Capital Punishment - Essay Example

Capital Punishment The capital punishment has undergone a series of drastic transformations in the twentieth century. Till the beginning of the twentieth century, the death penalty was used with decreasing frequency and was restricted, in practice and sometimes in the statutes, to fewer and fewer crimes (Colson 1997). The changes, planned on a grand scale, reflected more than a series of legal decisions. Many of the significant ones in fact took effect without alterations in the penal code, as when states ceased to demand the death penalty for some capital crimes, like sodomy or adultery. Dramatic changes in the letter and the practice of criminal law inevitably indicate that cultural work is being done, that a paradigm shift is occurring in the understanding of crime, criminals, and police power. The main problem is that the debates about capital punishment and its effectiveness are based on ethical principles rather than political or moral rules. Many critics state that capital punishment should be analyzed and discussed in accordance with moral and political principles rather than a 'common sense', values and traditions. Traditionally, the public discussion of crime and punishment encompasses more than the penal code and debates about courts, judges, and juries. The modern criminal justice system emerged at the same time as the fields of psychiatry, criminology, sociology, anthropology, and psychology. These disciplines purported to apply scientific methods of inquiry to behavior, mental illness, and the social and psychological dimensions of crime. In general, moral arguments can be made both for and against capital punishment (Logan, 1999). Long a key element of the debate, moral arguments also have tended to remain fairly static over the years, and often have been used in conjunction with religious arguments. Two moral arguments have remained particularly important throughout the death penalty debate: retribution and the sanctity of life. Those favoring the death penalty often argue that society must express moral outrage at, and condenmation of, heinous crimes such as murder (Coyne & Entzeroth, 2006). The conscience of society should be educated in the view of such a penalty; if it were not, or when it is not, poor and cheap indeed is the estimate placed upon the sacredness of human life. Conversely, abolitionists often argue that rather than upholding the sanctity of life, the death penalty violates it. Both Henry Fielding and Charles Dickens used moral and political arguments to oppose capital punishment. These same issues have been the subject of even greater attention and controversy in the modern era, as scientific studies have attempted to determine whether capital punishment acts as a deterrent to murder and/or whether it has a "brutalizing" effect on society. In spite of the fact that Fielding supported execution for Bosavern Penlez, he rejected the idea of capital punishment as the only possible measure to prevent crimes (Fielding, 1980). Proponents of capital punishment typically consider deterrence to be one of its fundamental goals. The execution sermons of the early colonies were full of warnings against following in the footsteps of the condemned, and executions were public events designed to instill fear and reverence for the law in the people of the community (Colson 1997). Also, critics admit that such mental state as monomania is an elusive form of insanity manifested itself in a single narrow area. Monomaniacs could thus appear sane and normal most of the time but would become obsessive, wildly irrational, and even homicidal in regard to one particular subject (Coyne & Entzeroth 2006). The rational faculties of the moral imbecile could be entirely intact, but the moral faculties common to normal humans were totally lacking. In court, and in some state penal codes, these new categories sometimes led to an "irresistible impulse" test: For the monomaniacal murderer or the moral imbecile, a single act of explosive violence might expose a lifetime of apparent normalcy as a masquerade (Coyne & Entzeroth 2006). From political standpoint, capital punishment is the effective tool to prevent crime rates and 'threaten' criminals. Thus, Dickens finds that: "The parliamentary returns demonstrate that it is not [effective measure to reduce crimes" (Dickens n.d.). Following Connors (2007) such paradigms views the artist as somehow removed from society and political power, as a seer able to observe and critique society with privileged vision. In political races, too, opponents routinely compete with one another to see who can denounce crime and criminals more vigorously (Coyne & Entzeroth, 2006). The hyperbolic rhetoric widens the gap between the work of the criminal justice system and the citizens' perception of it. The public forum is increasingly dominated by images of the electric chair, the gas chamber, and the injection table, by the maximum security prison and the hardened convict who, once on parole, only continues his predatory lifestyle (Coyne & Entzeroth, 2006). Dickens shows that the rhetoric of crime and punishment persuades not only through dehumanization but also by flattering those in power and inspiring their righteous indignation. The representation of execution is a politically loaded act in a wider sense too. As Fielding has argued, spectacular executions may consolidate the power of the state or monarch through public demonstration, but they also run the risk of inciting rebellion (Fielding, 1980). When executions are moved behind closed doors, the meaning of capital punishment in public discourse changes (Coyne & Entzeroth, 2006). As execution becomes less visible, it comes increasingly to be known secondhand, through representation in journalistic narrative and other forms of public discourse. The move indoors may be explained and justified in the name of common decency, but it also means that public perceptions of capital punishment has changed (Coyne & Entzeroth 2006). "Some people are morally opposed to it; others see it as a corrupting part of our criminal justice system. On the other side are those who argue with fervor that the death penalty is a vital part of any community, a mechanism for people living together to protect innocent life" (Devine 2005, p. 637). It is possible to say that capital punishment is a moral matter when it considers a crime as an individual matter rather than a social one. Capital punishment can be justified if it protects the society and every individual from murders and repeat offenders (Coyne & Entzeroth, 2006). The constitutional arguments for and against the death penalty are numerous. Those sentenced to death have challenged the constitutionality of their sentences with regard to the prescribed mode of execution, the sentencing procedures used by the court and jury, and the application of the penalty to their particular crime or personal situation. Important as these arguments are, perhaps the most significant arguments in recent years are those that challenge the constitutionality of the death penalty itself, rather than the constitutionality of individual sentences (Coyne & Entzeroth 2006). Dickens admits that: 'But in every branch of this part of the subject--the inefficiency of capital punishment to prevent crime, and its efficiency to produce it--the body of evidence (if there were space to quote or analyse it here) is overpowering and resistless" (Dickens n.d.). Abolitionists claim that although the death penalty was considered an acceptable practice by the framers of the Constitution, in the modern era it constitutes the type of cruel and unusual punishment forbidden by the Eighth Amendment. However, retentionists, while not disputing the enormous costs of the modern death penalty, do not see abolition as the answer. Instead, they are seeking ways to reduce the time and costs involved by limiting the number of habeas appeals allowed, and putting strict time limits on them (Coyne & Entzeroth, 2006). Morality is a good guide for moral choice but critics admit that: "In fact, the moral imperative was so strong that if the state abolished the gallows, citizens would probably take justice into their own hands" (Lifton & Mitchell 2002, p. 36). So, capital punishment should be treated as a political matter only in those cases when it deals with the protective and executive role of the government. Following Rusche and Kirchiemer (2003), a society's political economy requires a strong political force life capital punishment to keep an order and protect citizens from criminals. They state that the criminal justice system as a whole also has an enabling discourse of this kind to justify its actions. In this respect the war on crime resembles military war: the state's efforts are buttressed by texts that dehumanize its enemies while glorifying its standard-bearers. It becomes important to differentiate the "true" criminal from the law-abiding citizen. The capital offender stands at the heart of this discourse as the criminal so dangerous and so irredeemable-so threatening to the social order-that he or she must be destroyed. Society has the responsibility of protecting itself by aggressively policing the line between criminal and normal. Rusche and Kirchiemer (2003) connect labor relations and imprisonment stating that "punishment is the protection of society" (p. xlvii). And, like moral arguments, these arguments tend to remain fairly static over time, perhaps because they are based on people's deep-rooted beliefs and values rather than on empirical research, constitutional law, or practical issues. Indeed, prior to the development of an extensive prison system, execution may have been considered the only sure way to prevent offenders from repeating their crimes. However, when long-term incarceration became a plausible alternative to capital punishment in the late eighteenth and early nineteenth century, the incapacitation argument began to heat up. Abolitionists typically argue that the death penalty is no longer necessary because life imprisonment will incapacitate equally well. retentionists argue that a "life" sentence does not always mean that a convicted murderer will remain in prison for the rest of his or her life, nor does it prevent convicted murderers from killing again inside the prison walls (Coyne & Entzeroth, 2006). Although historical evidence reveals a long tradition of discriminatory application of the death penalty, and indeed several abolitionists throughout early history noted that the death penalty appeared to be imposed more frequently on the poor and minorities, discrimination did not become a major issue in the capital punishment debate until the second half of the twentieth century (Donohue & Wolfers 2005). It was then that the civil rights movement of the 1960s focused increased public attention and research on the subject. In addition to contending that the death penalty is disproportionately imposed upon the poor and minorities, many abolitionists also claim that juror discretion in death sentencing is likely to produce arbitrary and capricious death sentences a claim that resulted in a successful Eighth Amendment challenge to existing death penalty statutes in the 1972 case of Furman v. Georgia. However, while new guided discretion statutes enacted since Furman were intended to resolve this problem, many abolitionists argue that death sentences still are being meted out arbitrarily by juries (Connors, 2007). The historical invisibility of the criminal justice system is especially noteworthy, given its conspicuous presence in contemporary culture. "The character of punishments is inextricably associated with and dependent on the cultural values of the state that employs them" (Rusche 7 Kirchiemer 2003, p. xlviii). In political races, too, opponents routinely compete with one another to see who can denounce crime and criminals more vigorously (Lifton & Mitchell, 2002). Capital punishment cannot be seen as an ethical question only because social rules and peace are based on political and moral principles rather than ethical concerns. In sum, capital punishment decisions should be subjected to moral and political choice rather than ethical guidelines because our society is based and functions according to political rules established by the states. In this case, 'political decisions' should ensure well-being of all citizens and protect the society from criminals. Moral rules should be used as a guide based on human morals and values aimed to ensure common good and security. Bibliography 1. Connors, P. G. 2007, Capital Punishment (Current Controversies). Greenhaven Press. 2. Lifton, R. J., Mitchell, G. 2002, Who Owns Death Capital Punishment, the American Conscience, and the End of Executions. Harper Perennial. 3. Colson, Charles W. 1997, The Death Penalty: Opposing Viewpoints. Ed. David Bender & Bruno Leone. San Diego, CA: Greenhaven Press. 4. Coyne, R., Entzeroth, L. 2006, Capital Punishment and the Judicial Process, Third Edition. 5. Devine, R.A. 2005, Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. Journal of Criminal Law and Criminology, Vol. 95, p. 637. 6. Dickens, Ch. The Famous Letters. N.d. Available at :http://home.earthlink.net/bsabatini/Inimitable-Boz/etexts/dickens_on_capital_punishment.html 7. Dickens, Ch. Miscellaneous Papers. 2007. Available at http://www.mastertexts.com/index.phpPageName=ChapterDetails&TitleID=584&VolumeNo=&ChapterNo=4 8. Fielding, H. 1980, A True State of the case of Bosavern Penlez, In Enquiry into the Causes, ed. Zirker, Wesleyan University Press, pp. 55-6. 9. Logan, W.A. 1999, Declaring Life at the Crossroads of Death: Victims' Anti-Death Penalty Views and Prosecutors' Charging Decisions. Criminal Justice Ethics, Vol. 18, p. 41. 10. Rusche, G., Kircheimer, O. 2003, Punishment and Social Structure. Transaction Publishers; Rev Ed edition. Read More