Capital Punishment Harding Fall 2016
INTRODUCTION TO CAPITAL PUNISHMENT: HISTORY, EVOLUTION, AND PURPOSES
Timeline and Trends
AD 500 – 1000: primitive marketplace hangings were common – the aggrieved party would typically be the executioner
Middle Ages 1000 – 1500: executions still occurred in village square; however, they were more formal, more ceremonial, and more dignified.
Early modern period (1500s to 1800s) – executions marked by a restrained ceremony were the norm. à “quiet reverence, tinged by sadness” –> “excitement and awe inappropriate”
1800 –modern era (present): ceremony gradually gave way to bureaucratic procedure. “Functional routine dominated by hierarchy and task.” à no communal involvement- private.
Ancient Executions – Public and Passionate Violence
In Biblical times, executions were public, passionate events. Ex. stonings united the public against the criminal and served as a celebration of communal values. This evolved into hangings which became moderately more restrained.
Large number of capital crimes – crimes that do not exist anymore and petty crimes were capital offenses.
Executions in antiquity served largely religious ends. Idea that offenders sinned against God and capital punishment served as a way to expiate the sin.
Executions were largely organized by a religious leader or a religious court.
Medieval Executions: Ceremonial Violence
Height of civilization reached in classical Greece and republican Rome (500 B.C. – 45 A.D.) – executions less common and less violent.
Resurgence of CP in the Imperial Age of Rome.
Dark Ages (500-1000) – executions became a part of common daily life.
Adjudication during this time was often spontaneous and “bare bones” – trials were public and there was little formality to the process. If condemned, the accused was killed by the aggrieved party.
Public spectacle of hangings could be particularly perverse – ex. one procedure was to hang the condemned, cut him down before he died and disembowel and quarter him while alive.
By the later Middle Ages, adjudication had become more formal and dignified.
Ex. Nuremberg in 1400 – trials no longer took place in a market square but a special area of the city hall. Rules of evidence and procedure were increasingly elaborate.
Executions no longer carried out by the public, but by a designated official of the court.
Early Modern Executions (1500-1700’s): Refined Ritual, Subdued Ceremony
After Mid Ages, executions became tamer.
There was also an educational component: Children were encouraged to visit prisoners in their cells to see what happens when you “go bad”
Continental Europe during this era:
Executions were meant to have a certain purity – less involvement or participation from the accused – a “beauty” that was “elaborate and highly ritualized” – they began with a sentencing ceremony and were followed by a procession.
Beauty in the “staging, not the method”
Germany and Holland during Early Modern era
Assembled crowd behaved with decorum
Affirmation of communal “hierarchy and values”
Executions were more formal and restrained than their biblical and medieval counterparts – executioners thought of themselves as craftsmen or artists more than purveyors of violence.
American Death Penalty Overview
DP employed since earliest days of the British Colonies (derived from English law)– first recorded execution in 1608 for spying for Spain.
First execution of a female in 1632 for unknown offense.
First execution of a minor – 1642 for bestiality.
England: The English common law recognized eight capital punishment crimes: treason, petty treason, murder, larceny, robbery, burglary, rape, and arson.
Number of capital crimes in England increased dramatically from 17th to 19th centuries: In 1688 there were 50 capital crimes and in 1820 there were more than 200, including small and economic crimes.
19th century saw dramatic changes – by 1833, CP was reserved for a few serious offenses.
After 1863, murder was almost exclusively the only crime for which DP could be imposed.
DP was abolished in England in 1965 after realizing an innocent person had been executed.
The Colonies:
DP imported to colonies with settlers form England.
In MA, CPC reflected the pilgrim’s strict religious beliefs. Twelve crimes, all derived from the Bible were punished by death.
In 1700, rape arson, treason, and theft of goods over a certain value were added.
1780 – CPC had been reduced to seven secular crimes: murder, sodomy, burglary, buggery, arson, rape, and treason.
Colonial Times to the Civil War
Penal reform – enlightenment of the 18th century. 8Th amendment protecting against cruel and unusual punishment comes into effect in 1791.
Division of murder into degrees- 1st, 2nd, and Manslaughter.
Antebellum abolition movement
Civil War to WWI
WWI to 1972
1972 – Present
The Purposes of Capital Punishment
Since the reintroduction of the death penalty after Furman, the debate over the use of the death penalty has been rampant.
Arguments typically fall into three categories: morality/appropriateness of retribution, utility of the DP in terms of prevention/deterrence, and opinions surrounding the reliability and fairness of the DP (racial disparities, innocence).
Morality
Morality argument has religious and non-religious roots. Proponents ground their argument in an Old Testament right – adopts the doctrine of “lex talionis” or “an eye for an eye”
Non-religious argument: Draws heavily on Immanuel Kant who argues in favor of the idea of “retribution” – “just deserts”
Death penalty reaffirms the victim’s worth – he who violates the right to human life forfeits it for himself. Punishment should be equal to the crime.
***Non-religious opponents – the state does not “rob the robber, rape the rapist” – there is an inherent illogical nature to killing those who have killed.***
Albert Camus – OPPONENT – capital punishment is the “most premediated of murders” how can we punish what the state condones and does itself???
Utilitarian Argument- argues “greatest good for the greatest number”
Proponents- Utilitarian argument is that DP serves general deterrence: deters potential murderers from killing. Also, murderer may still kill/commit crime in prison if they receive lif
process.” – SCOTUS rejected this argument.
SCOTUS says: “we find it impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to the Constitution.”
“For a court to attempt to catalog the appropriate factors in this elusive area could inhibit rather than expand the scope of consideration”
Furman v. Georgia (1972) Brennan majority opinion, Marshall concurrence
OVERTURNS MCGAUTHA – notes that “sentencing discretion must be narrowed “so as to minimize the risk of wholly arbitrary and capricious action.”
Death Is Different doctrine- Stevens- “The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability…in its rejection of rehabilitation of the convict.” We must treat it differently and with heightened scrutiny.
Douglas:
Concerned with discrimination in the imposition of the death penalty. Says that 8th amendment requires that legislature write laws which are nonselective, evenhanded, and nonarbitrary.
Brennan:
Available evidence proves that the threat of the DP is no more of a deterrent as is the threat of prison time.
State’s second argument: that the carrying out of the DP indicates the communities outrage at the commission of the crimes. Serves to reinforce society’s values in a way.
Brennan says the question is not “whether the DP serves these goals, but rather, does the DP serve these goals more efficiently than life imprisonment?”
Prepared to say DP is cruel and unusual in itself- would vote to do away with completely.
Brennan says, “There is then, no substantial reason to believe that the punishment of death, as currently administered, is necessary for the protection of society. “ – leaves only retribution as underlying purpose.
“The asserted public belief that murderers and rapists deserve to die is flatly inconsistent with the execution of a random few” à because the admin. of which cases go through to execution is so unreliable and random, we cannot say that it serves the “goals.”
Holding: “In sum – the DP is inconsistent with all 4 stated principles – it is an unusually severe and degrading punishment, there is a strong probability that it is inflicted arbitrarily, its rejection by contemporary society is nearly total, and there is no reason to believe it serves any penal purpose more effectively than life imprisonment.”
“the State may not arbitrarily inflict an unusually severe punishment” – “Indeed it smacks of little more than a lottery system”
