Capital PunishmentThis print version free essay Capital Punishment.
Autor: reviewessays 04 October 2010
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In the following pages, I will discuss the history, debate, past and current public opinion, and how it applies to American ideology and opposing values. Both sides have a fair amount of support and I have included direct quotes and paraphrasing from authors, celebrities, journalists, and ordinary people arguing both sides.
The history of the death penalty goes back to the earliest civilizations where it was used to punish all sorts of crimes from robbery, to murder, to different forms of heresy. In the United States it evolved to just punish murder, treason, and some cases of rape. It has been an issue that has sparked a never ending debate that goes back to colonial times. The general public traditionally supported the death penalty in a majority with only a few politicians speaking out against it (i.e., Benjamin Rush, Ben Franklin and later on Horace Greeley). Once the U.S. gained independence, each state went back and forth in abolishing and reinstating the death penalty and methods of execution.
The 1960's saw many trials concerning capital punishment cases that led to a ten year halt in executions. In 1965, the American Civil Liberties Union's (ACLU) announcement of their anti-death penalty stance was a sign of things to come. It was particularly important because the ACLU had always neglected to have an opinion on the issue because they believed it was not a civil rights issue. They now determined that capital punishment was "inconsistent with underlying values of a democratic system." They explained that it discriminated against blacks and other minorities and did not comply with the eighth amendment of the constitution, in other words, it was cruel and unusual punishment (Vila, Morris:127). The National Association for the Advancement of Colored People's Legal Defense Fund (NAACP-LDF) also began to speak out in the mid-sixties. They agreed that the death penalty discriminated against blacks and launched a campaign against the death penalty around the same time. The LDF poured its resources into aiding death row prisoners which tied up the capital punishment cases for years allowing them to achieve their goal of a moratorium on the death penalty (Vila, Morris:131). From 1967 to 1977, there were no executions anywhere in the United States because of groups like these that rallied to oppose it, the particularly low public support of it, and a number of supreme court cases that decided in the favor of the abolitionist movement.
One crucial case was Witherspoon v. Illinois in 1968. The supreme court ruled that prospective jurors who oppose the death penalty can not automatically be excluded from juries in possible capital punishment cases. The court said that having jurors that oppose the death penalty is part of a fair, "impartial jury" as dictated by the Sixth Amendment. Some dissenters claimed that people who were ethically opposed to the death penalty were biased because they would never vote to give the death penalty to people who deserved it. Some historians say that this marked the first time that the supreme court was persuaded by public opinion against capital punishment. The following statement was made by Justice Potter Stewart who spoke for the majority, "In a nation less than half of whose people believe in the death penalty, a jury composed exclusively of such people cannot speak for the communityÐ’â€¦In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die" (Gottfried:60). Scholars and lawyers also thought this would be the end of capital punishment for good because the courts' willingness to accept people who fundamentally opposed the death penalty, but this turned out not to be true because of details in the decision that allowed courts and legislatures to work around it.
The 1972 case of Furman v Georgia was seen as a complete victory for abolitionists at the time, but proved to be more complicated than it appeared. It said that the death penalty, as it was administered, violated the Eighth Amendments because it was cruel and unusual punishment and violated the Fourteenth Amendment because it did not guarantee equal protection under the law (Costanzo:18). The crucial part of this statement was "..as it was administeredÐ’â€¦" because it left the law open to be revised and then reinstated if in compliance with the Constitution. The important thing to realize was that the court did not say that the death penalty itself was unconstitutional, it said the current way it was being administered was unconstitutional. The court said that juries were not given adequate guidance in imposing a death sentence and the jury systems were different in every state. This did put a halt to all executions in the country, but only until the laws were re-written. Many states rewrote their death penalty laws that were all deemed acceptable only four years later. The apparent abolition of the death penalty was very short lived.
After many states changed their laws concerning the death penalty, criminals sentenced to death, and then given life sentences, were put back on death row. In Gregg v. Georgia, the Supreme Court decided that under the new revised laws regarding capital punishment cases that the death penalty was indeed constitutional. The new laws stated that juries had to be under the guidance of a trial court during decision making in the death penalty phase and also there was to be a mandatory state appellate court review of all death sentences (Vila, Morris:161). Justice Stewart even pointed out that public opinion had flip-flopped since the late sixties and early seventies and there was now heavy support for capital punishment (Gottfried:62). The Supreme Court was not only persuaded by public opinion in this case, but came right out and sited public opinion polls as a reason for the court's decision.
The first person to die under the new court decision was Garry Gilmore. For the general public he was the perfect example of someone who deserved the death penalty because of his blatant apathy towards human life. This confirmed the public consensus that in certain extreme cases, the death penalty is the only reasonable punishment. The case of Ted Bundy is another example. He was a serial killer that was responsible for the deaths of 50 young women and kidnapping a 12 year old girl. There was no doubt that the majority of Americans thought the death penalty was appropriate for him and other cases like his.
Despite the support of the majority of the public supporting capital punishment, many politicians and organizations still condemned the death penalty throughout the eighties and nineties. Groups like Amnesty International and Human Rights Watch, religious figures like the Pope John Paul II and Mother Theresa, politicians like Jimmy Carter and Mario Cuomo all publicly stand against the death penalty. In the eighties, there were court cases that concerned specific issues regarding the death penalty such as the execution of minors and mentally handicapped people. This is one of the many issues I will discuss in the next section of this paper that deals with the different arguments of the debate.
I have separated the arguments regarding the death penalty debate into two separate categories: the issues concerning the moral and social aspects of the debate and the issues concerning legal and constitutional aspects.
A good place to start in the moral and social realm of the debate would be the issue of the death penalty as a deterrent. Aside from the need for "justice" and the safety of society, this is the reason the death penalty exists. Opponents of the death penalty say that fear of punishment will not stop people from committing horrendous crimes for a few reasons. The first is that people who engage in the type of crimes punishable by death are not rational people and/or are not rationally considering the consequences when committing the crime. The second one is that the alternative to the death sentence, which would be life imprisonment without parole, actually might sound worse to someone that is considering the crime. Supporters of the death penalty say that fear of being put to death does deter would be murderers from pulling the trigger. Some cite statistics that crime has gone done after death penalty laws are enacted, but the opponents have said that overall, it hasn't changed that much. An important point that supporters contend is that the death penalty doesn't apply to all murders, but just the especially horrific ones, so it might deter potential kidnappers and rapists from taking those extra steps. They also believe that the fear of death is a fundamental human motive that everyone, including crazed murderers, will consider. In an article in New Republic, former New York City mayor Edward Koch gives an example of a confessed murderer Luis Vera. He shot and killed neighbor Rosa Velez when she found him robbing her apartment. ""Yeah I shot her, she knew me and I knew I wouldn't go to the chair.'"
Another aspect in this realm of the debate is retribution vs. revenge: Is it morally just to kill someone for killing? Opponents say capital punishment for murderers is simply revenge and is just state-sanctioned murder. Their argument is simply - two wrongs don't make a right. Supporters would argue the "eye for an eye" theory - if you take someone's life, yours shall be taken too. This is just a simple question of how far you personally take the idea of forgiveness. Many clergymen and women have addressed this issue using religious references to support either side. Sister Helen Prejean (author of Dead Man Walking) makes an obvious point: "Ð’â€¦it is curious that those who so readily invoke the 'eye for an eye, life for a life' passage are quick to shun other biblical prescriptions that also call for death, arguing that modern societies have evolved over three thousand or so years since biblical times and no longer consider such exaggerated and archaic punishments appropriate." She is basically saying that anyone who cites the eye for an eye law because it is in the Bible also has to support the death penalty for pick-pocketing and different forms of heresy. Most people would assume a Christian to "turn the other cheek," but in an essay published in The Death Penalty - Opposing Viewpoints, Charles W. Colson insists that capital punishment is necessary in extreme cases: "I believe that God requires capital justice, at least in the case of premeditated murder where there is no doubt of the offender's guilt. This is, after all, the one crime in the Bible where no restitution was possible." *
You can't debate the issue of the death penalty without considering the issue of race and class. According to Amnesty International (in the late nineties), African Americans make up about 12 percent of the population, they are almost half of the country's death row population. In southern states they are even higher, reaching almost sixty percent of the death row population. The reason could simply be that Blacks commit more crimes than whites, which could, in turn, relate to certain class issues. But many people who oppose the death penalty do not believe this to be the case. They contend that it is the conscious or subconscious prejudice of white jurors and the prosecutors seeking the death penalty. There is evidence that they are much more likely to seek the death penalty when the victim is white and the accused is black. Also blacks who are convicted of killing whites are more sentenced to death than any other kinds of offenders (Gottfried:51). The argument to this is that these statistics are misleading because of added circumstances that make it much more complicated. I just don't have the space to dive into that here!
Another major complaint about the application of the death penalty is that it is unfair to those who don't have big budgets. "That's what capital punishment really means: those who ain't got the capital, get the punishment," convicted murderer and death row inmate Mumia Abu Jamal contends in the spoken word CD accompanying his book All Things Censored (2000). Accused criminals that can not afford a lawyer to represent them are appointed a lawyer by the court, but it is well known that in most cases, lawyers appointed by the court will not put the same effort into the defense that lawyers someone like O.J. Simpson san buy. So defendants from a lower class will not have the same defense as someone who can afford an expensive, prestigious lawyer. You could say that the cause for the abundance of poor people on death row is because of the obvious reason that poorer people are more inclined to commit crimes in general, including the harsher crimes that are punished by the death penalty.
Some opponents focus on limiting the cases that the death penalty can be applied to. The 1988 case of Thompson v. Oklahoma, the Supreme Court ruled that minors could be put to death (Vila, Morris:232). Soon after, James Terry Roach was executed for a crime he committed when he was seventeen. In Penry v..Lynaugh a year later, they decided that a mentally handicapped person was not protected under the Eighth Amendment, either. The defendant wasn't capable of reading or writing and his confession was written by the police. Some people feel that certain crimes are so bad, that even though the person might not have been in a normal mental capacity for whatever reason, society needs to be protected from them and incarcerating them is not enough.
One more simple issue concerning morality and society is the issue of innocent people getting executed. Some people think that it is better to let some guilty people go than execute even one innocent person. "Many death penalty opponents say that the capital punishment should never be used in a case where the jury or judge is not 100% sure of guilt. They say that, because it is impossible to ever be 100% sure about anything, the death penalty should not be used when someone might be innocent" (deathpenalty.org) The other side argues that more innocent lives will be saved in the long run if murderers are executed or possibly deterred by strict capital justice.
There are certain legal and constitutional issues that rise when discussing capital punishment. The Eighth Amendment is consistently brought up by abolitionists because they believe that all death sentences are "cruel and unusual punishment." Also the Fourteenth Amendment and Fifth Amendment is brought up because they believe that defendants are not getting "equal protection under the law" and/or "due process of law" for the racial and class reasons stated previously. The Supreme Court has determined that with all the opportunities for appeals and reviews that both of those concerns are met under the constitution according their decision in Gregg v. Georgia (1976).
A crucial issue for both sides of the debate is the length of time between the time criminals get convicted and the time they are executed. Many people were outraged at the fact that Ted Bundy remained alive for about ten years while his appeals went through. Both sides think that the ability to have appeals is necessary but people who support the death penalty generally think it should be shorter while opponents say that a long process is necessary to ensure fairness. This ties into another dispute regarding the length of time on death row. Supporters of the death penalty don't believe that society should be paying for prisoners who committed horrific crimes to live out their lives in prison . The abolitionist argument against that is that the death penalty process of appeals actually costs more than to support a prisoner for the duration of his or her life. So the pro-death penalty side argues back that the appeals process should be shorter because it is costing society (including the innocent victims' family) so much tax money.
Of course, these few pages come no where near covering all the issues surrounding the debate, but they are the most outstanding issues that people are concerned about.
Are you in favor of the death penalty for a person convicted of murder? This was one of the questions asked for the Gallop poll over the years concerning the death penalty. Since the late 50's, the public's answer of "yes" to this this question has steadily risen. The percentage of people supporting the death penalty was barely over 50% in the sixties and rose to about eighty percent in the late eighties/early nineties, and then sinking down a little in more recent years (http://www.gallup.com/poll/releases/pr000224.asp).
The social atmosphere of the sixties was naturally not the kind that would likely support a government policy like the death penalty. It did not fit the liberal agenda of Lyndon Johnson or the New Left and was not exactly the best representation of "peace and love." Ted Gottfried sites The Encyclopedia of American Crime who asserted that "public opinion was overwhelmingly opposed to the death penalty [in the mid-sixties]." This broke an ongoing trend for centuries of the public supporting the death penalty. This shift in public opinion was recognized by everyone, from Johnson's Commission on the Law Enforcement and Administration of Justice to Justice Stewart and the Supreme Court. As I mentioned before, the 1968 case of Witherspoon v. Illinois was the first time that the Supreme Court acknowledged the influence of public opinion in deciding their verdict in a related case. Also Lyndon B. Johnson's Commission on Law Enforcement and Administration of Justice recognized the decline in popularity of the death penalty in its 1967 report, The Challenge of Crime in a Free Society, and acknowledged the many problems (that abolitionists say) come with it (Vila, Morris: Document 50).
1966 actually marked the extreme low in the support of the death penalty: 42% (www.gallup.com). The support for the death penalty continued to remain low in comparison to modern support, although it rose a bit in the late sixties. It was the time period between 1972 and 1976 where a major shift took place again. And again, the courts responded. In Gregg v. Georgia, the Supreme Court pointed out the reforms made by states in their capital punishment laws and determined that the death penalty was indeed constitutional under these laws. Justice Stewart admitted the influence of public opinion on the case: citing the recent polls showing heavy support for the death penalty (up to 66% in 1976), he said that the death penalty was a legitimate "expression of society's moral outrage" towards brutal murders and horrific crimes (Gottfried:63).
What is peculiar about the 1972 court decision and the 1976 court decision is that within a span of four years, the Supreme Court completely changed their point of view on capital punishment. In 1972 they were claiming that the court was interpreting the constitution according to the "evolving standards of decency" in society, referring to the view that the death penalty was inhumane. But in 1976, they responded to "society's moral outrage" concerning the leniency of the criminal justice system on the most horrific crimes. Public opinion must have really taken a big shift in the seventies.
These examples show the blatant effect of public opinion on decisions made in even the highest court in the country. Support for the death penalty continued gaining popularity and was endorsed by Ronald Reagan in the Eighties, when it reached its peak at 79% in 1988 and then 80% in 1994 (www.gallup.com).
Toady, support for the death penalty is somewhere in the high sixties to low seventies in percentage of people who support it, according to polls. This means that somewhere between 2/3 and Ð’Ñ• of the population say they support the death penalty when polled. But Mark Costanzo, Ph.D. (author of Just Revenge), argues that there are complications to those statistics. He first accuses some sectors of the American public of not considering the entire issue when deciding what position to take. He asserts that they only take into account their belief in the "eye for an eye" law, and ignore other complications that could cause it to be unjust. Costanzo points out that the public recognizes the strong implications of race and class issues concerning the death penalty, "45% of Americans believe that a black person is more likely than a white person to receive the death penalty for the same crime, and 60% believe that poor people are more likely to be sentenced to death than wealthy people." He also recognizes that the answer to the one question of the death penalty in the case of murder include a group of people that could hold very different beliefs. For example, some people could support the death penalty in case of any or most murders, while others only support in very extreme cases of horrendous crimes (Costanzo:116).
Nevertheless, the fact of the matter is that people did look at capital punishment in a different way through the eighties and nineties and still do today. The most compelling reason for the rise in support is the rise of the crime rate in proportion to it (Costanzo:122). As the crime rate rose, people might have begun supporting the death penalty to vent their frustration and come down hard on crime. As a result of these rising crime rates, politicians used the gimmick of having a hard stance on crime more often, which usually included the support of the death penalty as a deterrent.
Many elements of the death penalty relate to ideology conflicts in American culture. The issues surrounding it cross over the obvious lines of left and right, probably more so than other issues that we could have chosen for this research paper.
The first issue I will discuss is crime and punishment (not the Dostoevsky novel) and how it relates to different ideologies. Conservatives have had a history of being "tougher" on crime than liberals and this generalization follows through on the topic of capital punishment. They believe that order in society is crucial and must come before civil liberties and peaceful notions like "two wrongs don't make a right" if need be. The common pro-execution stance taken by conservatives can also be looked at as an extension of their tougher stances on crime in general. This position is taken in order to uphold traditional values ("the accumulated wisdom of the ages") and to ensure that society stays "civil" as a whole. In general, all these conservative views boil down to the belief that it is better to kill a few innocent people as a result of tough legislation and save more innocent lives in the long run than to let guilty murderers run wild.
The liberal take on this would be just the opposite: better to let some guilty people go than execute someone who is innocent. They focus on the issues of race and class in relation to capital punishment (and the justice system in general) and some even take notice to particular outspoken convicts whose cases may raise an eyebrow. For example, Mumia Abu Jamal has gained support in the nineties from the political left because of his fishy conviction in 1981 and his prior radical politics. Part of the reason for this support is the general liberal belief in one's right to free speech and acceptance of radical politics geared towards social change. Because liberal politics are based on the idea that all the accomplishments of the past few hundred years (freeing of slaves, women's suffrage, labor rights) are based around progressive social change. Conversely, conservatives believe that their grasp on tradition is the one thing keeping society from teetering over the edge into utter chaos and immorality.
These beliefs apply directly to the death penalty debate. Conservatives say that they are doing society a favor by being tough on crime (using capital punishment) while liberals say that individual human rights as well as issues of race and class are not being observed.
When compared to other debates that become conservative vs. liberal ideology the death penalty doesn't quite match up. Conservatives generally take the pro-life side of
The abortion debate while liberals generally take the side of pro-choice. In this case, the conservative viewpoint takes the side of the individual (or the unborn fetus) while the liberal stance defends the greater society (the right to have a choice). Its seems that conservatives are taking the side of human rights while liberals are looking out for greater society. This obviously is a direct effect of the Christian influence on the conservative side. It is curious that this same influence doesn't affect the death penalty debate in the same way. As I mentioned before, there is a significant religious influence on the death penalty debate, but it is mostly supportive of the liberal side (anti-death penalty side).
Like any other political debate, there is no black and white on who supports what side and on exactly what each side believes, mostly because everyone is different and no one sees anything exactly the same way. Society has an interesting way of evolving that defines where people stand, what ideology they endorse, what political party they vote for, and where they stand on specific issues. The public opinion in the last few years few years has shown a little less support for the death penalty than the late eighties and early nineties and we (down to the mid to low sixties in percentage). Today, it is nearly impossible to predict which way public opinion on capital punishment will turn next, but it is likely to be influenced in some way by recent terrorist attacks. There are not too many people on either side of the political spectrum that think that the people responsible for the terrorist attacks do not deserve to die. However, it will always remain a controversial issue with concern to crime, human rights, racism, society, punishment, morality, religion, and anything else you might consider important in political and social concerns.
Abu Jamal, Mumia, All Things Censored (Seven Stories Press: New York, 2000)
Costanzo, Mark Ph. D., Just Revenge (St. Marin's Press: New York, 1997)
Gottfried, Ted, Capital Punishment (Enslow Pub. Inc.: Springfield, NJ, 1997)
Flanders, Stephen A., Capital Punishment (Facts on File: New York, 1991)
Koch, Edward I., "Death and Justice," New Republic: April 15, 1985, p.13
Margolick, David, "25 Wrongly ExecutedÐ’â€¦" The New York Times: November 14, 1985, p.A19
Page, B.L., and Shapiro, R.Y., The Rational Public (University Press: Chicago, 1992)
Steins, Richard, Is it Justice, (Twenty-First Century Books: New York, 1993)
Vila, Bryan and Morris, Cynthia, Capital Punishment in the United States: A documented History (Greenwood Press: Westport ,CN, 1997)
The Death Penalty: Opposing Viewpoints (Greenhaven Press: San Diego, 1997)
Does Capital Punishment Deter Crime? (Greenhaven Press: San Diego, 1998)
Prejan, Helen, Dead Man Walking (Random House:1993)
New York Times, September 26, 1995, p.B2
Internet: www.gallup.com, www.deathpenalty.org, "What We Learned From Ted Bundy," by Leilani Corpus: March 1989: www.forerunner.com/ forerummer/xo332_Ted_Bundy.html