Death Penalty

¶ … Death Penalty As long as there has been a codified system of law, there has been a death penalty. In Hammurabi's Code, the first known set of codified laws, death was stated as the penalty to a variety of crimes (King, 1997). Furthermore, death was a punishment for a variety of crimes in England, Spain, and France, the three countries that provided the source for American law.

Therefore, if should come as no surprise that the death penalty was imposed in colonial America: The first known execution in the territory now known as the United States of America was of Captain George Kendall, who was shot by a firing squad in Jamestown in December 1607.. Since then the death penalty has almost always been a feature of the criminal justice system, first in the American colonies and then, after independence, in the U.S. (Green, 2005).

Although there is not a complete record of opposition to the death penalty, there is little question that there have been opponents of the death penalty since its inception. In the United States, opposition to the death penalty has focused on the issue of whether or not the death penalty is constitutional. Opponents of the death penalty cite the Eighth Amendment's prohibitions against cruel and unusual punishment to prove their claims that the death penalty is unconstitutional.

In order to support those claims, opponents of the death penalty offer two different arguments: that the death penalty, itself, is unconstitutional, and that the death penalty, as applied in the United States, is unconstitutional. In addition, opponents of the death penalty argue that it is ineffective in reducing incidents of violent crime and that it is prohibitively expensive. To answer the arguments offered by the opponents to the death penalty, proponents of the death penalty offer their own constitutional arguments.

Death penalty proponents make it clear that the death penalty is constitutional, because it is specifically mentioned in the Bill of Rights. In fact, the only constitutional prohibition against the death penalty is that it no person be deprived of life without due process of law (U.S. Const. amend. V). Furthermore, death penalty advocates believe that the death penalty accomplishes legitimate goals, such as punishment and retribution, which cannot be accomplished by alternative sentences.

One thing that both sides of the issue agree upon is the fact that "death is different" (Woodson v. North Carolina, 428 U.S. 280 at 305 (1976)). There is no appeal from the death penalty. In fact, "once an inmate is executed, nothing can be done to make amends if a mistake has been made" (in Opposition to the Death Penalty: Innocence, 2004). Opponents cite the permanent nature of the death penalty as the main reason that they believe the death penalty is unconstitutional.

However, it is because of the permanent nature of the punishment that the Supreme Court has developed certain restrictions upon when the death penalty can be imposed. For example, in Furman v. Georgia, 408 U.S. 153 (1972), the United States Supreme Court struck down laws that permitted wide discretion in the application of the death penalty. In response to that decision, several states enacted laws that required mandatory death sentences for perpetrators of certain crimes. However, in Woodson v. North Carolina and Roberts v. Louisiana, 428 U.S.

325 (1976), the court determined that mandatory death penalties were unconstitutional. While the U.S. Supreme Court determined that unfettered discretion and mandatory death penalties were both unconstitutional, it determined that those laws allowing jurors to exercise guided discretion in their death penalty determinations were constitutional.

The statutes that were: validated by the Supreme Court afforded sentencing courts the discretion to impose death sentences for specified crimes and provided for two-stage, or "bifurcated," trials, involving in the first stage the determination of a defendant's guilt or innocence and, in the second, determination of the sentence after consideration of aggravating and mitigating circumstances. (Green, 2005).

In addition to the due process requirements requiring some discretion in the application of the death penalty, there have also been two major recent developments in death penalty jurisprudence; prohibitions on executing the mentally retarded and juveniles. These two developments do much to address the constitutional issues surrounding the death penalty. For example, opponents of the death penalty claim that it is unconstitutional because it is applied in a discriminatory manner. Minority or poor defendants are more likely to receive the death sentence, as are those who kill whites.

In addition, even in jurisdictions that impose the death sentence, there are geographic disparities between jurisdictions that impose the death sentence. In fact, "the imposition of a death sentence has more to do with where the crime was committed and where the capital trial took place rather than the facts of the actual case" (Scattered Justice, 2004). The simple fact is that prosecutors, not jurors, are the ones that determine which defendants are death-eligible. These disparities exist in both the state and federal systems.

However, the fact that a person is more likely to be charged with a capital offense in one jurisdiction than another does not necessarily mean that the death penalty is applied in an arbitrary or discriminatory manner. Those that state that whether or not the death sentence is sought depends upon jurisdiction and is merely the result of prosecutorial discretion forget that it is the criminal, not the prosecutor, who determines where the crime is committed.

Therefore, it is the criminal who determines whether or not he is committing a crime in one of the areas where he is more likely to be charged with a capital crime. Furthermore, the fact that there is geographic disparity in the application of the death penalty indicates that there may be some deterrent effect to the death penalty. As a matter of fact, "suburban counties with lower murder rates than urban counties send more murderers to death row" (Scattered Justice, 2004). On the surface, this statistic merely indicates geographic disparity.

However, it could also indicate that those counties that send more murderers to death row are likely to have lower murder rates. Opponents to the death penalty would argue that those statistics do not imply deterrence. In fact, they would say that "the overwhelming conclusion for years of deterrence studies is that the death penalty is, at best, no more of a deterrent than a sentence of life in prison" (in Opposition to the Death Penalty: Deterrence, 2004).

To support this statement, opponents of the death penalty point to the fact that the United States has a higher murder rate than many counties without the death penalty and that many of the states that impose the death penalty have higher murder rates than states without the death penalty. However, one thing that these arguments ignore is that the death penalty is not the only difference between the United States and countries that do not impose the death penalty, but have lower murder rates.

The difference in murder rates may also be explainable by the relative availability of weapons. Some argue that the death penalty cannot act as a deterrent to murder, because murderers are not acting in a logical or rational manner when they commit their crimes. However, this point-of-view ignores the fact that not all murders are committed in moments of passion. Instead, some murders, especially those murders targeted by most capital punishment laws, are premeditated. In those cases, the specter of death may very well act to deter murders.

In fact, if the death penalty, as applied in America today, has little deterrent value, the problem may not be that the imposition of the death penalty increases murder rates, but that the execution of the punishment is not close enough in time to the murders to provide a deterrent effect. One argument that is more salient than the lack of deterrence or geographic disparity arguments is that the death penalty is applied in a racially discriminatory manner.

The simple fact is that minority defendants are more likely to receive the death sentence than non-minority defendants. In fact, "both the historical and the current imposition of the death penalty in this country are racially discriminatory" (Blume, Eisenberg, & Johnson, 1998). In addition, the death penalty discriminates based on the race of the victim as well; murderers of white victims are more likely to get the death sentence than murderers of minority victims.

The poor are also disproportionately represented on death row, indicating that the death penalty is applied in a way that discriminates among the classes, as well as the races. Proponents of the death penalty argue that racial and discrimination, while wrong, is unfortunately present in every aspect of the criminal justice system. If one were to abolish every law that is applied in a discriminatory manner, one would probably have to abolish every law.

Instead of abolishing the death penalty, proponents of capital punishment might suggest an overhaul of the criminal justice system. This argument is reinforced when one looks at one of the reasons that the poor are more likely to receive the death penalty: ineffective assistance of counsel. Regardless of social status, defendants who are poorly represented by their attorneys are more likely to receive death sentences than those who are zealously represented by counsel. (in Opposition to the Death Penalty: Arbitrariness and Discrimination, 2004).

While death penalty opponents cite the fact that an Alabama woman whose attorney was so drunk during her trial that the trial judge held him in contempt had her death sentence upheld by the Alabama Supreme Court as a reason to abolish the death penalty, that same incident could just as easily be used as a reason to overhaul the legal system, not abolish capital punishment (the Lack of Competent Legal Counsel, 2004).

One of the most controversial arguments regarding the death penalty is that the imposition of the death penalty is a violation of human rights. Opponents of the death penalty cite the very "different"-ness of death as a reason that it should not be used as a punishment. Furthermore, they argue that murder, whether by an individual or by the state, is morally wrong, and that society debases itself when it resorts to murder as a means of punishment.

To support the arguments that the death penalty is a violation of human rights, death penalty opponents demonstrate that the death penalty has traditionally been used on society's most vulnerable members. As previously noted, the minorities and the poor are disproportionately represented on the nation's death rows. In addition, the death penalty has historically been imposed on people who are legally incompetent due to mental illness or mental retardation. Death penalty proponents argue that those deficiencies have been remedied by recent Supreme Court decisions. In Atkins v. Virginia, 536 U.S.

304 (2002), the U.S. Supreme Court determined that executing the mentally retarded is unconstitutional. However, opponents of the death penalty can point out the fact that many states have failed to comply with the Atkins decision. Even though there is evidence that many people currently on death row are mentally retarded, some states have failed to institute any way of determining whether or not inmates currently on death row are mentally retarded. (Mental Retardation, 2004).

The fact is that mild mental retardation may not be apparent to the casual observer, including trial judges. Furthermore, it is these defendants that are among the least able to exercise the right to participate meaningfully in their own defense. However, the proponents of the death penalty can correctly point out that these issues, similar to issues of race and class discrimination, exist throughout the criminal justice system and that the problem is not with capital punishment, but with the justice system, itself.

In addition to the mentally retarded, opponents of the death penalty believe that execution of the mentally ill demonstrates how the death penalty violates human rights. The strict requirements that most states have for insanity defenses makes such a plea unavailable to even those defendants that are mentally ill. While mental illness may not be severe enough to prevent a criminal from being legally liable for his crime, mental illness can hinder a defendant's ability to participate in his own defense.

At this time, the Supreme Court has not outlawed the execution of the mentally ill. However, unlike mental retardation, mental illness can oftentimes be treated and managed. Furthermore, the presence of mental illness does not mean that a defendant is necessarily unable to participate in his own defense. The proponents of the death penalty can also point out that there is an additional safeguard for the mentally ill; even those who do not qualify for an insanity defense can demonstrate that they are insane at the time of trial.

In that situation, they cannot be tried, therefore they cannot be executed. Finally, opponents and proponents of capital punishment argue over the morality of the death penalty. At the heart of this controversy is a debate over the role of the criminal justice system. According to the opponents of the death penalty, the criminal justice system exists in order to punish offenses, prevent future criminal acts by the defendant, and deter future acts by others. An additional goal of the criminal justice system may be the rehabilitation of the offender.

In contrast, according to the proponents of the death penalty, there is an additional goal in the criminal justice system: retribution for the victim(s) of the crime. If retribution is not considered a legitimate goal of the criminal justice system, then there is no justification for the death penalty. Life imprisonment appears to accomplish the same goals as the death penalty, but at a greatly reduced financial cost.

In fact, those opposed to the death penalty claim that actual sentences of life imprisonment are more successful at reducing future crimes and at punishing the offender. In addition, the imposition of a death sentence eliminates the possibility of rehabilitation. In contrast, the proponents of the death penalty believe that the victims and their families are entitled to retribution. They do not deny the.