Capital Punishment: Arguments for and Against

Introduction

Punishment for crimes that are deemed cruel and unusual is forbidden by the Eighth Amendment to the U.S. Constitution. This amendment is often invoked when discussing the legal merits of the death penalty. 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. Proponents believe it to be neither cruel nor unusual, on the contrary, they think it just and fair. The purpose of this study is to discuss the legal and moral issues that literally are of life and death importance and is a major barometer when measuring a society’s collective conscience. The ‘eye for an eye’ group not only accepts but vocally insists that the death penalty be continued for many reasons which will be covered thoroughly in this discussion. It will also include the opponents’ reasoning regarding why it should be abolished along with the legal precedents involved in an effort to gain a comprehensive overview of the death penalty debate. The discussion will conclude with an opinion regarding the future of Capital punishment in the U.S.

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Cruel and Unusual

Common Definition

By definition, capital punishment is not unusual, legally speaking, unless one considers and acknowledges the racial bias that exists in the justice system. Whether or not it is cruel is not definable by law. It can only be defined by the collective social consciousness of a culture. 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 sentence 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.’

Legal Definition

The Supreme Court 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. 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. 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” (Mott, 2004).

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’ (“Furman v. Georgia”, 1972). As a result of the decision, approximately 600 persons on death row had their sentences commuted to life, an infamous example being 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 (Olen & Barry, 1996: 272).

Punishment

Why Society Punishes

Historically speaking, the rationale 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 (Wolfgang, 1998). Throughout the history of civilization, this rationale has not changed substantially. The four fundamental reasons society punishes can be classified into two areas. One is to obtain desired consequences which include protecting society, seeking compensation and deterrence. The other, retribution, or vengeance, involves punishment for a wrong perpetrated on society.

Justifications

Those that subscribe to retribution as a justification for the death penalty often invoke the Bible’s reference to ‘an eye for an eye.’ Aggression must be met with aggressive punishment (Olen & Barry, 1996: 268). “This use of punishment is society’s way of striking back at one who has disturbed the emotional and ethical senses of a people” (Lunden, 1967: 232). 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 to instead ‘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 ensures that the criminal will not commit another crime against society. In addition to a vengeful act, the death penalty is the ultimate preventative measure (Olen & Barry, 1996).

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Opposition View

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 serve the community as a way of partially making amends” (Olen & Barry, 1967: 272). 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 have differing opinions. Christians who live in Europe, for example, tend to oppose capital punishment but in America, they tend to support it.

A Wide Ethnic Disparity

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 (“Race”, 2003). 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” (Mello, 1995: 933). Opponents also believe a justice system that disproportionately executes its citizens cannot be considered anything but corrupt which devalues the entire system.

The Argument For Capital Punishment

Right and Wrong

Opponents of the death penalty argue that the penalty is unjust but proponents disagree with this position because they believe what is truly unjust is the deliberate act of taking another life, murder. Further, an injustice society should not condone is allowing murderers to keep their lives after imposing the death sentence themselves on another and by that act, also sentencing the victim’s family to a life sentence of anguish. If someone steals a car, for example, and was allowed to keep and drive it around town without fear of retribution, no one would think that fair. It is neither fair to allow anyone that steals a life to keep their own. By allowing people who have been convicted of acting as self-appointed executioners to keep their own life devalues human life on the whole.

Religious Considerations

According to those in favor of the death penalty, opponents defy reasonable logic by arguing that taking a murderer’s life devalues human life. Evidently, they have never had their car stolen and don’t understand the example or they believe that the murderer’s life is more valuable than the victim’s. Taking away criminals’ freedom is the only way of showing how much we value freedom. Protestant and Catholic philosophy has consistently confirmed the right of a fair government to end the life of convicted murderers. The Sixth Commandment in original Hebrew reads not ‘thou shall not kill’ but ‘thou shall not murder.’ The Torah, Judaism’s chief source of ethical reference, is definite in its support of the death penalty. The only law repeated in all five books of the Torah is the condemnation of murderers to death (Prager, 2001).

Real-Life Illustration

Again, according to death penalty proponents, sending a murderer away to enjoy three meals a day and a roof over their heads for life simply doesn’t fully address the issue. Death penalty laws have been known to change and probably will again. In addition, people tend to forget the past and parole boards constantly evolve their personnel so there is always a chance, no matter how small, that the murderer will strike again if he is allowed to remain alive. A life sentence imprisonment tends to depreciate with the passage of time as these examples illustrate. In 1962, James Moore raped and strangled 14-year-old Pamela Moss in New York State. Her parents were opposed to the death penalty and asked that he be given life imprisonment without the possibility of parole. Moore has been eligible for parole every two years since 1982 because of a change in sentencing laws. In 1966, Kenneth McDuff was convicted in the fatal shooting of two boys in the face and the brutal rape and strangulation of their 16-year-old female friend. A Texas jury sentenced McDuff to die in the electric chair but in 1972 this was commuted to life in prison after the U.S. Supreme Court ruling. In 1989, he was released only to commit at least six more murders which included a pregnant mother of two. He was finally executed in 1998 (Lowe, 2006).

A Few Mistakes Are OK – Somehow

Although the U.S. court system is at least among the most equitable in the world, no system of justice can expect to provide perfect results 100 percent of the time. Mistakes are inherent within all systems that rely on the human element for proof and for judgment. The justice system correctly demands that a higher standard be imposed for determinations of guilt in death penalty cases. With the extraordinary due process that is applied in all death penalty cases, the risk of making a mistake is minute. Since the reinstatement of the death penalty in 1976, there has been no credible evidence provided that confirms any innocent persons have been executed. The more than 100 ‘innocent’ death row inmates that were ‘exonerated’ are a sham. The actual figure of innocent death row inmates is nearer 40 which should be considered in context with the 7,000-plus death–row inmates added to the roles since 1973. Mistakes within the system, though few and unavoidable, should not serve as justification to eradicate the death penalty. We should never disregard the dangers of permitting murderers to kill again (Stewart, 2006).

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Final Argument

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. An execution is less costly to taxpayers than the alternative, long imprisonment. They believe “the cost of supporting criminals in maximum security prisons until they die is very high and they feel the innocent taxpayer 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” (Olen & Barry, 1996: 273-274). 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 illustrates 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” (McCloskey, 1996: 7).

Death is Not Logical

Does Not Deter

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 overcrowding. 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 are not carefully considered beforehand. Therefore, “the deterrent case has no validity” (Johnson, 1968). 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 (Olen & Barry, 1996). Again, the opponent’s view has been substantiated.

Empirical Evidence

Many studies have been performed to determine if the death penalty is indeed deterrence. 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” (Hagan, 1985). These studies have unanimously demonstrated that the death penalty does not deter crime.

Interestingly, states that have the death penalty generally have higher murder rates. It’s as if capital punishment invites rather than deters crime. According to a New York Times survey, the 12 states that did not reenact the death penalty following the Supreme Courts’ reinstatement in 1976 have reported similar murder rates as have those states did. Data gathered from the Federal Bureau of Investigation indicates of those 12 states without the death penalty, 10 of them saw their murder rates drop below the national average since that time. Conversely, half of the states that kept the death penalty had their murder rates rise above the national average. Since 1989 those states with the death penalty averaged murder rates from about 50 to 100 percent higher than states without it according to an analysis by the NY Times. Additionally, this study found murder rates rose and fell proportionately in those states that did or did not have the death penalty. This data indicates the death penalty rarely if ever, deters crime. In fact, the opposite may be suggested. “It is difficult to make the case for any deterrent effect from these numbers,” said Steven Messner, a criminologist at the State University of New York at Albany, who reviewed the analysis by The Times. “Whatever the factors are that affect change in homicide rates, they don’t seem to operate differently based on the presence or absence of the death penalty in a state” (“States”, 2009).

Recommendations

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. The Supreme Court, legislators and the bulk of the reasonable public are waiting for the remainder of society’s definition to evolve further before abolishing the practice on the grounds that it is both ‘cruel’ and ‘unusual.’ Our American society loves to punish. As evidence, it is generally and widely known the U.S. incarcerates many more of its citizens by percentage than does any other industrialized nation. The issue is a societal problem. One day, it will be a compassionate society that does not use the emotion of revenge to decide its laws and the death penalty will go the way of the Salem witch trials, a barbaric punishment of the distant past. What is needed, as in almost every issue, is education. Americans do not seem to challenge their own beliefs long enough to research their justifications on a given subject.

Conclusion

The societies in European countries have already formed the opinion that the death penalty is both ‘cruel’ and ‘unusual’ punishment that remains largely ineffectual. Most European citizens enjoy cradle to grave health care and are much less likely to be incarcerated than those in the U.S. Though there is much evidence to the contrary, American society is growing more compassionate through time. The 1964 Civil Rights Act is but one example of this. We, as a society is in a constant state of evolution. Because we still cling to outdated and cruel forms of punishment, hundreds of years from now will schoolchildren think of us as being an extension of the medieval period? Many of us today certainly do and want us to act, think and make decisions as adults should and not as an impulsive child would. Many of us would prefer following our more evolved brothers in Europe and abolish the death penalty. While we’re at it, let’s follow their example of universal health care as well.

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References

“Furman v. Georgia.” The Supreme Court Collection. Cornell Law School Legal Information Institute.

Hagan, J. (1985). “Modern Criminology: Crime, Criminal Behavior, and its Control.” New York: McGraw-Hill, Inc.

Johnson, E.H. (1968). “Crime, Correction, and Society.” Illinois: The Dorsey Press.

Lowe, Wesley. (2006). “Capital Punishment vs. Life Without Parole.” ProDeath Penalty 

Lunden, W.A. (1967). “Crimes and Criminals.” Iowa: The Iowa State University Press.

McCloskey, J. (1996). “The Death Penalty: A Personal View.” Criminal Justice Ethics. Vol. 15, pp. 2-9.

Mello, M. (1995). “Defunding Death.” American Criminal Law Review. Vol. 32, pp. 933-1012.

Mott. Jonathan. (2000). “Is the Death Penalty Constitutional?” This Nation. Web.

Olen, Jeffrey & Barry, Vincent. (1996). “Applying Ethics.” Belmont, CA: Wadsworth Publishing Co.

Prager, Dennis. (2001). “Death Penalty Guards What is Valued Most.” Milwaukee Journal Sentinel.

“Race and the Death Penalty.” (2003). Unequal Justice. New York: American Civil Liberties Union.

“States With No Death Penalty Share Lower Homicide Rates”  (2009) New York Times.

Stewart, Steven D. (2006). “A Message from the Prosecuting Attorney.” The Death Penalty. Clark County, IN: Office of the Clark County Prosecuting Attorney.

Wolfgang, M.E. (1998). “We Do Not Deserve to Kill.” Crime and Delinquency. Vol. 44, pp. 19-32.

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