Death Penalty Issues - Essay Example

Death Penalty Issues The state of Tennessee had been in the practice of executing some of its prisoners throughout much of its history. However, the method of killing had frequently undergone change. For instance, prior to the year 1913, those condemned to death had been hanged by the neck till dead. Between the years 1913 to 1915, the death penalty had been stayed in this state. When it resumed in 1916, the method of killing adopted was death by electrocution[Ten]. From the year 1972 to 1978, prisoners had not been put to death in this state, due to its prohibition by the US Supreme Court. However, the death penalty was revived in the year 1978. By the year 1998, the state legislature provided another choice for executing the condemned prisoners. This was by means of lethal injection. In March 2000, legislation was enacted in this state that made death by lethal injection the primary procedure for executing those condemned to death[Ten]. With the reintroduction of capital punishment in 1916, the prison wardens were required to maintain an official ledger that provided details of the executed. During the period 1916 to 1960, executions were conducted exclusively at the Tennessee State Penitentiary in Nashville. The execution of Coe by lethal injection, in the year 2000, was this state’s first execution, after nearly four decades[Ten]. Tennessee Law on Capital Punishment The Tennessee Code § 39 – 13 – 202 describes the offenses that merit the capital punishment. These are; first, the intentional and premeditated killing of another. Second, the killing of another during the perpetration or attempted perpetration of first degree murder; terrorist act; rape; robbery; arson; burglary; aggravated child abuse, neglect or rape; rape; rape of a child; or aircraft piracy. Third, the killing of another individual resulting from the unlawful discharging, placing or hurling of a bomb or destructive device[Pal13]. Code § 39 – 13- 204(i) of Tennessee stipulates that the prosecutor has to prove the existence of one of the following statutory aggravating circumstances, during the penalty stage of the proceedings. First, the murder was perpetrated against a person who was not older than 12 years of age and the accused was 18 years or older. Second, the accused had been convicted, previously, of one or more felonies that had involved violence to the person[Pal13]. Third, the defendant should have caused a grave danger to two or more persons, other than the murdered victim, at the time of commissioning the crime. Fourth, the accused should have carried out the murder for remuneration, promise of remuneration, hired another person to commit the killing for remuneration or the promise of the same[Pal13]. Fifth, the murder committed should have been especially atrocious, cruel or heinous, in as much as it had entailed serious physical abuse or torture that was over and above what was required to produce death. Sixth, the murder should have been committed for the purpose of averting, interfering with, or preventing a lawful arrest or prosecution of the accused or another person[Pal13]. Seventh, the murder should have been knowingly aided, committed, directed, or solicited by the defendant, at the time that the accused had a major role in attempting to commit or committing, escaping after having a substantial role in attempting to commit or committing, a first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child, aircraft piracy, or the unlawful throwing, discharging or placing of a destructive device or bomb[Pal13]. Code § 40 – 23 – 114 of the Tennessee Code requires the execution to be carried out by lethal injection. However, with respect to capital offenses committed prior to 1 January 1999, the condemned person can opt to be put to death by electrocution, instead of lethal injection. Moreover, if the US Supreme Court were to declare these methods of execution as invalid, then any other valid killing method can be employed. Under no circumstances the punishment can be reduced[Lex13]. Current Status of the Law In the year 1838, Tennessee was the first state to empower juries with the discretion to sentence individuals convicted of murder. This permitted avoidance of the death penalty. During the period 1890 to 1920, Tennessee proved to be the sole former Confederate state to enact legislation to abolish the death penalty. However, it was also the last Southern state to resume the death penalty[Dea13]. In the year 1990, Tennessee excluded individuals with intellectual disabilities from being put to death upon being convicted for murder. In the year 2000, this state resumed the killing of those convicted of murder. In the year 2007, an executive moratorium on executions was proclaimed for 90 days, during which the protocol for administering lethal injections was examined. During the period 2007 to 2009 a study committee examined the situation and recommended changes to the existing mechanism. All the same, this committee did not recommend the abolition of executions[Dea13]. On 1 June 1796, Tennessee became a member of the union as the 16th state. Its laws were based on those of North Carolina, to which Tennessee had originally belonged. The early law of Tennessee were extremely repressive. For instance a second offense of horse theft, forgery, theft of goods valued at 10 dollars, perjury and the burning of houses of barns invited the death penalty[Van01]. Moreover, it had a different set of laws for dealing with crimes by the blacks. This was similar to the other states that promoted slavery. Thus, an 1819 law prescribed the death penalty for arson, burglary, rape and robbery committed by slaves. In addition, conspiracy to rebel by slaves was punishable by death[Van01]. Furthermore, an 1833 piece of legislation provided that an assault upon a white female by a negro or mulatto, whether bond or free, with the intent to outrage her modesty was to be punished with execution. The method of execution was by hanging. In 1836, an act was made that prescribed the death penalty for assault or battery upon any free white person with the objective of committing a murder in the first degree[Van01]. In its 1849 to 1850 session the Tennessee legislature passed an act, whereby any free Negro or Mulatto who raped a white female was to be hanged by the neck till dead. In addition, any Negro or Mulatto who was an accessary to a murder in the first degree was to be compulsorily hanged[Van01]. Once again, in the year 1852, Tennessee expanded the applicability of the death penalty for the blacks, by making executions mandatory for the blacks who prepared, exhibited or acted as an accessory in the administering of a poison, potion or medicine that was aimed at bringing about the death of a person. Death was also prescribed for the rape of a female child less than 10 years of age[Van01]. With regard to the whites, a 10 to 21 years sentence was to be imposed for rape and a five to 15 years sentence for arson, burglary or robbery. A sentence of three to 10 years was prescribed for whites who stole livestock, and a sentence of five to 15 years for the whites who stole slaves. The sole penalty for a conviction of murder, until the year 1829, was death. During that year an act was made that classified murder into that of the first and second degree[Van01]. The death sentence was made mandatory for those convicted of first degree murder and for those who had been accessories to such murders. With regard to second degree murder, the punishment was a sentence of 10 to 21 years. In the year 1838, the jury were granted discretion in sentencing to death or life for first degree murder[Van01]. However, there was no clarity regarding the punishment to be inflicted upon accessories before the fact of first degree murder. The death penalty was revived and made mandatory for first degree murder, by the year 1858, for the whites, as well as the slaves[Van01]. Authority or Power On 1 February 2007, Bredesen the Governor proclaimed that the manner of administering the death penalty had to be reviewed by the Tennessee Department of Correction. This brought about an abeyance in the imposition of the death penalty. On 30 April 2007, the Tennessee Department of Correction furnished the Governor with revised death penalty protocols. The outcome was the resumption of the killings on 2 May 2007. Holton was the first person to be executed after this resumption of executions by electrocution, and this was on 12 September 2007[Ten]. In the case of Furman v Georgia, the US Supreme Court ruled that the Eight Amendment to the US Constitution had been breached, due to the unfair and unreliable manner of administering the death penalty. Subsequently, after the passage of four years, the US Supreme Court reversed its stance and authorized the restoration of capital punishment[Red09]. However, the death penalty had to be administered in a fair and reliable manner. A number of studies, reports and commentaries by judges had emphasized that executions in Tennessee had not be carried out as per the constitutional mandate. These killings were seen to be arbitrary and discriminatory[Red09]. Tennessee reinstated the capital punishment, in the aftermath of the US Supreme Court’s decision in Furman v Georgia. This state inflicts the death penalty or imprisonment for life for capital murder. Such life imprisonment is either with or without parole. Prosecution for capital offences in Tennessee is divided into the guilt and penalty stages[Pal13]. The Deterrent Effect of the Death Penalty, if any A study by Sellin, in the year 1967, scrutinized the influence of capital punishment on homicide rates, in some of the States of the Union. During, this study, data from Iowa and other states that had rescinded capital punishment, was examined. It was determined by this study that the presence or absence of the death penalty had scant effect upon the homicide rate[Mar091]. In fact, Merritt, a former Chief Judge of the Sixth Circuit of Court of Appeals stressed that the administration of the death penalty in Tennessee was arbitrary and capricious. Moreover, Judge Martin had stated during a Sixth Circuit Court of Appeals death penalty case that there had been a total failure in Tennessee in ensuring fairness, accuracy and proportionality, while executing prisoners[Red09]. The death penalty continues to be administered in an indefinite manner. For instance, West was to be put to death in November 2010. However, just 30 hours before his execution, the Tennessee Supreme Court stayed his execution. This person had been convicted of the murder of a female and her daughter in the year 1986. The inordinate delay in such cases, served to strengthen the contention that the system was capricious and incomplete. In fact, West was to be killed in the year 2001, which was stayed. Finally, his death was deferred indefinitely[Haa13]. This establishes that the homicide rate is not affected to any appreciable extent by the death penalty. Limitations During the penalty stage the jury has to unanimously concede that the death penalty is the most appropriate punishment for the convicted felon. This is essential for putting the convicted individual to death. When the jury is unable to arrive at a unanimous decision to execute the convicted person, the trial judge has to impose a sentence of life imprisonment upon that person[Pal13]. The capital punishment statute of Tennessee provides for the automatic review of the sentence imposed by the lower court, by the Supreme Court of Tennessee. In this state, the death sentence is carried out by administering a lethal injection. However, a choice has been provided with respect to the means of death. Thus, individuals convicted of a capital offense that had been carried out before 1 January 1999 can elect to be put to death by electrocution or by lethal injection[Pal13]. Those convicted to death, in the state of Tennessee are incarcerated at Nashville. The laws of Tennessee empower its governor to grant clemency to those condemned to death. Such clemency is in the form of a commutation of the death sentence to one of life imprisonment. However, the Tennessee Supreme Court has to conclude that the sentence has to be commuted[Pal13]. Federal Law on Capital Punishment Authority and Limitations Sections 68 and 69 of Title 9 of the United States Attorneys’ Manual, published by the US Department of Justice in 1997 states the following. The death penalty, as provided for under 21 USC 848(e)(1)(A) – (B) came into effect on 18 November 1988. This was enacted as a component of the 1988 Anti – Drug Abuse Act[Dea12]. The objective of the US Congress, in passing this piece of legislation, was to punish and deter any individual who deliberately killed or counselled, commanded, induced, procured or caused an intentional killing. Such killing was with respect to any person engaged in, working in furtherance of some existing criminal activity, or engaged in a major Federal drug felony[Dea12]. This killing is also with regard to any law enforcement officer during or in the context of a Federal drug felony. The offenses that come under the ambit of 21 USC 848(e) include any individual who commits or induces another to commit a drug related intentional killing[Dea12]. The 1994 Federal Death Penalty act was enacted as Title VI of the Violent Crime Control and Law Enforcement Act of 1994. The former act came into force on 13 September 1994. A constitutional process for inflicting the death penalty, with respect to 60 offenses was established by the US Congress, via the Federal Death Penalty Act 1994[Dea12]. These three score offenses were under 13 existing and 28 newly formed Federal capital statutes. Moreover, these statutes came under the categories of homicide offenses, espionage and treason, and non – homicidal narcotics offenses. This Act provided for a comprehensive list of death penalty offenses. However, political assassinations under 18 USC 1751 and 18 USC 351, and drug related killings under 21 USC 848(e) were not included in this list. All the same, Section 3591(a)(2) of this Act expressly encompasses any other offense that attracts the death penalty[Dea12]. Limitations to the Federal Death Penalty Laws The Fifth Amendment to the US Constitution declares that no individual should be required to answer for a capital or otherwise notorious crime. The exception being when there is an indictment or presentment of a grand jury. The instances excluded are cases arising in the land or naval forces, or in the militia, during times of war or public danger or in actual service[Cor13]. In addition, no person can be placed in danger of life or limb, more than once for the same offense. Moreover, no person can be forced, in a criminal case to depose against himself; nor can a person’s life, liberty or property be deprived in the absence of the due process of the law. Furthermore, private property cannot be taken for public use, unless there is fair compensation[Cor13]. The Fifth Amendment to the US Constitution incorporates clauses that describe the fundamental constitutional limits on police procedure. The framers of the US Constitution had resorted to the 1215 Magna Carta, while deriving the Grand Juries Clause and the Due Process Clause. The following constitutional rights have been derived by scholars from the Fifth Amendment to the US Constitution[Cor13]. First, the necessity of grand juries for trying capital crimes. Second, prohibition on double jeopardy. Third, prohibition against self – incrimination. Fourth, the guarantee of a fair trial to every criminal defendant. Fifth, the assurance that the government will not seize private property without paying the market value. In the initial stages, the Fifth Amendment to the US Constitution had been limited to the federal courts. Subsequently, the US Supreme Court interpreted its provisions as being applicable to the states, via the Due Process Clause of the Fourteenth Amendment to the US Constitution[Cor13]. The Eight Amendment to the US Constitution restricts the sanctions that could be imposed upon individuals accused or convicted of criminal behavior by the criminal justice system. These restrictions pertain to the amount of bail associated with a crime, the fines that could be imposed and the punishments that could be inflicted. The derivation of the Eight Amendment to the US Constitution is more or less an exact copy of the relevant portions of the 1689 Bill of Rights of England[Lev]. Although, there is no description regarding what constitutes excessive, in the context of fines, in the US Constitution, the general rule has been to prohibit fines that violate due process by causing a loss of property. With the exception of fines that are patently an abuse of discretion, while imposing fines, the usual practice is to uphold the fine imposed[Lev]. In the context of bail, the interests of society at large and the legal system are given due weightage, in addition to the individual rights of the defendant. As a consequence, the risk of abscondment by the accused, the gravity of the crime and the evidence against the accused are considered at the time of determining the bail amount. With regard to criminal violations, it is commonplace to consider proportionality and reasonableness at the time of arriving at the bail amount[Lev]. With regard to the terms unusual and cruel punishment, the US Constitution failed to provide any description. It had been left to the courts to determine exactly what was permissible under the law. The underlying principle was that the punishment should not be disproportional to the crime. Some of the questions that the US Supreme Court had to consider were whether a teenager could be executed, whether a juvenile could be sentenced to life imprisonment without parole, whether capital punishment was acceptable, and whether a mentally disabled person could be sentenced to death[Lev]. Cruel and unusual punishment admits of a subjective nature. Moreover, it involves the direct, unambiguous and tangible loss of liberty and in some cases even life. This has resulted in a number of challenges to statutes on the basis of the Eight Amendment grounds. At the time of its ratification in the 18th century, it was perceived that there would be a preclusion of punishments that were barbaric, or entirely disproportionate to the crime or to social tolerance[Lev]. However, in some of the subsequent epochs, draconic punishments were inflicted upon criminals in the US. Thus, in the year 1791, death by hanging was inflicted upon some of the perpetrators of forgery, burglary and larceny. All the same, in Whitten v Georgia, the US Supreme Court restricted what was permitted under the US Constitution. It opined that the clause relating to the prohibition of cruel and unusual punishment was aimed at preventing the barbarities of castration, hanging in chains, quartering and other such punishments[Lev]. In accordance with the common law of England, which had been transported by the colonists to the US, a conviction of murder and other eligible death charges were imposed with a compulsory death penalty. This was the situation obtaining, prior to the ruling in Furman and the 1838 Tennessee legislation[Duk08]. However, jury nullification brought about an increase in the number of cases, wherein the charges were dismissed or the accused deemed to be guilty of a lesser charge. The state of Tennessee passed legislation that enabled the prosecution to exercise greater discretion in the selection of capital cases. This legislation had the salutary effect of developing the criteria to be applied in the prosecution and sentencing of individuals accused in such cases. At the same time it eliminated the mandatory imposition of the death penalty, which had been the erstwhile practice[Duk08]. Proposed Changes to the Death Penalty Law All the same, this provision of discretion in every case, proved to be detrimental, as it rendered the process arbitrary and unpredictable. The outcome was the development of different criteria in each case. This trend was in place, until the Furman decision. This ruling established that it was a violation of the US Constitution to have statutes that provided for discretionary sentencing. As many as 39 of the 40 States of the Union were found to have such unconstitutional statutes[Duk08]. These states had to find an alternative to the death penalty or to amend the offending statutes. As a result, 35 of these states responded to the US Supreme Court’s ruling. At present, 38 states practice the death penalty[Duk08]. An important question that arises, is whether the reinstating of the death penalty has any effect. Each jurisdiction of the states with the death penalty, prior to the Furman ruling, had incorporated its own procedure with respect to prosecuting and sentencing capital cases. Although, legislation has been passed by the states to enumerate the offenses that are to attract the death penalty, the decision to prosecute and sentence relies upon the local court officials[Duk08]. While deciding the Furman case, the US Supreme Court unearthed a vast number of local court procedures. This staggering number of procedures had created a system that was arbitrary and capricious and which eventually brought about violations of the Eight and Fourteenth Amendments to the US Constitution[Duk08]. Policies pertaining to criminal justice tend to be fundamentally the jurisdiction of the local and state governments. The states have been permitted to pursue justice, provided they do not violate individual rights or the rights provided by the constitution to a defendant[Duk08]. A major flaw with the death penalty is that it is not prescribed uniformly across states. Thus, at least three different versions of the death penalty have been identified, on the basis of sentencing and execution. Moreover, 12 of the States of the Union have excluded it from their sentencing choices. Furthermore, the initial decision to prosecute a death penalty case is taken by a local prosecutor. It is important to realize that a humanizing and progressive development can be achieved, by considering the offense and the offender with the objective of arriving at an equitable and appropriate sentence[Duk08]. Conclusion In the course of this work, the origin of the death penalty in the US, in general and in the state of Tennessee, in particular, has been examined. Evidently, the laws of Tennessee are quite repressive. Despite the various instances of miscarriage of justice and the strident calls made by the civilized nations to end it, the death penalty continues to be employed with great zeal in this state. As a state that actively promoted slavery, Tennessee had a different set of laws for the blacks and the whites. The blacks were put to death for crimes that invited imprisonment for white offenders. In the initial stages, the preferred method of killing had been hanging. Subsequently, the electric chair was introduced, as a means of execution. Finally, Tennessee has resorted to the lethal injection to kill individuals convicted of capital offenses. List of References Ten: , (Tennessee Department of Correction, n.d.), Pal13: , (Palmer, 2013, p. 335), Pal13: , (Palmer, 2013, p. 336), Lex13: , (LexisNexis, 2013), Dea13: , (Death Penalty Information Center, 2013), Van01: , (Vandiver & Coconis, 2001, p. 867), Van01: , (Vandiver & Coconis, 2001, p. 868), Van01: , (Vandiver & Coconis, 2001, p. 870), Van01: , (Vandiver & Coconis, 2001, p. 871), Red09: , (Redick, 2009, p. 13), Mar091: , (Marzilli, 2009, p. 30), Haa13: , (Haas, 2013), Dea12: , (Death Penalty, 2012), Cor13: , (Cornell University Law School, n.d.), Lev: , (Levy, 2011), Duk08: , (Dukes, 2008, p. 217), Duk08: , (Dukes, 2008, p. 218), Duk08: , (Dukes, 2008, p. 228), Duk08: , (Dukes, 2008, p. 229), Read More