Death Penalty Is a Subject

Death penalty is a subject of hot debate all across the United States. Each side of the issue, whether for or against, firmly believe in their convictions. Those who advocate the death penalty believe that it is a just punishment for heinous crimes and necessary in a civilized society. However, how civilized is a society that resorts to the death penalty as punishment? The death penalty is a barbaric practice that all too often results in the execution of the innocent.

There are numerous arguments justifying the death penalty, the strongest being determent and retaliation. In a 1986 Harvard Law Review, Ernest van den Haag defended the practice of capital punishment. According to Haag, there is an average of 20,000 homicides per year in the United States, fewer than 300 convicted murderers are sentenced to death, yet no more than thirty murderers have been executed in any recent year, thus most murderers sentenced to death will likely die of old age (Haag pp). Arguing against the possibility of miscarriage of justice, Haag cited a survey by Professors Hugo Adam Bedau and Michael Radelet who found that of the 7,000 persons executed in the United States between 1900 and 1985, only 35 were innocent of capital crimes (Haag pp). Therefore, Haag and other advocates believe that "miscarriages of justice are offset by the moral benefits and the usefulness of doing justice" (Haag pp).

Haag, as others believe that due to the finality of the death penalty, it is more feared than imprisonment, and thus deters some prospective murderers who would not be deterred by the thought of imprisonment (Haag pp). Therefore, if the death penalty practice deters even a few murders and spares the life of even one victim, then it is justified and a value to society (Haag pp).

According to Haag, punishment, regardless of motivation, "is not intended to revenge, offset or compensate for the victim's suffering, or to be measured by it, but is to vindicate the law and the social order undermined by the crime" (Haag pp). This, says Haag, is why a kidnapper's imprisonment is not limited to the period for which he imprisoned his victim, nor is a burglar's confinement meant to offset the suffering and harm he caused his victim nor offset the advantage he gained (Haag pp).

To those who believe that by executing a murderer society is encouraging, endorsing and legitimizing unlawful killing, Haag responds that "although all punishments are meant to be unpleasant, it is seldom argued that they legitimize the unlawful imposition of identical unpleasantness" (Haag pp).

According to Haag, society does not believe that imprisonment legitimizes kidnapping or that fines legitimize robbery (Haag pp). Says Haag,

The difference between murder and execution, or between kidnapping and imprisonment, is that the first is unlawful and undeserved, the second a lawful and deserved punishment for an unlawful act.

The physical similarities of the punishment to the crime are irrelevant. The relevant difference is not physical, but social"

Haag pp).

Haag and other advocates feel the death penalty is a right and just punishment for murderers and is a useful practice for society.

Jack Greenberg in the 1986 Harvard Law Review said that "America simply does not have the kind of capital punishment system contemplated by death penalty partisans" (Greenberg pp). Greenberg says that the system of capital punishment results in infrequent, random, and erratic executions, and clearly fails when measured against the most common justifications for the infliction of punishment, deterrence, and retribution" (Greenberg Pp). Regarding the argument that the death penalty acts as a deterrent, Greenberg responds that the majority of killers do no engage in a cost-benefit analysis because murderers are impulsive people who kill impulsively, they don't weigh the options of punishment, therefore the argument of deterrence is flawed because it "rests upon a quite implausible conception of how this killer population internalizes social norms (Greenberg pp).

The Eighth Amendment to the United States Constitution states that people convicted of crimes should not be subject to excessive bail or fines, and that authorities may not inflict 'cruel and unusual punishments' (Eighth Pp). Ratified in 1791 as part of the Bill of Rights, this amendment has been cited as an argument against capital punishment (Eighth Pp). In the 1972 United States Supreme Court case 'Furman vs. Georgia, three men who were sentenced to death argued that the death penalty violated their Eighth Amendment protection against cruel and unusual punishment, and the Court ruled that the death penalty was cruel and unusual in this case because it was not applied fairly or objectively (Eighth Pp). This decision affected six hundred people already on death row and since then, several states have adoped new laws to prevent arbitrary use of the death penalty (Eighth Pp).

In 2002 United States District Judge Jed Rakoff ruled that the 1994 Federal Death Penalty Act had created a system that "is tantamount to foreseeable, state-sponsored murder of innocent human beings" (Bowles Pp). Rakoff said that too many innocent people have been executed in state-court jurisdictions around the country (Bowles Pp). Rakoff, believed to be the first federal judge to rule the law unconstitutional, said that recent studies of death penalty cases in state court indicate that "innocent people are sentenced to death with materially greater frequency than was previously supposed...Convincing proof of their innocence often does not emerge until long after their convictions" (Bowles Pp). Defense attorney Gerald Shargel hailed the ruling as "enormously bold but obviously correct" and added that it had been learned "with disturbing frequency that innocent people have faced execution" (Bowles Pp). "Rakoff found that evidence often collected decades after the crime, including DNA, exonerated dozens of individuals who otherwise would have been executed" (Bowles Pp). Under the Federal Death Penalty Act, capital punishment is permitted in cases "involving murder to benefit a drug-dealing conspiracy, murder of a witness, murder in aid of racketeering and terrorist murder" (Bowles Pp).