CAPITAL PUNISHMENT
GABRIEL
SPRING 2013
THE GREAT DEBATE OVER CAPITAL PUNISHMENT
A Historical Summary
· The death penalty may have begun as an act of private vengeance.
· As individuals ceded power to the sovereign, capital punishment became the prerogative of state power.
Selecting Those Deserving of Death
· Only 2% of those convicted of murder are sentenced to death row.
· Southern states are on the top of the lists of executions.
· Evenhanded application of death penalty does not matter – The real question is whether the person to be executed deserves the punishment?
§ Haag says that justice does not have an equality component.
§ Whether or not others who deserve the same punishment regardless of their economic status or races have avoided execution is irrelevant.
§ The idea of equal justice demands that justice be equally distributed, not that it be replaced by equality.
§ Regardless of the costs of doing executing prisoners, doing justice is more important.
§ By committing the crime, the criminal volunteered to assume the risk of receiving a legal punishment that he could have avoided by not committing the crime.
Against the American System of Capital Punishment
· Because of the goals that our criminal justice system must satisfy – deterring crime, punishing the guilty, acquitting the innocent, avoiding needless cruelty, etc – America simply does not have the kind of capital punishment system contemplated by death penalty partisans.
· Why few executions?
§ One reason for the small number of executions is that the courts continue to upset capital convictions at an extraordinarily high rate, albeit not so high as earlier.
§ Between 1967 and 1980, the reversal rate for death sentences was nearly 8%.
§ Cases move slowly, and states devote relatively meager resources to pursing actual executions.
§ [Even FL where it can execute almost any death row inmate it wants to, has killed only 13 of 221 inmates since 1979, 12 since 1982.]
· The current round of invalidations highlights the erratic imposition of the death penalty.
o These invalidations have been based largely on grounds unrelated to the heinousness of the crime or the reprehensibility of the criminal.
o The recent invalidation rate seems unlikely to change significantly, thereby perpetuating the current system of erratic and haphazard executions.
§ The experience suggests that executions will not deplete the death row population.
§ Very little reason exists to believe that the present capital punishment system deters the conduct of others any more effectively than life imprisonment.
[Offenders do not conduct a cost-benefit analysis.]
The Debates over deterrence and retribution
o Deterrence: By imposing DP on a D for murder, other potential murders should not commit a crime out of fear of having the DP imposed on them.
o Does the DP deter other murders more than if there were no penalty for murder?
o Does the DP deter the crimes more than a lesser but still very severe punishment would deter them?
· If life imprisonment without parole [LIWP] deters murders as well as DP, deterrence alone does not support using DP.
· States without DP do not have higher homicide rates than the average homicide rates in DP states.
· One study showed that 10 of 12 non-DP states have homicide rates below the national average. And between 1980 and 2000, this rate in DP states was 48% to 101% higher than in non-DP states. [No dispositive though with possibilities of other factors affecting the rates]
o Whom we deter? :A law binding person? A marginal deterrent value?
o Evidentiary issue to prove deterrence:
· Empirical studies diverge on marginal deterrence because researchers could not effectively control many possible influences on murder rates.
§ From an economics perspective, if the likelihood of execution increases, fewer murders should be committed.
· If one put to death, between 3 – 18 murders were prevented.
§ SCt. in Gregg deferred to a state’s determination that the DP has a deterrent effect despite inadequacy of the empirical studies.
o Summer v. Shuman: Mandatory DP on an inmate who murdered while serving LIWP was not necessary as a deterrent. Other sanctions less severe than execution can be imposed even on a life-term inmate
[ie. Transfer to a more restrictive custody or correctional facility, deprivation of privilege or work]
o Retribution: The need for society to express sufficient condemnation for heinous murders.
· “Eye for an eye”
· Death of a murder will vindicate the injuries suffered by the victim or his family.
o Opponents argue that society’s goal of greater morality is defeated when its expression of outrage for the taking of one life is the taking of another life.
o Whether any punishment short of killing offenders sufficiently expresses social condemnation for murder in modern America?
Risk of Executing the Innocent
§ “Death is a different kind of punishment from any other which may be imposed”
§ J. Marshall’s concurring in Furman[1972]: “No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony and human error remain all too real.”
§ Death Penalty Information Center: Between 1973 – 2012, 140 innocent persons in 26 states were freed from death row.
§ Errors exist in the guilt phase and sentencing decisions of capital murder trials.
· J. Harlan in McGautha [1971]: To identify before the fact those characteristics of criminal homicides which call for the DP, and to express these characteristics in language which can fairly be understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.
· Landmark case Willingham: A man lost three children was convicted of arson and was executed.
· Later, arson experts/investigators opined the arson conviction was wrong.
o Kansas v. March [2006]:
· J. Scalia’s concurring: Capital cases are given especially close scrutiny at every level.
§ In current American DP system, the possibility of mistaken punishment has been reduced to an insignificant minimum.
§ Scalia in another case, says the constitution does not guarantee innocence; it guarantees acquittal based upon certain trial rules.
o J. Souter’s dissenting: DP is irrevocable punishment
§ Development in technologies affects sufficient evidence available (ie.DNA test)
§ In the face of this kind of possibility, what would you do with the DP?
§ One argument: Construction contains possibilities of errors that can lead to causality = Certain errors can be acceptable.
o In DP there can be less harmful alternative (like life imprisonment)
o This argument raises a risk assessment question: How much risk would be okay? How much risks exist that a wrongfully convicted person was based on race basis?
Eighth Amendment Prohibition of Cruel and Unusual Punishment
§ 8th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
§ The record what this provision meant is not clear thus the Court has taken different views on this provision.
§ The debates over 8A interpretation are sometimes a question of what is the judicial role in the context of federalism.
· ie. Whether judges are expected to interpret the provision by thinking what the relevant information is?
· At some point, judges have to make a call:
§ J. Breyer says we have to do our job based on case-by-case analysis, cannot just return it back to legislators.
§ “Cruel and unusual punishment”
· How do you know something is unusual? What is cruel? What if the sentence for one crime is cruel and the same sentence for another is not cruel? The method of executing is cruel? If you accept the method is okay, then use of such a method to a 5-year old boy is okay?
§ Proportionality as a 8th Amendment principle
· Disagreement wheth
a national consensus exists to impose the DP for a particular class of offenders or for a specific crime?
§ Scalia: Non DP states should not be counted when deciding whether a national consensus exists. They are only relevant on issue of whether there is a national consensus against applying the DP under any circumstances.
o Roper v. Simmons: 5 Justices majority [opinioned by J. Kennedy] held that the non-DP states should be counted in assessing of a national consensus against DP applying under specific circumstances.
§ 2. Statistics about the number of execution [Kennedy]
· It confirms the Court’s judgment from its review of state statues that there is a social consensus against the DP for child rapists.
· 6 states allowed DP for rape for some times between 1972 Furman and 2008. But no one was executed for rape since 1964, and none for any other nonhomicide offense since 1963.
· LA is the only state since 1964 sentenced two individuals to death for child rape.
§ 3. Looking at jury verdict
· The jury is a significant and reliable objective index of contemporary values because it is so directly involved. Thus, where the jury has rejected the form of punishment, then this is a reliable indicator of whether it is cruel and unusual.
o The DP should be a worst method for the worst. There is no guarantee that the jury will use their discretion to use DP as worst for the worst.
o The community attitude toward DP may affect.
§ Court has divided on what evidence, other than legislative enactment should be examined.
· International community? Professional organization? Opinion polls?
B. Second Prong: Furthering goals of punishment
§ Court’s own judgment: Court assess whether the application of the DP will further retributive and deterrent goals of punishment.
§ Gregg/Atkins: DP disproportionate because neither retribution nor deterrence would be furthered by executing the respective class of individuals.
o J. Scalia: Court’s subjective judgment is illegitimate. Should look at only objective factors, evidence of legislative action and jury verdicts.
o J. Burger in Coker: Court has overstepped the bounds of proper constitutional adjudication by substituting its policy judgment for that of the state legislature.
· “Cruel and Unusual Punishment Clause does not give the Court license to engraft their conceptions of proper public policy onto the considered legislative judgments of the States.”
· The underlying premise: there is something wrong for the Court to make law
o But shouldn’t the court be able to lay down its considered opinion based on its inherent ability?
§ Kennedy: National consensus is not dispositive.
· If the purpose of the DP is retribution, then the value of restoration of victim is lessoned.
§ Not the child’s best interest 2. Problem of wrongful conviction (Child’s inaccurate testimony/memories)
· Deterrence: When punishment is death, both victim and her family members more likely shield the perpetrator from discovery thus increasing underreporting.
§ The fact the punishment for child rape and murder is the same removes a strong incentive for the rapist not to kill the victim.
