Capital punishment debate

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Capital punishment
Issues
Debate · Religious views · Wrongful execution Participation of medical professionals in American executions
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The debate about capital punishment, sometimes known as the death penalty, is highly controversial.

Opponents of the death penalty often state one or more of the following reasons as the basis for their opposition: the possibility of the execution of an innocent person; the lack of deterrence of violent crime; and opposition to the death penalty based on a moral or religious basis.

Supporters of the death penalty often state one or more of the following reasons as the basis for their support: the deterrence of violent crime; closure to the families and friends of the victim (in practice, the death penalty is used almost exclusively to punish convicted murderers); and the belief that a temporary prison sentence is not effective punishment for such an act.

In the United States of America, the use of capital punishment is generally accepted, with 78% of the Republican Party and 52% the Democratic Party in support of its use for the crime of murder ^[1]. The Constitution Party, a conservative third party, is in support of the death penalty. The Green Party, a liberal third party, is opposed to its use. Recent polling indicated that 64% of the American population supports the death penalty as an appropriate punishment for murder ^[1].

1 Criticism
2 Law, judiciary and the death penalty
3 Rules of legislative construction
- 3.1 United States specificities
4 Right to fair trial and miscarriage of justice
5 Evidence for or against prevention and deterrence
6 External links
7 Notes

Criticism

Convictions

The death penalty is opposed by many on the grounds that, because of the potential fallibility of any justice system, innocent people will inevitably be executed by mistake,^[2] and that the death penalty is both irreversible and considerably more severe than lesser punishments. Supporters of the death penalty claim that lesser punishments, including life imprisonment, can also be imposed in error and incarceration is also irreversible if the innocent dies in prison. They also point out that, given the significant majority of people who are incarcerated rather than executed, it is more common for miscarriages of justice to occur in non-death penalty cases, though each individual execution is undoubtedly more severe; a possible acception arguably in a case where the innocent were incarcerated for his or her natural life. However, it is argued by opponents of the death penalty that the execution of perceived criminals is merely legalised barbarism, the justice system resorting to the same moral level of the presumedly barbaric crime^[3].

Opponents of the death penalty would point out that the equation of death with life imprisonment makes the assumption that there is no redemption or continued human development of those that have been wrongly or rightly convicted of crimes while in prison. One could point to the writings of death row inmates such as Wesley Cook or Stanley Williams which in the view of social justice activists inspire a more humane society and discourage acts of violence. By engaging in capital punishment positive human social developments for the most extreme sectors of society are made impossible. The proponents counter by pointing out that there is strong motive for death row inmates to make false claim of wrongful conviction or rehabilitation. They point to cases such as Roger Keith Coleman where his claim of innocence was widely supported by the death penalty opponents, but after the execution, SMD examination proved that he was actually guilty. It is further pointed out that violent behavior, including murder, is life in maximum security jail. Minority cases of genuine rehabilitation is overshadowed by the behavior of the majority. Furthermore, the death penalty might encourage the convicted to own up and some do make sincere apology to the crime they committed. Lastly, the proponent, especially the family and the friends of the victim argue that rehabilitation of the perpetrator does not redeem the life being destroyed, and without the execution, the families of the victims cannot have closure.

Opponents of the death penalty often argue that even a single case of an innocent person being executed is unacceptable. Most arguments about wrongful convictions proceed on the basis of empirical evidence and statistics. Opponents of the death penalty in the United States, for example, point to the fact that between 1973 and 2005, 123 people in 25 US states were released from death row when new evidence of their innocence emerged.^[4] However, statistics are not necessarily a reliable measure of the actual problem of wrongful convictions. It is possible that many cases of innocent people being executed have gone undiscovered, as once an execution has occurred there is often insufficient motivation and finance to keep a case in the public eye.

Some opponents of the death penalty believe that, while it is unacceptable as currently practised, it would be permissible if criminal justice systems could be improved. However more staunch opponents insist that, as far as capital punishment is concerned, criminal justice is irredeemable. The US Supreme Court Justice Harry Blackmun, for example, famously wrote that it is futile to "tinker with the machinery of death". In addition to the simple human fallibility factor, there are numerous more specific causes of wrongful convictions; for example:

Convictions may rely solely on witness statements, which are vulnerable to being countered by forensic evidence. New forensic methods, such as DNA testing, have brought to light previously unavailable evidence and revealed errors in many old convictions, though such technology undoubtedly makes the current conviction more secure and certain.
Suspects may receive poor legal representation. The ACLU argues that "the quality of legal representation [in the USA] is a better predictor of whether or not someone will be sentenced to death than the facts of the crime".^[5]
Improper procedure may be followed. For example, Amnesty International argues that, in Singapore, "the Misuse of Drugs Act contains a series of presumptions which shift the burden of proof from the prosecution to the accused. This conflicts with the universally guaranteed right to be presumed innocent until proven guilty".^[6] However, this refers to a situation when someone is being caught with drugs. In this situation, in almost any jurisdiction, the prosecution has a prima facie case. It may be possible to argue that the standard of proof should be raised to higher standard in case of the death penalty trial. However, many dispute the assertion that this fall into the definition of "improper procedure".

Proponents of the death penalty argue that all these criticisms apply equally to life imprisonment. They point out that there is a very much larger number of people are in prison without possibility of parole than in death row, and hence it is far more likely that some may slip through the judicial safeguard and died in prison, making miscarriage of justice irreversible. Therefore, this would make the argument of substituting the death penalty with life imprisonment moot. Opponents will often counter that while both forms of punishment are eternal in nature, capital punishment is irreversible and does not allow for the opportunity to free someone of his or her punishment. Proponent counter by pointing out that death penalty case receive far more chance of judicial review hence making it less likely to cause miscarriage justice to happen than life imprisonment case. For example, prosecution often seek life imprisonment rather than death penalty precisely because conviction is more likely under life imprisonment.^{[citation needed]}

Surveys of credited people

Surveys and polls have been conducted in the last 15 years that show that some police chiefs and others involved in law enforcement may not believe that the death penalty has any deterrent effect on individuals who commit violent crimes. In a 1995 poll of randomly selected police chiefs from across the country, the officers rank the death penalty last as a way of deterring or preventing violent crimes. They ranked it behind many other forms of crime control including reducing drug abuse and use, lowering technical barriers when prosecuting, putting more officers on the streets, reducing the number of guns, and making prison sentences longer. They have even thought that a better economy with more jobs would lessen crime rates more than the death penalty (Deiter 23). In fact, only 1 percent of the police chiefs surveyed thought that the death penalty was the primary focus for reducing crime (Deiter 25).

Deiter, Richard. “The Death Penalty is not an Effective Law Enforcement Tool.” Ed. Stephen E. Schonebaum. Does Capital Punishment Deter Crime? San Diego, CA: Greenhaven Press, 1998

Do murderers think about consequences?

The next issue is whether murderers think about the consequence of their actions before they commit a crime. Most homicides are spur-of-the-moment, spontaneous, emotionally impulsive acts. Murderers do not weigh their options very carefully in this type of setting (Jackson 27). It is very doubtful that killers give much thought to punishment before they kill (Ross 41). Even if a murderer were to think about the consequences, they may find that they are in more danger at that particular moment and they may have better chance to survive if they kill now and go through the court system than to not kill in the first place. Only about 1 of every 100 homicides is given the death penalty, so they might believe that they have better options if they kill. If the crime isn’t in the heat-of-the-moment but is premeditated the murderer obviously does not want to get caught and they do not think that they will be caught. If you don’t think that you’ll be caught you probably will not be deterred by the punishment

Executions of innocent people

There are numerous persons who have been heralded as innocent victims of the death penalty, persons who, if their cases were able to be reopened, may be declared innocent or at least not guilty due to lack of solid evidence. Of the many cases, one of the most cited is the execution of Jesse Tafero. Tafero, a convicted rapist and drug dealer, was convicted along with an accomplice, Sonia Jacobs, of murdering 2 police officers in 1976 and were both sentenced to death based in part on the testimony of a 3rd person, Walter Rhodes, who was an accessory to the crime and testified against the pair in exchange for a lighter sentence. Jacobs got help from a friend who worked to release her and in 1981 her sentence was commuted. In 1982, Rhodes recanted his testimony and claimed full responsibility for the crime. Despite this admission and his own protestations, Tafero was executed in 1990, but in 1992, the conviction against Jacobs was thrown out and the state didn't have enough evidence to retry her. She then entered a plea of no contest and was released for time served. It has been presumed that the same evidence was used against Tafero, who presumably would have been released as well.^[7]

Wayne Felker is another individual cited as an innocent victim of execution. Felker, a recently released sex offender, was a suspect in the disappearance of a woman in 1981 and was under police surveillance for 2 weeks prior to the body being found. The autopsy was conducted by an unqualified technician, and the results were changed to show the death occurring before the surveillance began. After Felker's conviction, his lawyers presented testimony by forensics experts that that the body couldn't have been dead more than 3 days when found, a stack of evidence was found hidden by the prosecution that wasn't presented in court including DNA evidence that might have exonerated Felker or cast doubt on his guilt, and there was even the signed confession of another suspect in the paperwork, but despite all this, Felker was executed in 1996.[5] In 2000, his case was reopened as the 1st executed person to have DNA testing used to prove innocence after execution. Although the tests were ruled inconclusive as to innocence or guilt, this alone might have been enough to exonerate him, and coupled with the other testimony and mishandling of evidence would have at least surely led to a new trial.^[8]

Brutalizing effect

The brutalizing effect, also known as the brutalization hypothesis, argues that the death penalty has a brutalizing or coarsening effect either upon society or those officials and jurors involved in a criminal justice system which imposes it. It is usually argued that this is because it sends out a message that it is acceptable to kill in some circumstances, or due to the societal disregard for the 'sanctity of life'. An extension of this argument is that the brutalizing effect of the death penalty may even be responsible for increasing the number of murders in jurisdictions in which it is practiced.^[9]

The counter argument is that the death penalty enforces the sense of justice upon society or those officials and jurors involved in the criminal justice system by imposing the ultimate punishment on those who violate the lives of others. By showing how the criminal justice system take the right to life seriously, it reduces the number of murders in jurisdictions in which it is practiced. Some further argue that not applying the death penalty further brutalizes the family, and friends of murder victims as well as the society at large.

Law, judiciary and the death penalty

Critics of the death penalty commonly argue that the death penalty specifically and explicitly violates the right to life clause stated in most modern constitutions and human right treaties. It violates sections 3 and 5 of the Universal Declaration of Human Rights. While it is not a legally binding document, the declaration served as the foundation for the legally-binding International Covenant on Civil and Political Rights, which most of countries signed (with some legal reservation). Yet supporters point out Article 6 the document which states that Capital Punishment is an exception to the right to life.

Other supporters of the death penalty point out that the Fifth Amendment of the United States Constitution states: "No person shall... be deprived of life ...without due process of law...", and the 14th Amendment says: "No state shall ... deprive any person of life ... without due process of law." Therefore, with due process a person may be Constitutionally deprived of life. Also, that section 3 of the declaration proclaims the right to liberty to be universal, which is violated by incarceration. Deprivation of liberty can also be seen as "cruel, inhuman or degrading treatment or punishment" as specified by section 5. Therefore, the supporters argue that the critics are taking the declaration out of context. The International Covenant on Civil and Political Rights specifically allows implementation of the death penalty and incarceration as a part of a criminal justice system.^{[citation needed]}

Rules of legislative construction

United States specificities

African Americans made up 41% of death row inmates while making up only 12% of the general population. (They have made up 34% of those actually executed since 1976.)^[10] Conversely, others note that this is lower than the 50% of the total prison population which was African American and that whites are in fact twice as likely as African Americans to receive the death penalty, and are also executed more quickly after sentencing.^[11] U.S. Department of Justice statistics show that African-Americans constituted 48 percent of adults charged with homicide, but only 41 percent of those sentenced of death. Once arrested for murder, African-Americans are less likely to receive a capital sentence than are whites. ^[12]

Academic studies indicate that the single greatest predictor of whether a death sentence is given, however, is not the race of the defendant, but the race of the victim. According to a 2003 Amnesty International report, blacks and whites were the victims of murder in almost equal numbers, yet 80% of the people executed since 1977 were convicted of murders involving white victims.^[10] But, others says ninety-five percent (95%) of murders are intra-racial, most likely between persons who know one another, circumstances often viewed as inappropriate for the death penalty. In crimes that qualify for a capital sentence, a significant number of death penalty cases involve murder of law enforcement officers, about 85 percent of whom are white. ^[12]

In fact, as half of the ten inmates on Connecticut's death row have been condemned for the murders of minorities and five of the 37 inmates executed in South Carolina were white men convicted of murdering African-Americans.

Right to fair trial and miscarriage of justice

Most often cited examples of miscarriage of Justice is the US, which probably reflects both the high crime rate as well as the vigorous nature of its judicial process to correct its mistake. Between 1973 and 2005, 123 people in 25 US states were released from death row when their conviction was declared unsafe or clear new evidence of their innocence emerged.^[4] Recent progress in forensic science, particularly DNA testing, has brought to light previously unavailable evidence and revealed errors in many old convictions based on circumstantial evidence such as witness testimony. Opponents of the death penalty also point out that certain procedures may be at fault, such as quality of public defender, which "is a better predictor of whether or not someone will be sentenced to death than the facts of the crime".^[5] Most unusual to the US is the frequent use of plea bargaining. Because of the large case loads of public prosecutors, it is often commented that the American criminal justice system would cease to function without plea bargaining. In a majority of common law and almost all civil law countries, the prosecutor is not allowed to offer a reduced sentence in exchange for a guilty plea or hostile testimony in serious criminal cases. Plea bargains are considered unjust because it is inherent in the process of plea bargaining to induce the innocent to plead guilty, false testimony against the innocent and overcharging by prosecutors.^{[citation needed]}

In legal terms, advances in forensic sciences, the existence of possible miscarriage of justice or some fault in the procedure cannot be an a priori argument for the unconstitutionality of capital punishment. Such arguments would lead to the absurd conclusion that the death penalty as well as any form of incarceration is unconstitutional, given that the innocents could be falsely incarcerated or worse, die in prison before being exonerated. However, particular fault in procedure or evidence can be used to overturn individual case of conviction, including a death penalty case. A particular system of judiciary process such as plea bargaining or the system of public defenders can be declared unconstitutional. However, these do not provide legal argument to declare the death penalty as constitutionally invalid.

Evidence for or against prevention and deterrence

A November 18, 2007 New York Times article^[13] reported the following information:

One reason that there is no general consensus on whether or not the death penalty is a deterrent is that it is used so rarely - only about one out of every 300 murders actually results in an execution. In 2005 in the Stanford Law Review, John J. Donohue III, a law professor at Yale with a doctorate in economics, and Justin Wolfers, an economist at the University of Pennsylvania, wrote that the death penalty "... is applied so rarely that the number of homicides it can plausibly have caused or deterred cannot reliably be disentangled from the large year-to-year changes in the homicide rate caused by other factors... The existing evidence for deterrence... is surprisingly fragile." Wolfers stated, "If I was allowed 1,000 executions and 1,000 exonerations, and I was allowed to do it in a random, focused way, I could probably give you an answer."

Naci Mocan, an economist at Louisiana State University, authored a study that looked at all 3,054 U.S. counties over two decades, and concluded that each execution saved five lives. Mocan stated, "I personally am opposed to the death penalty... But my research shows that there is a deterrent effect."

Joanna M. Shepherd, a law professor at Emory with a doctorate in economics who was involved in several studies on the death penalty, stated, "I am definitely against the death penalty on lots of different grounds... But I do believe that people respond to incentives." Shepherd found that the death penalty had a deterrent effect only in those states that executed at least nine people between 1977 and 1996. In the Michigan Law Review in 2005, Shepherd wrote, "Deterrence cannot be achieved with a half-hearted execution program."

The question of whether or not the death penalty deters murder usually revolves around the statistical analysis. Studies have produced disputed results with disputed significance.^[14] Some studies have shown a positive correlation between the death penalty and murder rates^[15] - in other words, they show that where the death penalty applies, murder rates are also high. This correlation can be interpreted in either that the death penalty increases murder rates by brutalizing society (see brutalizing effect) or that higher murder rates cause the state to retain or reintroduce the death penalty. However, supporters and opponents of the various statistical studies, on both sides of the issue, argue that correlation does not equal causation.

In recent years, a number of new studies have been published, mostly by economists, that statistically demonstrate a deterrent effect of the death penalty.^[16] However, critics claim severe methodological flaws in these studies and hold that the empirical data offer no basis for sound statistical conclusions about the deterrent effect.^[17]