Capital Punishment in the US - Essay Sample

Introduction

This chapter provides a comprehensive literature review of past studies and arguments related to capital punishment in the United States (US). It will encompass an examination of Retributive Justice, justifications for and against capital punishment as well as studies into the deterrent effect of capital punishment in the US. The chapter concludes with a summary.

Is your time best spent reading someone else’s essay? Get a 100% original essay FROM A CERTIFIED WRITER!

Save 25%

Criminal Punishments

Tuck(1979) reports that the common law system imported by settlers from the United Kingdom was shaped by the Social Contract theory. He explains that it was advanced by the philosopher John Locke to explain how individuals came together to create societies. He summarizes it as follows: (1) people used to live the state of nature in which they were subject to natural law that endowed them with natural rights; (2) but it made more sense to join forces with other people to form civil societies that are more efficient at attaining shared goals such as security ; so (3) they entered into a social contract in which they surrendered natural rights essential to the functioning of the government formed to maintain social order and the affairs of civil society.

Social Contract theory informed how the common law legal system came to understand the purpose of criminal punishment. Sarat (2018) explains that this is why in the American Criminal Justice System (CJS), the imposition of criminal punishments on convicted persons during the sentencing stage of a trial is justified some forms of human conduct are a violation of either the laws of nature or those of civil society. The laws of nature empower all human beings the right to punish violations of the laws of nature when people are in the state of nature.

Baker (2012) explains that among the rights surrendered to the government through a social contract is the natural right to punish others whose acts or omissions injure private interests. Hence the social contract makes it the responsibility of the judicial branch of government to punish offences against the laws of nature because they wield the sword of justice by the consent of society. The social contract also gives judges the power to punish offences against the laws of civil society because in exchange of surrendering some of their natural rights, people acquire a government with exclusive power to make and enforce laws for the purposes of maintaining social order. Baker (2012) explains that since civil society is willingly subjecting itself to the power of the state, criminal punishments meted out to people who violate its laws (i.e. the laws of society) is a legitimate exercise of public power. They explain that to proponents of Locke's social contract, this is because the law by which they suffer was made by their own consent (Baker 2012; Kleinfeld,2016 ).

According to Blackstone (2017), deterrence is the primary aim of the common law legal system since it views the purpose of criminal punishment is "...[n]ot expiation for the crime committed, but a precaution against future offences of the same kind." Therefore, the common law response to criminality is the use of corporal punishments, fines , temporary imprisonment to ensure "amendment of an offender"(Blackstone,2017). Life imprisonment and the death penalty were reserved for crimes adjudged to be such a serious violation of natural law that retribution rather than rehabilitation was the most appropriate response to (e.g. pre-meditated murder, armed robbery, treason or manslaughter).

To Blackstone (2017), these different levels of severity in criminal punishment regimes came about to ensure that there is fairness in the common law legal system imported by colonial settlers. He explains that the policy underlying this pursuit for fairness is that social order is maintained when public opinion feels that a convicted offender is sanctioned in a manner proportional to their guilt. He explained that when criminal punishment is of "unreasonable severity" it is incapable of rehabilitating or deterring crime. (Blackstone ,2017). He explains that deterrence is better achieved when the public knows that criminal offenders will get a fair trial before subsequently getting punished in a proportional manner. He explains that when criminal law imposes punishments on offenders that are disproportional to their guilt , public opinion will turn against the CJS leading to the breakdown of law and order as ordinary citizens refuse to obey the law.In the view of Wright and Miller (2005), proportionality during criminal sentencing is a central pillar of the theory of Retributive Justice upon which the entire American CJS was originally built upon. They explain that this is because it "looks towards the past" and focuses "...[n]ot on the probability that the offender will re-offend, but rather on punishing the offender for the crime which they were convicted of"( Wright and Miller,2005:pp1430-31). Hence the severity of punishment must match the seriousness of the offence charged (Wright and Miller,2005; Blackstone 2017). This is evidence by the judicial consideration of both mitigating and aggravating factors during sentencing (Kirchmeier,2019; Elsi,2017) .The principle of proportionality has been interpreted as the jurisprudential foundation for the 8th Amendment of the American Constitution by the Supreme Court in several decisions (Weems v United States , 1910; Coker v Georgia ,1977). According Lively and Broyles (2016) , this interpretation of the 8th Amendment has led to a string of cases that have sought to limit the imposition of the most sever forms of criminal punishment to the most sever forms of guilt. The authors cite how in Trop v Dulles (1958)the majority opinion was that criminal sanctions must be proportional to the offense charged and the guilt of a convicted person so that the law does not violate their right to dignity.

Lively and Broyles (2016) go further to explain that in Gregg v Georgia (1976), the court defined a proportional punishment as one that actually contributes to retribution or deterrence in a manner that can be quantified. They also remark that the court opened the door to the eventual abolition of the death penalty by observing that the majority opinion in that case was that what amounts to a disproportional punishment is "....[d]etermined by the evolving standards of decency that mark the progress of a maturing society" (Gregg v Georgia,1976 : at 173).

Academics literature highlighting of how the US got rid of the death penalty and as life imprisonment without the possibility of parole for minors as proof that capital punishment may eventual be done away with. Miller, and Beare, (2017) explore how the 8th Amendment grantees of proportional criminal punishments led to the blanket prohibition against the use of the death penalty on minors in the American CJS. They explain that in Thompson v Oklahoma (1988) the court first interpreted the 8th Amendment to mean that capital offenders below the age of 15 at the time of committing the offence charged must never be subjected to capital punishment because doing so would amount to cruel or unusual punishment.

Miller, and Beare, (2017) report that in Roper v Simmons (2005), the this prohibition was extended to all capital offenders who were below the age of 18 when they committed a capital offence . The writers explain that the justification for this blanket ban was that the guilt of a juvenile offender can never match the severity of criminal punishments imposed on adults since the consensus in the field of psychology is that children have "unformed characters" that can be rehabilitated using Restorative justice but this opportunity will be taken away permanently by imposing the death penalty on them (Roper v Simmons ,2005 : at 568-574; Lively & Broyles,2016:pp 594-98; Miller& Beare,2017).

The Capital Punishment Controversy in America

According to Stein, (2017), the death penalty was common in colonial America. The writer cites the example of the Governor of Virginia enacted a law in 1612 that reserved the death penalty for both felonies and misdemeanours. The writer further observes that Retributive justice claims of deterrence became the basis for Colonial administrations to use public hangings as an opportunity to teach the public about the values of social obedience and order. Stein (2017) goes on the report that different colonies may have had different Penal Codes but by the time the US gained independence, all reserved capital punishment for treason, arson, piracy, murder, sodomy, burglary, armed robbery, horse theft, slave rebellion and forgery (Stein,2017).

In light of the 8th Amendment, the First Congress enacted Federal criminal statutes that narrowed the use of capital punishment in America's States to the crimes of murder, forgery, robbery, and rape. According to McGinnis (2019), the law on capital punishment enacted just after independence and the 5th Amendment guarantee to a jury trial for persons charged with a capital offence means that the 8th Amendment can never be interpreted to mean the death penalty is unconstitutional. Consequently , after Furman v Georgia (1972) resulted in a de facto moratorium on the use of the death penalty across the country, 37 States passed capital punishment statutes that complied with the 8th Amendment by removing arbitrary and discriminatory features that were the basis of the Furman v Georgia (1972) decision (McGinnis). Hence the use of capital punishment resumes after the court in Gregg v Georgia (1976) declared that States can use the death penalty as long as they comply with the 8th Amendment.

According to Cook (1999), the death penalty abolition movement emerged in the 18th century inspired by the assertion in On Crimes (1764) by Beccaria that there is no legitimate justification for the government to deprive an individual of their right to life. Beccaria's arguments influenced some of America's Founding Fathers (Stein,2017). For example, Benjamin Rush openly challenged the argument that the death penalty is an effective deterrent against criminal behaviour (Stein,2017). However, even though the death penalty is not be expressly outlawed by the Constitution and a reasonable argument can be made that at the time it was made, the framers understood that the death penalty was not a violation of the 8th Amendment, the abolitionist movement has successfully relied on the Constitution to convince 21 States to stop using capital punishment for all offences.

Furthermore, the long delays in the period between conviction and execution have opened a new angle of attack for abolitionists (McLeod, 2016). For example, Sun (2013), describes inordinate delays before executions and moratoriums as a violation of the 8th Amendment prohibition against torture. She also contends that this current death row crises caused by inordinate delays is a violation of a capital offender's right to dignity.

Capital Punishment & Deterrence

According to Nagin (2013), academic studies into whether the death penalty has a deterrent effect is a source of bitter contention. Ehrlich (1975) conducted a study, that concluded each execution averts approximately 8 homicides. In response, the National Research Council (1978) generated a report that criticized of Ehrlich's claims by asserting that there was no "useful evidence on the deterrent effect of capital punishment" (National Research Council 1978: p. 9). According to Nagin (2013) , in the wake of this report , a number of studies attempted to establish causal links between capital punishment and reduced murder rates. For example Lamperti.et.al. (1994) asserts that the death penalty does not lower murder rates because it has no deterrent effect capable of preventing homicides in a meani...