Death Penalty Essay

A1 A1: The title page is formatted in basic APA position for academic papers that will be turned into a professor or teacher for credit. The format is title, author, type of work, and date. The Future of the Death Penalty:

How the 2016 Election Will Impact the Death Penalty for the Next Generation

Your Name

October 31, 2016

A2 A2: Headings are left-justified in regular font (can be bold, though APA does not require them to be in bold- check with your teacher for specific instructions). Introduction

The death penalty, also known as capital punishment, is one of the most ancient forms of punishment for criminal behavior. It is found in the historical and cultural traditions of almost all known modern civilizations and finds justification in all of the world’s major religions.  While currently thought of as a punishment for serious offenses, such as murder, the death penalty has been used historically to punish a number of lesser offenses, ranging from violent crimes like child-rape to behaviors that most societies no longer consider criminal, such as infidelity.  Furthermore, the punishment find support in the history of the American criminal justice system; while the A3 A3: In this paper, we have included a hyperlink to a website with the text of the Eighth Amendment. If you are turning in a virtual copy of a paper or preparing a paper, essay, or article for online publication, you may want to consider using hyperlinks. In many ways they function like footnotes functioned in the years before the internet, allowing readers who are curious about specific concepts or ideas in your paper an easy way to explore them further. They also allow you to define or explain things without taking up room in the body of your paper. For example, this hyperlink takes readers to the full text of the Eighth Amendment as well as explanatory notes about that Amendment.  Eighth Amendment of the United States Constitution prohibits the use of cruel and unusual punishment, the death penalty was commonly used when the Constitution was written and there is no evidence that the prohibition against cruel and unusual punishment was ever meant as an absolute bar to capital punishment.  However, within the United States, the Eighth Amendment has been used as a mean of limiting capital punishment and has even been the basis of an absolute ban on capital punishment, as it was being administered at the time of the ban.  However, different judges interpret the Eighth Amendment in different ways.  It is well-established that a liberal-leaning Supreme Court is more critical of the death penalty and is more likely to increase barriers to its application, while a conservative-leaning Supreme Court is less critical of the death penalty and is likely to decrease barriers to its application.  Because the 2016 election will help determine the direction of the Court, it will also determine the immediate future of capital punishment in the United States. 

History

            The social climate in the United States has taken various approaches towards the death penalty since the country’s inception; there has always been a movement to abolish the death penalty, but support for that movement has varied throughout time.  However, rather than focus on social attitudes towards the death penalty, a true history of the punishment focuses on the legal attitudes towards it, because legal attitudes not only reflect underlying societal values, but also help shape those values.  The death penalty enjoyed absolute legal support for approximately the first century of the country’s history, and any growing challenges to the penalty were forgotten in the lead-up to the Civil War. 

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However, by the 1900s, state and federal attitudes towards capital punishment began to change. A4 A4: A direct quote, this information is contained within quotation marks, followed by an in-text reference. For APA format, an in-text format contains the author followed by the year of publication. For this citation, the author is not an individual but a “corporate” author. “From 1907 to 1917, six states completely outlawed the death penalty and three limited it to the rarely committed crimes of treason and first degree murder of a law enforcement official” (Death Penalty Information Center, 2016).  However, these changes were temporary; by 1920 five of the six states that had abolished the death penalty had reinstated it, reflecting how social attitudes influence the willingness to support capital punishment. 

Support for the death penalty increased up until the 1940’s, influenced largely by a belief that criminal behavior was inherited and that capital punishment was one way to reduce criminality in society at large.  While this paper is too short to fully discuss the concept of eugenics, it was an extremely popular pseudo-scientific theory that posited that some races were more disposed to criminality than other races.  Taken to its extreme, eugenics proposed the absolute extinction of races deemed inferior, an approach that was taken by the Nazis.  However, eugenics was not limited to the Nazis; the United States relied heavily on the theory of eugenics to justify capital punishment and sterilizations of criminals.  In fact, it was the extreme use of eugenics by the Nazis that caused public support for the death penalty in the 1950’s to decline in the United States as well as in many of the allied nations who had come together to defeat the Nazis.  

The first successful challenges to the death penalty began in the 1960s.  While the Court did not abolish the death penalty, it began to dictate how the death penalty could be administered.  These changes, individually, were not necessarily significant, but they reflected a concern that the death penalty be applied in a fair manner.  A5 A5: Because this citation does not contain a direct quotation, it is not encased in quotation marks. The death penalty could not be used to coerce defendants to waive their right to a fair trial and even jurors who had reservations about the death penalty were entitled to sit on juries in capital punishment cases (Death Penalty Information Center, 2016).  The arbitrariness of the death penalty was litigated throughout the 1960s, reflecting social concerns that the Supreme Court was not prepared to remedy, at that time. 

However, by 1972, the question of arbitrariness became legally significant.  A series of three cases, Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas were consolidated into a single case before the Supreme Court.  The case, known as Furman v Georgia, 408 U.S. 238 (1972), was the first one to really focus on how arbitrary the application of the death penalty was throughout the United States.  The defendants argued that the application of the death penalty was not related to the crime committed, but to where a defendant committed the crime and to the individual whims of the sentencing jury.  The result was that some defendants were being sentenced to death for everyday crimes while defendants who committed far more horrific crimes were not receiving the death penalty.  While the question before the Court was whether the Georgia and Texas death penalty statutes violated the Constitution, the Court went beyond those two statues and determined that the punishment schemes outlined in 40 death penalty statutes around the nation resulted in arbitrary sentencing and, therefore, violated the Eighth Amendment’s prohibition against cruel and unusual punishment.  The result was a moratorium on the death penalty in the United States, and the commutation of the death sentences of individuals being held on death rows throughout the country. 

While some states accepted the moratorium, the majority of death penalty states did not, and, instead, began constructing statutes that they believed would end the arbitrariness of the death penalty.  Eventually 34 states enacted new capital punishment statutes.  Some of the statutes withstood legal challenges, while other statutes required additional adjustments. 

The Florida, Texas, and Georgia death penalty statutes faced legal challenges in the mid 1970’s, which were decided in the Gregg v Georgia, 428 U.S. 153 (1976) decision.  While each state had its own version of a death penalty statute, the result of those challenges was a guideline for keeping death penalty statutes that complied with the Eighth Amendment.  First, jurors had to have discretion, but the discretion could be guided by the state introducing mitigating or aggravating factors.  Capital cases could have bifurcated trials, with separate deliberations for guilt and sentencing.  Capital cases could have an automatic appeal process.  Finally, states could engage in a proportionality review, comparing cases to see if the death penalty was being applied in an even-handed manner.  Though not all states incorporated all of these changes, taken together they helped indicate a death penalty statute that would not violate the Eighth Amendment.  The moratorium on the death penalty officially ended in 1977, with the execution of a defendant convicted of a capital offense under the reformed statutes. 

Currently

            As of October 31, 2016, 31 states have the death penalty, while 19 states and the District of Columbia ban capital punishment (ProCon.org, 2016).  However, the Supreme Court has imposed additional restrictions on the penalty.  No person convicted of an offense that was committed while the defendant was a juvenile can be executed for the crime.  States are not legally allowed to execute the mentally retarded.  Defendants cannot be executed for child rape if the victim was not murdered, and, by extension, probably cannot be executed for any regular crime other than murder.  Defendants cannot be executed while insane, but a defendant suffering from a mental illness who is determined to be competent because of medications or other treatment can be executed.

The Future of the Death Penalty

            In June, 2016, the Supreme Court determined that it would hear two cases challenging the death penalty.  At issue in one case is whether evidence that members of a defendant’s race are more likely to be criminals was improperly considered by the jury when assessing the defendant’s future dangerousness.  At issue in another case is whether a defendant’s intellectual disabilities bar application of the death penalty.  Both cases come from Texas, which is no surprise; while California and Florida both have more inmates on death row than Texas, Texas executes more people than any other state. 

            Complicating the issue is the fact that the Supreme Court is incomplete; as of October 31, 2016, the Senate has refused to even hold hearings to confirm President Obama’s nominee for the 9^th justice for the Supreme Court and the Court returned to session with only eight justices (Reuters, 2016).  This impacts death penalty cases in a significant way.  Antonin Scalia died in early 2016.  A proponent of the death penalty, Scalia was one of four conservative justices on the Supreme Court who could be predicted to vote in favor of the death penalty.  Currently, the Supreme Court has three justices who are primarily identified as conservative (Alito, Thomas, and Roberts), four who are primarily identified as liberal (Kagan, Sotomayer, Breyer, and Ginsburg), and one justice who is considered a swing vote, Kennedy.  Given that the Senate is unwilling to even hold hearings on Obama’s nominee, Merrick Garland, a true moderate, whoever is elected in the 2016 presidential election seems destined to fill Scalia’s empty seat.  It seems unlikely that either candidate will seek to appoint a moderate, but instead will appoint a judge that is either considered very liberal or very conservative.  Given that two death penalty cases are pending before the Court, the individual who is appointed will shape death penalty legislation for the next generation. 

A6 A6: References are listed on a separate page, following the conclusion of the text. It is labeled References, which is centered at the top of the page. References

A7 A7: On-line references in APA format follow a simple, basic format: author, date, title of the page or article, date it was retrieved, website where it was retrieved, and the URL address for the article. Death Penalty Information Center.  (2016).  Introduction to the death penalty.  Retrieved October 31, 2016 from Death Penalty Information Center website: http://www.deathpenaltyinfo.org/part-i-history-death-penalty#const

Furman v Georgia, 408 U.S. 238 (1972).  Retrieved October 31, 2016 from the Justia website https://supreme.justia.com/cases/federal/us/408/238/case.html

A8 A8: Although we did not use this as an in-text citation, we did include a hyperlink to it. Therefore, we include it a references page. If this paper was in MLA format with a works cited page, the source would not be included. Gregg v Georgia, 428 U.S. 153 (1976).   Retrieved October 31, 2016 from the Oyez website: https://www.oyez.org/cases/1975/74-6257

PBS. (1998).  Eugenics movement reaches its height: 1923.  Retrieved October 31, 2016 from the PBS website: http://www.pbs.org/wgbh/aso/databank/entries/dh23eu.html

ProCon.org.  (2016).  31 states with the death penalty and 19 states with death penalty bans.  Retrieved October 31, 2016 from ProCon.org website: http://deathpenalty.procon.org/view.resource.php?resourceID=001172

Reuters.  (2016).  The U.S. Supreme Court will return with only 8 justices.  Retrieved October  31, 2016 from the Fortune website: http://fortune.com/2016/09/30/us-supreme-court-justices/

U.S. Const. Amend. XIII.  Retrieved October 31, 2016 from the National Constitution Center website: https://constitutioncenter.org/interactive-constitution/amendments/amendment-viii

de Vogue, A. and Kopan, T.  (2016, June 6).  Supreme Court takes up death penalty cases for next term.  Retrieved October 31, 2016 from CNN website: http://www.cnn.com/2016/06/06/politics/supreme-court-death-penalty-cases-moore-buck/