This briefing paper is presented to the American people so that all doubts and plans of retaining the death penalty despite all the Supreme Court rulings and the bad effects of it shall henceforth be erased from our minds.
Presented this 14th day of April 2009 by the Concerned Citizens Association for the Abolition of the Death Penalty in the United States of America.
Statement of the Topic
Our main points for the abolition of the death penalty are morality and technicality. The original arguments for capital punishment does not anymore apply but are outdated – deterrence, retribution, etc.
More on this on our background of the subject.
Background of the issue
Why do we say morality and technicality?
The teachings of the Bible – the Old and the New Testaments – tell us one important aspect of creation: protect life and do not allow vengeance. God did not kill Cain for killing his own brother Abel but instead sent him on exile and put a mark on him so that no one would kill him. Again, the passage in the Bible of “an eye for an eye, a tooth for a tooth” principle does not mean to take the life of a murderer or someone who has committed a heinous crime, but it means limiting the retribution for an offense. When Jesus was presented the woman accused of adultery, he did not condemn the woman but told those present “to cast the first stone”, which means we should not condemn anyone but allow a sinner to reform.
Next is technicality on the ground that the criminal justice system is flawed. Why flawed? So many instances of injustice we can cite here. First, there are Supreme Court rulings but each state is following each own way and ruling. Try to look at these rulings:
Furman v. Georgia (1972) – the Court ruled that the death penalty violated the Eight and Fourteenth Amendments, but in 1976, in Gregg v. Georgia, the Court ruled that the death penalty per se was not unconstitutional. (Bedau 2005, p. 23)
In 1976, the mandatory death penalty was declared unconstitutional (Woodson v. North Carolina).
Coker v. Georgia – death penalty for rape was ruled unconstitutional. (Bedau, p. 23)
In Furman, it was ruled that some state statutes were unconstitutional, which allowed that death penalty statutes had to be rewritten. States’ advocates of the death penalty began proposing new laws for capital punishment. In other words, states advocates of the death penalty interpreted these as opportunity to write new laws so that there would be no more doubts of retaining the death penalty. It was reported that there were 35 states that rewrote their death penalty statutes.
While these rulings apply to all of America, there are still some states which allow the death penalty. Bedau says, “The changes wrought by these developments show that the death penalty in America today is but a shadow of its former self; abolitionists are not the only ones likely to believe there is no serious prospect of breathing much life into the practice of capital punishment in the future.” (p. 24)
The main objectives to the death penalty in the words of Professor Roger Hood (2001, as cited in Hodgkinson, 2004, p. 3), are:
capital punishment violates the fundamental right to life;
capital punishment is not a unique deterrent;
the administration of the death penalty, even in developed legal systems, is inherently and irredeemably flawed; and
its effect is counter-productive in that it gives out very confused moral messages.
The justice system of the United States of America is sending innocent victims to the gallows which shows how flawed our system is. There is racial disparity in the way convicted murderers are being punished. “A study dealt with 245 persons arrested for homicide in Philadelphia in 1970. Of these 170 were eventually convicted of some charge. Sixty-five percent of defendants who killed a white got either life imprisonment or a death sentence, while only 25 percent of those who killed a black did. Since these murders produced only three death sentences (all imposed on blacks who killed whites), most of the apparent racial unfairness involved life imprisonment, not execution.” (Martinez 2002 p. 191)
Michael Mello (1997), a death-row lawyer and author of Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment, and who had witnessed the system of imposing capital punishment in the Circuit Court in Texas, says how flawed the system of capital punishment is. Mello tells of how a convict named Stanley, considered mentally retarded, was executed for some inefficiencies of the trial attorney. What happened to the principle that it is better to free a guilty man than to execute an innocent person?
Deterrence means “the belief that criminals would end their careers in crime due to the threat of punishment [death] by the criminal justice system.” (Levinson, 2002, p. 162)
The issue of deterrence has been raised by governments to support retentionist position. But Hodgkinson (2004) says that this could be a “reliance on hope than evidence”. (p. 10)
Roger Hood (cited in Hodgkinson, p. 9) states: “[E]conometric analyses have not provided evidence from which it would be prudent to infer that capital punishment has any marginally greater deterrent effect than alternative penalties.” In other words, states imposing death penalty have no grounds holding as deterrent measure for crimes.
Hodgkinson (2004, p. 9) cites a study conducted by John Sorenson, Robert Wrinkle, Victoria Brewer and James Marquart in Texas between 1984 and 1997 found that capital punishment has no deterrent effect. They used Texas as the subject for their study because this state had a high number of sentences and executions.
The deterrent effect is an old issue that has been proved and disproved. But for the purposes of this essay, we will cite some contrary arguments.
Kronenwetter (2001) says, “Abolitionists argue that most murderers cannot think rationally enough to be deterred by any penalty, including death. Most murders are crimes of passion, committed in moments of intense rage, frustration, hatred, or fear when the killers aren’t thinking clearly of the personal consequences of what they do. People in such state are incapable of taking such consequences into account.” (p. 27)
This is one of the best arguments supporting the abolitionist stand. Indeed, murder and other capital offenses were committed in moments where criminals did not have time to think that what they were about to commit were punishable by death. Although this is an explanation taking into consideration the psychological point of view, what is pointed out here is the logical side of things.
Most other murderers – those who cold-bloodedly plan and carry out their crimes – think they are too clever to be caught. The death penalty cannot be a deterrent to them because they are convinced they will escape punishment of any kind.
What Albert Pierrepoint, the legendary British executioner who became an opponent of capital punishment after his retirement in the late 1950s, said on capital punishment is worth noting here importantly: “The death penalty never once acted as a deterrent in all the jobs I carried out … and I have executed more people than anyone this century.” (Kronenwetter, 2001, p. 23)
Supporters of capital punishment face an obvious problem when they try to prove that the death penalty deters.
“How can they establish that someone would have committed a crime if that person had not been deterred by the threat of the death penalty?” (Kronenwetter, 2001, p. 23)
And some governments just support it for not apparent reasons. “Governments and others in positions of influence refer to strong public support for the death penalty as one of the justifications for retaining it.” (Hodgkinson, 2004, p. 18)
But capital punishment is cruel as provided for in the Eighth Amendment. Cruel and unusual punishment, which is prohibited in the Eight Amendment in the Bill of Rights, means “punishment that inflicts pain in a wanton and unnecessary manner, as well as punishment that is disproportionate to the crime committed.” (Rae, 2000, p. 214)
On the other hand, moratorium can be used to fix the defects or flaws of the system. Hodgkinson (2004) cites Governor Ryan of Illinois, a conservative Republican and a strong supporter of the death penalty who on 31 January 2000 imposed a moratorium on executions. The governor said that Illinois capital punishment system is flawed and there should be something done on it. (p. 6)
The governor said this out of the fact that between 1990 and 2000 there were ten executions carried out while at the same period thirteen prisoners were released from their death sentences for a variety reasons. Nine states followed Gov. Ryan’s move, requesting further studies on the death penalty, and some similar move has been instituted by others. Governor Ryan’s Commission submitted its findings with eighty-five recommendations on the flaws of the Illinois system, but some of the Commission’s members suggested that the death penalty should be replaced because they believed “the system was incapable of being replaced.” (p. 6)
Based on the Commission’s recommendations, Governor Ryan announced new legislation. The Parole Commission submitted clemency petitions and some recommendations to commute the death sentences. Finally, on 11 January 2003, he commuted the sentences of all 156 inmates on Illinois’ death row, two days before leaving office.
This all means that Gov. Ryan through the Commission knew that there could be innocent persons on death row who could be ‘victims’ of the flaws of the system as cited by the Commission. However, Hodgkinson notes that this however will tell us that the state of Illinois is meant on improving the death penalty not removing it.
In the state of Maryland, Governor Glendening announced in May 2002 a moratorium and ordered a Commission – the University of Maryland – to conduct a study and review the death penalty. The Commission confirmed Glendening’s concern of ‘racial and prosecutorial disparity.’ (Hodgkinson, 2004, p. 8)
In the 1960s, the death penalty was halted de facto and between 1972 and 1976 there was a de jure halt to executions. But the death penalty was not abolished; only the defects of the system seemed to be fixed.
Analysis of the Issues
Capital Punishment is Cruel and Inhuman
Rae (2000) says:
The Eight Amendment of the Constitution protects individuals from cruel and unusual punishment. Specifically, it provides protection from the wanton and unnecessary infliction of pain. That is the reason imprisonment is the principal form of criminal punishment administered in most of the Western world, and is why the Western justice system rejects much of the Islamic style of punishment.” (p. 214)
The death penalty therefore cannot be said as humane even if the state tries to stage the most “painless” kind of death for capital execution such as lethal injection. This is just the same as saying that killing is humane or that a crime could not be corrected. It is the duty and responsibility of the government to correct criminals by giving them the chance of another life. Besides, there are numerous reports of the flaws in administering the death sentences in terms of technicality to the point giving more pain and torture on the convicts. Even lethal injection can not give 100% ‘painless death’ on the convicts.
Retribution, as often argued by retentionists, is not a valid argument. Franck et al., 2003, p. 34) state:
… Civilized nations ruled by law have gradually come to abandon the concept of retribution and either abolished the death penalty or thought up new reasons for using it. There are still, however, people who cling to the retribution argument and who believe that there are crimes so terrible that society’s only appropriate response can be to kill the perpetrator. (Franck et al., 2003, p. 34)
Rae (2000) says that “the death penalty undermines the dignity of persons made in the image of God and cheapens human life.” (p. 215)
Hans Gvran Franck, Swedish human rights activist and political figure, who contributed much to the adoption of Protocol No. 13 to the European Convention on Human Rights, said that ‘today’s societies are assured of certain inalienable rights, rights that extend even to the most hardened criminals.’ (Franck 2003, p. 34)
When victims demand for justice, they are seeking revenge which is against the teachings of Jesus and the Bible on loving one’s neighbor and “putting the other cheek” when one strikes you on the other cheek. It is confusing personal with social ethics. We indeed have to love our neighbor and teach others to make peace even when they commit wrong against us, because this is part of personal ethics taught by Jesus Christ.
God has given the state the responsibility of criminal punishment and this means to correct a person not to kill him. How can you correct a wrong done by that person if you end his life?
Franck (2003) adds that ‘the conditions surrounding the execution itself and the period between the sentence and the carrying out of the sentence, which is frequently quite long, make it possible to compare the death penalty to torture.’ (p. 35)
This condition is similar to torture, an inhuman and degrading treatment or punishment, which is prohibited under international law. “The prohibition against torture is universal and absolute, thus no exceptions are permitted.” (Franck et al., 2003, p. 35)
Our justice system has to be strengthened and the flaws corrected. It is high time the United States of America abolish the death penalty in all states. There are enough laws for punishment, for correctional purposes. Retribution can be done without inflicting too much damage to the point of torture on convicted criminals. In the modern world of high technology, it is not society’s obligation to kill a hardened criminal. Let us give a chance to even the murderers of society. We have other laws such as life imprisonment without parole that can be enforced on the most hardened criminal.
The original motive of capital punishment was to punish the criminal by death. This does not anymore apply.
As Franck (2003) said “perceptions and attitudes of peoples towards the death penalty can change with increased knowledge. If there’s enough information campaign by people in government and those concerned, favourable opinion can be gained for the abolition of capital punishment. (p. 33)
It is therefore recommended that a massive information campaign on the evil of the death penalty be done on the American public.
Bedau, H. A. (2005). An Abolitionist’s Survey of the Death Penalty in America Today. In. H. A. Bedau and P. G. Cassell, Debating the Death Penalty: Should America Have Capital Punishment?: The Experts on Both Sides Make Their Best Case. U.S.A.: Oxford University Press, 2005. 23-24.
Franck, H. G., Nyman, K., and Schabas, W. ( 2003). The Barbaric Punishment: Abolishing the Death Penalty (The Raoul Wallenberg Institute Human Rights Library, 12). United Kingdom: Kluwer Law International. 34-35.
Hodgkinson, P. (2004). Capital Punishment: Improve it or Remove It? In P. Hodgkinson and W. Schabas, Eds. Capital Punishment: Strategies for Abolition. United Kingdom: Cambridge University Press, 2004. 1-10.
Levinson, D. (2002). Encyclopedia of Crime and Punishment. United States of America: Sage Publications. 160.
Martinez, J. M. (2002). “The Executioner’s Face Is Always Well Hidden”: Social Science Arguments Against Capital Punishment. In J. M. Martinez, W. D. Richardson, D. B. Horsby. The Leviathan’s Choice: Capital Punishment in the Twenty-First Century. United States of America: Rowman & Littlefield Publishers, Inc.
Martinez, J. M., Richardson, W. D., and Horsby, D. B. (2002). The Leviathan’s Choice: Capital Punishment in the Twenty-First Century. United States of America: Rowman & Littlefield Publishers, Inc.
Mello, M. A. (1997). Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment. Madison, Wisconsin: The University of Wisconsin Press.
Rae, S. (2000). Moral Choices: An Introduction to Ethics. Grand Rapids, Michigan: Zondervan Publishing House. 211-215.
Schabas, W. A. (1997). Introduction. In H. G. Franck, K. Nyman, and W. Schabas, The Barbaric Punishment: Abolishing the Death Penalty (The Raoul Wallenberg Institute Human Rights Library, 12). 1-21, 34. United Kingdom: Kluwer Law International.