Capital Punishment. Essay, Research Paper

Capital punishment Capital Punishment, there has been many controversies in the history of the United States, ranging from abortion to gun control, but capital punishment has been one of the most hotly contested issues in recent decades. Capital punishment is the legal infliction of the death penalty on persons convicted of a crime. It is not intended to inflict any physical pain or any torture; it is only another form of punishment. It is irrevocable because it removes those punished from society permanently, instead of temporarily imprisoning them. The usual alternative to the death penalty is life-long imprisonment. This paper was written not to take a stand on either side of capital punishment however, to provide the reader with statistical and constitutional information so one can make an informed decision. Too often society makes impulsive conclusions of what is right and what is wrong. One may take a stand on the 2nd Amendment and state that the government should not take away the right to bear arms. On the other hand that same person may decide that the 8th Amendment protects ones right not to suffer the death penalty due to cruel and unusual punishment. We have to remember that the laws of America was formed by the framers of the constitution to be a living law ever changing with today’s values as society deems correct. Capital punishment is a method of retributive punishment as old as civilization itself. The death penalty has been imposed throughout history for many crimes, ranging from blasphemy and treason to petty theft and murder. Many ancient societies accepted the idea that certain crimes deserved capital punishment. Ancient Roman and Mosaic law endorsed the notion of retaliation; they believed in the rule of “an eye for an eye.” Similarly, the ancient Egyptians, Assyrians, and Greeks all executed citizens for a variety of crimes. The most famous people to be executed are Socrates and Jesus. Only in England, during the reigns of King Canute (1016-1035) and William the Conqueror (1066-1087) was the death penalty not used, although the results of interrogation and torture were often fatal. Later, Britain reinstated the death penalty and brought it to its American colonies. Although the death was widely accepted throughout the early United States, not everyone approved of it. In the late-eighteen century, opposition to the death penalty gathered enough strength to lead to important restrictions on the use of the death penalty in several northern states, while in the United States, Michigan, Wisconsin, and Rhode Island abandoned the practice altogether. In 1794, Pennsylvania adopted a law to distinguish the degrees of murder and only used the death penalty for premeditated first-degree murder. Another reform took place in 1846 in Louisiana. This state abolished the mandatory death penalty and authorized the option of sentencing a capital offender to life imprisonment rather than to death. After the 1830s, public executions ceased to be demonstrated but did not completely stop until after 1936. Throughout history, governments have been extremely inventive in devising ways to execute people. Executions inflicted in the past are now regarded today as ghastly, barbaric, and unthinkable and are forbidden by law almost everywhere. Common historical methods of execution included: stoning, crucifixion, burning, breaking on the wheel, drawing and quartering, garroting, beheading or decapitation, shooting and hanging. 1 These types of punishments today are considered cruel and unusual. In the United States, the death penalty is currently authorized in one of five ways: firing squad, hanging, gas chamber, electrocution, and lethal injection. The fist electrocution occurred in 1890. 2 New Hampshire in 1987 amended their statutes to change their method of execution from hanging to lethal injection.3 The states that allowed executions at that time utilized the following methods (18) states lethal injection, (14) electrocution, (7) lethal gas, (2) hanging and (2) firing squad.4 These methods of execution compared to those of the past are not meant for torture, but meant for punishment for the crime. For the past decades capital punishment has been one of the most hotly contested political issues in America. This debate is a complicated one. Capital punishment is a legal, practical, philosophical, social, political, and moral question. Americans seem to be of two minds about the death penalty. 5 In the last several years, executions have risen steeply, reaching a 50-year high. 6 Two-thirds of the public support the penalty. 7 Two-thirds support, however, represents a steady decline from the four-fifths of the population that supported the penalty only six years ago, leaving support for capital punishment at a 20-year low. 8 When life without parole is proposed as an alternative, support for the penalty drops even more often below a majority. 9 The notion of deterrence has been at the very center of the practical debate over the question of capital punishment. Most of us assume that we execute murderers primarily because we believe it will discourage others from becoming murderers. Proponents of capital punishment have long asserted the deterrent power of capital punishment as an obvious fact. The fear of death deters people from committing crimes. Still, abolitionists (people against capital punishment) believe that deterrence is little more than an assumption-and a naive assumption at that. Abolitionists claim that capital punishment does not deter murderers from killing or killing again. They base most of their argument against deterrence on statistics. States that use it extensively show a higher murder rate than those that have abolished the death penalty. Also, states that have abolished the death penalty and then re-instituted it show no significant change in the murder rate. They say adjacent states with the death penalty and those without show no long-term differences in the number of murders that occur in that state. And finally, there has been no record of change in the rate of homicides in a given city or state following a local execution. Any possibly of deterring a would-be murderer from killing has little effect. Cesare Beccaria applied the Enlightenment analysis to crime and punishment, and to the ugliness of the traditional legal and penal system. If we look into history we shall find that laws, which are, or ought to be, conventions between men in a state of freedom, have been, for the most part the work of the passions of a few, or the consequences of a fortuitous or temporary necessity; not dictated by a cool examiner of human nature, who knew how to collect in one point the actions of a multitude, and had this only end in view, the greatest happiness of the greatest number. Observe that by justice I understand nothing more than that bond which is necessary to keep the interest of individuals united, without which men would return to their original state of barbarity. All punishments, which exceed the necessity of preserving this bond, are in their nature unjust. The end of punishment, therefore, is no other than to prevent the criminal from doing further injury to society, and to prevent others from committing the like offence. Such punishments, therefore, and such a mode of inflicting them, ought to be chosen, as will make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal. 10 Most proponents (people for capital punishment) argue that none of this statistical evidence proves that capital punishment does not deter potential criminals. There is absolutely no way to prove, with any certainty, how many would-be murderers were in fact deterred from killing. They point out that the murder rate in any given state depends on many things besides whether or not that state has capital punishment. In a recent 1995 poll, most police chief and sheriffs (82%) believe killers did not weigh the possible penalties before committing the crime. 11 They cite such factors as the proportion of urban residents in the state, the level of economic prosperity, and the social and racial makeup of the population. But a small minority is ready to believe in these statistics and to abandon the deterrence argument. But they defend the death penalty base on other arguments, relying primarily on the need to protect society from killers who are considered high risks for killing again. Between 1973 and 1995, approximately 5,760 death sentences were imposed in the U.S.30 313 (5.4%; one in 19) of those resulted in an execution during the period. 12 Incapacitation is another controversial aspect of the death penalty. Abolitionists say condemning a person to death removes any possibility of rehabilitation. They are confident in the life-sentence presenting the possibility of rehabilitating the convict. But rehabilitation is a myth. The state does not know how to rehabilitate people because there are plenty of convicted murderers who kill again. In a 1993 study of the 2,716 inmates sentenced to death, 240 of those have been convicted of prior homicides. 13 The life-sentence is also a myth because overcrowding in the prisons. Early parole has released convicted murderers and they still continue murder. Some escape and murder again, while others have murdered someone in prison. There are countless stories in prisons where a violent inmate kills another for his piece of chicken. Incapacitation is notsolely meant as deterrence but is meant to maximize public safety by remove any possibility of a convict murderer to murder again. The issue of execution of an innocent person is troubling to both abolitionists and proponents alike. Some people are frightened of this possibility enough to be convinced that capital punishment should be abolished. This is not true at all. The execution of innocent people is very rare because there are many safeguards guaranteeing protection of the rights of those facing the death penalty. There is legal assistance provided and an automatic appeal for persons convicted of capital crimes. However, those found guilty and represented by publicly-financed attorneys were incarcerated at a higher rate than those defendants who paid for their own legal representation 88 % compared to 77 % in federal courts and 71 % compared to 54 % in the most populous counties.14 Abolitionists say the cost of execution has become increasingly expensive and that life sentence is more economical. A study of the Texas criminal system estimated the cost of appealing capital murder at $2,316,655. This high cost includes $265,640 for the trial; $294,240 for the state appeals; $113,608 for federal appeals (over six years); and $135,875 for death row housing. In contrast, the cost of housing a prisoner in a Texas maximum-security prison single cell for 40 years is estimated at $750,000. This is a huge amount of taxpayer money but the public looks at it as an investment in safety since these murders will never kill again. In North Carolina it cost taxpayers $329,000 more to convict and execute a murder then it does to house him for 20 years. 15 California spends $600,000 on each prisoner it executes then those it locks up for life. Proponents of the death penalty estimates that the cost of $10-20,000 a year cost to house a 20 year-old who lives 60 years in prison cost taxpayers over $1 million. 16 Proponents argue that these high costs are due to “the lengthy time and the high expense result from innumerable appeals, many over ‘technicalities’ which have little or nothing to do with the question of guilt or innocence, and do little more than jam up the nation’s court system. If these ‘frivolous’ appeals were eliminated, the procedure would neither take so long nor cost so much” Of the 5,760 death sentences imposed between 1973 and 1995, 4,578 (79%) were reviewed on “direct appeal” by a state high court. 17 Of those, 1,885 (41%; over two out of five) were thrown out because of “serious error,” i.e., error that the reviewing court concludes has seriously undermined the reliability of the outcome or otherwise “harmed” the defendant. 18 In Maryland, at least 52% of capital judgments reviewed on state post-conviction from1973 and 1995 were overturned due to serious error. 19 The “overall error-rate,” is a crucial factor in assessing the effectiveness of the capital punishment. Nationally, over the entire 1973-1995 periods, the overall error-rate in our capital punishment system was 68%. 20 In the cases in which no error was detected at the third inspection stage and an execution occurred, the average time between sentence and execution was 9 years. Matters did not improve over time. In the last 7 study years (1989-95), the average time between sentence and execution rose to 10.6 years. 21 Results from a parallel study by the U.S. Department of Justice suggest that our 32%, or one-in-three, figure for valid death sentences actually overstates the chance of execution: Included in the Justice Department study is a report of the outcome as of the end of 1998 of the 263 death sentences imposed in 1989. 22 A final disposition of only 103 of the 263 death sentences had been reached nine years later. 23 Of those 103, 78 or (76%) had been overturned by a state or federal court. Only 13 death sentences had been carried out. 24 The moral issues concerning the legitimacy of the death have been brought by many abolitionists. They think that respect for life forbids the use of the death penalty, while proponents believe that respect for life requires it. Proponents says the bible (Genesis 9:6) says, “Whosoever sheds man’s blood, by man may his blood be shed.” This classic argument in favor of the death penalty has usually been interpreted as a proper and moral reason for putting a murderer to death. “Crimes are more effectually prevented by the certainty than the severity of punishment” 25 are its opposition. Both quotes imply that the murderer deserves punishment and it was his own fault for putting himself on death row. When looking at the 8th Amendment Trop v. Dulles ruled that punishments not be cruel and unusual but the punishments must draw from the evolving standards of decency that mark the progress of evolving a evolving society. 26 Supporters of capital punishment say that society has the right to kill in defense of its members, just as an individual has the right to kill in self defense for his or her own personal safety. This analogy is somewhat doubtful, however, as long as the effectiveness of the death penalty as a deterrent to violent crimes has yet to be proven. In the United States, the main objection to capital punishment has been that it was always used unfairly, in at least three major ways. First, females are rarely sentenced to death and executed, even though women committed 20 percent of all murders that have occurred in recent years. Women represent the fasted growing population in prison. Between 1980 and 1993, the growth rate for the female prison population increased approximately 313%, compared to 182% for men in the same period. At the end of 1993 women accounted for 5.8% of the total prison population and 9.3% of the jail population nationwide. Women prisoners are disproportionately women of color, with African American women comprising 46% of the population nationwide, White women comprising 36%, and Hispanic Women comprising 14%. 27 Second, a disproportionate number of nonwhites are sentenced to death and executed. A black man who kills a white person is 11 times more likely to receive the death penalty than a white man who kills a black person. In Texas in 1991, blacks made up 12 percent of the population, but 48 percent of the prison population and 55.5 percent of those on death row are black. Mccleskey v, Georgia dealt with this issue of capital punishment being sentenced disparately in a racially manor violating the 8th and 14th Amendments. A statistical data on Georgia’s capital punishment was utilized and the court rejected this claim stating: There was no evidence. There was no evidence legislators adopted or maintained capital punishment for racially discriminatory purposes. There was no merit that the sentence was racially imposed. 28 A 1993 study shows 2,716 prisoners in America under the sentence of death, 1,566 are white 1,109 are black 206 are Hispanic. 29 Not one time during the years of 1977-1993 has there been more blacks executed in a year then whites. 30 In fact only 38% of the blacks are executed in comparison to 56% of whites. 31 There are statistics that support the death penalty being handed down for the murder of whites. 85% of victims in death penalty cases are white considering that blacks account for over 50% of the murdered victims and only 12% of murders are sentenced to death for killing a black. 32 These figures far from show the discriminatory status. Race again played a decisive role in who lives and who dies in the research of 1998. Of the 68 executions this year, only 11 (16%) involved the murder of a black victim, even though blacks are the victims in 50% of all murders. The Death Penalty Information Center released a report based on an exhaustive statistical study of capital cases in Philadelphia, which showed that for similar crimes the odds of blacks receiving the death penalty were four times greater than for any other defendants. The report also revealed that 98% of the nation’s chief district attorneys responsible for death penalty decisions are white, while only 1% are African American. Many members of the Congressional Black Caucus joined in condemning the discriminatory application of the death penalty. 33 Before the 1970s, when the death penalty for rape was still used in many states, no white men were guilty of raping nonwhite women, whereas most black offenders found guilty of raping a white woman were executed. Rape is no longer an acceptable crime for capital punishment as ruled by the U.S. Supreme Court Coker v. Georgia. 34 This data shows how the death penalty can discriminate and be used on certain races rather than equally as punishment for severe crimes. While 69 % of white inmates in state prison reported they had lawyers appointed by the court, 77 % of blacks and 73 % of Hispanics had publicly-financed attorneys. In federal prison black inmates were more likely than whites and Hispanics to have public counsel 65 % for blacks, 57 % for whites and 56 percent for Hispanics. And third, poor and friendless defendants, those who are inexperienced or have court-appointed counsel, are most likely to be sentenced to death and executed. 35 So the results of the death penalty have not been clearly identified as the uneven disposition. Defenders of the death penalty, however, argue that, because nothing found in the laws of capital punishment causes sexist, racist, or class bias in its use, these kinds of discrimination are not a sufficient reason for abolishing the death penalty on the idea that it discriminates or violates the 8th Amendment of the United States Constitution. Opponents of capital punishment have replied to this by saying that the death penalty is subject to miscarriage of justice and that it would be impossible to administer fairly. In the Furman v. Georgia in 1972 the Supreme Court struck down the death penalty on the grounds of the Eighth Amendment State and Federal capital punishment laws that permitted wide application of the death penalty. In Woodson v. North Carolina the U.S. Supreme Court decisions made the death penalty in the U.S. unconstitutional, if it is mandatory. 36 Gregg v. Georgia is just as important as the Furman trial even though reversal in judgment for it ruled that the death penalty did not violate the 8th Amendment. 37 Jurek v.Texas and Proffit v. Florida; if it is imposed without providing courts with adequate guidance to make the right decision in the severity of the sentence, or if it is imposed for a crime that does not take or threaten the life of another human being. The death penalty was also confined to crimes of murder, including felony murder. A felony murder is any homicide committed in the course of committing another felony, such as rape or robbery. 38 After the 1972 court ruling that all but a few capital statutes were unconstitutional, thirty-seven states revised and reenacted their death penalty laws. In Furman v. Georgia in 1972, the Supreme Court reversed all existing capital statutes and death sentences. The modern death-sentencing era began the next year with the implementation of new capital statutes designed to satisfy Furman. Unfortunately, no central repository of detailed information on post-Furman death sentences exists. 39 Since post-Furman executions began in earnest in 1984, the nation has executed an average of about 1.3% of its death row inmates each year; in no year has it ever carried out more than 2.6 percent or 1 in 39 of those on death row. 40 It would seem that the U.S. judiciary system has provided for the effective protection of the rights of individuals that face the death sentence. Persons under the age of eighteen, pregnant women, new mothers or persons who have become insane cannot be sentenced to death. Proponents argue almost all human activities, ranging trucking to construction, costs the lives of some innocent bystanders. These activities cannot be simply abandoned, because the advantages outweigh the losses. Capital punishment saves lives as well as takes them. We must accept the few risks of wrongful deaths for the sake of defending public safety. In 1987 four states amended their statues that the minimum age that a person may be put to death. Indiana and Kentucky rose their age to 16, North Carolina raised it to 17 and Maryland to 18. In 1989 Stanford v. Kentucky and Wilkens v. Missouri the Supreme Court decided that the death penalty could be used on those who were mentally retarded or underage (but 16 years and over) at the time of the killing. 41 A trend that the Supreme Court is following is making a cut back on the appeals that death row inmates could make to the federal courts. Despite strong opposition in 1998 from national and international human rights leaders, three juvenile offenders were executed this year, two in Texas and one in Virginia, the first such executions since 1993. Virtually all of the other countries in the world refrain from executing those who were under 18 at the time of their crime. Two men suffering from mental retardation were executed this year. Four foreign nationals were also executed this year, three of whom challenged that they were not informed of their rights under the Vienna Convention to consult with their consulate at the time of their arrest. 42 I feel strongly toward using the death penalty as punishment for unspeakable crimes. I do not feel that it serves as a deterrent to crimes but I do feel that the law whether capital punishment or life with out parole does serve as a guarantee that punishment is certain and severe. If we lived in a society with out consequences of punishment for violations of what society deems as wrong we would live in an even more chaotic society.

Bibliography

Notes

1. J. Scott Harr, JD and Karen M. Hess, PhD Constitutional Law for Criminal Justice Professionals (West/Wadsworth Publishing), 1998 p. 287

2. J. Scott Harr, JD and Karen M. Hess, PhD Constitutional Law for Criminal Justice Professionals (West/Wadsworth Publishing), 1998 p. 290

3. See http://www.icpsr.umich.edu/cgi/file?comp=none&study=9210&ds =1&dsfmt=OSIR&filetype=CBLT&link=/cb9210.comb

4. See http://www.icpsr.umich.edu/cgi/file?comp=none&study= 9210&ds=1&dsfmt=OSIR&filetype=CBLT&link=/cb9210.comb

5. See http://justice.policy.net/jpreport/

6. See http://justice.policy.net/jpreport/

7. See http://justice.policy.net/jpreport/

8. See http://justice.policy.net/jpreport/

9. See http://justice.policy.net/jpreport/

10. Cesare Beccaria, An Essay on Crimes and Punishments, E. D. Ingraham, trans. (Philadelphia: H. Nicklin, 1819),pp.xii,1819,47,5960,9394,104-105, 148-149.

11. J. Scott Harr, JD and Karen M. Hess, PhD Constitutional Law for Criminal Justice Professionals (West/Wadsworth Publishing), 1998 p. 295

12. See http://justice.policy.net/jpreport/

13. J. Scott Harr, JD and Karen M. Hess, PhD Constitutional Law for Criminal Justice Professionals (West/Wadsworth Publishing), 1998 p. 290

14. See http://www.ojp.usdoj.gov/bjs/pub/press/iddc.pr

15. J. Scott Harr, JD and Karen M. Hess, PhD Constitutional Law for Criminal Justice Professionals (West/Wadsworth Publishing), 1998 p. 297

16. J. Scott Harr, JD and Karen M. Hess, PhD Constitutional Law for Criminal Justice Professionals (West/Wadsworth Publishing), 1998 p. 298

17. See http://justice.policy.net/jpreport/

18. See http://justice.policy.net/jpreport/

19. See http://justice.policy.net/jpreport/

20. See http://justice.policy.net/jpreport/

21. See http://justice.policy.net/jpreport/

22. See http://www.icpsr.umich.edu/cgi/file?comp=none&study= 9210&ds=1&dsfmt=OSIR&file 1973-1983 # 9210

23. See http://www.icpsr.umich.edu/cgi/file?comp=none&study= 9210&ds=1&dsfmt=OSIR&file 1973-1983 #9210

24. See http://www.icpsr.umich.edu/cgi/file?comp=none&study= 9210&ds=1&dsfmt=OSIR&file 1973-1983 #9210

25. Cesare Beccaria, An Essay on Crimes and Punishments, E. D. Ingraham, trans. (Philadelphia: H. Nicklin, 1819),pp.xii,1819,47,5960,9394,104-105,148149.

26. J. Scott Harr, JD and Karen M. Hess, PhD Constitutional Law for Criminal Justice Professionals (West/Wadsworth Publishing), 1998 p. 285

27. National Women’s Law Center, Washington, D.C., and Chicago Legal Aid to incarcerated Mothers.

28. See http://www.icpsr.umich.edu/cgi/file?comp=none&study= 9210&ds=1&dsfmt=OSIR&file 1973-1983 # 9210

29. J. Scott Harr, JD and Karen M. Hess, PhD Constitutional Law for Criminal Justice Professionals (West/Wadsworth Publishing), 1998 p. 290

30. J. Scott Harr, JD and Karen M. Hess, PhD Constitutional Law for Criminal Justice Professionals (West/Wadsworth Publishing), 1998 p. 292

31. J. Scott Harr, JD and Karen M. Hess, PhD Constitutional Law for Criminal Justice Professionals (West/Wadsworth Publishing), 1998 p. 299

32. J. Scott Harr, JD and Karen M. Hess, PhD Constitutional Law for Criminal Justice Professionals (West/Wadsworth Publishing), 1998 p. 299

33. See http://www.deathpenaltyinfo.org/yrendrpt98.html

34. See http://www.icpsr.umich.edu/cgi/file?comp=none&study= 9210&ds=1&dsfmt=OSIR&file 1973-1983 #9210

35. See http://www.ojp.usdoj.gov/bjs/pub/press/iddc.pr

36. See http://www.icpsr.umich.edu/cgi/file?comp=none&study= 9210&ds=1&dsfmt=OSIR&file 1973-1983 # 9210

37. J. Scott Harr, JD and Karen M. Hess, PhD Constitutional Law for Criminal Justice Professionals (West/Wadsworth Publishing), 1998 p. 292-293

38. See http://www.icpsr.umich.edu/cgi/file?comp=none&study= 9210&ds=1&dsfmt=OSIR&file 1973-1983 #9210

39. See http://justice.policy.net/jpreport/

40. See http://justice.policy.net/jpreport/

41. http://www.icpsr.umich.edu/cgi/file?comp=none&study=9507&ds=1&dsfmt =OSIR&filetype=CBLT&link=/cb9507. #9507 1973-1989

42. http://www.deathpenaltyinfo.org/yrendrpt98.html

43. http://www.deathpenaltyinfo.org/yrendrpt98.html

44. http://www.deathpenaltyinfo.org/yrendrpt98.html

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