The Death Penalty is Not a Deterrent - Research Paper Example

? The Death Penalty is Not a Deterrent Introduction Society should judge conduct, not human worth. If we punish a criminal, it is because of what he had done to his victim, not because he was that bad and society must punish him. Criminal law states that society must judge conduct and not souls. How can we pass ultimate judgment on people’s moral values? If we punish or put to death criminals, we place ourselves instead of God. We are mortal like other humans who commit heinous crimes. (Pillsbury x) There’s a lot of killing in America. The national rates in this country far exceeds any industrialized country. Pillsbury argued that it is the violence of our crimes that is the problem and not the number of crimes. And in dealing with the American homicide problem, we need to approach it squarely with all the help we can muster from social scientists, lawyers, police officers, community leader and activists, even novelists and movie makers. Each of these people provides a different perspective on what makes people commit crime, and each provides a different solution in dealing with the criminal who committed the crime. (Pillsbury 3) A police officer who apprehended the criminal may want conviction and incarceration. The psychiatrist may ask for psychiatric treatment, while a social reformer may ask that the offender be given family support which he/she lacked when the crime was committed. Each professional or actor in the justice system may want a different approach. But this will hold only for as long as each respects the other. The criminal, after a psychiatric treatment, may find himself a promoter of social reform, but not capital punishment. This paper will provide an answer to the question whether the criminal deserves punishment and not the death penalty. Is capital punishment a deterrent to a convict’s commission of another crime? Or is it a deterrent for others to commit a crime? Literature Review Proponents of the death penalty provide four fundamental rationales in imposing it: ‘deterrence, instrumental perspective, retribution, and incapacitation’ (Lambert and Clarke, qtd. in Elechi, Lambert and Ventura 110). Proponents argue that people can be stopped from committing crimes by imposing severe sanctions and executing criminals deters others who planned to commit crimes from doing so. Proponents also advocate that the death penalty is an ‘effective deterrent than life imprisonment’ (Elechi et al 110). Retribution is vengeance (Mitchell 480). Statistics about homicide rates in conjunction with execution rates Since 1999 the murder rate has remained unchanged despite the decline of death sentences, executions, and the size of death row. (“Death Penalty Information Center” para. 1) In the so-called execution capital of the nation, Texas, executions go up the same thing with homicide. For example in Bexar, San Antonio, with a population of about 1.4 million, the murder rate is 14.91, executions registered at 18 and executions per 1,000 murders are 4.3; in El Paso, a population of .7 million, the murder rate is 6.60, execution 1; in Tarrant (Ft. Worth), population of 1.5, murder rate is 12.78, executions 22, and executions per 1,000 are 6.5; in Dallas, a population of 2.2 million, the murder rate is 19.33, executions 26, and executions per 1000 murders are 3.1. The hiatus in executions during 1972 to 1976 was brought about by the Supreme Court’s ruling in Furman v. Georgia, which states that capital punishment in America was cruel and unusual punishment. (“Mortal Justice: The Demography of the Death Penalty” 40) Statistics about homicide rates in conjunction with life imprisonment States, which do not have the death penalty and only have life imprisonment, have reported lower murder rates. In 2010, the murder rate in death penalty states was 5.00, while the murder rate in non-death penalty states was 4.01 or a difference of 25%. In other words, death penalty or life imprisonment has no deterrence on violent crimes like murder. The murder rate is calculated by dividing the total number of murders by the state population, multiplied by 100,000. The murder rate in states without the death penalty is consistently lower than the rate in states with the death penalty. The gap has increased continuously since 1990. In Michigan, lawmakers did not support a measure that would have placed capital punishment to a referendum; one of their reasons is that crime rate is down even without the death penalty. (“Death Penalty Information Center” paras. 1-2) Figures 1 and 2 show graphs comparing states with and without the death penalty. SOURCE: Condensed from the “Death Penalty Information Center,” Cost of execution v. cost of imprisonment Philip Cook of Duke University led a team to investigate the extra cost of prosecuting capital offense cases which they found at $2.1 million. According to Cook et al.’s study (qtd. in Mandery 86), the main reason why capital trials cost more is the added expense of jury selection and other expenses for what they termed as ‘bifurcated trials’. There’s another phase in the trial which has to determine whether the aggravating evidence outweighs the mitigating evidence, and this adds more costs. Investigating the mitigating evidence is rather expensive since both panels, the prosecution and the defence, hire private investigators, and complicated trials need expert witnesses and investigators. These experts are psychiatrists, medical examiners, neurologists, criminologists, who have to testify during penalty phase, in which the jury will determine whether the defendant should be sentenced to death or life imprisonment without parole (Smith and Haney 340). In an attempt to save taxpayers’ money, New Jersey abolished the death penalty in 2007 after spending $254 million in 21 years administering it but without a single convict executed (William 55). The framework for assessing the costs of the death penalty is shown in the figure below. Figure 3: Framework for assessing the additional costs of the death penalty SOURCE: Condensed from Capital Punishment in America: A Balanced Examination, by Evan Mandery More additional expenses are provided for long trials like in the case of capital trials. There are instances that two attorneys are required for capital defendants, which is being done in some states. Jury screening also takes time since it requires ‘more court time and more attorney time’. Additional cost is the less likelihood of plea bargaining. Most criminal cases are resolved through plea bargaining but not in capital offenses. The cost of incarceration after conviction is much expensive than maintaining an ordinary prisoner. (Mandery 86-87) Explanation of motives for homicide- crime of passion Homicide can be considered a crime of passion because it is committed with anger, hatred or frustration, by individuals with no self control. Self-control is developed during childhood when the child is still being disciplined. When a person is in a moment of anger, the only force that can control that anger is his own self-control which is a developed trait. In U.S. criminal law, a murder defendant can defend himself through the principle of the ‘heat of passion defense’, which can give him an excuse to be guilty of the lesser crime of manslaughter. This principled defense must be demonstrated in such a way that the defendant was provoked which forced him to become extremely emotional and kill while in that uncontrolled emotional state. The law allows emotional dysfunction as a defense, a mitigating circumstance when the person is restricted of a rational thought and reasoned behaviour because of that ‘emotionally charged reactivity’. But the law does not allow cognitive dysfunction as a defense. This however is a debatable subject for students of law. (Fontaine 69) Theories related to the death penalty The RCT explains a convict’s line of reasoning which can be the basis for sentencing in a jury tried case. RCT is an interdisciplinary approach to explaining phenomena. The rational choice theory adopts a utilitarian belief that man is a reasoning actor who weighs means and ends, costs and benefits, and makes a rational choice. In principle, a person who is rational can achieve goals, by deduction of what must be the best arrangements for a specific goal. Individuals are rational people whose choices and the results of these choices can be predicted, considering the rules of the game and the set of choices open as alternatives. But what is the standard of rationality? This is the topic for debate by many scholars. Normative and descriptive approaches to this theory have their own definitions but sometimes they add to its obscurity. (Levi et al. 4) Raymond Boudon explains the rational choice theory (RCT) by means of a set of postulates. The first postulate states that a social phenomenon is the ‘effect of individual decisions, actions, attitudes’ (3). The second postulate follows that this action can be understood, and the third postulate states that ‘any action is caused by reasons in the mind of individuals (rationality)’. The fourth postulate states that the reasons are derived by the actor by the result of his actions as he/she sees them, which is termed consequentialism or instrumentalism. The fifth assumes that the actors are concerned of themselves in terms of the consequences of their action. The sixth states that ‘actors are able to distinguish the costs and benefits of alternative lines of action’ and that they prefer the action which is most favourable (Boudon 3). Classical theory states crime occurs when the benefits outweigh the costs Crime is a choice when criminals feel that there are more benefits than costs, which means rationality. Crime can be deterred if the costs can be immediately seen. Information about the costs and benefits can be experienced, and once this is experienced, it can be deterred. Or, when the criminal sees that others being punished or have avoided punishment. (Ramdhan 10) Retributive theories Retributive theories state that punishment is justified because the criminal or the wrongdoer deserves it. The theories examine the past action to explain why the criminal deserves to be punished. But there should be balance in the scales of justice by providing the adequate punishment for the wrong done at the same time respecting the dignity of the wrong doer. There is one thing flawed in the theories, i.e. the lack of explanation in the benefit of punishment for society, nor is there a relationship between the victim and punishment. (Whiteley 42) A general theory of crime based on the tenets of classical theory was expounded by Gottfredson and Hirschi (qtd. in Schultz 63), which states that ‘people behave universally in ways they think will bring them pleasure and avoid actions they think will bring them pain and suffering.’ The point of this theory is that people find self-interest by seeking pleasure and avoiding pain, and crimes are happenings that satisfy self interest. Self control determines the behaviour of people. Low self control is bounded on an individual’s tenuous social bond along with ineffective child-rearing practices, and this may result into offending. High self control reduces the possibility of crime but low self control does not necessarily mean it results into crime. Situation conditions or other properties of the individual can counter low self control. The origins of criminality can be found or are built during the first six to eight years of life, when the child is still being moulded or under the control of the family. The dimensions of self-control, according to Gottfredson and Hirschi, are ‘factors affecting calculation of the consequences of one’s acts’ (Schultz 64). Classical theory states that punishment should be swift and certain The Age of Enlightenment dominated Europe in the eighteenth century. Enlightenment thinkers John Locke and Jean-Jacques Rousseau challenged common belief about God and the devil. These thinkers fostered a new belief that God empowered man a certain free will and the ability to choose through reason and intellect. In the legal world, Cesare Beccaria used this to argue about punishment. During that time, laws were vague and interpreted according to the judges’ personal opinion and to their interest. Punishments were cruel and unjust, like whipping, branding, mutilation, or death in whatever means. (Vito and Maahs 13) Beccaria said that the function of law was to institute justice and not to punish people. He popularised the following principles which were a departure of the prevailing beliefs at that time: Prevention is more important than punishment. Punishment can only be instituted if it is used as prevention. Punishment is for deterrence and not society’s revenge for the wrong done by the accused or convict. Criminal procedure should promote transparency in the prosecution, treatment of the accused, and the abolishment of torture. The accused must be given the chance to present his own evidence or defense. The criminal code must be formulated for all to see and know the offenses and punishments for every crime. The criminal law must have a scope and must not curtail individual freedoms. Anyone must be presumed innocent until proven guilty, and individual rights should be upheld. (Vito and Maahs 13) Life imprisonment without the possibility of parole plus restitution Opinion poll recently revealed that more people prefer a sentence of life without the possibility of parole plus restitution for capital offenders. Restitution is given to the victim’s family. Thirty-three states chose life sentence without parole. The Supreme Court has ruled that juries have to make choices between death sentences and life without parole. A life sentence without parole can be considered incapacitation and retribution while not risking an innocent life. Public opinion polls favor life sentence without parole than the death penalty. (Friedman 5) With the Supreme Court’s narrow decision, they want to spare the lives of hundreds of defendants, and have allowed juries to weigh the death penalty against life without parole. With life imprisonment, a convict can be rehabilitated and reintegrated to society although in a limited way. Capital punishment is a violation of individual human rights. Human right is universal, inviolable, and inalienable, and the state has a duty to provide effective and just protection for these rights. (Brophy and Halpin 25) Works Cited Brophy, P. and E. Halpin. “Through the Net to freedom: information, the Internet and Human rights.” Journal of Information Science 1999 25: 351, DOI: 10.1177/016555159902500502. “Death Penalty Information Center. n.d.” Web. 11 November 2012. . Elechi, O. Oko, Eric Lambert and Lois Ventura. “An Examination of Death Penalty Views of Nigerian and U.S. College Students: An Exploratory Study.” African Journal of Criminology & Justice Studies: AJCJS, vol. 2, no. 2, November 2006. Web. 13 November 2012. Fontaine, Reid Griffith. “The Wrongfulness of Wrongly Interpreting Wrongfulness: Provocation, Interpretational Bias, and Heat of Passion Homicide.” New Criminal Law Review, vol. 12, no. 1, 69-92, 2009. Web. 13 November 2012. Friedman, David. “The Supreme Court’s Narrow Majority to Narrow the Death Penalty.” Human Rights. Summer 2001. Web. 13 November 2012. Levi, Margaret, Karen Cook, Jodi O’Brien, and Howard Faye. “Introduction: The Limits of Rationality.” The Limits of Rationality. Ed. Kareen Schweers Cook and Margaret Levi. Chicago: The University of Chicago Press, Ltd., 1990. 1-18. Print. Mandery, Evan. Capital Punishment in America: A Balanced Examination (Second Edition). London: Jones & Bartlett Learning, LLC, 2012. Print. Mitchell, John. “Crimes of Misery and Theories of Punishment.” New Criminal Law Review 2012, vol. 15, no. 4, 465-510. Web. 12 November 2012. “Mortal Justice: The Demography of the Death Penalty.” The Atlantic Monthly (2003). EBSCOHost. Web. 11 November 2012. Ramdhan, Stacy. A Study of the Extent and Forms of School Violence and Delinquency. Netherlands: GRIN Verlag, 2012. Print. Schultz, Stefan. “Problems with the versatility construct of Gottfredson and Hirschi’s General Theory of Crime.” European Journal of Crime, Criminal Justice, vol. 12/1, 61-82, 2004. Web. 13 November 2012. Smith, Amy and Craig Haney. “Getting to the Point: Attempting to Improve Juror Comprehension of Capital Penalty Phase Instructions.” Law Hum Behav (2011), 35:339-350, DOI 10.1007/s10979-010-9246-0. Springer. Web. 13 November 2012. Vito, Gennaro and J. Maahs. Criminology: Theory, Research, and Policy. London: Jones & Bartlett Learning International, 2012. Print. Whiteley, Diane. “The Victim and the Justification of Punishment.” Criminal Justice Ethics, 17, 2. ProQuest Criminal Justice. Williams, Richard. “The Cost of Punishment.” State Legislatures, July/August 2011. Web. 13 November 2012. Read More