Sentence of Death for Those Who Do Not Kill - Essay Example

? Response Paper Number Three: Is the Sentence of Death Appropriate For Those Who Do Not Kill? HERE HERE The issueof the death penalty and the issue of capital punishment have the ability, without question, to ignite debate and controversy. The debates and controversies that are caused are further magnified when specific criteria are inserted with regards to the death penalty, namely in legal cases involving those that lack mental capacity to distinguish their own crimes, as well as those that were considered juveniles when the crime was committed. An even bigger debate can be ignited on the issue of the death penalty concerning those that participate in what is considered a capital crime, but do not actually commit the crime themselves. In deciding this issue, and in respect to the Eighth Amendment prohibiting “cruel and unusual punishment”, the Supreme Court has adopted both a subjective and an objective approach, swinging back and forth between the one that serves objectively to the one that serves subjectively, and back again to the more objective method. In this paper, we examine both approaches, as well as personal opinions regarding them. Introduction The death penalty, as decided and imposed by the laws of the United States of America, has a long and illustrious history of being debated, enacted, struck down, and otherwise discussed. Though the United States is the only democracy in the Western Hemisphere that actually retains the use of the death penalty as a punishment to criminals, it demands certain criteria and other factors are present before it comes into consideration or is used as a part of the criminal process (Scheb & Scheb II, 2011). Complicating the debates that surround the death penalty are those cases which question its use in punishing those that were not actually involved directly with the capital crimes committed, yet received the death penalty as a sentence; the same applies to those that were juveniles at the time they committed a capital crime and when the mental status of a suspect or defendant is challenged and/or proven to be of such a nature that he or she could not have understood the crime that they were committing. In the article “Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing”, by Joseph Trigilio and Tracy Casadio, we are asked to examine the historical and current policies of the United States Supreme Court in regards to those who are only accomplices in felony cases, cases in which they did not kill or intend to kill, with regards to the view on the sentence of capital punishment, especially given the criteria that the death penalty may be viewed as “cruel and unusual punishment” as per the United States Constitution, Amendment VIII. Given the extent of the debate on the death penalty itself, even in light of recent legislation that has banned its use in cases concerning juveniles and those of diminished mental capacity it is not an exaggeration to say that the death penalty, while not taken lightly as a part of the criminal process, will never lose its status as a debated issue, even among the United States Supreme Court. Objective versus Subjective Approach The Supreme Court of the United States has succeeded in bouncing back and forth in differing methods of evaluation for capital punishment. There was a time that an objective approach was taken, such as in the cases of Enmund v. Florida 458 U.S. 782 (1982), 399 So.2d 1362 (Fla. 1981), 454 U.S. 939 (1981) and Coker v. Georgia 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977). Though a two part analysis took into account the objective factors of current legislation at the time of the decision as well as a subjective analysis involving human dignity as it related to the use of capital punishment as a means of retribution and deterrence for crimes, the fact remained that cases were decided based on objective means (Trigilio & Casadio, 2011). This method was then applied to many cases, including Coker v. Georgia 433 U.S. 584 (1977), in which the defendant was convicted of rape and ultimately had their sentence of death overturned as “cruel and unusual punishment”, and Enmund v. Florida 458 U.S. 782 (1982), in which the defendant was nothing more than an accomplice to a felony. Not until the decision of Tison v. Arizona 481 U.S. 137 (1987) did this change, when the Supreme Court ruled that the accomplice children of a family who committed felony murder were just as responsible as their parents for the felonies that took place in their presence, as they took an active part, even though they did not murder anyone themselves. Though this case did mention that the “felony murder doctrine” which held every participant in the crime liable for crimes committed by all was regarded as a “living fossil”, it still declined to deny leniency for the teenagers, as unlike Enmund v. Florida 458 U.S. 782 (1982), they had taken a very active role rather than remaining unwitting bystanders. Tison v. Arizona, 481 U.S. 137 (1987) stands out not only for this reason, but because it marked a shift in the way the United States Supreme Court looked at capital punishment cases. No longer employing an objective and categorical approach, it moved to a “hyper-individualized” and subjective approach, looking at details almost unendingly to determine culpability and sentencing (Trigilio & Casadio, 2011). While this approach has its own set of positives and negatives, and the Supreme Court has succeeded in moving back to a more objective approach in the way it reviews cases for the death penalty, these positives and negatives, especially when placed next to the subjective approach, cannot be overlooked. Though neither approach, in my opinion, serves in and of itself to decide whether or not a defendant deserves the death penalty, it is interesting to note that in some cases, the positives about each approach actually create negatives that in essence play off of each other. Again, it cannot be denied that both approaches bring their own sets of positives and negatives. In employing an objective approach, it is far easier to classify the cases that deserve the death penalty (Trigilio & Casadio, 2011). As legislation is used to determine criteria, it is quite easy to slot cases into neatly boxed categories. Though this is by far a more objective way to look at whether or not the death penalty is an appropriate sentence, the issue that results is that no two cases are completely alike, leading to an approach that is almost too objective, allowing for no difference in detail amongst cases whatsoever. For example, Coker v. Georgia, 433 U.S. 584 (1977), determined that some crimes are not punishable by the death penalty, largely in cases where the defendant has not taken a human life (Scheb and Scheb II, 2011). It would have been all too easy to slot Ehrlich Coker into a category of those that should receive the death penalty without a second glance, given the circumstances of the case. A bigger detractor from this approach is that it does not allow for change. If the same standards of legislation were always used to determine death penalty cases, society would never have a chance to change. The case of Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) marked a significant point in the use of the death penalty, in which the phrase “evolving standards of decency” was first coined when Justice Warren used it in regards to the way Amendment VIII and the death penalty should be interpreted. In the case of Foster v. Quarterman, 466 F.3d 359, 362 (5th Cir. 2006), the sentence of death was commuted for Kenneth Foster by the Governor of Texas based on “evolving standards of decency” (Trigilio & Casadio, 2011). Had legislation been the only marker of decision for the death penalty, with no change of society or opinions allowed in the decision whatsoever, Foster likely would not have had such a chance. Other positives and negatives to the objective approach exist as well. This approach was initially intended to narrow down those that were eligible to receive the death penalty (Trigilio & Casadio, 2011). However, it could have gone the other way, and increased the number of people on death row. The case of Enmund v. Florida, 458 U.S. 782 (1982) is another example in which the defendant could have been boxed into a set of criteria and thus awarded the death penalty without question. This approach also bears the possible stigma of causing a “one standard for many”. Again, by boxing people into categories, not only are the numbers on death row increased across the nation but more and more offenders find themselves categorized as eligible to receive the death penalty. Though I am sure this would have a significant effect on the “retribution and deterrence” aspect that the death penalty wishes to serve, I find it unlikely that it will help matters in the long run, and would only create more work for the appellate courts. However, the subjective, opinionated and somewhat individualized approach created by Tison v. Arizona, 481 U.S. 137 (1987), did little to help matters. It certainly would not box any one person into any category. It also allows for more case-by-case decisions, which in turn allow for more flexibility and consideration for those that are undeserving of the “ultimate sentence” as per Trigilio and Casadio (2011). The consequence, however, is that it slows down the criminal process almost to a crawl and costs more time and money than could possibly be imagined. Cases are already reviewed on a case-by-case basis; taking more time to sort out the details and compare each case to ones before it based on those details would soon become a tedious if not mind-numbing project. It also lacks the capacity to allow for legal precedent, as it would treat each case as unique. No longer would legislation be able to be considered at all, and thus no solid legal basis for imposing the death penalty in the first place would exist. For each case that is reviewed now, cases before it are cited for precedent. This could not be the case if such things were taken on an individual basis, and would cause drastic consequences, none of them good, for both the criminal process and the legal system of the United States of America. Again, there are more positives and negatives to the subjective approach. Subjective approaches by their very nature are based upon opinions. It would therefore be the opinions of the judges on the United States Supreme Court or whatever State Supreme Court the defendant was appealing to that would decide their fate. Since a subjective approach would not take a legal or legislative basis into account, all a defendant would have to do is wait until there was a largely anti-death penalty Supreme Court and have their appeal decided. The opinions of the judges would work in their favor. This, again, would cause more problems for the legal system, as by their very nature the courts interpret the law. It would be an interesting question to see how they would do so taking a largely subjective approach to death penalty cases. The Supreme Court and Capital Punishment Today Though the United States Supreme Court has bounced back and forth from an objective and categorical approach to a subjective, individual approach in their evaluation of capital punishment appeals, they would again take a more objective and categorical approach today, but a modified one that took certain factors into account. For example, in the case of Penry v. Lynaugh, 492 U.S. 302 (1989), the court allowed the sentence of capital punishment to be awarded to a defendant that was clearly of intellectual disability and lacked the proper demeanor to understand the crime committed. Had it not been for the latter case of Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), which ruled that it was indeed “cruel and unusual punishment” to execute those with a diminished mental capacity, the death penalty almost certainly would have been carried out. The same holds true of the approach to handing out capital punishment for those considered to be juveniles, as seen in the decision of Stanford v. Kentucky, 492 U.S. 361 (1989), 734 S. W. 2d 792, 488 U.S. 887 (1988) being overturned by that of Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), as well as those who are simply accomplices to the crime. The first step in the United States Supreme Court evaluating the challenge of the death penalty would be to determine whether or not the offender was a juvenile, or whether they lacked sufficient mental capacity to understand the crime. This would no longer employ previous decisions of Stanford v. Kentucky, 492 U.S. 361 (1989), or Penry v. Lynaugh, 492 U.S. 302 (1989), as they were overturned by later cases that formed a new basis. Based on this, if the defendant was a juvenile under the age of eighteen or an adult of intellectual disability, therefore lacking mental capacity to understand the crime, it would be fair to say, given the decisions of Roper v. Simmons, 543 U.S. 551 (2005) and Atkins v. Virginia 536 U.S. 304 (2002), that neither of these defendants would be given the death penalty. The case would also be examined to determine whether or not the defendant was an accomplice to the crime or the actual murderer in question. If the defendant was an accomplice that had knowledge of the crime but did not commit any actual killing, nor did he or she have any intent to kill, then the Supreme Court would most likely look to Enmund v. Florida 458 U.S. 782 (1982) and not uphold the death penalty. However, if the accomplice took part in the actual planning and, through the facts of the case, was seen to have a “reckless indifference” for human life as seen in the case of Tison v. Arizona 481 U.S. 137 (1987), than the death penalty would most likely be upheld. This is, without a doubt, the lynchpin in the entire way of looking at the case. If the defendant could prove that they had no intention of killing, nor did they ever use any means to take life despite the crimes that were committed by their accomplices, than they may well escape the death penalty. But if circumstances such as Tison v. Arizona 481 U.S. 137 (1987) come into evidence, in which the accomplices not only took an active part in the planning but in the crime itself and did not make any attempt to stop those that were committing murder while doing so, than the death penalty could indeed be a viable option, even if the defendant was a minor. The next step in evaluating the challenge would be an objective one, to look towards the legislation that currently dominates the country. Decisions such as Stanford v. Kentucky, 492 U.S. 361 (1989), and Penry v. Lynaugh, 492 U.S. 302 (1989) were both made and overturned based on such legislation. When the decision of Roper v. Simmons, 543 U.S. 551 (2005), was handed down that reconsidered the decision of Stanford v. Kentucky, 492 U.S. 361 (1989), “thirty jurisdictions prohibited the death penalty for juveniles” (Trigilio & Casadio, 2011). In doing so, the Supreme Court looked objectively at the current governing laws throughout the country and based their decision upon them. After completing an objective analysis, a subjective analysis would be completed. As stated by Trigilio and Casadio (2011), the subjective analysis must decide whether awarding the death penalty would serve “two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.” In other words, it must first be determined that awarding the death penalty would be a fitting punishment for the crime that was committed, thus satisfying the element of retribution (Scheb and Scheb II, 2011). Secondly, it must be determined that awarding the death penalty would serve as a significant reminder to future offenders in helping to prevent them from committing the crime in the first place, thus satisfying the criteria as a deterrent (Scheb and Scheb II, 2011). Should either of those elements not be satisfied, the death penalty cannot be imposed as a punishment for the crime, as under the United States Constitution, Amendment VIII, it would be considered cruel and unusual and not acting in its intended capacity as either retribution or a deterrent. Should it be found to be supported by legislation as well as covering the standards of acting as a fitting punishment for the crime, along with serving as a warning to future felony offenders, then the death penalty would likely be imposed against the challenge. Should any of these factors be found lacking, then it is likely that the sentence would not be the death penalty. In all cases, the Supreme Court would look towards prior decisions, legislation, and subjective analysis in making their decision, as well as towards facts in each individual case such as age and mental capacity, along with the important factor of whether or not the defendant actually took a human life or intended to take a human life. Opinion Regarding the Conclusion of the Paper My opinion regarding the conclusion of this paper is that, given the fact that legislation has changed to allow juveniles and those with intellectual disabilities to be exempt from capital punishment, it is only a matter of time before felony murder accomplices are exempt as well. I believe that the United States Supreme Court has done a marvelous job of allowing for the standards of change that encompass an evolving country, as well as applying objective examination of legislation and subjective analysis, such as when previous cases are overturned by later cases to allow for changing and shifting attitudes and legislation. It is only fair that those who were accomplices in a felony murder, provided that the circumstances could prove that they did not kill and had no intent to kill, not be afforded the same sentence as those that set out with other intentions. If I were to argue on behalf of those that “did not kill or intend to kill”, I would argue that they do not deserve the death penalty as long as it can be proven that their intentions truly had been only to aid those that committed the capital crime, as well as proving that all criminal procedures had been followed. I do have to state, however, that I do not believe that they belong in the same class of criminals as juveniles or those of diminished mental capacity. I simply believe that being in the wrong place at the wrong time or possibly forced to help others that are going to commit a crime, for whatever reason, is not a reason to suffer the same fate as those who committed the crimes with the intent of doing so in the first place. Just like the Supreme Court, I would have to first perform an objective analysis. What is the current legislation, not only of the jurisdiction that I am in but overall? Is the prevailing attitude one that is for the death penalty, or against? In performing this evaluation, I would be better able to argue in terms of the circumstances surrounding the crime, as well as the fate of the person involved in it. I would also perform an evaluation in regards to criminal process. According to Scheb and Scheb II (2011), the criminal process is not only regarded as important, but as a cornerstone of the legal system in the United States. Should any part of this process not have been followed, then an argument on those grounds would, I believe, take precedence over any legislation. For example, the case of Brewer v. Williams 430 U.S. 387 (1977), in which Brewer was interrogated by police in the back of a police car without being informed of his right to counsel. This eventually caused his trial verdict to be overturned and his sentence thrown out. If I examined very carefully all of the processes of law that had been followed, and found that something such as this had occurred, I would then be able to argue that what my client had been doing at the crime did not matter; proper procedure had not been followed, and thus evidence would be unable to be used against him or her. After performing an objective analysis, I would then be able to perform a subjective analysis. If awarding the death penalty to my client would not serve any purpose in retribution or deterrence, I would most certainly be able to argue that it was not deserved. For example, in the case of Enmund v. Florida 458 U.S. 782 (1982), it was indeed found that the death penalty was a punishment that did not fit the crime. It was also found, in reviewing the legislation during the case, that only eight states out of fifty allowed the death penalty to be a viable sentencing option when considering the case of someone who had merely participated in a crime during which a murder had occurred, and had not killed or had intent to kill during said crime. Given these facts, I do not think that I will have a hard time arguing that the death penalty is ultimately a more severe than needed punishment, should my client merely have been aiding others in a crime and if there are no other mitigating factors that must be considered. Opinion Regarding the Eighth Amendment of the United States Constitution First, let me be plain when giving my opinion in saying that I believe in the Eighth Amendment and what it was designed to do. At the time of the drafting of the Bill of Rights, various punishments for various crimes could be considered not only cruel and unusual, but cringe-worthy. These methods undoubtedly far outweigh the five methods of capital punishment employed today (Scheb & Scheb II, 2011). That being said, I find that in some of the cases reviewed, capital punishment was not only appropriate, but necessary. I also believe that it never should have been considered in others. For example, in the case of Tison v. Arizona, 481 U.S. 137 (1987), I find it appropriate that the juveniles in question were given the death penalty. It is clear that they were neither innocent nor were they unable to make their own decisions. Their entire mental state existed around breaking their father out of prison, and they did not care who stood in their way; they would accomplish their goal no matter what, as shown by their actions in idly standing by and allowing people to be murdered in front of them. The same holds true when considering the case of Stanford v. Kentucky, 492 U.S. 361 (1989). The juvenile in question not only planned to commit the murder, he did commit the murder, and as such, cannot be considered a mere accomplice. To commit an act so heinous and then state that one cannot be executed because they are “too young” makes absolutely no sense to me; it can only be hoped that juveniles all over the country will not think that they will be able to get away with committing murder, because they will be considered “too young to know any better.” However, there are those defendants that definitely have no intention of killing, and do not deserve to have the death penalty imposed upon them. The case of Enmund v. Florida, 458 U.S. 782 (1982) is but one example. To be held accountable for a crime in which the accused had no part and never intended to take part is one issue, yet to be sentenced to death for it is, in my opinion, the only time the death penalty should be considered “cruel and unusual punishment”. For example, what if my friend invites me to walk their dog with them while unbeknownst to me they have been training this dog as an attack dog? If they take the leash off of the dog, hand it to me to hold, proceed to go around the corner out of my sight and attack/kill someone with the dog, I do not feel in any way that I should be held liable for the crime committed. I was innocently holding the leash and nothing more. While this does not exactly mirror the circumstances of Enmund v. Florida, 458 U.S. 782 (1982), as he knew what his accomplices were doing when he participated in the crime, for me to be given a death sentence in the case of the dog is, I believe, similar to the fate given to Enmund in which he did nothing but drive a car. If walking a dog or driving a car were criminal offenses, then jails would be much more crowded. While Amendment VIII does indeed act as “insulation from our baser selves” by preventing punishments that do not fit the crime that was committed, that does not give everyone who commits a crime but does not wish to pay with their own life the right to decry it as “cruel and unusual punishment.” While it cannot be denied that the death penalty has seen its share of issues and problems in and of itself, it is my opinion that those that receive it share a better fate than that which they gave their victims. The victim of a murderer sentenced to lethal injection did not have the luxury of a sterile environment, nor of a last meal of their choice, nor a phone with a warden awaiting a call staying the execution. Taking this into account, it is fair to say that, I cannot believe in any way that the death penalty is considered synonymous with “cruel and unusual punishment”, given the procedures that go along with the execution. Conclusion In short, while I believe that the punishment must fit the crime, there are always factors that must be taken into account. Amendment VIII, while originally designed to prevent heinous punishments against those convicted of crimes, can hardly be considered cruel or unusual in some cases. There are now protections in place for those that lack sufficient mental capacity and/or the development by reason of their age to understand the crimes that were committed, and the same protections should apply to those that did not kill nor intend to kill, but were only guilty of exercising bad judgment in their choice of colleagues. I can only hope that all court judgments continue to allow society to evolve and change, and that decisions are based with this reasoning. References Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) Brewer v. Williams, 430 U.S. 387 (1977) Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977) Enmund v. Florida, 458 U.S. 782 (1982), 399 So. 2d 1362 (Fla. 1981), 454 U.S. 939 (1981) Foster v. Quarterman, 466 F.3d 359, 362 (5th Cir. 2006) Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). Penry v. Lynaugh, 492 U.S. 302 (1989) Stanford v. Kentucky, 492 U.S. 361, 734 S. W. 2d 792 (1989), 488 U.S. 887 (1988) Scheb, J. M., & Scheb II, J. M. (2011). Criminal procedure. (6th ed.). Belmont, CA: Cengage Learning. Tison v. Arizona, 481 U.S. 137 (1987) Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958). Trigilio, J., & Casadio, T. (2011). Executing those who do not kill: A categorical approach to proportional sentencing. American Criminal Law Review, 48(3), 1371-1422. Retrieved from http://www.deathpenaltyinfo.org/documents/Executing%20Those%20Who% 20Do%20Not%20Kill.PDF Read More