Capital Punishment



Capital Punishment

Arguments raised for Capital Punishment

A. General Deterrence

1. Because the murderer is killed, others will not murder and innocent lives will be saved.

B. Specific Deterrence / Incapacitation

1. Dead murderers commit no crimes.

C. Retribution / Vengeance

1. Lex talionis : Justice demands the lives of those who kill.

D. Moral Education

1. A society defines itself by the sanctions it imposes; the execution of a murderer defines the society as one that abhors murder and in so doing educates the populace that murder is abhorrent. It inspires awe for the the legal system and binds law-abiding citizens together.

E. Cost

1. It is cheaper to execute murderers than to imprison them for life.

Arguments raised against Capital Punishment

F. Counter-deterrence / brutalization

1. Killing is wrong if innocent lives are lost: executions disinhibit violence, causing more murders

G. Innocence

1. Killing is wrong if innocent people are executed: innocent people have been sentenced to death; irreparable mistakes are made

H. Arbitrariness

1. Killing is wrong if who is killed is arbitrary; no systematic reason why some are sentenced to death and others to life

I. Discrimination

1. Killing is wrong if the decision about who is to die is biased; evidence of racial discrimination by race of defendant and victim

Evidence

J. General Deterrence

1. Theory: Potential murderers will identify with the convicted murderer and choose not to murder out of fear of death.

2. Hypotheses:

a) If the death penalty deters, then homicide rates in jurisdictions with death penalty statutes will be lower than homicide rates in similar jurisdictions. (cross-sectional)

b) If the death penalty deters, the homicide rate will be lower when a jurisdiction has a death penalty statute than when it does not. (time series)

c) If the death penalty deters, the homicide rate will drop after executions. (time series)

3. Data

a) Homicide rates are higher in the United States than in other industrialized European countries.

b) Homicide rates are consistently higher in states with the death penalty; pattern holds in comparison with neighboring states as quasi-controls.

c) The lack of effect cannot be explained by a lack of executions.

1) Note: occasionally will find a report of a purported significant deterrent effect of executions. To date none of these effects remain significant once standard statistical corrections are applied.

K. Specific Deterrence

1. Theory

a) Dead murderers commit no crimes.

b) Compared to what? Should compare to murderers serving life sentence without the possibility of parole

2. Hypothesis

a) Murderers serving life sentences in jurisdictions with the death penalty will commit fewer murders than murderers serving life sentences in jurisdictions without the death penalty.

3. Data

a) No significant difference in murder rates.

L. Retribution / Vengence

1. Theory

a) Justice demands the life of those who take life.

2. Hypothesis

a) People will support the death penalty.

3. Data

a) Support for death penalty depends on how question is asked and what comparisons are made.

b) When given the option of LWOP, support is very weak

c) In US, people generally favor death penalty in general, but only favor using death penalty in extreme cases when given individual case information. Only minority support the death penalty for most common death penalty case scenarios.

d) People in most countries do not support the death penalty. Some countries (e.g., Canada will not extradite murder suspects to states with the death penalty.

M. Moral Education

1. In 2003, there were at least 1,146 executions in 28 countries around the world.  China, Iran, the United States, and Viet Nam were responsible for 84 percent of these known executions.

2. Most industrialized democracies no longer have death penalty for ordinary homicides (frequent exceptions for war crimes). 

N. Cost

1. North Carolina

a) $2.16 million more per death penalty case

2. Texas

a) Estimated 3 times more spent on death penalty case to execution than would be spent for 40 years in highest security prison cell.

3. Indiana

a) Cost of death penalty to execution is 38% greater than if given LWOP.

4. Kansas – extensive study of costs

a) The investigation costs for death-sentence cases were about 3 times greater than for non-death cases.

b) The trial costs for death cases were about 16 times greater than for non-death cases ($508,000 for death case; $32,000 for non-death case).

c) The appeal costs for death cases were 21 times greater.

d) The costs of carrying out (i.e. incarceration and/or execution) a death sentence were about half the costs of carrying out a non-death sentence in a comparable case.

e) Trials involving a death sentence averaged 34 days, including jury selection; non-death trials averaged about 9 days.

O. Counter-deterrence / Brutalization

1. Theory

a) Violent behavior is socially-learned. Executions model violence and murder.

2. Hypothesis

a) Homicide rate will increase following executions.

3. Data

a) Weak support; occasionally find increase in homicide rates in weeks following executions

P. Innocence

1. Theory

a) No system is perfect. Innocent people will be condemned to death. No reparation is possible once the person is dead.

2. Hypothesis

a) Substantial numbers of individuals convicted of murder will have their death sentences reversed by the courts or the executive due to new evidence.

3. Data

a) As of October 6, 2004, there have been 117 Total Exonerations in 25 different States.

b) George Ryan

1) Former Governor of Illinois explaining why he commuted all death sentences active in Illinois in 2003.

Q. Arbitrariness

1. Theory

a) Because of the discretion granted to juries in deciding whether to impose a death sentence, the decisions will be subject to the effect of all manner of extraneous effects and the ultimate decision apparently arbitrary.

2. Hypothesis

a) There will be no systematic difference between cases in which the defendant receives the death penalty and cases in which a life sentence is imposed.

R. Discrimination

1. Theory

a) Because of the discretion granted to juries in deciding whether to impose a death sentence, illegitimate factors will affect the decision.

2. Hypothesis

a) Minority race defendants and those defendants who kill whites will receive the death penalty more often, and this will be the case even when the effects of all legitimate legal factors are taken into account

3. Data

a) Baldus, Woodworth, Pulaski (1990)

b) Gross & Mauro (1984)

c) Evidence of discrimination by race of victim throughout US and discrimination by race of defendant in many states

Legal Issues

S. 8th Amendment

1. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

T. 14th Amendment

1. Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Legal History

6 Furman v GA

7 unbridled discretion is unconstitutional violation of 8th & 14th Amendments

8 1976 Gregg v GA (Profitt, Jurek)

9 Mandatory death penalty statutes are unconstitutional because only appear to control discretion

10 Guided discretion statutes (those that contain lists of factors to consider) are acceptable

11 lists of aggravating factors

12 lists of mitigating factors

13 1977 Coker v GA

14 Death penalty for rape is unconstitutional because it violates 8th Amendment prohibition of cruel and unusual punishment

15 1978 Locket v OH

16 State cannot limit mitigating factors that jury may consider in capital case

17 Result is that post-Locket statutes differ only in lists of aggravating factors from pre-Furman statutues

18 1987 McCleskey v Kemp

19 In capital cases, intention must be shown to prove discrimination.

20 Effectively halts discrimination challenges to death penalty

21 Post McCleskey “little issues”

22 Age of defendants eligible for execution

23 Mental state required for execution

24 Jury instructions

Concluding Thoughts

26 There is a difference between:

27 law, morality, and science

28 what is legal, what is right, what is fact

29 Much of moral/political debate over the death penalty is not directly relevant to the legal debate.

30 Legal action does not preclude political action

2. Although USSC ruled in favor of the state in McCleskey, the evidence caused the federal government and several states to write DP statutes with mandatory mechanisms for considering discrimination

U. It is logical to be in favor of the death penalty if:

1. You believe that justice demands the taking of a life when a life is taken

2. And that the taking of this life is still justified when:

a) there is no evidence that it deters others from taking life

b) there are equally effective alternatives

c) there is some evidence that it may encourage others to kill

d) the process for deciding who is to die is discriminatory and largely arbitrary

e) mistakes will be made and you will kill innocent people.

Last Thought

V. “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rule or substantive regulations ever cam save the death penalty from its inherent constitutional deficiencies.” - Callins v Collins, 1994 Blackmum dissenting

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