The Death Penalty in the United States Research Paper

Introduction

Punishment for crimes which are deemed cruel and unusual is forbidden by most governments. The legal interpretation of ‘cruel and unusual’ is somewhat open to debate but in general, the term ‘cruel’ refers to brutal punishments that cause excessive pain. Most legal experts agree that punishments including bodily dismemberment or torture are undoubtedly classified as cruel. Again, terminologies are open to interpretation as evidenced by the current debate at the highest level of government involving the definition of torture. The term ‘unusual’ is commonly understood to define the equitable application of punishment for a particular offense. For example, if ten people were cited for speeding and nine of them were fined £100 but one was fined £1000, this penalty would be considered ‘unusual.’ Taken together, both ‘cruel’ and ‘unusual’ indicate that the punishment should be exacted in proportion to the offense committed. A life term in prison is an acceptable form of punishment but if it were imposed for jaywalking, this would be an unacceptable method of punishment because it would be considered excessive given the severity of the offense. Excessive is also open to wide interpretation in both the public and legal realm. Some would argue, for example, that imprisonment of any amount of time for ‘crimes’ such as gambling, prostitution and the possession of drugs should be interpreted as excessive therefore ‘unusual.’ The use of the death penalty is considered by some to be the most obvious and heinous example of cruel and unusual punishment. Those opposed to capital punishment do not believe that the government should be vested with the power to put any of its citizens to death. Opponents also maintain that the practice is racially biased, overtly costly and does not achieve the intended outcome.

Main body

The death penalty is perhaps most often employed in America, making the United States a strong study for the effects of the death penalty and whether or not it is both moral and effective. The Supreme Court of the United States has on several occasions dealt with judging the merits of the death penalty and whether or not it is interpreted by the Constitution as punishment which is cruel and unusual. The Court has always ruled the terminology of the Eighth Amendment does not exclude the implementation of death as punishment.¹ The Constitution is a malleable document, however. The interpretation of the Eighth Amendment has evolved somewhat throughout the years and the Court could possibly reverse this point of view sometime in the future as a result of changing societal values. For example, the whipping of offenders was commonplace until the late eighteenth century.² This practice came to be considered inappropriate because society’s opinion changed to include it as a ‘cruel’ punishment. With respect to capital punishment, though, “the Court has maintained that there remains broad public support for the death penalty as a remedy for the most serious of crimes.”³

Historically speaking, the rational for punishing criminals has been to avenge the crime, to protect society by imprisoning the criminal, to deter that person and other potential offenders from the commission of crimes and to obtain reparations from the offender.⁴ Throughout the history of civilization, this rational has not changed substantially. The four fundamental reasons society punishes can be classified into two areas. One is to obtain desired consequences which includes protecting society, seeking compensation and deterrence. The other, retribution, reparation or vengeance, involves punishment for a wrong perpetrated on society. Those that subscribe to retribution as justification for the death penalty often invoke the Bible’s reference to ‘an eye for an eye.’ Aggression must be met with aggressive punishment.⁵ “This use of punishment is society’s way of striking back at one who has disturbed the emotional and ethical senses of a people.”⁶ Interestingly, those that use the quote from the Old Testament to justify the use of the death penalty as moral either overlooked or ignored the passage in the New Testament where Jesus rebuffs this statement explicitly then reminds his followers instead to ‘turn the other cheek.’ However, the ‘eye for an eye’ justification is still used by many today. Those that hold this view are certainly correct when they say that the death penalty insures that the criminal will not commit another crime against society. In addition to a vengeful act, the death penalty is the ultimate preventative measure.⁷

Although there is a long and often graphic history of capital punishment cases in Britain’s history, the practice has been phased out entirely during the past century, making these types of comparisons difficult, but not entirely impossible. According to one reliable timeline, minors under the age of 16 were no longer eligible for death punishments by hanging as early as 1908. Mothers convicted of infanticide were not charged with a capital offense after 1922 and pregnant women weren’t hanged after 1931. By 1948, the House of Commons suspended capital punishments but this was overruled by the House of Lords. Another Death Penalty Abolition Bill was overturned by the Lords in 1956, but the Homicide Act of 1957 restricted the use of capital punishment until 1965, when it was suspended. Finally, in 1969, capital punishment was abolished in this country for good.⁸ The last people put to death for their crimes in the UK were Peter Anthony Allen (21) and Gwynne Owen Evans (24), both convicted for the murder of John Alan West in 1964. Evans was later given a free posthumous pardon in 1966.⁹ Although the death penalty was abolished by law in 1966 in this country, “a free vote during a debate on the Human Rights Bill, MP’s decided by 294 to 136, a 158 majority, to adopt provisions of the European Convention on Human Rights outlawing capital punishment for murder except ‘in times of war or imminent threat of war’.”¹⁰ With the passing of the Criminal Justice Bill in 1998, some of the last capital crimes were removed from English law.

Those that oppose capital punishment believe that every life should be valued and that imprisoning a person for life without the possibility for parole is adequate punishment. Opponents also think that revenge is wrong and ultimately more destructive to the value system and very fabric of society than is the crime itself. In addition, opponents feel that outlawing the death penalty will “allow opportunities for confronting those who had been hurt most and possibly encourage remorse or reconciliation (and) suggest those that have killed be made to service the community as a way of partially making amends.”¹¹ According to opponents, capital punishment is ethically and morally objectionable in today’s society. Some oppose it based on religious grounds citing morality as the fundamental issue; however, differing religions and people within those religions often have opposing opinions. Christians who live in Europe, for example, tend to oppose capital punishment but in America, they tend to support it.

In America, the Supreme Court has upheld that capital punishment does not fall under the category of exceptionally ‘cruel’ but has ruled that it does violate the Eighth Amendment if it is considered unusual. In the Furman v. Georgia case of 1972, the Supreme Court ruled that the death penalty was being subjectively applied because a disproportionate amount of minorities had faced execution which made the practice ‘unusual.’¹² As a result of the decision, approximately 600 persons on death row had their sentences commuted to life. An infamous example of this includes the release of members of the ‘Mason Family.’ In addition, no executions were permitted in the U.S. until it was again resumed in 1976. However, the majority of death penalty opponents believe that the practice continues to be intrinsically biased against those of lower income and minorities.¹³

Capital punishment opponents claim that wealthy, white criminals are less likely to be executed than underprivileged minority members of society and if the victim is white or wealthy, it is more likely to be imposed. The statistics provide evidence for their claim. Since 1976, 43 percent of executions in the U.S. have been black or Hispanic. This group accounts for 55 percent of those currently on death row. About half of those murdered in the U.S. are white but 80 percent of all murder cases involve white victims. From 1976 to 2002, 12 whites were executed for killing a black person while 178 blacks were executed for murdering a white person.¹⁴ It would seem that the ‘unusual’ aspect of the death penalty continues to be a valid argument but another aspect must be present for the practice to again be abolished. “There is ample evidence that the death penalty is applied with a discriminatory impact based on the race of the victim, but a constitutional challenge requires intentional discrimination.”¹⁵ Opponents also believe a justice system that disproportionately executes its citizens cannot be considered anything but corrupt which devalues the entire system.

Many proponents of the death penalty believe that it is an option of last resort for criminals that cannot be rehabilitated. They also argue that every murderer executed is one less person that the taxpayers are not feeding and housing. They believe “the cost of supporting criminals in maximum security prisons until they die is very high and they do not feel the innocent tax payer should not have to foot the bill for the care of depraved criminals who’ve demonstrated that they have no respect for society’s laws or human life.”¹⁶ Additionally, a lengthy appeals process is a costly process that ties-up the court system. This cost is considered by opponents to be an insignificant argument because the value of human life cannot possibly be broken down into columns on a profit and loss ledger. Department of Justice statistics clearly illustrate that the death penalty contains many constitutional flaws. Between 1973 and 1993, almost half (forty-two percent) of inmates awaiting the death sentence had their sentences commuted or reversed. Capital punishment is “a waste of money and resources in producing what turns out to be counterfeit death sentences in almost one out of every two instances.”¹⁷

Capital punishment opponents argue that the practice does not deter crime, which statistics reprove. In addition, if offenses that caused ‘no harm’ to others were decriminalized, such as gambling, prostitution and drug possession, the inmate population would decrease by about half. This would allow for the violent offenders to serve their entire sentence without having to be paroled early because of over-crowding. Thus, society would be properly protected. Opponents also deny that the death penalty is a deterrent to crime because of the nature of the reasons people commit homicide. People cannot conceive their own demise therefore cannot contemplate or appreciate the consequences. In addition, these crimes are usually committed as a result of impulsive actions and not carefully considered beforehand. Therefore, “the deterrent case has no validity.”¹⁸ If the person committing the murder does contemplate the consequences, they may kill not only the victim but any witnesses as well rather than risk being caught.¹⁹ Again, the opponent’s view has been substantiated. Many studies have been performed to determine if the death penalty is indeed deterrence to crime. They are conducted by “comparing homicide rates in contiguous jurisdictions, some of which had abolished capital punishment; examining time series data on homicide rates within a jurisdiction during the years before and after the abolished capital punishment; and comparing homicide rates in a jurisdiction before and after the imposition of the death sentence or execution.”²⁰ These studies have unanimously demonstrated that the death penalty does not deter crime.

Conclusion

In America, the Supreme Court has ruled that the death penalty is not ‘cruel’ yet possibly ‘unusual’ in its interpretation of the Eighth Amendment over the past 30 years. It is waiting for society’s definition to evolve further before abolishing the practice on the grounds that it is both ‘cruel’ and ‘unusual.’ As it is practiced within the United States, the death penalty is already largely recognized by those within the system to be discriminatory against those of minority races or low incomes. However, it continues to be insisted that the checks and balances of the system have prevented any innocent deaths being carried out, which have been directly refuted by cases here in the UK. The societies in European countries have already formed the opinion that capital punishment is wrong and immoral, which can be perceived as the result of a greater length of time in which to evolve into more and more humanitarian treatment. With the abolition of the death penalty more than 40 years ago, the UK was sending a clear signal to the world regarding our assessment of the practice. The terrible mistake demonstrated through the Evans case illustrated just how easy it is to allow the penalty to be carried out unjustly, and nothing can rectify this after the fact than a relatively empty posthumous pardon. Eventually, America’s society, too, will have to conclude that the death penalty is not only ineffective, but is, indeed, cruel and unusual punishment.

Bibliography

1. “Furman v. Georgia.” (1972). The Supreme Court Collection. Cornell Law School Legal Information Institute.
2. Hagan, J. (1985). Modern Criminology: Crime, Criminal Behavior, and it’s Control. New York: McGraw-Hill, Inc.
3. Johnson, E.H. (1968). Crime, Correction, and Society. Illinois: The Dorsey Press.
4. Lunden, W.A. (1967). Crimes and Criminals. Iowa: The Iowa State University Press.
5. McCloskey, J. (1996). “The Death Penalty: A Personal View.” Criminal Justice Ethics. Vol. 15.
6. Mello, M. (1995). “Defunding Death.” American Criminal Law Review. Vol. 32.
7. Mott. Jonathan. (2000). “Is the Death Penalty Constitutional?” This Nation.
8. Olen, Jeffrey & Barry, Vincent. (1996). Applying Ethics. Belmont, CA: Wadsworth Publishing Co.
9. “Race and the Death Penalty” (2006). Unequal Justice. New York: American Civil Liberties Union. Web.
10. Stratford, Stephen. (2008). “History of Capital Punishment.” British Military & Criminal History in the Period 1900-1999.
11. Wolfgang, M.E. (1998). “We Do Not Deserve to Kill.” Crime and Delinquency. Vol. 44, pp. 19-32.

Footnotes

1. Mott. Jonathan. (2000). “Is the Death Penalty Constitutional?” This Nation.
2. Ibid.
3. Ibid.
4. Wolfgang, M.E. (1998). “We Do Not Deserve to Kill.” Crime and Delinquency. Vol. 44, pp. 19-32.
5. Olen, Jeffrey & Barry, Vincent. (1996). Applying Ethics. Belmont, CA: Wadsworth Publishing Co.: 268.
6. Lunden, W.A. (1967). Crimes and Criminals. Iowa: The Iowa State University Press: 232.
7. Olen & Barry, 1996.
8. Stratford, Stephen. (2008). “History of Capital Punishment.” British Military & Criminal History in the Period 1900-1999.
9. Ibid.
10. Ibid.
11. Olen & Barry, 1996: 272.
12. “Furman v. Georgia.” (1972). The Supreme Court Collection. Cornell Law School Legal Information Institute.
13. Olen & Barry, 1996: 272.
14. “Race and the Death Penalty.” (2006). Unequal Justice. New York: American Civil Liberties Union.
15. Mello, M. (1995). “Defunding Death.” American Criminal Law Review. Vol. 32: 933.
16. Olen & Barry, 1996: 273-274.
17. McCloskey, J. (1996). “The Death Penalty: A Personal View.” Criminal Justice Ethics. Vol. 15: 7.
18. Johnson, E.H. (1968). Crime, Correction, and Society. Illinois: The Dorsey Press.
19. Olen & Barry, 1996.
20. Hagan, J. (1985). Modern Criminology: Crime, Criminal Behavior, and it’s Control. New York: McGraw-Hill, Inc.