Capital Punishment Essay, Research Paper

The American government operates in the fashion of an indirect democracy. Citizens live under a social contract whereby individuals agree to forfeit certain rights for the good of the whole. Punishments for crimes against the state are carried out via due process, guaranteed by the Fourteenth Amendment. The use of capital punishment is decided by the state, which is legal in thirty-seven states. It is a moral imperative to protect the states’ rights to decide their own position on the use of capital punishment.

Capital punishment is a method of retributive punishment as old as civilization itself. Both the Greeks and the Romans invoked the death penalty for a wide variety of offenses. Socrates and Jesus were perhaps the most famous people ever condemned for a capital crime in the ancient period. Hammurabi’s Code, a code of laws developed by the king of one of the first empires, dates back from the third or second millennium before Christ. This code claims that retribution, an eye for an eye and a life for a life, is justice. In Anglo-American law the death penalty has been a customary response to certain kinds of offenses. The movement in America to have the death penalty declared unconstitutional received paramount attention during the landmark case of ‘Furman v. Georgia,’ rendered on June 29, 1972, which declared the death penalty cruel and unusual punishment. No executions took place between 1967 and 1977. However, after a supreme court decision in 1975 ‘Gregg v. Georgia’, which stated capital punishment did not violate the Eighth Amendment, executions commenced again under state supervision. Should capital punishment be continued? Retribution is a justification for capital punishment because it is an injustice to tolerate criminal behavior such as murder.

The case for capital punishment can best be understood by examining the opposition’s arguments against capital punishment. Opponents of capital punishment say the death penalty does not deter crime and is cruel and unusual. Opponents may also argue that capital punishment is a blood thirsty judicial homicide that benefits no one. Are they right to believe a murderer is entitled to our sympathy?

The first argument that I shall contend with is that capital punishment does not deter crime. Opponents of capital punishment say the death penalty is not necessary. Other countries that no longer have the death penalty have not experienced an increase in the number of murders. The idea is that the death penalty does not deter crime. Countries such as Sweden, Netherlands, Denmark, Switzerland, and Belgium have not carried out executions since the early part of the century, yet these countries have not experienced a rise in crimr rates. However, deterrence is not the question when you are looking at the retributive value of capital punishment. In short, deterrence can only work if the threat of punishment is combined with the conviction that the forbidden acts are not only illegal and therefore punishable but immoral. Without the conviction of morality, the easily frightened will not break the law, but the fearless will break the law, the irrational will break the law, and all others will break the law.

Apparently certain sections of this society have been desensitized to the point that human life has no value whatsoever. To that section of the population nothing will hold deterrent value. These people do not think about the consequences of their actions. Lack of foresight and morals, however, cannot be used as an excuse for the toleration of crime. Capital punishment is a retributive justice, and no direct correlation to murder rates can be logically applied with respect to the death penalty’s deterrent value. Actual statistics about the deterrent value of capital punishment are not available because it is impossible to know who may have been deterred from a committing a crime.

Opponents of capital punishment also suggest that capital punishment is judicial homicide, a murder sanctioned by the state. If the sovereign state says that taking a life is wrong, how can the state in effect do the same thing to punish the taking of a life? The problem with this argument is that it assumes an individual in society has the same rights as the government in power and in charge of enforcing laws. The citizens of an indirect democracy willingly give up some of the decision making processes to the government. Punishments for crimes in America are decided by a legal system designed by and for the people that it represents. If a person was to hold the death penalty as morally wrong, they would also have to hold the alternative to capital punishment, a jail sentence, as wrong. Is a jail sentence now to be referred to as state sanctioned kidnapping? Should taxes now be called state sanctioned embezzlement?

People must give up the responsibilities of law enforcement to the government to create social order. All fifty states have the right to choose whether or not to utilize capital punishment. How can giving society the opportunity to decide it’s own definition of morality be wrong?

The strongest argument against using capital punishment for retributive purposes, is the argument that capital punishment is cruel and unusual punishment. The Eighth Amendment of the United States Constitution, condemning cruel and unusual punishment, is used to protest capital punishment. The fallacy of this argument is that it appears to be a red herring argument, one that takes attention away from the facts of the case. When the constitution was drafted, capital punishment was practiced widely in this country, yet it was not specified as wrong or as cruel and unusual. Many of the framers of the constitution endorsed capital punishment, as did philosophers from which the constitution draws from. John Locke went as far to say that murder is not intrinsically wrong. “Everyone, as he is bound to preserve himself and not quit his station willfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind.” How can murder not be immoral? Citizens under a social contract, agree not to kill only because others also agree not to kill. It is the function of penal laws to prevent murder by demonstrating to everyone that it is not in their best interest to murder. So how can the constitution be brought into this argument, since it makes no mention of capital punishment?

The opposition must argue that cruel and unusual is an evolving concept. The opposition must believe that society now views capital punishment as cruel and unusual.

“The phrase {cruel and unusual punishment} is dynamic and the courts must notice and consider changed standards of decent conduct marked by our great penologists, wardens, social philosophers and psychologists.”

All states in the United States have the ability to decide the legality of capital punishment. With the decision being made by each states’ elected lawmakers, how can it be said that people now generally see the death penalty as morally wrong? If the citizens now view capital punishment as cruel and unusual, can they not decide to change it. Regardless of how a minority feels, the government works on a majority rule.

Of course, a person may think it is immoral to kill someone, no matter what they have done. When I say it is retributive justice to take a life in turn for the taking of another life, it could be argued that a criminal is not able to learn a lesson since he dies as an immediate result of the punishment. How can this be called punishment if no lesson is taught? The fact of the matter is, when murder is committed, the crime cannot be taken back. The life of the victim no longer exists and nothing can bring this life back. The lesson that is taught, in turn, should be one that cannot be reversed. The lesson is learned while the convicted criminal awaits the sentence to be carried out. This lesson may be said not to benefit society since it is too late for the criminal. It is also too late for the victim who was murdered in cold blood. To look at this as “bloodthirsty revenge” would be saying that capital punishment is itself the injustice. Is it not an injustice to let a cold-blooded killer escape the consequences of a crime? A society that tolerates injustice can by no means be called just.

Bibliography

References

Bedau, Hugo Adam. In Spite of Innocence. Boston: Northeastern University Press, 1992.

Block, Eugene B.. When Men Play God: The Fallacy of Capital Punishment. San Francisco: Cragmont Publications, 1983.

Locke, John. Second Treatise of Civil Government. Ch 2, Sec 6.

Meltser, Michael. Cruel and Unusual: The Supreme Court and Capital Punishment. New York: Random House, 1973.