Introduction
Death penalty is one of the most controversial and debatable questions in criminal justice. The main problem is that death penalty is irrevocable so a wrong decision can lead to a terrible mistake and justice towards an innocent person. On the other hand, death penalty is the only possible measure to punish criminals and protect the society from cruelty and repeat crimes (Coyne and Entzeroth 72).
Objectively speaking, plausible moral arguments can be made both for and against capital punishment. Long a key element of the debate, moral arguments also have tended to remain fairly static over the years, and often have been used in conjunction with religious arguments. Two moral arguments have remained particularly important throughout the death penalty debate: retribution and the sanctity of life.Death penalty is a crucial punishment which violates human and constitutional rights of people, thus it is the only possible measure to protect society from violence and repeat cries.
Main body
Those favoring the death penalty often argue that society must express moral outrage at — and condemnation of — heinous crimes such as murder. Proponents of death penalty typically consider deterrence to be one of its fundamental goals. The execution sermons of the early colonies were full of warnings against following in the footsteps of the condemned, and executions were public events designed to instill fear and reverence for the law in the people of the community (Colson, 67).
Many early opponents of the death penalty believed that executions aggravated rather than deterred crime. As evidence, they pointed to the public disorder, rioting and even murder that sometimes accompanied public executions, and were significant factors in the decision to shift to private executions. These same issues have been the subject of even greater attention and controversy in the modern era, as scientific studies have attempted to determine whether capital punishment acts as a deterrent to murder and/or whether it has a “brutalizing” effect on society (Haines 43).
Indeed, prior to the development of an extensive prison system, execution may have been considered the only sure way to prevent offenders from repeating their crimes. However, when long-term incarceration became a plausible alternative to capital punishment in the late eighteenth and early nineteenth century, the incapacitation argument began to heat up. A “life” sentence does not always mean that a convicted murderer will remain in prison for the rest of his or her life, nor does it prevent convicted murderers from killing again inside the prison walls (Colson, 59).
Those sentenced to death have challenged the constitutionality of their sentences with regard to the prescribed mode of execution, the sentencing procedures used by the court and jury, and the application of the penalty to their particular crime or personal situation. Important as these arguments are, perhaps the most significant arguments in recent years are those that challenge the constitutionality of the death penalty itself, rather than the constitutionality of individual sentences. Abolitionists claim that although the death penalty was considered an acceptable practice by the framers of the Constitution, in the modern era it constitutes the type of cruel and unusual punishment forbidden by the Eighth Amendment (Coyne and Entzeroth 72).
Three years later, the Supreme Court dealt abolitionists a setback when it ruled on two key procedural issues:
- That it was constitutional to give juries complete discretion over whether to sentence a defendant to life in prison or death;
- That “unitary trials” in which issues of both guilt and punishment were decided were constitutional even though they often forced defendants to choose between self-incrimination and presentation of evidence about mitigating circumstances surrounding their actions.
Ironically, by the late 1960s, when abolitionist lawyers were beginning to claim victories against capital punishment in the courtroom, public support for the abolition of the death penalty actually was declining (Colson, 67). Much of the increase in crime reflected fundamental changes in the way people lived their lives. For example, increasing population density and urbanization provided more opportunities for potential victims to cross paths with potential offenders, and growing female participation in the work force increased opportunities for women (who a decade earlier had spent much more of their time in the home) to become victims (Haines 42).
There is also evidence of a compelling nature that the death penalty is more likely to be imposed upon one who is poor, regardless of his race, than upon one who has significant financial resources. A poor man, while given the right to counsel, has only that counsel which is volunteered, or which is either compelled or compensated by the state. While such publicly provided counsel is almost always dedicated, it is an avoidance of reality to believe that such counsel can give the kind, range, and detail of service which can come from those compensated at the usual rate paid the most competent lawyers of modern time (Coyne and Entzeroth 77).
To ask today the question whether the imposition of the death penalty is cruel is to answer it. Anglo-American law, and indeed, much of human experience, has been devoted to postponement of death. So committed is the society to the maintenance of life that it does not permit the life of a hopeless invalid to be taken in order to end the greatest of pain. If society’s respect for life denies men the right to take life in order to prevent or end pain, or because one is tired of life, surely the state should not be permitted to take a life so as to punish for past behavior (Colson, 81).
The first argument fixes upon the desirability of such a system over one of punishment in virtue of the fact that, because no offenders are responsible for their actions, no offenders are ever justifiably punished. The second argument is directed towards establishing that such a system is better than one of punishment even if some or all offenders are responsible for their actions (Colson, 81). A good deal of the confusion present in discussions of the virtues of a system of treatment results from a failure to get clear about these two arguments and to keep the two separate. The first is superficially the more attractive and ultimately the less plausible of the two. Each, though, requires its own explication and analysis (Haines 48).
Cruelty is neither a bodily sensation or bodily condition, even though it must rest for its attribution upon a person’s having been caused to have some such sensation or to be in some such condition. Contrariwise, knowing how much harm something does is relevant to knowing how cruel it is; cruelty is more nearly (though not wholly) a direct function of the harm inflicted (Coyne and Entzeroth 71). These seem to me to be the fundamental considerations in evaluating the cruelty of a mode of punishment.
Consider, by way of contrast, the relation of pain and treatment. Treatment cannot be judged as cruel if there is no known alternative and if it is reasonably believed to be effective; its painfulness is in no way diminished by its not being harmful, but its cruelty is. However, if a method of treatment is judged to be cruelly painful, then even it may be on the verge of a moral prohibition–unless, for example, the patient would otherwise die and he has knowingly and voluntarily consented to the painful treatment. Normally, however, this is precisely what is denied when cruelty is imputed to a practice. Saying that something is both cruel and permissible verges on the self-contradictory, as would saying that something is both cruel and harmless. Roughly, critics say this: whereas the painfulness of things varies with sensory experience, the cruelty of things varies mainly according to some standard of the permissible, which is to say, according to some principle of moral judgment (Colson, 65).
Death penalties have long been attacked on constitutional grounds, and often successfully. Many a man sentenced to death has owed his life to state or federal Constitutions as interpreted by the higher courts (Coyne and Entzeroth 72). When a death sentence has been voided, it is usually by setting aside the conviction on which the sentence rests–for example, by holding that the trial court failed to grant the defendant “due process of law” as required under the Fifth and Fourteenth amendments.
Rarely if at all has it been determined that even though no error undermined the conviction, some constitution any prohibited flaw attached to the imposition of the sentence itself. And in no case has any appellate court, state or federal, ever voided a death sentence on the ground that the penal law which prescribed this punishment was itself unconstitutional (Lifton and Mitchell 33). Capital punishment denies the fundamental remedy that is still available to those in prison: release and in some cases exoneration and indemnification. Very incomplete records indicate that there is, on the average, one case every other year in the United States involving someone who was convicted of a capital crime but not executed and who either vindicates his innocence and is freed or at least establishes the unfairness of his conviction. (Colson, 41).
The availability of a remedy is the test of the presence of a right, then capital punishment as it is actually administered has been steadily in violation of offenders’ rights. One is that such capital penal statutes, modes of inflicting death, and attempted executions as have prevailed in this century in the United States are not unconstitutional under the Eighth Amendment because however cruel and unusual they may now be, they are not more “cruel” and not more “unusual” than those that prevailed in England and the Colonies two or three hundred years ago (Connors, 23). An unbroken line of interpreters has held that it was the original understanding and intent of the framers of the Eighth Amendment (and of all those who incorporated like phrases into the early state constitutions) to proscribe as “cruel and unusual” only such modes of execution as compound the simple infliction of death with added cruelties or indignities (Haines 51).
Conclusion
In sum, death penalty is cruel and unconstitutional in spite of the fact that it is an effective tool against repeat crimes and violence in society. Thus, on this theory, one must suppose that a wholly painless death inflicted by a pill or an injection could never be a mode of “cruel and unusual” punishment, especially if it were introduced by a legislature (as were electrocution and lethal gas) in the name of humane reform. The constitutional standard of cruelty and unusualness, therefore, has not only been uniformly rooted in the past; it has been confined solely to measuring the way in which the punishment of death is inflicted. Hence the courts have said that burning at the stake, crucifixion, breaking on the wheel, punishments that are inhuman and barbarous, torture and the like, and punishments that involve unnecessary pain, the wanton infliction of pain, are all constitutionally prohibited.
Works Cited
Haines, H. H. Against Capital Punishment: The Anti-Death Penalty Movement in America, 1972-1994. Oxford University Press, 1996.
Colson, Charles W. The Death Penalty: Opposing Viewpoints. Ed. David Bender & Bruno Leone. San Diego, CA: Greenhaven Press, 1997.
Connors, P. G. Capital Punishment (Current Controversies). Greenhaven Press, 2007.
Coyne, R., Entzeroth, L. Capital Punishment and the Judicial Process, Third Edition, 2006.
Lifton, R. J., Mitchell, G. Who Owns Death? Capital Punishment, the American Conscience, and the End of Executions. Harper Perennial, 2002.