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The debate surrounding capital punishment is not as clear as one might think -- in fact, there is a great deal of gray within this debate. The actual definition is State controlled taking of a human life in response to some crime committed by a person who was legally convicted of that crime (Lacayo, 2009). Capital punishment has been part of human history, and currently 58 global nations actively practice it, 95 have abolished it, and the remained have not used it in over a decade (Amnesty International, 2010). Some scholars tout the view that capital punishment produces an extremely strong deterrent effect to crime that actually saves lives, is supported by the majority of Americans, and that each execution actually results in a statistically viable reduction in murders (Muhlhausen, 2007). As of 2010, however, Amnesty International categorizes most countries as abolitionist regarding the death penalty (Figures on the Death Penalty, 2010). Even the United Nations has adopted non-binding revolutions calling for a global moratorium on capital punishment, even though 60% of the world's population lives in countries that still have the law on the books (General Assembly Committee, 2007).
Historically, capital punishment has been practiced by most civilizations as a way to punish crime and suppress political dissent. It was usually used for the most heinous of crimes, and had the view that individuals who committed serious crimes could no longer be a part of society. There were many ways this was interpreted by various legal systems, some forms of which were clearly mean to inflict pain and torture on the convicted criminal. The Bible, Code of Hammurabi, the Koran, and in Medieval and Renaissance Law all advocated capital punishment for improving the community by ensuring that re-offense does not occur. However, even in historical times there were opponents to the death penalty, or at least those who argued that the death penalty has killed innocents, that it does not deter criminals more than life imprisonment, and that it violates human rights and engenders a culture of violence and retribution (Mandery, 2005).
Arguments in Favor Arguments in favor of capital punishment fall into seven major areas. 1) Prison are for people who may be rereleased into society after their criminality is rehabilitated; their use is to segregate deviant behavior. If a crime is so abhorrent to society that the perpetrator will likely never come back into society -- prison is not the answer and the death penalty a more appropriate way to handle this type of person. 2) The total cost to society to keep an individual in prison approaches now $40-50,000 per year, depending on security. Why should society shoulder that burden for 30-40 years, meaning millions of dollars for someone deviant? 3) Utilitarianism (greatest good for greatest number) holds that society be protected from monsters. Execution is the only way to ensure this, and even more logical when bent towards public safety. 4) For millennia, legal systems have believed that the death penalty deters certain crimes, although there is no factual proof that this is true in countries that practice it. However, if a criminal knows that if a certain crime is committed, the State has the right to execute, will that criminal think twice about the crime? 5) Legal scholars, for centuries, have argued the biblical "eye for an eye" punishment -- severe crime requires severe punishment. What is the most severe punishment if not execution? 6) Along with #5, isn't capital punishment logical for someone who is a mass murderer themselves? 7) As illogical as it may seem, crimes such as the Manson murders, Jeffrey Dahlmer, etc. are so horrible that many in society believe revenge is the only way to justify the legal punishment of that person (Bedau and Cassell, 2005; Sharp, 2010).
Arguments Against - Some of the same reasons above can also be construed as arguments against capital punishment, but many are based on moral and religious reasons. 1) Prison may be a viable option, after all, isn't it just punishment to lock someone away from society for their entire life? 2) Humane punishment -- the execution of a person is not humane, regardless of the behavior of that individual. The humanity of executing a criminal is interdependent with that country's culture. 3) If murder is legislated to be a crime, how can it be "right" for punishment? Double wrongs do not equal a right. 4) Execution changes by culture and chronology, all with a variety of techniques that may cause pain. Society should not purposefully cause pain to any member of society, regardless of the reason. 5) Capital Punishment violates a basic right to life -- and can be seen as cruel and unusual, something banned by the Constitution. 6) What if, in the most extreme cases, a person is wrongly convicted and then executed? 7) Does society have the right to cause death? 8) Religiously, if a criminal is executed, then that individual has not religious way to find salvation and forgiveness. 8) Is there a place in society for forgiveness? 9) Can a criminal make amends or repair damage? If the State executes, this negates any damage repair, and possibly provides only some sort of revenge psychology ("Campaign to End," 2010; Hanks, 1997).
Analysis - Public opinion in many developed countries and for the past decade or so has been relatively unsupportive of the death penalty. However, there are a number of variables that exist within the debate itself -- just as not all crimes committed are equal, not all sentences are equal, too. It is impossible to have a system in which there is no error, but with modern techniques, criminology has taken giant steps towards the burden of proof. The simple fact is, prosecution of individuals like Jeffrey Dahlmer and William Gacey is different than a crime of passion committed by an otherwise law-abiding citizen. There can be no doubt that the monsters who become serial killers should be removed from society -- and then why should society continue to hold the burden of housing them for decades? ("Capital Punishment, 30 Years On, 2006; Montaldo, 2010).
As to the nature of capital punishment, for instance, In Gregg v. Georgia (1976), the U.S. Supreme Court rejected the argument that capital sentencing was in its nature "cruel and unusual punishment" banned by the Eighth Amendment. In continuing cases, differing constitutional challenges have been focused on differing aspects of death-penalty laws. Many legal scholars view it as the most cogent and intense challenge to the Court offering capital sentencing, and, because of the challenges and legal arguments, a case that has far reaching consequences (Liptak, 2008). However, in 2002, the Court said that executing the mentally retarded violated the Eighth Amendment's ban on cruel and unusual punishment. The Court ruled that because of mental retardation, the aspect of remorse is neither understood nor acknowledged, nor is there an understanding of long-term consequence. Writing for the dissent, Chief Justice William Rehnquist criticized the court for allowing undue influence from foreign laws, and agreed with Justices Scalia and Thomas that there was no real consensus statewide to base a decision of what exactly is cruel simply because someone is mentally impaired (Atkins v Virginia, 2002; Walker, 2008).
The idea of state sanctioned executions remains controversial. Once again, the tide is changing, this time to the left. Colorado may abolish the death penalty; Alaskan lawmakers cannot find enough support to reinstate it; yet in Kansas and South Dakota bills to abolish capital punishment were rejected (Tomasic, 2009). In October 2009, the American Law Institute reversed its 1962 view of a Model Penal Code, seemingly echoing numerous sentiments within the U.S.: "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment" (Liptak).
Disproportionate Punishment? -- As we noted earlier, in Gregg v. Georgia (1976), the U.S. Supreme Court rejected the argument that capital sentencing was in its nature "cruel and unusual punishment" banned by the Eighth Amendment. Many legal scholars view it as the most cogent and intense challenge to the Court offering capital sentencing, and, because of the challenges and legal arguments, a case that has far reaching consequences (Liptak).
Briefly, Warren McCleskey, and African-American male, was convicted of two counts of armed robbery and one count of the murder of a white police officer in Fulton, Georgia. The Judge found that the murder was committed during a felony, and upon an officer doing his duty. McClesky's defense did not provide any mitigating circumstances and the Court followed the jury's recommendation of death. Petitions were launched alleging that the punishment was racist and in violation of the 14th Amendment. The Court also negated a statistical study that indicated African-Americans were 4.3 times as likely to receive the death penalty than white offenders (McCleskey v Kemp," 1987). After a number of appeals, McCleskey was executed in September 1991 ("Warren McCleskey Is Dead," September 29, 1991).
McCleskey v. Kemp has bearing on claims…[continue]
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