Kevin McMahon

ENGL 391

Weaver

P-6 Proposal

May 12, 1998

Capital punishment is an outdated machine of the past; much like public hangings and beheadings, our society no longer needs it. Put simply, capital punishment is premeditated murder, and even though it is done with the authority of government, it is still wrong. The only true product of the system is a demoralization of the country’s values. It makes everyone a little bit more used to killing, and a little less caring about it. The United States has grown to the point where a practice such as capital punishment actually hurts its citizens more than it helps.

Capital punishment is the harshest form of punishment the government has chosen to inflict on criminals. There are three basic types of punishment in force in the United States. The Constitution guarantees us all the right to life, liberty (or freedom) and property; the three types of punishment all fit around these. The lowest form of punishment is fines and monetary reparations; this is when the government takes away your property. The next level of severity in punishment involves serving jailtime; this is where the government takes away your liberty. The most severe and final type of punishment is capital punishment, where the government deems it necessary to take a criminal’s life. Basically, then, capital punishment occurs when the courts find a criminal to be so bad that he/she no longer deserve life, and therefore their life must be terminated. Taking the life of a criminal is only considered capital punishment when it is a state-sanctioned act; vigilantism does not count as capital punishment.

Murder can be defined as one person or a group of people taking the life of another under certain conditions. First, the incident must be against the will of the person who is killed. This may seem obvious, but a doctor might take someone’s life at their request which might not be considered murder. Second, the incident must not be in self defense; if a person kills someone with the intention of prolonging his or her own life, then it is not murder. Certain actions in wartime may also be placed by some in the realm of non-murder killing.

Premeditated murder, then, is someone being killed with forethought. It would be when the person or persons doing the killing planned out what they wanted to do and how they were going to do it. For example, if James decided he wanted Sally dead, and he planned ahead and slipped poison into her lunch, it would be pre-meditated. Since the government plans (usually for years) to kill a person on death row, there is obviously much thought and intent in the killing. Therefore, it is pre-meditated murder.

There are two different classes of crime as our modern criminal justice system sees it: “mala in SE,” which is something that is wrong in and of itself; and “mala prohibita,” which is wrong only because laws say it is wrong, such as jaywalking (Siegel, 33). Murder is mala in SE and therefore is wrong, not only by law but by moral standards. Very few, if any people would argue that murder is not wrong. Most laws about things that are mala prohibita do not reach the degree of public support as those dealing with crimes that are mala in SE. Since murder is wrong in and of itself, and pre-meditated murder is worse, then capital punishment is wrong.

Currently in the United States there are only a few crimes for which one is eligible to receive the death penalty. For example, in Maryland the law first requires a conviction of murder in the first degree. In Maryland, murder in the first degree has certain restrictions of its own. There are basically three ways that a murder can be classified as first degree (Law 253-4). The first thing to qualify a murder is if it was premeditated. The second possibilty is whether it was committed during certain other crimes. Some of these crimes are arson, rape, sodomy, mayhem, robbery, car jacking, burglary, or kidnaping. Also, if a murder is committed while attempting to escape any penal institute. Once a conviction of first degree murder is reached, other aggravating circumstances must also be found (255-6). These are circumstances that make a crime look worse; for example if the victim was a law enforcement officer it is considered a capital crime. A capital crime is one in which the offender may receive the death penalty. If a murder is committed while serving a jail sentence it is a capital murder. Also, if the victim was kidnaped, or killed under contract, then it is capital. If more than one victim was killed, or the victim was killed in the process of a car jacking, arson or a rape, it is also a capital crime. Not only do specific statutes differ from state to state, currently there are twelve states, as well as the District of Columbia, that do not have capital punishment statutes at all (Amnesty).

According to 1997 statistics provided by Amnesty International, worldwide, the United States is one of the few industrialized countries that still actively kills its own citizens. With forty-five executions in 1996, the U.S. is number seven in worldwide executions, and our 1997 numbers grew by nearly sixty-five percent. On this list, China was number one by far with over 4,367 executions in 1996; number two (the Ukraine) fell dramatically with only 167 gradually reaching us with forty-five. Nowhere on this list of totals is found most of Europe; the United Kingdom is not on it, France is not on it, Ireland is not on it. Neither are Germany, Canada, Mexico, Spain, or Portugal. Most of what we consider the civilized world no longer has the death penalty (Amnesty).

Although capital punishment was widely approved back in the 17th century and before, it does not enjoy the same overwhelming approval today; this is demonstrated by the fact that most of the industrialized nations no longer have the death penalty (Amnesty). In this country, the debate over capital punishment has grown louder and louder over the last few decades. It is debated on different grounds: moral, or legal/constitutional.

Capital punishment in the United States was brought over when the first settlers came from England. Prior to the revolution, our forefathers simply used the laws of England which included capital punishment. After we formed our own country, rather than starting from scratch and writing an entire system of laws just for us, we started by adopting all of the English common law. English common law included capital punishment. During our colonial days, there were horrible forms of punishment such as branding criminals and devices like the medieval rack; these were outlawed by the “cruel and unusual” clause in the Bill of Rights. Prior to this clause, all manner of things passed for punishment; however the people of the time grew to feel that the country did not need these types of punishment anymore.

Historically, executions were carried out for all sorts of different crimes ranging from murder, to bestiality, and even blasphemy. As the years went on, each state began to refine what was considered a capital crime and what was not. By the mid 20th century, the list of capital crimes had been narrowed to include only murder, rape, armed robbery, kidnaping, federal espionage, and occasionally burglary and aggravated assault. Today the only crimes that get the death penalty are murder and federal espionage.

Many times over the years, the Supreme Court has heard appeals from inmates on death row. Most were executed anyway, but in 1972 the Supreme Court heard a case with a new twist. The case of Furman V. Georgia rocked the legal world by declaring that the way capital punishment was instituted was unconstitutional. Therefore capital punishment was made illegal, but not before the Supreme Court made a few suggestions as to what would make it legal again. The lawyers in this case showed that juries in the United States were handing out the death penalty in a manner that seemed arbitrary to the facts. Also it seemed as if sentences were being handed out in a racially-biased manner. This, the court contended, was due to the complete discretion that juries had in these cases.

In 1976, the issue was revisited in the Supreme Court with the case of Gregg V. Georgia. Many states, which included Georgia, had rewritten their death penalty statutes in the hopes of making them constitutional. Using a system of guided discretion, which included narrowing down the list of capital crimes, the states successfully brought back the death penalty. According to Raymond Paternoster in Capital Punishment in America “Studies of the post-Furman capital sentencing schemes of several states have convincingly shown that black offenders who slay white victims are more likely to be charged with capital murder, more likely to be convicted of capital murder, and more likely to be sentenced to death than blacks who kill other blacks.” (23) The seeming bias in capital cases keep the issue in the limelight today.

These cases helped bring the issue to the public’s attention back in the 1970's and it has remained there to this day. One of the things that helps keep this issue alive is the constant appeals and the publicity that surround certain murderers. For example, the trial of Oklahoma City bomber Tim McVeigh helped bring the issue back to public attention. Also, a Catholic nun named Sister Helen PreJean wrote a book in the early 1990's which detailed her experiences with two different inmates on death row. The book entitled Dead Man Walking was later made into a popular movie. Some organizations such as Amnesty International also try to focus on the immorality of the death penalty.

Many other court cases over the years have attempted to derail capital punishment for different reasons. The most popular constitutional objection to the death penalty is based on the cruel and unusual clause in the Bill of Rights. The debate here centers on how one would decide to interpret the Constitution. Some say that the Constitution should be followed literally; they feel it should mean exactly the same today as it did when it was written. Other people feel that the Constitution should be interpreted differently as times change. In our case, since the framers seemed to believe in capital punishment, a literal translation would lead into keeping the death penalty legal. However, many people believe that since society has grown and evolved we should interpret the Constitution to fit today’s values, where some would say that capital punishment is cruel and unusual.

Other people’s arguments are mainly moral arguments. Some organizations, like Amnesty International, hold a basic belief in the sanctity of all human life; this belief includes convicted killers. The view that they publicize would be that murder is morally wrong no matter who does it and that killing is inhumane and should be stopped. Although they specialize in international affairs, they do work in this country to abolish capital punishment.

With a seeming trend toward violent crime in the past ten or twenty years, many people feel that the government should get tough on crime. Even former President George Bush campaigned, in 1988, by condemning his opponent Michael Dukakis’ record on crime. Bush went on record as saying he wanted to be tough on crime. According to Paternoster, public approval for the death penalty rose from about 50 percent in 1971, to about 80 percent in 1988 (25). Capital punishment is about as tough on crime as one can possibly be. This demonstrates why Bush decided to campaign in that manner. Also, Paternoster states, “After 1977, there is an almost steady increase in the number of new commitments to death row...”(27) This rise in approval and rise in death sentences helps keep advocates on both sides arguing.

As a result of all this debate, several common arguments on both side have taken shape. The best argument against the death penalty is the simple right to life that everyone has. Our Declaration of Independence claims that all of us are endowed by our creator with certain unalienable rights. Not the least of these is the right to life. Not even convicted killers can have this right taken away from them; it is an unalienable right. Unalienable is defined by The American Heritage Dictionary, to mean “not to be separated.” (1393) There is no “except in the case of punishment.” There is simply the statement that the right to life is unalienable; that it cannot be separated from the individual. All human life has innate worth; a worth that is regardless of the person’s actions. Even though society may need to protect itself by separating from dangerous individuals, it does not have the right to take away that person’s right to life.

We are given a lot of rights in this country, and we have the freedom to exercise our rights insofar as we do not adversely affect others by doing so. For example, any person has the right to swing their arms wildly, but the moment someone else comes within range, that right is superseded by the second person’s right not to get punched. This is where the permissibility of killing in self-defense comes into play; some people choose to use this as an argument for the death penalty. They say that we are killing murderers in self defense.

In his essay, “Capital Punishment and Social Defense,” Hugo Bedau sets forth certain parameters for killing in self defense. If one individual is faced with an immediate threat to his life, than he has every right to retaliate with whatever force is necessary to protect their own life. This is so, even if it means killing the attacker. Bedau does limit this by saying that the individual only has the right to use as little force as is necessary to prevent harm to himself. In an intense situation, there might not be enough time to weigh all possible options so extra leeway is given there, but given time to ponder other alternatives we must not go beyond the minimum necessary to prevent harm (293-294). The minimum necessary to achieve self defense is long jail sentences, not death. Death is the most extreme, and should only be used as a last resort.

Another argument for the death penalty is based on a common misconception about the criminal justice system. It is common to hear people argue that their tax dollars are being wasted paying for a murderer to live in jail. Most people are under the false impression that it is cheaper to execute than it is to confine someone to a prison cell for life. Actually, due to the longer criminal court proceeding and the extra security needed for death row, it suprisingly costs less to imprison someone for life. A 1990 study by Cavanaugh and Kleiman was done for the National Institute of Justice; it was a cost-benefit analysis of imprisonment and alternatives. The study revealed that the average cost to incarcerate someone for life would be about 25,000 dollars per year (Paternoster, 209).

According to Raymond Paternoster the average age of a homicide offender in 1988 was twenty-eight years old; at the same time the life expectancy for males is seventy-two (210). If we abolish parole and make all murderers serve a full life sentence, then we have a cost for life imprisonment of about 1.1 million dollars. Most prisoners get out on parole much earlier than their seventy-second birthday though. According to the New York State Defender’s Association, in 1982 the average cost of a death penalty case was about two million dollars; in 1988 Von Drehl estimated that in Florida a death penalty case cost six times that of life imprisonment (Paternoster 210). Also, the estimates on imprisonment costs do not include deductions for maintenance work done by inmate workers.

Another common argument for the death penalty is that it will deter others from committing the same crime. It is assumed that criminals weigh the possible punishment versus the possible gain prior to committing a crime, and, therefore, it is assumed that capital punishment will deter them because they might be put to death for their crimes. This sounds logical, but unfortunately it has never been proven to be true. Professor Ernest Van Den Haag cited Prof. Thornstein Sellin in his essay “On Deterrence and the Death Penalty” when he said “Prof. Thornstein Sellin has made a careful study of the available statistics. He concluded that they do not yield evidence for the deterring effect of the death penalty.” (289-90) This is an opinion shared by Professor of Criminology Raymond Paternoster in his aforementioned book. It has never been proven that capital punishment has any effect on the murder rate. Some argue that this lack of evidence does not mean the death penalty does not deter. This makes it easy then to argue the reverse; it may be that our state sanctioned killing actually leads to more murder. This killing desensitizes all of us to murder. It also undermines our belief in the sanctity of life, which could lead criminals to become more ruthless.

Other people will argue that justice can only be served by killing the killers. This is the only way to avenge the deceased it is said. It is argued that if we do not kill them we are doing a disservice or a dishonor to the deceased. This can be summed up in a single phrase common to most people when they were growing up: “Two wrongs do not make a right.” Killing the murderer is nothing more than revenge and cold-blooded murder. If killing the murderer brought back the deceased, then it would be different; unfortunately, nothing will bring them back. Piling death on top of death does nobody any good.

Others have argued to shorten the process of appeals. This would make an already bad situation worse. Already in this country, the death penalty is wrongly imposed on innocent people. If we shortened the process, surely more innocent victims would die. On April 22, 1994, Roy Stewart was executed in Florida. Roy was convicted of murdering Margaret Haizlip in 1979; the main evidence used to convict him was later shown to be a coerced confession. Evidence presented in the case was inconsistent with facts given in the supposed confession. Vanessa Brown testified in court that Roy had admitted to her that he killed Margaret, but several years later she admitted that she lied on the stand. Vanessa was in jail on unrelated charges at the time she testified; she was released shortly after her testimony. She stated later that the only reason she testified was to avoid a jail sentence of her own. Later on, after facing new evidence, the attorneys that had done such a good job of convicting him urged the state for a reprieve from execution. Even the assistant attorney general, who had prosecuted Roy on his appeals for more than seven years, urged for clemency. It was all to no avail; the governor signed his death warrant anyway, and an innocent man was put to death (Amnesty).

Former Supreme Court Justice Harry Blackmun said in 1994, that “the death penalty experiment has failed.” (qtd. in Olen 304) He said that capital punishment will always be at odds with the Constitution. In 1972, the Supreme Court struck down all existing capital punishment statutes because the arbitrary nature of them led to what seemed to be racially and class biased implementation. Later, in 1977 the court (of which Blackmun was a member) allowed the practice to be brought back under certain conditions that were to attempt to fix this problem. They used a system of “guided discretion” that tried to bring about more uniform sentencing while still allowing the juries to take personal consideration of all information. This is what Blackmun was referring to when he said it failed. He wrote, “It seems that the decision whether a human being should live or die is so inherently subjective, rife with all of life’s understandings, experiences, prejudices, and passions, that it inevitably defies the rationality and consistency required by the Constitution.” (qtd. in Olen 304)

It is impossible for the death penalty to be instituted uniformly because a certain amount of subjectiveness is required by the Constitution. The same Constitution requires uniformity; uniformity and subjectivity cannot both exist at the same time to a sufficient degree. Even after implementing the 1977 standards of “guided discretion” today we still see inequities. According to Anthony Amsterdam in Race and the Death Penalty,whites were victims in less than forty percent of all homicides, yet whites were victims in eighty-seven percent of those that resulted in the death penalty (306). Also, twenty-two percent of blacks convicted of killing whites received the death penalty, yet only eight percent of whites who killed whites did (Amsterdam 306). Also, Paternoster details how blacks that kill whites are extremely more likely to get the death penalty than those who kill other blacks. This inequality under the eyes of the law departs from our common notion of blind justice. This is what failed; guided discretion led to the same problems that total subjectivity did.

It is for all of these reasons that capital punishment is not only morally wrong, but is also wrong in practice. Capital punishment is on the books in thirty-eight states in the union; the only way to change all of this is by action of the Supreme Court. The Supreme Court helped bring the death penalty debate to our minds in 1970 when it overturned all existing statutes. What is needed now is for these individuals to not only rule once again on the legality death penalty but to not allow it back; they must send a message that all new capital statutes will be overturned.

This is the only way to keep innocent people from dying, to end the racial inequities of death, and to bring back a sense of value in life, for the country as a whole. Overturning capital statutes won’t put criminals back on the streets, they can serve their lives behind bars. Also, keeping these criminals in jail will actually save the country money. This will also bring us back to the ideals presented in the Declaration of Independence, one of the documents this country was founded on. Since the death penalty has never been shown to actually deter murderers, then there is nothing to lose by banning it, but there is much to gain.

This is why now is the time for the Supreme Court to receive a flood of paperwork. Many legal filings against the death penalty filed by trial lawyers from all parts of the nation will send a powerful message. Whenever the executioner throws that switch and takes the life of a criminal there is one thing to bear in mind: you paid that man to commit cold-blooded murder. You support the government that gave him that job, and unless you stand up and say that you disagree, you might as well have thrown the switch yourself. There is nothing to lose and everything to gain, capital punishment must end.

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