “.15 An example of the futility of capital punishment as a deterrent was seen in 1976 when America reinstated the death penalty, and found that the yearly number of murders had increased.16

The topic of deterrents was also recognized back in the late seventeen hundreds by Italian jurist Cesare Beccaria, French philosopher Voltaire, and English law reformer Jeremy Bentham. They felt that the death penalty was absolutely useless and cruel. They also states that it was overrated as a deterrent, and imposed tragic error. Their main argument was that life imprisonment was a more rational alternative.17

This opinion on deterrents was additionally touched upon by the famous Soviet dissident Anorie Sacharev whom is a person familiar with suffering. He said,

“I view the death penalty as a barbaric and immoral institution which undermines the conscience and the legal foundations of a society. I reject the belief that the death penalty has a deterrent effect on potential murderers. In fact I strongly contend that the opposite is true, and brutality only leads to more brutality.”18

It is definitely clear that capital punishment violates the Canadian Charter of rights and freedoms. Yet some people still debate the fact that it should be reinstated. The Canadian government lead by prime minister Brian Mulroney reconsidered after much influence to restore the death penalty in June 1987. Members of all political parties were allowed a free vote. But the motion to restore was defeated; one hundred and forty eight to one hundred and twenty seven. This issue circled once more through the government in August 1991 by the progressive conservatives. At this national policy conference the main topic was whether to restore the death penalty. They came to a decision in their vote to reinstate it by a vote of fifty-nine percent to thirty nine percent. The reform party said that it does not openly endorse it, but promises,”a justice system which places the punishment of crime and protection of law abiding citizens and their property ahead of all other objectives. This clearly proves that the question will never die even though it directly affects a persons rights.19

In conclusion it is relevant that despite the crime and other proposing arguments, capital punishment is wrong. It infringes on the rights established in section twelve, seven, and fifteen based on the support of discrimination, severity of the punishment, retribution, and deterrents. Although, it represents a disregard to the Charter of Rights and Freedoms, the question will never really be completely resolved. Clarence Darrow, a famous lawyer, sums this all up when he said “Questions of this sort, or perhaps any sort, are not settled by reason; they are

settled by prejudices and sentiments or by emotion. When they are settled they do not stay settled for the emotions change as new stimuli are applied to the machine.”20

At present, there are thirty-six states in the United States and over one hundred countries that have legislation enforcing capital punishment for crimes of murder or rape. In Canada the death penalty was abolished in 1976, due to the fact that it infringes on the rights of Canadians as documented by the Charter of Rights and Freedoms.1 Also, there was much influence from the citizens of the country to debate this very serious topic. Capital punishment regardless of the crime committed is legally wrong, and represents a total disregard for human dignity. By examining issues of discrimination, the severity of the punishment, the fact that retribution is unjustified, and concerns with deterrents, illustrates that the death penalty violates the basic rights of individuals. In viewing the legal rights of citizens particularly in Canada supported by the morality of this judgement, it is easy to see why this punishment no longer exists in Canada.

From established statistics it was found that there seems to be a striking correlation between the race of the offenders and the probability of them receiving a death sentence. In capital cases, black defendants statistically receive the death sentence more that the white defendants. This evidence of discrimination is confirmed by a study of the outcome of murder cases in Ohio between 1974 and 1977. “In cases where the victim was white and the offender was black, there was a twenty five percent chance that the punishment will be death. By contrast, during this time period there was no chance that whites who killed blacks would receive the death penalty.” “Thus, judges and juries judge that blacks killing whites deserve more severe punishments that the whites killing blacks.” These results clearly suggest that the sentencers were strongly influenced by discrimination.2

The flagrant racial discrimination that influences the outcomes of capital cases renders the death penalty unconstitutional. The unequal distribution of death sentences between blacks, and whites is arbitrary and inconsistent, and therefore constitutes cruel and an unusual punishment, by means of discrimination. Which encroaches upon section fifteen of the Charter of Rights and Freedoms. Section fifteen states that”every individual is equal before, and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental and physical disability.” Furthermore, the justice system in Canada is based on the fundamental principles of justice which support human dignity, and more specifically equality. When a person is sent to trial all his/her rights are based on the fact that they have the right to a fair trial regardless of their race, status etc.3

This was also further explained by Maurice Tremblay(Lobiniere) in the House of Commons on June 30th, 1987. He said,

“I believe Mr. Speaker that the state has a duty to protect the life of all it’s citizens and as the criminologist Andre Hormandeau so aptly said in an article published in La Presse on March 12 , 1987 ‘In the light of the Charter of Human Rights and Freedoms all citizens are equal and respect for life knows no exception. Therefore the state may not give itself the right to kill, for that would be an encroachment against human rights.”4

The racial discrimination demonstrated by the judges and juries supports the unjust arbitrariness that exists within the legal system. It seems that the likelihood that an individual is executed based on how they are perceived in society and not by the law is quite common. An example of this was the case against O.J. Simpson, who supposedly killed two innocent people. He was found not guilty, with much influence from his reputation in society as a hero.

As an opponent, it is easy to see that the death penalty is an unusually severe punishment, and also disregards section twelve of the Charter of Rights and Freedoms. This section states that no person should be subjected to harsh and unusual punishment proving this issue legally wrong in Canada. The severity of this crime in a whole varies greatly from one country to another. In some countries in the middle east a person can be executed for something as trivial as robbery. Governments’ have been debating this issue for many years to determine whether the punishment is too harsh. 5

One question that arises in most debates is that what happens if the person was wrongly convicted, and an innocent person is sent to death row. In November nineteen-eighty-nine “Toronto lawyer Clayton Ruby told Amnesty International supporters that he has no faith in the infallibly of the Canadian justice system, because it wrongfully condemned innocent people”. He also spoke of Donald Marshall a Mic Mac Indian from Nova Scotia as one example of an innocent man who would have been executed if Canada had the death penalty. After eleven years in prison for a murder he did not commit. He was released in nineteen-eighty-two. More recently David Milgaard was released from prison on an order form the Supreme Court. He had spent twenty three years in jail. The Crown had dropped the case against him and he continues to maintain his innocence, as he should have in the first place. 6

“Fourteen times since nineteen seventy three, justice in amend has come to a close. Judges sentenced innocent men to die. Only the labourious appeals saved them.”7 Unfortunately, not all of the errors made have been corrected. “A nineteen eight seven study shows that at least twenty three innocent people were executed in north America during this century”. At present twenty two hundred inmates await execution in the states, unlike Canada where no one has been sentenced to death since nineteen- sixty- two.8

The idea that a person should have the right to life taken away from them for retributivist motives is unconstitutional, and infringes upon section seven of a Canadian’s rights. The notion of retribution contends that if someone commits a crime, they must receive a punishment that is deserving of that crime. The punishment must fit the crime and cannot exceed the appropriate punishment. Supreme court Justice White demonstrates the importance of appropriate punishment in Lockett v. Ohio: “The infliction of death upon those who had no intent to bring about the death of the victim is not only grossly out of proportion, but fails to meet the goals of the punishment.”9

Retribution and it’s values have been considered for many years. It goes back to the old testament which was in agreement with Hammarabi the King of Babylons’ principles on this subject. The philosophies expressed were based on an equal amount of punishment for crimes committed. Such as, the famous ‘an eye for an eye’. These concepts and all others related, are totally disregarded in today’s society for they are dismissed as basically ridiculous. Today people and justice systems follow the concepts outlined in the new testament of the bible. An example is the philosophy of ‘turn the other cheek’. This therefore symbolises the second chance of individuals. Society should be living the teaching of Christ as presented. For revenge and retribution are not a part of Christs message. Part of his knowledge should be translated and be somewhat ingrained in our laws to avoid a contradiction. This possible contradiction lays on the fact that in the courts it is a rule that the witness’ must swear to oath upon the bible.

“Just as criminal codes so not sanction the raping of rapists of the burning of arsonists homes, still less is the deliberate taking of life by the state as appropriate punishment for murder”.10

For supporters of Capital punishment, retribution is a key argumentive issue. They find it incomprehensible that the victim loses his or her life and that friends and family must live with the loss while the murderer serves a sentence that may end in fifteen years. this whole argument is put to shame when logical and realistic people with moral background come froth to say that retribution is indeed unjust. This was seen when a mother of an eleven year old girl who had been murdered wrote a letter to the House of commons. This letter read,

” I do not want to be a part of a society that brings up future

generations with the belief that killing can be legitimized under

certain circumstances. Let the message be clear and

unconstitutional: Human life is sacred; and killing is always

wrong.”11

Also, logically thinking if one was in the situation where they had to be put behind bars to stare at a wall, when their whole reputation and life are ruined; one would think at that point the person would see capital punishment as an easy way out, and more appealing. In close .. Retribution not only goes against our legal rights, but also our social expectations. Referring to section seven “everyone has the right to life, liberty, and security.”12

“Deterrents in the legal system are defined as a principle of criminal sentencing to discourage both convicted offenders form repeating offenses, and other individuals form committing the same or similar crimes”.13 The theories that capital punishment acts as a deterrents is simply a myth. Society as a whole must understand that the majority of criminals have many psychological disorders.”very often violence comes out of emotional wounds, psychiatric troubles of inadequate moral development.” The criminals are doubtfully going to contemplate their crimes before they commit them. They do not contemplate what punishment they will face for they are more controlled by the heat for emotions or passions. Therefore there is no need for a serious punishment of death to scare a criminal from either committing a crime of from doing it again.14

Hopefully, Canadians are assured enough to believe in the success of the justice system that it will prevent from crimes being repeated without such a horrid deterrent. “It should be noted that sixty one point eight percent of murders in Canada are serving a first jail term. When they are paroled very few of them actually commit a second crime. Also, ninety-eight percent of all murders are a result of fights, crimes of passion, or family quarrels,. Only a small percent fall into the category where capital punishment may be valid “.15 An example of the futility of capital punishment as a deterrent was seen in 1976 when America reinstated the death penalty, and found that the yearly number of murders had increased.16

The topic of deterrents was also recognized back in the late seventeen hundreds by Italian jurist Cesare Beccaria, French philosopher Voltaire, and English law reformer Jeremy Bentham. They felt that the death penalty was absolutely useless and cruel. They also states that it was overrated as a deterrent, and imposed tragic error. Their main argument was that life imprisonment was a more rational alternative.17

This opinion on deterrents was additionally touched upon by the famous Soviet dissident Anorie Sacharev whom is a person familiar with suffering. He said,

“I view the death penalty as a barbaric and immoral institution which undermines the conscience and the legal foundations of a society. I reject the belief that the death penalty has a deterrent effect on potential murderers. In fact I strongly contend that the opposite is true, and brutality only leads to more brutality.”18

It is definitely clear that capital punishment violates the Canadian Charter of rights and freedoms. Yet some people still debate the fact that it should be reinstated. The Canadian government lead by prime minister Brian Mulroney reconsidered after much influence to restore the death penalty in June 1987. Members of all political parties were allowed a free vote. But the motion to restore was defeated; one hundred and forty eight to one hundred and twenty seven. This issue circled once more through the government in August 1991 by the progressive conservatives. At this national policy conference the main topic was whether to restore the death penalty. They came to a decision in their vote to reinstate it by a vote of fifty-nine percent to thirty nine percent. The reform party said that it does not openly endorse it, but promises,”a justice system which places the punishment of crime and protection of law abiding citizens and their property ahead of all other objectives. This clearly proves that the question will never die even though it directly affects a persons rights.19

In conclusion it is relevant that despite the crime and other proposing arguments, capital punishment is wrong. It infringes on the rights established in section twelve, seven, and fifteen based on the support of discrimination, severity of the punishment, retribution, and deterrents. Although, it represents a disregard to the Charter of Rights and Freedoms, the question will never really be completely resolved. Clarence Darrow, a famous lawyer, sums this all up when he said “Questions of this sort, or perhaps any sort, are not settled by reason; they are

settled by prejudices and sentiments or by emotion. When they are settled they do not stay settled for the emotions change as new stimuli are applied to the machine.”20

At present, there are thirty-six states in the United States and over one hundred countries that have legislation enforcing capital punishment for crimes of murder or rape. In Canada the death penalty was abolished in 1976, due to the fact that it infringes on the rights of Canadians as documented by the Charter of Rights and Freedoms.1 Also, there was much influence from the citizens of the country to debate this very serious topic. Capital punishment regardless of the crime committed is legally wrong, and represents a total disregard for human dignity. By examining issues of discrimination, the severity of the punishment, the fact that retribution is unjustified, and concerns with deterrents, illustrates that the death penalty violates the basic rights of individuals. In viewing the legal rights of citizens particularly in Canada supported by the morality of this judgement, it is easy to see why this punishment no longer exists in Canada.

From established statistics it was found that there seems to be a striking correlation between the race of the offenders and the probability of them receiving a death sentence. In capital cases, black defendants statistically receive the death sentence more that the white defendants. This evidence of discrimination is confirmed by a study of the outcome of murder cases in Ohio between 1974 and 1977. “In cases where the victim was white and the offender was black, there was a twenty five percent chance that the punishment will be death. By contrast, during this time period there was no chance that whites who killed blacks would receive the death penalty.” “Thus, judges and juries judge that blacks killing whites deserve more severe punishments that the whites killing blacks.” These results clearly suggest that the sentencers were strongly influenced by discrimination