Capital Punishment Paper

Posted: October 25, 2012 in Life

**I realize this is outside the confines of the regular posts for this blog.  I wrote this position paper for a friend of mine’s class.  It is sufficiently passed the semester in which she used it so I feel safe in posting it here.  And in any case, this blog is dedicated to literary exploration which can include nonfiction.**

 

Capital Punishment

In recent years the political climate has stayed well within the confines of the economy. The negative financial outlook that began in 2008 has continued to dominate the national landscape. The housing market, the American economy and the role of global market trends on U.S. decline; these are the headlines in the national newspapers and on the major television news broadcasts. The focus of the current Presidential campaign has been almost entirely about jobs creation and a strategy to improve a stagnant market economy. For these reasons, the national debate over capital punishment has taken a back seat. But there can be little doubt that along with abortion, capital punishment remains among the most controversial social issues in America today and will almost certainly play a larger role as the election of 2012 nears. A recent Gallup Poll reported that, as a whole, the nation has shown a decline in the support for capital punishment.(Newport, 2011) In spite of this trend,however, the death penalty remains a hot button issue in every major political campaign, whether one is running for Governor, Congress, or President. There was a time when one could tell with relative ease where one stood on the issue based on party affiliation. If a Republican was asked where they stood on the issue, it was almost certain that they were a supporter of the death penalty. Conversely, if one espoused the Democratic party affiliations, then opposition to capital punishment was expected. Today, however, the fault lines are drawn in more varied and complex ways and opponents and those that support it can be found on both sides of the isle. One thing is for sure, capital punishment continues to be a very important issue across party lines.

The controversial nature of the debate reveals multiple ways in which capital punishment can be viewed. It can be viewed within the confines of the law and whether the death penalty can be considered Constitutional for both the Federal and States governments. The legality issue places an emphasis on the dichotomy between social safety and an individual’s right to due process and equal protection under the law via the Fourteenth Amendment. Several landmark cases highlight the ebb and flow that Supreme Court rulings have taken when considering the issues surrounding capital punishment.

Capital punishment can be viewed through a financial perspective. Often, the monetary argument weighs heavy on persons considering the issue of capital punishment. Proponents have long claimed that the cost of holding a capital crime prisoner for life exceeds the amount it would take to execute them. Opponents’ replies have been that the costs involved taken as a whole: length of time on death row, multiple appeal procedures, lawyers fees, and the like, bring added costs to the table. Therefore, the whole execution process itself is more costly.

There is, as well, points of view coming from a behavioral perspective which focuses on the psychology of the death penalty and whether capital punishment functions as a deterrent in further violent acts of crime. Here, too, a fracture exists in assessing whether the benefits of the death penalty can be applied to issues of deterrence or whether perhaps it may better be suited to benefit the families of murder victims in achieving a sense of closure. Further still, the death penalty can be viewed through a moral perspective which implies a religious foundation that lies at the heart of whether capital punishment should exist in a modern society. This highlights the tension that exists in a self proclaimed Christian nation’s adherence to New Testament values of forgiveness and compassion and the sense of proportionate morality that is to be found in the Old Testament.

Whatever side of the issue one takes, whether for or against the death penalty, it may be well be categorized within these categories or perspectives. Personally, I am in support of the death penalty even as a recent Gallup Poll shows that as a nation, America has seen a decline in support for it; dropping to a thirty nine year low of sixty one percent. (Newport, 2011) Despite this trend, I stand with the majority of my fellow Americans who have historically been in support of capital punishment. For me, the issue lies not within the mere legality of it, the Supreme Court has upheld the Constitutionality of the death penalty. It does not rest on the behavioral perspective where issues of deterrence, or a lack of it, abound. And is does not come down to the moral side of the debate when matter of innocence come into play. As we shall see, the major perspectives offer conflicting arguments, both for and against the death penalty. Flaws exist on either side of these various issues. For example, should one support capital punishment on the grounds that it deters would-be criminals if it can be shown that in some states where capital punishment is legal an increase in violent crimes can be seen? An unavoidable fracture exists on all sides, with opponents and proponents espousing very valid reasons for their belief. Often enough, neither side of the debate are willing to concede to the other resulting in an inevitable stalemate.

For me, capital punishment requires a more pragmatic approach. One that cannot escape the daunting task of a case by case basis, often sidestepping fixed and preconceived notions of the death penalty. I have come to this conclusion through a long journey with myself. I have been opposed to capital punishment in the past and I have been, as I am now, a supporter of it. A complex and controversial issue like this demands of every citizen, in any nation, such a mighty internal struggle. The struggle continues.

Capital Punishment and the Law

Any discussion of capital punishment within the United States has to begin with the Constitution and the legality of it. The complexity of the issue can be seen in the Federal government’s own ambivalence toward the death penalty. Capital punishment had always been considered, if not legal, then acceptable and well within the confines of the Fifth, Eighth and Fourteenth Amendments. Many opponents had argued that the death penalty was unconstitutional and fell within the “cruel and unusual punishment” clause found in the Eighth Amendment. By the beginning of the 1960’s the Supreme Court ruled in Trop v. Dulles that the Eighth Amendment “contained an evolving standard of decency that marked the progress of a maturing society.“ (DPIC) This “evolving standard” set the Supreme Court on a path toward fine tuning the process of capital punishment, what Justice Harry Blackman called “tinker[ing] with the machinery of death.” (DPIC) The issues involved in this clarification process had to do with the statutes surrounding capital punishment more so than with the principle of the death penalty itself. So for example, issues of due process guaranteed by the Fourteenth Amendment were argued in two landmark 1968 cases. Among the first major issues to be considered was the method in which the death penalty was sought. Who had the right to call for the death penalty: The prosecuting attorney? The judge? The families of the deceased? The jury? Or a combination of all these. U.S. v. Jackson sought to have the death penalty imposed only at the recommendation of the jury. This was ruled unconstitutional by the court because it encouraged defendants to waive their right to a trial by jury to avoid the death penalty thereby implicitly negating them of due process by a jury of their peers. In Witherspoon v. Illinois, the court took up the issue of jury selection and avoidance in death penalty cases. The issue here was what type of jury should hear capital cases or if their attitudes toward capital punishment should even be taken into account. Also, if the same jury should be part of both the conviction and sentencing phase of the trial or should a separate jury be brought in for sentencing. It essentially ruled that a juror’s “mere reservation” about the death penalty was insufficient to avoid service. The prosecution had to show that a juror’s impartial decision would be directly affected by his or her attitude toward the death penalty.

The Supreme Court, however, declared capital punishment statutes unconstitutional on June 29, 1972 in Furman v. Georgia on Eighth Amendments grounds when it ruled that “unfettered jury discretion” could result in “capricious and arbitrary sentencing” under existing Georgia statutes. The court found that the “scheme of punishment under the statutes was therefore cruel and unusual” and violated the Eighth Amendment. This decision essentially voided forty death penalty statutes which commuted 629 death row inmates around the nation. The Furman decision viewed all existing statutes as no longer valid. (DPIC) It is important to note that the method of execution was not taken up on Eighth Amendment grounds, only the statutes involved. While a “cruel and unusual” punishment case can be made for more extreme forms of execution no longer in practice, like hanging or a firing squad, it has become increasingly difficult to make the argument given more humane forms of execution like lethal injection or the gas chamber espoused by many states and the federal government.

Later in 1976, the Supreme Court repealed the Furman decision in the Gregg v. Georgia decision when it declared capital punishment statutes constitutional in Georgia, Texas and Florida. The Gregg case imposed sentencing guidelines for the judge and jury which included the introduction of “aggravating and mitigating” factors in sentence determination and allowed for a separate trial after conviction to decide on the death penalty. This, in effect, became the basis for current Federal government statutes on capital punishment. (DPIC) Again, the issues involved in this clarification process had to do with the statutes surrounding capital punishment more so than with the principle of the death penalty itself. The ironing out process by the Supreme Court on the issue of capital punishment highlights the complex nature of the debate.

The Cost of Capital Punishment

There is a long standing debate about the cost-benefit analysis of the death penalty for both the State and the Federal government. Included in this, of course, is the cost to the taxpayer. The issue centers on the difference between costs associated with a life sentence and those costs associated with the death penalty. In California, for example, an official Commission found that the added cost associated with the death penalty amounted to roughly $90,000 per inmate. The current death row population in California is 670 which amounts to 63.3 million in added cost. (Alarcon, 2011 in DPIC) In Texas, too, the cost is higher for execution of inmates. In 2002 the Dallas Morning News reported that per inmate, the cost of execution, some 2.3 million dollars, was three times higher than even a 40 year sentence. Or again, in Maryland, a 2008 study by the Urban Institute found the cost to taxpayers since 1978 to be $186 million for capitally-prosecuted cases which breaks down to about $37.2 million per case. (DPIC) The trends continue is several states like Washington, New Jersey, Tennessee, Kansas, Indiana, Florida, among others.

Arguments such as these give weight to the idea that executing a prisoner in no way saves the State or Federal government money. More politically conservative proponents estimate the cost to be heavier on the side of a life sentence. They reason that, after all, the taxpayer must absorb the cost of an entire lifetime a prisoner is incarcerated.

The main issue, however, lies in the way the differences are viewed. Because in assessing the cost of a capital case, one has to account for the length most inmates spend on death row which by some estimates, the average time can be as much as ten years. Further, the appeals process during this time adds an enormous cost to the case. Even with the benefit of a league of lawyers willing to work pro bono or free of charge on cases of innocence, the majority of cases require traditional legal representation, which can be very high. In terms of cost, the low end of the spectrum of defending a federal capital case according to the Death Penalty Information Center is less than $320,000 dollars. In other words, a case costing less than $320,000 is considered below average in terms of legal representation and judicial hours spent on the case and may even increase one’s chances of receiving the death penalty. The average cost per case is upwards of $620,932. (DPIC)

It is important to note that the costs associated with legal defense in capital cases are the result of multiple appeals. The cost would obviously be much lower in an instance of a single appeal. But this is rarely the case. In most instances, the appeals process is likely to span many years and multiple appeals despite efforts within the provisions of the Anti Terrorism and Effective Death Penalty Act of 1996 to curtail this phenomenon by creating obstacles, there by making it more difficult to pursue multiple appeals. (Karlan, 2011) In the area of cost and capital punishment, there are various complicating factors that come into play when weighing the issue which makes an easy decision difficult to find.

The Death Penalty and Public Safety

A number of proponents have argued that the death penalty is the best way to ensure public safety. That is to say, it is a way of sending a message to would-be criminals that some forms of crime, such as murder, will not be tolerated and will be met with what former Attorney General John Ashcroft called the ultimate sanction. I used to think that capital punishment should be reserved for the most extreme acts of violence. I thought it was more appropriate for those, thankfully, somewhat rare instances of multiple murder. Sadly, there are those cases where this has taken place. For example, domestic acts of terrorism such as the 1998 Oklahoma City bombing by Timothy McVeigh where 168 people were murdered or the more recent shooting massacre at Virginia Tech that killed 32 people were for me clear cases where the death penalty should be applied. More recently, however, I have updated my view to include even single acts of violent murder against children. This, for me, is an extreme, or to use the most common catch word, heinous act of violence even if only one child is killed. The recent case of Casey Anthony would have been a clear cut case where capital punishment was warranted had she been found guilty. In fact, in local news the case of Texas Ruiz, the toddler allegedly killed by his father has proven to be an important case in the debate surrounding capital punishment. The legality of the death penalty, in principle, in such extreme cases is, for me, plain to see. The question remains, however, does the death penalty have an effect on the behavior of future would-be criminals? Does it, in fact, affect outcomes in violent crimes? That is to say, does it ensure public safety?

In the past few years a number of studies have emerged to bolster the case of deterrence. Several studies by the Criminal Justice Legal Foundation have showed the link between capital punishment and would-be crime deterrence. In some cases, it has been shown that for “each execution 3-32 lives are saved.”(DPIC) In other studies performed by professors Dezhbakhsh, Rubin and Shepard of Emory University found that executions on average result in 18 fewer murders. (Muhlhausen, 2007) This positive link has not been without major criticism from several counter studies. Dr. Jeffery Fagan of Columbia University is one such critic. In an article in the Ohio State Journal of Criminal Law, he cites “numerous serious errors” in the recent deterrent studies. For one thing, some studies tie pardons, exoneration, and commutations to increases in murder rates. Further, Dr. Fagan cites the lack of rigorous peer review and replication analysis for most of these deterrent studies which is the “hallmark of good science.” (DPIC) Flaws and errors such as this undermine the over all veracity of the finds. The deterrence question remains, however. For Scott Turow, former assistant U.S. Attorney in Chicago, the simplest answer is no. Writing in the New Yorker, he found no evidence that capital punishment acts as a deterrent. He cites the fact that Illinois, which has the death penalty, has a higher murder rate than the neighboring state of Michigan, which has no death penalty, both having roughly the same demographic make up and population distribution between urban a rural sectors (Turow, 2003). In terms of behavioral effects on criminals, the argument for capital punishment seems inaccurate at best, unsupported at worst. This one comparison between two states shows how the process of deterrence is somewhat counter intuitive. The phenomenon can be seen across the states. The trend since around 1990 shows that those states without the death penalty have consistently lower murder rates than those that have legal capital punishment. (DPIC)

For all that, however, I believe that although the threat of the death penalty is not sufficient to dissuade all would-be criminals, it can influence some. In terms of the social benefits involved, it may not go all the way toward ensuring public safety, but it goes far enough. Further, I would argue that the psychological benefits of the death penalty are not to be found in criminal behavior or deterrence but, rather, in the role it plays in the lives of the loved ones of those murdered. There is a case to be made not in terms of social safety but for the sense of social justice the death penalty can provide.

The sense of closure capital punishment brings to the families of victims is outside the scope of the behavioral deterrence issues surrounding the death penalty but it fits well within the psychological effects it brings. As stated earlier, the psychological benefits of the death penalty have little to do with deterring violent criminal activity and is rather for those that have been affected by it. There can be little doubt that the concept of closure when losing a loved one to a car accident or a natural disaster is very different from that form of closure required to come to grips with a death as a result of murder. It is important to understand that the sense of closure is not a one-size-fits-all magic solution. There are plenty of cases where family members of victims are little eased even if the perpetrator has been executed. One study by Lynne Henderson of the Boyd School of Law emphasizes that “in light of the existing psychological evidence, these assumptions (about closure) fail to address the experience and real needs of past victims.” (Lithwick,2006 in DPIC)

There seems to be an abiding misconception that closure, as a psychological concept, acts as a kind of cure all. And that to argue for its benefits is to say that it benefits everyone. Clearly this is not the case. There is no magic solution in the grieving process. For that matter, there is no magic one-size-fits-all solution for anything, much less something as varied and complex as capital punishment. To argue that the sense of closure does not benefit some is to ignore the benefit it provides to the “experience and real needs” of others. It may sound cliché, but even if a only a few families are helped along the process of grieving then it is worth the effort. In all of this there is, of course, space for error. For one thing, errors in the process of justice is a far greater threat, as a whole, than a public’s sense of a lack of justice. Put another way, if the process of justice fails to protect the innocent then a social sense of justice is meaningless. The strongest arguments against capital punishment are those cases where an innocent person has been exonerated while on death row. Far beyond the psychological role the death penalty plays in the deterrence of criminal behavior or the benefits it may provide to family members of victims, the prosecution of an innocent person erodes the moral center of any society.

The Morality of Capital Punishment

The most passionate, not to say strongest, case against capital punishment have come from what I would call a moral perspective. It often involves larger questions of morality and spirituality and tends not to deal with specific issues like due process or judicial evidence. Generally speaking, the issues of morality tend to deal with the principle of capital punishment itself. Should the State have the right to kill anyone, even criminals? Should the Federal government sanction the use of the death penalty in Federal cases? And what of the mentally challenged or physically handicapped? What about minors? For that matter, is capital punishment wrong all the time, or only sometimes? As a predominately Christian nation, America has gone a long way in preserving an explicit separation of Church and State. Capital punishment has largely been kept within the more non-religious or secular functions of the State and Federal government. Any criticisms from the religious community have been met with polite acceptance. As has been previously shown, the Supreme Court has undergone a vast process to ensure the legality and constitutionality of the death penalty. At one point opposing capital punishment and then after further review, upholding its legality. The Supreme Court has however, rightly, stayed away from moral and religious questions even within cases of the exoneration of an innocent man. The language used has stayed within Constitutional terms of democracy.

The majority of mainline religious organizations have been opposed to capital punishment. The Roman Catholic church has recently upheld its opposition, Pope John Paul II being a constant voice against its usage in Europe and the United States. Several Papal Encyclicals, most notably Humanae Vitae, has defended the Church’s position of Life issues. Protestant churches too have voiced opposition. Among the religious supporters of the death penalty have been the more politically inclined, many of whom have been associated with social conservative entities like the Heritage Foundation or the so named “Moral Majority” which includes the National Association of Evangelicals. It may be a little ironic that although they hold onto their support of capital punishment through a biblical lens, their arguments for their support of the death penalty come largely from non biblical sources. For example, Dr. David Muhlhausen’s 2007 testimony before the Subcommittee of the Constitution, Civil Rights, and Property Rights of the Committee on the Judiciary of the United States Senate summarized by stating that Americans support the death penalty for two “good reasons.” One is that there is little to suggest that minorities are treated unfairly and the other is that capital punishment produces a strong deterrent effect that saves lives.(Muhlhausen, 2007)) The sources Dr. Muhlhausen cites are wholly academic; sociological studies and State criminology reports among them. Neither of these arguments in support of capital punishment, that race plays a part, or lack there of and capital punishment saves lives, touches on the moral questions involved. They seem to be based in a need to provide an answer for common public objections. In the New Yorker article by Turow mentioned earlier, the case was made against the deterrence factor citing a case of increased violent crime in pro capital punishment Illinois. The complex nature of capital punishment can be seen in this one issue. The deterrence factor essentially failed in Illinois. What worked in one State may not work in another State. To impose a blanket solution toward deterrence, like the death penalty, fails to address a complex issue that must be handled on a State by State basis and within the confines of the unique situation of the State’s population. The politically motivated argument, even when based on a moral foundation, often does not address the complexity inherent in capital punishment.

A moral perspective often can only be seen within the confines of right and wrong. But in the case of deterrence, all information must be taken into account and then held up against the question of the morality of the death penalty.

The cases of innocent persons and capital punishment are on, thankfully, a surer footing. Clearly, condemning an innocent person to death is immoral. The issues involved in this form of tragedy are largely evidence based, like finger prints and eye witness accounts, and do no touch the moral question of the death penalty itself. Under no circumstance should a person be sentenced to death through faulty evidence, this much is obvious. With the emergence of new technology and advances in evidence gathering techniques, it plays a larger more prominent role in ensuring the accurate prosecution of criminals than ever before. The emergence of DNA, for example, has been the major reason behind inmate exoneration from the death penalty. For example, in 2009 in Travis County Robert Springsteen was exonerated when DNA analysis excluded him as a suspect. Recent cases have highlighted the shifting roles eye witness verification, evidence gathering techniques, attorney participation and competence, video taped confessions and the like have had on those cases. The majority of the recently exonerated have benefited from these shifting roles. Often times, DNA evidence itself has come a long way in ensuring that those who find themselves on death row belong there by providing direct scientifically verified links.

What proponents of the death penalty, like myself, emphasize is that a lot of the arguments against the death penalty from an ostensibly moral position can be addressed via the legal process. Issues of the innocent wrongly accused would be remedied if the process of justice was ensured adequate and accurate through science and technology, as well as lawyer competency. In 1990, National Review Journal published a study where it was found that a large portion, fully one quarter, of death row inmates in Kentucky at the time were represented by lawyers who were later disbarred, suspended from practice and even convicted of crimes themselves. (Karlan, 2011)

Further, many cases where an innocent person has been wrongly sentenced to death have been cases shown to be the result of an overly ambitious prosecution. One 2009 case, for example, that of Michael Toney, was overturned due to faulty prosecution when it was found that the prosecution withheld, even suppressed key evidence. (DPIC) It is through changes in the legal system and improvements in the process of capital cases, not opposition to the moral principle of capital punishment itself, that provides answers to questions and concerns about flaws in the capital punishment system.

In other cases where the death penalty may seem unconscionable, the mentally ill, for example, or cases involving minors, there are safeguards in place there too. These are legal safeguards that ensure the quality of the death sentence in a life-affirming society. That is, a society that considers itself moral. The Supreme Court has ruled in several landmark cases clarifying these safeguards, for example, in Atkins v. Virginia, a 2002 case confirmed the unconstitutionality of executing a person considered mentally retarded. (DPIC) Although this addresses the legality issue, the moral implication are dealt with as well. This highlights how one can kill two birds with one stone, as it were. When we address the flaws in the legal parameters of a given capital case, we can often simultaneously address glaring problems of morality as well.

In the case of juveniles, another landmark case that settled the issue was Roper v. Simmons in 2005. (DPIC) This decision established the illegality of sentencing a minor to death. Here again, an ostensibly moral objection to capital punishment can be addressed via a reworking of larger legal issues and procedures.

Addressing those issues does not touch on whether capital punishment is, in principle, morally justified. Here, as mentioned ay the beginning of this essay, it demands of every citizen in any nation an internal struggle. And a mighty one at that for those who take the issue of the death penalty seriously. If one comes down on the affirmative side, as I do, then it is incumbent upon us to demand a rigorous and accurate process. A recurring theme in all these arguments against capital punishment, from an ostensibly moral perspective, is that they do not touch upon the actual question of the moral basis of capital punishment and where it comes from. To say one morally supports capital punishment and give deterrence, closure, and constitutionality as reasons for support does not go far enough. Also, to say one opposes capital punishment and gives lack of deterrence, lack of closure, and lack of constitutionality does not go far enough. These reasons, in and of themselves, are not moral reasons. They are objection and support on the side of process, not principle, which, I maintain, can be improved and maintained at a high level of adequacy and accuracy.

For many religious people in the United States and across the world, when asked about capital punishment from a moral perspective, and whether they support or oppose it, tend to cite the bible or their respective founding religious text. For our purposes is this essay, we shall stay within the confines of America and the text of the bible. Often, supporters cite the Old Testament when appealing to a proportionate morality, that is an “eye for an eye” sense of justice referred to in Exodus 21. If a person commits murder then the death of that person is justified they claim. The opposition have sought New Testament support, many times appealing to the sense of forgiveness and “turning the other cheek” found in the Sermon on the Mount in the gospel of Matthew. How can we as a society, they ask, support the death penalty and still affirm Life and God? All too often, the tension on both sides of the capital punishment issue, with respect to biblical values, spills over and becomes yet another standing debate in the old rivalry between the Old and New Testament. The moral foundation of whether one supports or opposes capital punishment remains elusive. Here, too, a fracture is present. As with the legality and cost issue, or the behavioral perspective, the moral perspective presents passionate arguments on both sides. Settling hard on a decision about the death penalty, based purely from a moral perspective, presents problems if it is too rigidly held.

A Pragmatic Approach

In the previous discussions, several perspective were presented. In each case, the fractured and problematic nature was highlighted to show the difficulty in adhering to a rigid notion about capital punishment. What is needed is a pragmatic approach. A dictionary describes pragmatism as character or conduct that emphasizes practicality over principle. Given the complex nature of an issue like the death penalty, where a multitude of issues come into play, a reasoned and methodical approach is warranted. That is to say, when viewed through a pragmatic lens, the various issues surrounding constitutionality, cost, psychology and morality have an added sense of influence because those issues themselves play a major role in a final decision. Because it is not an either/or decision based on ideology, as it often is for the pure proponent or opponent, the complex nature of the debate is allowed to speak. An issue like capital punishment demands specific and prolonged attention. It deserves this kind of wrestling.

It is not helpful to wholly oppose capital punishment based on the fact that innocent people have been put to death, although this is understandable. Society would be better served by addressing the problems that allowed the injustice to occur in the first place. If, for example, an inmate has been exonerated from death row because of newly surfaced DNA evidence or exposed faulty prosecution procedures, as has been seen in a number of cases, then rather than wholly opposing the death penalty, one might demand stricter use of DNA technology in capital cases or work toward greater procedural and judicial oversight. This, it seems to me, serves the greater social good than an all out opposition to capital punishment when, clearly, some cases demand it such as domestic acts of terrorism. It is also not helpful to fully support capital punishment based on issues of cost-benefit analysis or deterrence to future would-be violent crime when evidence can be presented to the contrary. That situations exist where this is not the case cannot be ignored or side stepped or denied. One must take it into account and have these facts influence a final decision. In both positions, a pragmatic approach can be a necessary bridge over troubled waters.

It is understandable to want to impose blanket solutions for tough issues in the name of ease and efficiency. But what often happens, given the visible fractures that persist in both camps, is the blanket solutions available are based on ideology and not the available facts. Or rather, some available facts are highlighted while available facts to the contrary are not given enough weight or wholly ignored. A pragmatic approach highlights the case by case process, irrespective of a tightly held principle and allows for a more fluid assessment of the debate, often leading to a more realistic decision making process on capital cases. I maintain one can be both in support of and opposed to the death penalty, depending on the circumstances of a given case. This, it seems to me, is the most beneficial approach to capital punishment. It is not the easy approach, nor is it the shortest and most efficient approach. I maintain that neither should it be when taking up the issue surrounding the State and Federal legally sanctioned “machinery of death.”

Conclusion

The complex nature of capital punishment demands a complex approach. A complex approach! Not a solution, as often seems to be the goal. There can be no one-size-fits-all solution to State and Federally sanctioned death. Even within the context of clear and present cases of capital punishment, such as domestic acts of terrorism, like the Timothy McVeigh case in the Oklahoma City bombing or the Virginia Tech massacre, aggravating and mitigating factors must be accounted for as per the Gregg vs Georgia decision. Framing the debate of the death penalty from a legal, financial, behavioral, or moral perspective can help clarify an often murky debate and help bridge the gap in a very contentious and controversial issue.

In considering the Constitutionality of capital punishment, the all important dichotomy between an individual’s right to due process or equal protection under the law and a society’s sense of justice and safety is crucial. The bulk of court rulings center upon the statutes associated with capital punishment more so than with the principle of capital punishment itself. Also, whether a death sentence constitutes “cruel and unusual punishment” under the Eighth Amendment. As was shown, the Supreme Court has gone through a rigorous clarification process to nuance and iron out the procedures involved. Several landmark cases throughout the 20th century bear this out. When considering the costs involved, it was shown that several complicating factors must be taken into account, like the length of time a convict remains on death row and the multiple appeals process. This plays a major role in whether the greater cost lies within cases of execution or with the proponents of the life sentence. And, as always, the role of the taxpayer in these cost-benefit analysis.

The psychology of capital punishment looms large within the debate where the issue of deterrence is the major factor. This essay addressed the relationship between the idea of deterrence and its relationship to victim advocacy and the social sense of justice. Where it was shown that the death penalty has a minimal affect on outcomes of violent crime, proponents like myself, have maintained that its benefit lies elsewhere, namely the concept of closure for the families of victims of violent crime. And further argued that even if a slight occurrence of criminality is deterred or even a small group of families are helped through the grieving process then capital punishment is worth maintaining and supporting.

The most severe criticisms of capital punishment came from those opposing it on moral grounds because of instances where innocent people were put to death, or where, thankfully, an innocent persons were exonerated before being effectively murdered by the State. These objections, based as they were on ostensibly moral grounds, really had their roots in the opposition of the legal process itself and did not really touch on the principle. This essay argued that addressing the legal process such as mandatory DNA technology or stricter judicial oversight in capital cases went further in mitigating these concerns than a wholesale opposition to the death penalty. Where the moral center, either in support or opposition, had its roots in biblical values, the fractured nature of an Old Testament sense of proportionate morality, an “eye for an eye” sensibility, and the New Testament mandate toward forgiveness was highlighted to create a space for the complexity within often single minded approaches to capital punishment.

A common thread among all these perspectives was the splintered aspect inherent on either side of the issue. Even if recent polls show an increased decline in the support of capital punishment, the flip side to this is that there are plenty of people, in fact a majority, who still see it as a vital part of the justice system. Where proponents often cite constitutionality, cost, deterrence and morality, opponents usually counter citing lack of constitutionality, increased cost, lack of deterrence and lack of morality. Both sides having their favored evidence to prove the bolster point.

Such is the nature of the debate.

A pragmatic approach can better help bridge the differences between the two by addressing specific problems in the legal and constitutional precedent of the death penalty, costs associated with a life sentences versus the death penalty and any economic disparages that might be present. It may better serve accurate prosecution of criminals by creating a space in capital cases for the changing roles of technology, evidence gathering, and competent legal prosecution. A pragmatic approach, I maintain, will better serve these issues more so than a fixed set of ideologies about whether capital punishment is wholly right or wholly wrong. Every citizen in every nation must struggle with these varied and complex issues. Capital punishment in a given society deserves such an internalized wrestling. Only then can we begin to address fully the crucial issues involved.

Such is the nature of the debate. And the debate continues.

Works Cited

1) Alarcon, Arthur. L. Summary of 2011 California Cost Study. DPIC, 2011. deathpenaltyinfo.org

2) Death Penalty Information Center. History of the Death Penalty, Part I. Constitutionality of the Death Penalty in America. deathpenaltyinfo.org

3) Karlan, Pamela S. “The Cost of Death.” Boston Review November/December 2011.

4) Lithwick, Dahlia. Does Killing really Give Closure? DPIC. 2006.

5) Muhlhousen, Ph.D, David. The Death Penalty Deters Crime and Saves Lives. Testimony before the Subcommittee on the Constitution, Civil Rights, and Property Rights of the Committee on the Judiciary of the Untied States. 2007.

6) Newport, Frank. In U.S., Support for Death Penalty Falls to 39-Year Low. Gallup Poll, 2011.

7) Turow, Scott. “To Kill or Not To Kill.” The New Yorker. 2003.

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Comments
  1. xenical says:

    Nevrr mind, people always have there own thoughts

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