Life After Execution -- Perspectives

Life After Execution -- Perspectives of the Families

Capital Punishment -- Background and History:

Capital punishment is the imposition of a death sentence upon a criminal or prisoner by a court, tribunal, or other government authority, and in all likelihood, it predates recorded human history. The practice is known to have occurred since the earliest times before the Common Era and was relied upon extensively throughout the Ancient Far Eastern, Persian, and Early Roman Empires, and especially during the nearly thousand years of the Dark Ages in Europe (Schmalleger, 2008).

In the United States, records dating back to the earliest Colonial period suggest that nearly 19,000 individuals were executed by local, state, and federal authorities in between the beginning of the 17th century and the 21st century (Schmalleger, 2008). The execution rate was highest in the U.S. during the 1930s and continued until 1967 when modern rulings of the Supreme Court imposed a defacto moratorium on capital punishment as a violation of the Eighth Constitutional Amendment prohibition against "cruel and unusual punishment" (Friedman, 2005; Schmalleger, 2008).

In Europe, no such constraints limited the purposeful infliction of torturous pain during the execution process, and considerable ingenuity was applied to devising myriad methods of inflicting horrific pain and disfigurement as punishments for criminal conduct, but also for political opposition and even for practicing "heretical" religions. During the Spanish Inquisition period, Church authorities implemented the trial by ordeal in which innocent and guilty alike were tortured in the belief that those who were truly innocent would be protected from suffering by God (Schmalleger, 2008). Even in Britain, the disembowelling by "drawing and quartering" persons condemned to death persisted until well into the middle of the 19th century. In France, the Guillotine was used extensively throughout the Industrial Revolution and post-Industrial Revolution period and, as in Britain, death sentences were routinely imposed for hundreds of crimes that would be considered relatively minor criminal offenses by any modern standard in addition to capital crimes such as murder (Friedman, 2005).

In the modern era of criminal justice, most European countries and many in other parts of the world as well have abolished the death penalty on the basis of humanitarian concerns and the United Nations has issued its (non-binding) condemnation of capital punishment as well (Lancet, 2008). Ironically, the U.S. has a much longer judicial record of formal challenges to the practice of capital punishment, yet remains among a very small minority of countries that still imposes death sentences within its criminal justice system (Kaveny, 2008; Lancet, 2008).

The defacto moratorium that existed in the U.S. was attributable to the Furman v. Georgia (408 U.S. 238) decision that invalidated the Georgia death penalty, but did so on procedural grounds without directly addressing the constitutionality of capital punishment on the basis of defining "cruel and unusual" referenced in the Eighth Constitutional Amendment (Dershowitz, 2002). Instead, Furman merely struck down the constitutionality of allowing juries the exclusive determination of whether capital punishment was appropriate in particular cases.

A decade later, in 1976, the Supreme Court finally addressed the "cruel and unusual" issue directly, in Gregg v. Georgia (428 U.S. 153), and specifically decided that the imposition of death was neither inherently cruel nor unusual, provided it was reserved to certain kinds of crimes for which such a harsh penalty was appropriate and also provided that the procedural elements of proceedings and the mechanical aspects of its administration were also consistent with constitutional principles (Dershowitz, 2002; Friedman, 2005).

Since the Gregg decision, almost three-quarters of American states do authorize the death penalty, although the practice is still subject to intense opposition on several moral grounds. In addition to the objection that killing is never justified, revelations that more than a few individuals have been wrongly convicted and sentenced to death also generates opposition. Since the advent of DNA-based forensic science, the entire concept of capital punishment has been questioned anew, substantially on the basis of cases in which evidence determined by modern forensic scientific techniques to be faulty have resulted in erroneous convictions in death penalty-eligible cases (Dershowitz, 2002).

Similarly, substantial volumes of data strongly suggest that race, ethnicity, and economic factors contribute very directly to the outcome of prosecution of death penalty-eligible cases and that minority defendants as well as those who are poor and uneducated are tremendously more likely to receive death sentences for comparable crimes where other defendants receive less harsh sentences (Nagin, 1998; Zalman, 2008).

Finally, substantial evidence has also been introduced to establish that lethal injection, the most commonly used method of implementing death sentences in the U.S., may often cause physical suffering that constitutes torture and therefore violates the U.S. Constitution on that ground alone (Lancet, 2008). Specifically, of all of the methods authorized by American law (electrocution, firing squad, gas chamber, and lethal injection), that method may actually result in greater suffering than any other where it is administered improperly.

That is a legitimate concern, particularly because in most states, there is no requirement that physicians administer the three-drug "cocktail" despite the fact that improper administration can result in prolonged suffering by producing death very slowly by suffocation instead of by chemical paralysis of the heart muscle (Kaveny, 2008; Lancet, 2008). Even the most enthusiastic supporters of capital punishment acknowledge that the process of slow suffocation by (unintentional) paralysis of the diaphragm and lungs without simultaneously inducing loss of consciousness satisfies the fundamental definition of "cruel and unusual" punishment under constitutional principals.

Similarly, the concern over wrongful conviction is equally legitimate because the punishment cannot be reversed in the event subsequent errors of fact are revealed exonerating the individual convicted. In the U.S., the constitutional principles arising from the concept of the Equal Protection Clause of the Fourteenth Amendment raise particular concern over the evidence suggesting that capital punishment is enforced even partly by virtue of race, ethnicity, or social class. Therefore, to the extent evidence exists documenting either unfairness in its application or the unnecessary infliction of cruelty in its implementation, the American criminal justice system must institute changes sufficient to redress both issues even if the threshold issue of the morality and constitutionality of capital punishment in principle is settled as a matter of law.

The Effectiveness of Capital Punishment as a Deterrent:

In the last quarter of the 20th century, a significant amount of effort was directed at evaluating the relative effectiveness of criminal sanctions in general and of the death penalty in particular with respect to the deterrence of serious criminal behavior. In principle, one of the main hypotheses for the increased dedication to strict criminal enforcement and harsher criminal penalties was that such an approach to crime would have the effect of deterring criminals and potential criminals from perpetrating crimes by virtue of the awareness that strict enforcement would likely result in arrest, prosecution, and lengthy periods of incarceration (Lynch, 1999). Likewise, with respect to capital crimes in particular, the hypothesis was that prior knowledge of death penalty eligibility on the part of criminals would reduce the incidence of murder and other capital crimes for the same reason (Lynch, 1999).

However, the bulk of the evidence (on both counts) suggests that neither hypothesis is true and that neither criminal sanctions in general nor death penalty applicability in particular is an effective means of deterring criminal activity or capital offenses, respectively (Lynch, 1998; Nagin, 1998; Schmalleger, 1998; Visher, 1987). More specifically, the fact that approximately fifteen American states have outlawed the death penalty since the end of any federal restrictions on its constitutionality provided a direct means of comparison between crime rates and criminal recidivism rates in states with the death penalty and states without the death penalty. Virtually all such empirical studies established that no appreciable difference in crime rate or in the rates of criminal recidivism exists as a function of whether or not a given state still imposes capital punishment (Lynch, 1998; Nagin, 1998; Schmalleger, 1998; Visher, 1987).

Conversely, considerable evidence collected during the same time period actually suggests that harsher criminal penalties (i.e. longer periods of incarceration) may contribute to criminal activity in at least two different ways. Many first-time offenders and other non-habitual criminals conceivably have the potential to be diverted from continued criminal conduct through effective intervention administrated by the criminal justice system and imposed in conjunction with their first formal involvement in the criminal adjudication process (Henslin, 2002; Macionis, 2003). Where other sentencing options exist instead of incarceration, especially in cases involving non-violent crimes, non-habitual younger criminals have the potential for remedial development when given the benefit of training, education, in conjunction with appropriate monitoring within the court system (Henslin, 2002; Macionis, 2003).

Conversely, where first-time offenders and non-habitual younger offenders are subject to prolonged incarceration, they are much more likely to develop an institutionalized sociopathic or antisocial psychological identity that virtually guarantees subsequent involvement with the criminal justice system as a repeated offender once the individual is released back into society (Gerrig & Zimbardo, 2008; Schmalleger, 2008). This is even more true in the absence of any educational or vocational development programs within the corrections system. Paradoxically, states with harsher criminal statutes and higher conviction rates tend to maintain fewer inmate developmental programs because high-volume prisons tend to be run on a for-profit basis that discourages "unnecessary" spending. The most cynical suggestion is that decreasing recidivism is against the financial interests of private prisons and (although to a lesser extent,) those of government-run prisons as well (Schmalleger, 2008).

Other aspects of many types of contemporary criminal trends may also significantly undermine any strategy of deterrence through awareness of strict prosecution and sentencing. In that regard, law enforcement authorities across the nation have catalogued volumes of information about criminal subcultures in general and of the street gang mentality in particular (Pinizzotto, Davis, & Miller, 2007). Urban street gangs in particular have given rise to a culture of remorseless violence and disregard for the consequences of even the most violent crime that largely precludes any real deterrent value in strict criminal enforcement or capital punishment for the most serious crimes. Generally, there is no apparent difference in the gang-related incidence of violent crime or murder rates among jurisdictions with very different criminal laws or the applicability of capital punishment (Lynch, 1999; Nagin, 1998).

Even more generally, today's urban street gangs recruit members even before their teenage years and often from homes without the benefit of stable structure and competent adult authority figures fulfilling parental roles (Pinizzotto, Davis, & Miller, 2007). As a result, the young recruits who absorb the culture of crime and violence without any competing messages from adult role models outside of the criminal subculture view prison as a fact of life; if anything, they regard criminal incarceration as a mark of "street credibility" in their social culture (Pinizzotto, Davis, & Miller, 2007). Similarly, their exposure to violence and their first-hand experiences with the loss of close friends in gang violence only further reduces any reasonable hope that the awareness of capital punishment will serve a deterrent function as often envisioned by legislators (Schmalleger, 2008).

Either way, in general, modern prisons function very much like training camps for criminals in which the sheer amount of time in lengthier sentences allows criminals to develop, share, practice, and perfect criminal schemes and techniques and thereby turn out more dangerous, capable, and committed criminals than those that enter their facilities. In that regard, capital punishment would address that concern, as well as the social fairness issue of perpetually allocating the substantial financing of not-for-profit government-owned prisons from their innocent victims and potential victims in society.

At least in cases where the crimes involved satisfy the Gregg criteria (Dershowitz, 2002; Friedman, 2005), there is an argument that capital punishment is preferable to burdening society with the expense of housing, feeding, and protecting violent criminals whose purposeful actions have necessitated their removal from law-abiding society. In that respect, capital punishment does serve one of the principle purposes of the criminal justice system: namely, the protection of innocent citizens from predatory criminals. By definition, the imposition of death penalty sentences also fulfils another essential role of criminal justice: retribution.

The only principal objective of the criminal justice system that capital punishment is, without argument, incapable of achieving is restitution, at least in any tangible sense. However, in a more general sense, the death penalty is (admittedly) sometimes intended to fulfil the need for vengeance on the part of those left behind in the wake of capital crimes involving the death of loved ones. In many cases, the remaining loved ones do benefit from the knowledge that justice has been served as harshly as allowed by law. Certainly, this provides a form of psychological validation for their grief and their anger at the perpetrator.

On the other hand, various additional factors contribute to the degree of support for capital punishment, even among the families of victims. Naturally, the families of offenders typically have a very different perspective of capital punishment as well. Whereas predictions and expectations of the effect of executions are substantially uniform in the case of the families of offenders, that is not necessarily true with respect to the families of their victims.

The Families of Victims:

The families of slain victims of crime may actively support, seek, and welcome the application of the death penalty to the perpetrators of the crimes resulting in the death of their loved ones. However, other families in identical circumstances may have completely different reactions; furthermore, those reactions are, in turn, capable of being generated by completely opposite sentiments.

Consider that it is possible to support capital punishment from the perspective of vengeance and retribution and for the purposes of achieving psychological closure for the families of victims. It is also distinctly possible to oppose capital punishment for vengeful purposes, particularly where the individual involved believes that lifelong penal incarceration is a worse punishment than a quick death. In that case, opposition would be only motivated by differences in perspective as to defining which form of punishment would be worse from the point-of-view of the offender and the desire to impose whichever would produce the greatest suffering.

Alternatively, the families of victims could oppose the execution of the individual responsible for killing their loved one out genuine sympathy for offender, for the innocent members of that person's family, as well as for reasons having to do with the need to recover psychologically through forgiving instead of through seeking vengeance. Moreover, the victim's family could uphold religious convictions that prohibit killing, even through legally sanctioned processes (Dershowitz, 2002).

In that regard, religious beliefs may play an integral role in determining the attitude of the families of crime victims. Many Christian faiths in particular promote the notion of forgiveness even for the most heinous crimes and tremendous personal losses. Families who practice these religious values are often vehemently opposed to capital punishment and much more capable of benefiting psychologically by alternatives to execution. In fact, it is not uncommon for the families of victims with this perspective to seek to meet the offender in order to achieve closure that way, through the process of understanding the motivations and reasons responsible for their loss and also to experience their personal forgiveness of the offender by communicating it in person (Schmalleger, 2008).

That particular point-of-view is uniquely Christian, but there are numerous other religious perspectives that prohibit killing as well (Kaveny, 2008; Lancet, 2008). That is often true even in many parts of the Middle East where existing criminal sanctions for non-capital crimes are substantially harsher than any permitted in the U.S. Two fairly common examples would include flogging and the forced amputation of the hands of thieves, both of which would be specifically prohibited in the U.S. On the basis of cruelty pursuant to the Eighth Amendment (Dershowitz, 2002; Friedman, 2005). Meanwhile and ironically, many of the same Muslim countries that have declared their formal religious support for and a pledge to comply with the recommendations by the United Nations to eliminate capital punishment entirely have no moral qualms imposing what would be considered cruel torture in the U.S. (Kaveny, 2008; Lancet, 2008).

Naturally, for families of victims in the U.S. whose religious and moral convictions oppose the concept of capital punishment, the prospect of execution of the offender may only compound their grief and complicate their achievement of psychological closure, particularly to the extent that process involves communicating their forgiveness to the offender. Furthermore, execution in such circumstances could also raise feelings of guilt on the part of the families of victims, for the offender's execution and for the situation of the members of the offender's innocent family members.

The Families of Offenders:

As can be expected, the families of offenders sentenced to capital punishment tend to have a very negative view of that aspect of the criminal justice system. In general, it is difficult for families to reconcile their emotional and psychological attachment to loved ones with their conscious awareness of their guilt (Gerrig & Zimbardo, 2008; Schmalleger, 2008). Form their perspective, there is no productive purpose achieved by executing the offender because incarceration completely satisfies any need to remove the offender from society for the protection of the innocent. Likewise, from the perspective of the offender's loved ones, lifelong incarceration is sufficient retribution as well.

That belief is also consistent with sentiments that it is hypocritical for the criminal justice system to abhor killing on one hand but to sanction death as punishment on the other hand when the only purpose seemingly achieved is vengeance. Furthermore, it is frequently the case that the execution of the offender traumatizes other members of the offender's extended family, including parents, siblings, spouses, and the children of the offender. Even the strongest supporters of capital punishment acknowledge that the family members of the offender are innocent victims themselves (Dershowitz, 2002; Schmalleger, 2008).

From the sociological perspective, the imposition of capital punishment may very well contribute to perpetuating multi-generational cycles of antisocial behavior and criminal conduct (Henslin, 2002; Macionis, 2003). Consider the psychological effects on the children of offenders, especially where the offender substantially fulfilled parental roles. The execution of the offender may actually increase any pre-existing inclination of the offender's younger siblings or children to resent the establishment and to pursue a criminal existence (Schmalleger, 2008). In that regard, even lifelong incarceration may be a bargain in terms of the many other long-term costs associated with capital punishment, especially from the perspective of the families of offenders.