Capital Punishment
Professor Roberta Harding
Fall 2016
Book: Cases and Materials on The Death Penalty 4th edition, Rivkind, Shatz, Kamin, Marceau
Intro to Capital Punishment: Purposes, History, and Evolution
Purposes of Capital Punishment
Morality
For:
Religious:
Old Testament, an eye for an eye. Favor Retribution.
Non:
Draw from philosophers who also argue in favor of retribution. Moral culpability for the offender’s crimes.
Execution also redeems society by restoring the balance that was lost through the crime, and redeems the victim by reaffirming the victim’s worth.
Against:
Religious:
Favor the New Testament approach over the Old. Preaches forgiveness by Jesus. Most major religious groups are opposed to the Death Penalty.
Non:
Retribution is an insufficient reason to execute someone.
Death isn’t necessarily proportionate to murder. Further, the state doesn’t use an eye for an eye with other methods of punishment (ie: we don’t rape the rapist, steal from the thief).
Also point to studies suggesting that the execution doesn’t offer any relief to the victim or their family.
Utility (Crime Prevention)
For:
Serves as a deterrence for other potential murderers.
Prevents recidivism: In the absence of the death penalty, the most severe punishment is LWOP which provides no incentive to not kill other people. LWOP prisoners could in theory kill multiple people without receiving any punishment.
Incapacitation: we don’t want this person to ever commit another offense
Against:
There is no empirical evidence that the death penalty actually works as a deterrent. Some evidence that states with the death penalty have a higher homicide rates than states without.
Also point to the nature of murders to show this is an ineffective purpose. Meaning, most murders happen due to rage or intoxication and are not thought out and premeditated. Punishment cannot deter if the killers do not consider it in advance.
Extremely, extremely costly to litigate and actually execute. Cheaper to keep someone in general population rather than death row.
Reliability and Fairness:
Reliability
Execution of Innocent People
For:
The risk of an occasional wrongful execution is so slim that it cannot be used as a basis to abolish the death penalty. Also argue that the empirical data on the numbers of wrongful execution are insignificant.
Against:
There is no way for it to be reliably and fairly imposed.
Innocent people have been freed from death row. Or worse, wrongfully executed.
Racial Bias
The extreme racial bias shows that black and brown defendants are more likely to be executed, and that the color of the victim also plays a part in this.
Arbitrariness
Prosecutors have unlimited discretion for when they can seek the death penalty
Death penalty cases are high visibility, and it’s tempting for some prosecutors/police to cut corners
Virtually all capital defendants are poor and receive appointed counsel.
Most of the death penalty states have elected judges who are afraid of being seen as “soft on crime.”
History of Capital Punishment
Duration – lengthy, long
Capital Crimes – personal, property, religious
Varied greatly from the ancient era to modern times. In the US pretty much murder is the only capital crime now. However, during the colonial era Witchcraft was considered a capital crime.
The trends in the number of capital crimes vary by location. For example, in the 1800s England ramped up the number of capital crimes but the US did not follow this trend. However, England abolished the death penalty in the 1960s.
Pennsylvania was the first state to introduce degrees of murder
Capital Crimes used to have mandatory death penalty. Eventually, they moved toward the modern discretionary system.
Methods of Execution
We weren’t always concerned with the level of pain that was involved, in fact, methods were frequently chosen because of their level of pain (ie – stoning). Defendants were frequently conscious while they were executed (unlike, supposedly anyway, lethal injection).
Location – executions were generally public and a big event
Kentucky had the last
rman v. Georgia (1972)
Facts: Furman broke into a house to rob it, the owner woke up and spooked Furman. His story changed. Initially he said he fired the gun blindly but then he tried to say he tripped and the gun went off accidentally. The jury agreed that this was an accident.
Landmark capital punishment case
Court acknowledges that there is no definition for “cruel and unusual punishment.” The language is kept purposefully broad and the meaning can change over the course of time.
“The evolving standard of decency that mark the progress of a maturing society.”
Held: The death penalty in its current application is inconsistent and unconstitutional because it violated the 8th Am.
Per curium opinion
Majority could not agree on the rationale behind this decision.
Concurring Rationales:
Douglas: discriminatory and arbitrary in nature; concerned with the sentencing task of imposing the death penalty. Race, ethnicity, and religion are minority areas of discrimination in the application of the death penalty.
Stewart: takes issue with the imposition of death. It’s freakishly and wantonly imposed in a capricious manner.
White:
Brennan: agrees with Marshall that the Death Penalty is per se unconstitutional.
Marshall: believes the Death Penalty is per se unconstitutional.
Dissenting Rationales:
Brennan and Marshall believed the death penalty in and of itself was cruel and unusual.
Stewart, White, and Douglas did not like the arbitrariness with which it was applied, especially because this tended to result in a racial bias towards black defendants.
Meaning of Furman:
The Death Penalty is per se unconstitutional because the infliction of a cruel and unusual punishment does not meet the 8th and 14th Am standard.
This led to a moratorium on the death penalty for 4 years until Gregg v. Georgia in 1976.
