.. Whenever the word death penalty comes up, extremists from both sides start yelling out their arguments. One side says deterrence, the other side says there’s a potential of executing an innocent man; one says justice, retribution, and punishment; the other side says execution is murder. However, all the arguments aside, the best way and the only way to truly make a rational. Decision about capital punishment is to examine the purpose of our criminal justice system. Once the purpose of the criminal justice system is established, one must find out the purpose of capital punishment.
This paper will show that the purpose of capital punishment is consistent with and embodies the purpose of the criminal justice system. Then, this paper will determine whether or not the present form of the death penalty is fulfilling its purpose, and what could be changed to make the death penalty more efficient and effective. The first question that must be faced is, What is the purpose of the criminal justice system and does the death penalty help to fulfill that purpose? In The Law, Federic Bastiat says that humans have inalienable rights that existed outside of and before government. These rights are life, liberty, and property. He contends that the only legitimate purpose of government is to protect these rights.
When one person inflicts on another’s rights or takes advantage of another person, he is plundering. Bastiat asks, When, then, does plunder stop? It stops when it becomes more painful and more dangerous than labor. It is evident, then that the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of work. All the measures of the law should protect property and punish plunder.(1) People will plunder, take advantage of others, and commit crimes as long as it is in their best interest to do so. The purpose our entire criminal justice system is to protect the rights of life, liberty, and property for all its citizens.
To do this, the criminal justice system needs to make plunder more painful and more dangerous than labor. In other words, the punishment for crime must be harsh enough to deter potential criminals. Under this mindset, the death penalty makes perfect sense. Here is a punishment that truly makes the criminal pay for his crime, stops the criminal from committing future crimes, and deters other criminals from committing the same crime. The purpose of the death penalty is to protect the right of Americans to live.
If the purpose of the death penalty is to protect the lives of Americans, then the people that it is supposed to protect should be the focal point. In considering the death penalty and its merits and faults one cannot lose sight of the victims. These corpses are the people who have been, are being, and will be killed because our justice system is not working perfectly. In considering the death penalty these innocent individuals must never be forgotten. Millions of innocent men and women have already been slain, and thousands are killed every year.
According to Time, in the United States more than 2,000,000 people are beaten, knifed, shot or otherwise assaulted each year, 23,000 fatally.(2) In any discussion of the death penalty, one must remember that there are two sets of lives to be considered. Far too much emphasis is usually placed on the convicted murderer who is being executed, and the victim who has been killed is all but forgotten. Joseph Stalin once stated, One death is a tragedy, but a million deaths are statistics.(3) Once a murderer is caught and convicted, justice seems to demand that he at least be prevented from murdering someone else. After all, if the law is set up to protect our right to live, it seems as though it should be able to keep convicted murderers from murdering again. Amazingly, our criminal justice system is not even achieving this goal. The average prison sentence for murder is less than six years.(4) Six percent of the young adults paroled since 1978 who were convicted of murder were arrested for murder again within six years of their release.(5) This means that six percent of all murderers were caught, convicted, sent to prison, released, and they murdered again.
At least six percent of all murders could have been prevented had the murderer been executed the first time around. In North Carolina in 1995, 750 people were murdered.(6) By stopping repeat murderers at least forty-five lives could have been saved in 1995 in North Carolina alone. Every year, approximately the same number of people would not die if an effective form of the death penalty were in place. One example of the benefit of the death penalty is what happened in India in the 1800s. When Great Britain was beginning to colonize India, there was a religion known as the Thuggee religion.
These Thuggees were probably the most violent, dangerous, and brutal gang of thieves ever. They killed literally thousands of people (mostly foreigners) and stole their money. In fact, one of the requirements of this cult was that each member had to murder at least one person every year. The British jumped to action to curb the problem by speedy arrests and executions. Thousands of Thuggees were executed.
After a few years, the leader of the Thugees was captured and executed. During his trial, it was found that he had murdered 931 people. In 1883, the British had completely solved the problem by executing the last known Thuggee.(7) Often opponents will argue that some criminals are so deranged, so fearless, so assured that they will not be caught that they will murder no matter what the penalty is. If this was true of anyone, it was true of the Thuggees. Yet, the fact is often ignored that the death penalty can have a tremendous effect simply by eliminating those hideous murderers who will murder no matter what the penalty is. No one can count the number of lives that were saved after all the Thuggees were executed. Opponents of the death penalty sometimes contend that repeat murderers are rare.
Yet, if six percent of all murders can be stopped, and forty-five lives can be saved every year just in North Carolina alone, who wants to be responsible for the forty-five unnecessary deaths that occur each year because our government does not take care of the murderers the first time around. The death penalty can save lives by stopping repeat murderers, but does it deter murder? Opponents of the death penalty argue that there is no deterrent effect. However, there are a number of studies that indicate that the contrary is true. A study by W. Bailey of the period from 1967-68 showed a deterrent effect in twenty-seven states.(8) A later study by him showed a deterrent effect in twenty-five states.(9) During the moratorium on Capital punishment in the United States, murder increased by one hundred percent.(10) A review of the fourteen nations who abolished the death penalty showed that the murder rate increased by seven percent from the five year pre-abolition period to the five year post-abolition period.(11) Since 1990, Harris County, a single county in Texas has had more executions than any other state in the United States.
During the period between 1990 and 1995, Harris County has had a forty-eight percent drop in crime, the greatest decrease in the United States. In Harris County, the highest homicide rate was in 1981, one year before the death penalty was reinstated in Texas.(12) All of these studies indicate that implementation of the death penalty correlates with a drop in the homicide rate. A study by Stephen K. Layton at University of North Carolina at Chapel Hill showed that each execution deters an average of eighteen murders.(13) By increasing the use of the death penalty, thousands of lives could be saved. In Utah, there have been five executions since 1977. During the year following each execution, there was a significant drop-off in the homicide rate.(14) Criminologist Steven Stack recently found that after a widely publicized execution, there was a drop in the homicide rate.
He found this drop to be more significant with whites than with blacks.(15) Hyam Barshay, a poet, said, The death penalty is a warning, just like a lighthouse throwing beams out to sea. We hear about shipwrecks, but we do not hear about the ships the lighthouse guides safely on their way. We do not have proof of the number of ships it saves, but we do not tear the lighthouse down.(16) Although the death penalty is a deterrent, it is not nearly as strong a deterrent as it would be were it implemented more often. The deterrence theory states that in order for a crime to be deterred, justice must be swift, severe, and certain. With numerous appeals, the death penalty is not swift. In fact, the average amount of time spent on death row before being executed is ten years.(17) In addition, between 1977 and the present, the execution rate per murder is .055 percent.(18) In other words for every 1800 murders, only one person is executed.
Thus, the death penalty is not certain either. In fact, most murderers can rest assured that more than likely they will not be put to death. The death penalty is severe. If it were altered so that it became swift and certain, there would be a significant drop-off in the homicide rate. People have a natural fear of death.
It is a common trait of man that we think about the consequences before we act. If not consciously, we still think about them subconsciously. Imagine for a minute what the world would be like if every time a murderer killed someone, he died instantaneously. More than likely, there would be an extremely low homicide rate. Of course, it is impossible to make that a reality, but our government can make justice much more swift, severe, and certain than it already is if we simply increase the use of capital punishment and change the laws so that it is faster and has a shorter appeals process.
The death penalty is important because the lives of thousands of potential victims who are at stake. Given the benefits of capital punishment, it is hard to imagine why anyone would be against it, but there are several arguments against the death sentence that need to be addressed. Opponents of the death penalty point out that there is a possibility of wrongly executing an innocent man. Of course, there is a possibility of wrongly sending an innocent man to prison, or wrongly fining an innocent man, but they contend that because of the finality and severity of the death penalty, the consequences of wrongly executing an innocent person are much more wrong. There has never been any proof of an innocent man being executed, although there are some studies that show in a few cases, there is a possibility that someone was wrongly executed.(19) One of the most often quoted studies of innocent men being executed is the Bedau-Radlet Study.
It is the most comprehensive study ever done in this area and has found twenty-two cases where the defendant may have been wrongly executed. This study is very controversial and many studies such as Markman and Cassal, found the study’s methodology so flawed that in at least twelve of those cases there was substantial evidence of guilt and no evidence of innocence. In the other eleven cases, the Bedau-Radlet study placed almost no weight on the jury’s verdict, and the evidence available only proved that the case was questionable, not that the defendant was actually innocent.(20) Another point to be made is that our judicial system takes many precautions to ensure that the rights of the innocent are protected. In order to understand this, one must look at the complex process required to convict someone of first degree murder and get him sentenced to death. First a person is arrested and given an attorney.
Evidence must be presented proving beyond a reasonable doubt that the defendant committed first degree murder. The defendant must have been in a clear state of mind. After a five to six week trial, the defendant goes on to a second trial to decide whether or not he deserves the death penalty. Again, a full trial is held. Defense presents evidence on why this murderer does not deserve to die. After this occurs and the murderer is sentenced to die, his case is automatically appealed to the state Supreme Court.
After that, he may file a number of different appeals. Finally, about ten years later, after every legal attempt and delay tactic has been exhausted, the murderer is executed. As should be evident from this complex process, every reasonable precaution is taken to ensure that no innocent man is executed. Although it is very unlikely that an innocent person would be executed, the question arises about whether the execution of an innocent man is a strong enough argument to abolish the death penalty. Before deciding, one must remember the lives that the death penalty saves.
Repeat murderers are eliminated, and potential murderers are deterred. As mentioned earlier, one must consider the victims as well as the defendant. Is it worth it to lose forty-five innocent lives so that no innocent person is executed. Wesley Lowe states the matter well when he says, As for the penal system accidentally executing an innocent person, I must point out that in this imperfect world, citizens are required to take certain risks in exchange for relative safety.(21) We risk dying in automobile accidents for the convenience of using a car. This practice is considered acceptable. Risking the possibility that someone might be wrongly executed is worth it to save the lives of thousands of innocent people who might be the next victims of murder. A second argument against the death penalty is discrimination.
Eighty-two percent of all murder victims are white and thirteen percent are black. This is about a 6:1 ratio. Opponents of the death penalty, such as the NAACP, argue that the system values white lives more than black lives. If this is true, one has to wonder why whites represent fifty-five percent of those executed and blacks thirty-nine percent,(22) when blacks have committed forty-nine percent of all murders, and whites thirty-nine percent from 1976-1994.(23) Successful prosecutions depend on the nature of the crime and not the race of the victim. The reason that whites are overwhelmingly the victims in death row cases is that whites are overwhelmingly the victims in capital crimes.
In McClesky v. Zant, the court ruled that the death penalty was not racist in its application. The death penalty is not racist and does not violate the cruel and unusual punishment clause. However, even if the death penalty were racist, the solution is to fix the discrimination not to end the punishment. Ernest van den Haag wrote, ‘If and when discrimination occurs it should be corrected. Not, however, by letting the guilty blacks escape the death penalty because guilty whites do, but by making sure that the guilty white offenders suffer it as the guilty blacks do.
Discrimination must be abolished by abolishing discrimination–not by abolishing penalties. However, even if this cannot be done, I do not see any good reason to let any guilty murderer escape his penalty. It does happen in the administration of criminal justice that one person gets away with murder and another is executed. Yet the fact that one gets away with it is no reason to let another one escape.'(24) One of the problems with the death penalty right now is that it is rarely used that it often seems arbitrary. The proposal set forth later in this paper makes the death penalty the standard punishment for murder and removes the loopholes. This proposal would make a racist application of the death penalty nearly impossible.
If the death penalty were to be the standard punishment for murder, and the rules deciding who received the death penalty were tightened, the death penalty would apply equally to the people of all races. On more moral grounds, opponents of the death penalty will contend that execution is the same as murder. They will argue that using the death penalty to stop murder is like fighting fire with fire, and that executing the criminal makes the state no better than the murderer himself. A number of analogies can be drawn to discredit this argument. If execution is murder, then certainly killing someone in a war is murder. Thus, our country should not fight in any more wars. At once, the reader realizes that this proposition is ridiculous.
Although wars are not good and killing people is a tragedy, sometimes they are necessary to protect the rights of a group of people. The death penalty is necessary to protect a person’s right to live. Is arresting someone for a crime the same as kidnapping someone? Is confiscation of property to pay a debt the same as theft?(25) In the same way, executing someone is not murder; it is punishment inflicted by society on a deserving criminal. In order to understand what form capital punishment is in now, we will consider the history and constitutionality of the death penalty. Since the founding of our country, the death penalty has had its place in American society.
In its original form, death was the mandatory punishment for a number of crimes, including murder. As time passed, a small minority of people began to disagree with the death penalty. Although most Americans still supported it, sometimes these people would end up on juries for capital cases, and as a result, legislators began to notice that juries were less likely to convict when the death penalty was the automatic punishment. This development lead to a weakening and changing of death penalty laws. Instead of mandatory death sentence, juries would decide what sentence to give.
In addition, many crimes that had been punishable by death were taken off the list of capital crimes. Pretty soon, the death penalty became an optional punishment for first degree murder. In 1971, in McGautha v. California and Crampton v. Ohio, the Supreme Court ruled that states need not specify in statutes the factors to be considered by the jury in issuing the death penalty.
This case also held that while bifurcated trials (trials with two stages) are preferred, they are not required.(26) Ironically, only one year later this ruling was overturned. In 1972, in Furman v. Georgia, the Supreme Court ruled the death penalty unconstitutional in the way that it was being implemented. The eighth and fourteenth amendments were cited, especially regarding the due process and equal protection clauses.(27) The death penalty was declared unconstitutional because it was not being issued fairly or evenly. The Supreme Court had ruled that the death penalty was cruel and unusual punishment in the way that it was being carried out. In order to reinstate the death penalty, the states had to have uniform standards and guidelines for the jury to use in determining the death penalty.
After Furman v. Georgia, a few states set up mandatory death penalty statutes for certain crimes. However, in Woodson v. North Carolina, these laws were overturned. Florida, Georgia, Texas, and twenty-two other states wrote new laws reinstating the death penalty with specific aggravating and mitigating circumstances.(28) Aggravating circumstances were reasons why the defendant should receive the death penalty. Mitigating circumstances were reasons why the defendant should not receive the death penalty.
Lockett v. Ohio ruled that states may not limit the kinds of mitigating circumstances that juries can consider.(29) The benefits of the death penalty will never be wholly realized unless it is carried out in a regular, consistent manner. Thus, on the consideration of these points, there are several problems with the death penalty as it is presently being implemented. The first problem with the death penalty is that second degree murder isn’t being punished adequately. Second degree murder is murder. It means that a criminal unlawfully, intentionally killed another person without reason, excuse, or provocation.
Yet, right now, second degree murder is a crime punishable by fifteen years in prison. If there are significant mitigating circumstances, the murderer could be sentenced to even less time, not to mention the fact that most criminals don’t serve their full sentence anyway. A criminal justice system that allows convicted murderers out of prison after a few years does not stop repeat offenders and does not deter potential murderers from committing the same crime. Murder is classified into two degrees, yet it is essentially the same crime. The only difference between first and second degree murder is that under first degree murder, the prosecution must prove premeditation and deliberation.
Murder for first and second degree is unlawfully killing another human being with malice. If a murderer intends to kill someone, then kills him, it is hard for one to understand how premeditation and deliberation makes the crime any worse. If a murderer did not premeditate and deliberate on his murder, is the victim any less dead? Is the one who murdered him any less guilty? A second problem is that first degree murder is hard to prove. Premeditation and deliberation must be proven in order for a murder to be classified as first degree murder. This may seem simple, but lets take a look at what the prosecution has to prove in order to convict the defendant of first degree murder. First of all, premeditation means that the act was thought out beforehand for some length of time.
Deliberation means an intent to kill carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. Both elements are hard to prove because they involve the mind of the criminal, they have complex definitions, and they can usually only be proven by circumstantial evidence. However, this is only the beginning of the complex legal maze that prosecutors must get through to get a conviction. Some other things prosecutors must consider in proving murder in the first degree are that defendant’s emotion must not have disturbed his faculties or reason, whether or not the killing occurred during the course of a quarrel or scuffle, previous hostile feelings and prior assaults, nature and number of wounds, unseemly conduct toward and concealment of the body, vicious and brutal slaying, whether or not the defendant consumed alcohol beforehand, and many other limiting factors. Due to the complicated process, a trial for first degree murder lasts approximately six weeks.
First degree murder trials are long and expensive and the appeals process is long and expensive. According to the Attorney General’s Office, a capital case (a trial for first degree murder) usually takes about six weeks and constitutes between 3,000 and 5,000 pages of court record.(30) The trial itself is costly, but the court record has to be considered on every appeal made by attorneys on both sides, as well as by the appeals court and the judges involved. Because so many pages are involved, the appeals process takes several times the length that an appeal for second degree murder would. This is a major reason that murderers spend between 10 years on death row before being executed. (31) (32) Under the Homicide Reform Act (see appendix A), first degree murder and second degree murder will be considered the same crime and will be punished by death or life imprisonment.
Murder will be defined as unlawful killing of a human being with malice, express or implied.(33) In effect, this means that first and second degree murder will be combined under the title of murder and will have the standard legal definition of murder. Even with those convicted of first degree murder, the death penalty is not a common occurrence. The reason is that right now the death penalty statutes make life imprisonment the rule for first degree murder cases. The death penalty is the exception to the rule. The Capital Punishment Reform Act (written in appendix B) will make the death penalty the standard punishment for murder.
The purpose of the Capital Punishment Reform Act is to reform the capital punishments statutes to make the death penalty the standard punishment for murder. Although life imprisonment shall be an option for the jury to choose for anyone convicted of murder, the grounds for life imprisonment are much more limited than before. This bill asserts that murder deserves the death penalty. Under this bill, if a person is convicted of murder, the jury must show that there is one or more substantial enough mitigating circumstances to call for the lesser sentence of life imprisonment. Otherwise, the murderer would get a sentence of death. Under our current death penalty statutes, life imprisonment is the standard punishment.
In order to give a sentence of death, the jury has to prove that there are one or more sufficient aggravating circumstances that the jury finds beyond a reasonable doubt, and that there were not any mitigating circumstances that outweighed the aggravating circumstance. If the jury finds both of these conditions to be true, it can issue the death penalty. The Capital Punishment Reform Act reverses the trend. The death penalty is the standard punishment. In order to give a sentence of life imprisonment, the jury must prove that there are one or more sufficient mitigating circumstances that the jury found beyond a reasonable doubt, and that the aggravating circumstance is insufficient to outweigh any mitigating circumstances.
If the jury finds these conditions to be true, it can issue a sentence of life imprisonment rather than the death penalty. Under our current death penalty statues, all twelve jurors have to concur on the punishment. If a single jury member disagrees with the other eleven, the murderer is automatically issued a sentence of life imprisonment. We live in a world of many different ideologies, thoughts, and philosophies. If one person out of a group of twelve can stop the death penalty from happening, the death penalty will never be the standard punishment for murder.
Under Section (b), my bill provides that only nine of the twelve jurors must issue the punishment.(34) If nine jurors (three-fourths) agree that the person deserves to die, he deserves to die. In addition, if nine of the jurors cannot agree on a sentence, the judge shall decide the sentence as he deems fit. However, in most cases nine of the twelve jurors would be able to come to a decision themselves. Under the current death penalty statutes, a sentence of death is subject to automatic review by the state Supreme Court, while a sentence of life imprisonment is not subject to automatic review. When the Supreme Court reviews the case, it must consider whether or not the death penalty was too harsh in addition to any other areas assigned to it on appeal. This is yet another law that hinders the death penalty. The jury has already decided that the aggravating circumstance has outweighed any mitigating circumstances.
The only thing the Supreme Court should be doing is checking to see if any mistakes or errors have been made in trying the case. It is not necessary to automatically review the sentence of death. The defendant should have the right to appeal and the Supreme Court should review the matters assigned to it on appeal. Under the Capital Punishment Reform Act, the defendant has the right to appeal to the state Supreme Court, and the state Supreme Court shall review any matters assigned to it on appeal. Under the current death penalty statutes, there is a limited number of aggravating circumstances that must be considered in order to give a sentence of death.
The jury has to show that at least one of them is true in order to issue a sentence of death. This fact, in and of itself, makes life imprisonment the standard punishment. If the death penalty is to be the standard punishment for first degree murder, than murdering should be the only aggravating circumstance necessary. Under the Capital Punishment Reform Act, murdering another human being is the aggravating circumstance. Thus, there will always be an aggravating circumstance because everyone convicted of murder has murdered another human being.
All of the other aggravating circumstances are not needed and are taken out. Under the current death penalty statutes, mitigating circumstances are numerous and wide-ranging. In addition, Any other circumstances arising from the evidence which the jury deems to have mitigating value, is itself a mitigating circumstance. If the death penalty is to be the standard punishment for first degree murder, the range of mitigating circumstances must be limited. Many of the mitigating circumstances are removed. (1) The defendant has no significant history of prior criminal activity. What this says is that it is okay to murder someone in the first degree if you have not done anything wrong in the past. This ruins the whole deterrence effect of the death penalty.
It has to be removed. (2), (3), and (4) are kept for obvious reasons. (5) Premeditated murder is wrong and needs to be punished whether or not someone else pressured you do it. Someone pressured to murder will have greater reason not to murder if the death penalty is the standard sentence. (5) has to be removed.
(6) If the mitigating circumstance in number 6 is really true and substantial enough to be taken into consideration, it will already be covered by (2). (6) has to be removed because it opens a lot of loopholes. (7) Age is important! Keep in mind Speech and Communications.