In our world today, people are committing heinous crimes, crimes that at one time society never dreamed of dealing with: mothers being gunned down right before their children’s eyes, innocent bystanders being shot during a bank robbery, children being raped and left to die. Many believe these criminals deserve one fate: death. Capital punishment, the death penalty, is the highly controversial method used in punishing people who kill another human being.
Capital punishment is the lawful infliction of the death penalty, and since ancient times it has been used to punish a wide variety of offenses. The Bible prescribes death for murder and many other crimes, including kidnapping and witchcraft. By 1500 in England, only major felonies carried the death penalty: treason, murder, larceny, burglary, rape, and arson. By 1800, however, Parliament had enacted many new capital offenses, and hundred of people were being sentenced to death each year. In the United States, prior to the Civil War, the death penalty was imposed on slaves for many crimes punished less severally when committed by others (Cohen, 29).
Reform of the death penalty began in Europe by the 1750’s, and was championed by such thinkers as the Italian jurist Cesare Beccaria, the French philosopher Voltaire, and the English law reformer Jeremy Bentham. They argued that the death penalty was needlessly cruel, overrated as a deterrent, and occasionally imposed in fatal error. Along with Quaker leaders and other social reformers, they proclaimed life imprisonment a more rational alternative(Info Plus, 1991).
By the 1850’s their reform efforts began to bear fruit. In the United States the death penalty for murder was first abolished in Michigan (1847); Venezuela (1853) and Portugal (1867) were the first nations to abolish it all together. Today, it is abolished in virtually all of Western Europe and most of Latin America. Elsewhere - in Asia, Africa, and the Middle East (except Israel) - most countries still authorize capital punishment for many crimes and use it with varying frequency(Info Plus, 1994).
Methods of inflicting the death penalty have ranged from stoning in Biblical times, crucifixion under the Romans, and beheading in France, to the current methods used in the United States: hanging, electrocution, the gas chamber, lethal injection, and the occasional firing squad. 30 of the 38 states in which capital punishment is legal favor lethal injection as its manner of execution(Cohen, 32).
Capital punishment is handed down today to criminals guilty of murder. Murder, in criminal law, is the unlawful killing of another human being with malice aforethought (an intentional or criminal intent). In traditional common law, different degrees of murder were not particularized. Most states, however, have divided murder into two or more degrees of murder by statute. First degree murder is usually characterized by premeditation or deliberate design. It also includes the killing of another while committing a felony. In most states a person convicted of first degree murder can be sentenced to death, but not for second degree murder. Second degree murder is characterized by a lack of premeditation but includes intentional and reckless behavior accompanied by malice, expressed or implied. in 1991 some 24,700 murders were committed in the United States (DP.com, WWW).
In 1977, the Supreme Court ruled in Coker v. Georgia that death for rape was “grossly disproportionate and excessive.” Thus, apart from certain crimes (most notably treason) on which the Supreme Court has not yet ruled, the only capital crime (capital crime meaning punishable by death) in the United States is murder. A 1997 Time/CNN poll (conducted over the Internet, with approximately 59,000 voting) showed that 77 percent of Americans favor the death penalty. This poll show the increase of support for capital punishment. In the 60’s and 70’s, only a bare majority of Americans favored capital punishment (USDOJ, WWW).
In the United States, beginning in 1967, executions were suspended in order to allow the appellate courts to decide if the death penalty was constitutional. In Furman v. Georgia, a 1972 Supreme Court case, the Court acknowledged that the death penalty has been in use since the inception of the nation (the earliest recorded execution in the United States was in 1622 when Daniel Frank of the Colony of Virginia was put to death for the crime of theft). The Court did not rule on the constitutionality of the death penalty; rather, it ruled on the manner in which death sentences were being imposed. The Court made its ruling on January 29, 1972, stating that the death penalty, as then administered, with trial juries free to sentence the convicted to death without any standards or guidelines, was “cruel and unusual punishment, violating the Eighth and Fourteenth Amendments of the Constitution.” The court argued that death was meted out with “freakish” irregularity to the point that it’s use was arbitrary and cruel (USDOJ, WWW).
Most states quickly enacted new death penalty statutes. In 1976, the Supreme Court, when ruling on Gregg v. Georgia, held on of these new statutes to be constitutional.
In 1977, executions resumed, and by 1991, some 2,350 persons were under the death sentence in 36 states. Several months later, on January 17, 1977, Gary Gilmore was executed by a Utah firing squad, becoming the first person executed since 1967 (USDOJ, WWW). Approximately 150 persons (including one woman) had been executed.
Many states are moving toward determinate sentencing, which mandates fixed sentences for certain crimes and may eliminate probation or parole. The effects of these changes have been evident: the number of death sentences imposed and carried out are increasing each year.
Debate over the merits of capital punishment continues unabated. Proponents defend it mainly on two grounds: death is a fitting punishment for murder, and executions maximize public safety through incapacitation and deterrence. Opponents reply that there is no evidence that the murder rate fluctuates according to whether the death penalty is in use or not. They also object to lex talionis (“a life for a life”), stating it is not a sound principal of criminal justice - that society cannot allow brutalities of criminal violence to set limits of appropriate punishment. According to opponents, premeditated murder is wrong, even if carried out by the state. Also disputed is whether the death penalty continues (as critics claim) to manifest “racial and socioeconomic bias.” In McClesky v. Kemp (1987), the Supreme Court stated that the death penalty, as administered, was racially biased against blacks convicted of murdering whites (more will be on the topic of racial bias later in the paper) (Info Plus, 1991).
In the aforementioned case of Furman v. Georgia, the Supreme Court invalidated the capital punishment laws of 38 states by holding that the imposition and carrying out of the death penalty was cruel and unusual as outlined in the Eighth and Fourteenth Amendments because it was imposed in an arbitrary and capricious manner. Each member of the Court, five in the majority and four in the dissent, filed a separate opinion, but those of Justices White and Stewart were especially significant in that they left open the question whether any system of capital punishment is really constitutional or even justifiable (Info Plus, 1996).
In that case the Court rejected the contention that the death penalty is a cruel and unusual punishment in violation of the Constitution, as long as jury discretion in imposing a death sentence is controlled by “clear and objective standards so as to produce nondiscriminatory application.” This decision led to the electrocution of John Spenkelink in Florida on May 25, 1979, the first execution since 1967 in which a person condemned after the new statutes was put to death (DP.com, WWW).
In another aforementioned case, Gregg v. Georgia, Troy Leon Gregg, convicted of robbing and killing two men, was sentenced to death under the new Georgia statute. By upholding the sentence, the Supreme Court, in effect, found that the death penalty is constitutional if, along with an unbiased and fair jury, it is imposed in a two-stage procedure that follows specific guidelines as to factual finding and the assessment of aggravating and mitigating circumstances. In Woodson v. North Carolina, decided on the same day as Gregg v. Georgia, the Court struck down state laws that made capital punishment mandatory for some offenses (USDOJ, WWW).
In Stafford v. Kentucky and Penry v. Lynaugh (1989) the Supreme Court found that the Eighth Amendment prohibition’s of “cruel and unusual punishment” does not preclude to the execution of persons as young as 16 when they committed their capital offenses or the mentally retarded. Kevin Stafford was 17 when he raped and murdered a woman in Kentucky. Although twelve of the states in which capital punishment is legal set a minimum age of 18, and another three of 17, at the age of which someone may have the death penalty imposed upon him or her, the Court ruled (5-4) this does not establish a national consensus. However, since in 1988 the court had decided that a juvenile age 15 at the time of the crime is too young to be executed, the rejection of Stafford’s appeal by implication set age 16 as the constitutional minimum for capital punishment (USDOJ, WWW).
Johnny Paul Penry, brain-damaged probably from birth and with an adult IQ of 60, had been convicted for rape and murder. By another 5-4 decision, announced the same day as Stafford, the Court set aside his death sentence but only on technical terms, not due to his mental retardency. This case explicitly rejected the argument that there is any societal consensus opposed to killing the mentally retarded (McCuen, 97).
An example of a state in turmoil would be Massachusetts during the fall of 1997. People can usually describe Massachusetts through three things: lots of colleges, lots of liberals, and no death penalty. But due to a month long string of murderous acts in October of 1997, the people that have elected three generations of Kennedys are closer than they have been in decades to joining 38 other states that use the death penalty. Acting Governor Paul Cellucci, a Republican who has pushed three death penalty bills in seven years, stated “The people overwhelmingly support this because they want justice.”
As the House of Representatives began to debate the bill Robert Curley issued a warning to death penalty opponents in the House of Representatives. “The people wanted it. The people are the ones who put in there, “ Curley said. “If you don’t get it done this time, then enjoy your time in the Statehouse, because you may be gone [after the next election].”
Massachusetts held its last execution in 1947. The state’s high court threw out the most recent death penalty law in 1984, ruling that it could be applied unevenly. The death penalty movement drive only gained momentum over the month of October 1997, as three mothers were killed, one shot in front of her kids at a bus stop. Another was strangled along with her two sons, while the third was bludgeoned to death and her body hidden in a 50-gallon container.
An Associated Press poll of Massachusetts lawmakers, taken that October, found that they opposed capital punishment 82-78. But several lawmakers said privately they would probably switch their vote depending on the language of the bill. The Senate version allowed the death penalty for 12 crimes, including killing a police officer. The House version expands that number to 15, including domestic violence murders (Johnson, Oct 1997).
Opponents of the death penalty shout about the immorality and cruelty of the death penalty, but use fewer facts than proponents of capital punishment do to back their statements. Proponents are quick to point out that “falsehoods” used by opponents are now wrongly accepted as fact. One issue is how much capital punishment is used. According to the FBI’s Uniform Crime Report (UCR), there were only 358 executions from 1967-1996 compared to approximately 560,000 murders. That makes 1,600 murders to every execution (0.06%). Another statistic from the UCR report is that 5,900 people were sentenced to death in that same time frame with executions accounting for 0.2% of those people. These numbers, proponents state, dispel the myth that capital punishment is grossly overused. On the contrary, executions are actually very rare (Kaminer, 56).
Another argument of opponents, inaccurately backed, is a convicted person often does not have enough time to prove his or her innocence. However, according to Bureau of Justice statistics (BJS) published in 1996, the average time that someone spends on death row before being executed is over 10 years. This average does not include those who are never executed. Proponents are quick to use that number to prove convicted people do have a fair amount of time to prove their innocence (Kamner, 62).
The argument of proponents is best summed up in this quote from a senator who spoke anonymously: “Opponents equate execution and murder, believing that if two acts have the same ending or result, then those two acts are morally equivalent. This is a morally untenable position. It the legal taking of property to satisfy a debt the same as auto theft? Both result in loss of property. Are kidnapping and legal incarceration the same? Both involve imprisonment against one’s will. Is killing in self defense the same as capital murder? Both end in taking human life. Are rape and making love the same? Both may result in sexual intercourse. How absurd? Opponents’ flawed logic and moral confusion mirror their “factual” arguments - there is, often, an absence of reality. The moral confusion of some opponents is astounding. Some equate the American death penalty with the Nazi holocaust. Opponents see no moral distinction between the slaughter of 12 million totally innocent men, women and children and the just execution of society’s worst human rights violators (DP.com, WWW).”
The question of deterrence is another issue on which opponents make subjective statements, while proponents take advantage of their lack of facts. While opponents stand back and shout there is no proof that capital punishment acts as a deterrence, proponents point to a report published by economist Stephen K. Layson at the University of North Carolina. His 1985 study shows that ever execution deters, on average, 18 murders. Another useful report was written by researcher Karl Spence of Texas A&M University. He gathered statistics from 1960 to 1976, showing the ratio of executions to murders. The results were as follows: 1) In 1960, there were 56 executions in the United States and 9,140 murders. 2) By 1964, when there were only 15 executions, the number of murders had risen to 9,250. 3) In 1969, there were no executions and 14,590 murders. 4) In 1975, after six more years without executions, 20,510 murders occurred. (DP.com, WWW)
Cost is a highly argued topic in the debate over capital punishment. Opponents concede the fact that once a criminal is dead, he or she can cost no more money. They are quick to say, however, that the state funding of endless appeals by convicted (criminals, not to mention the actual cost of the execution, (opponents claim executions can cost upwards of $1 million) is far more expensive than the permanent incarceration of a convicted criminal. Several reports have been published that back their statements. Duke University published a report in May of 1993 that showed that the death penalty costs North Carolina $2.16 million per execution over the costs of a non-death penalty murder case with a life sentence. On a national basis, these figures translate to an extra cost of over $900 million spent since 1976 on the death penalty (Info Plus, 1996).
Individual state reports also confirm opponents arguments that the death penalty costs more than incarceration of a criminal for life. In California, a 1988 report noted that the death penalty costs $90 million annually beyond ordinary costs, $78 million of that incurred at the trial level. A 1992 report from Texas reports a death penalty case costs an average of $2.3 million, approximately three times the cost in imprisoning someone in a single cell at the highest security level for 40 years. A new report (from January of 1998) from the Nebraska Judiciary Committee states that any savings from executing an inmate are outweighed by the financial legal costs (USDOJ, WWW).
Proponents claim that the idea that it is more expensive to execute a criminal than it is to incarcerate him or her is yet another falsehood. They state life without parole prisoners face an average of 30-40 years in prison at a cost of $50,000 a year. The cost of the death penalty, proponents say, resides mainly in appeal costs. Life without parole prisoners get the same appeals and should be considered to beat the same costs. Proponents argue that appeals should only be given if it is relevant to proving the criminal’s innocence, not for a delay tactic. This would save millions of taxpayer dollars (Cohen, 79)
Some abolitionists claim life incarceration without parole serves just as effectively as a deterrent as death. According to proponents, this argument fails to take three points into account: all of the murders that have occurred and possibly could take place by criminals in jail when they kill inmates and guards; the murders criminals commit if they escape from prison; the third flaw in the life without parole option is that life imprisonment is not necessarily guaranteed. Laws change and so do parole boards. As long as the murderer lives, according to proponents, there is always a chance, no matter how small, that he or she can strike again (DP.com, WWW).
Capital punishment is a hot topic of debate, a debate that reaches far back into history. In a moral perspective, abolitionists have a very strong case, but proponents have the stronger legal and fact based case. Debate on capital punishment , and its constitutionality will rage unabated, with no foreseeable conclusion.
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