Capital Punishment the Controversy - Coursework Example

Capital Punishment the Controversy Law April 28, There will be an historical consideration of the death penalty in various locations as well as a consideration of the arguments in favor of and arguments opposed to the death penalty, from both a moral and social point of view. Historical Perspective The first time capital punishment was implemented in the United Kingdom was during the legislative session of 1848-9 wherein the states of Germany, by a narrow margin enacted the death penalty, for the most severe of crimes, as there were recent dreadful cases of murder, for which life imprisonment was considered to be insufficient, and the death penalty possibility needed to exist for the sake of the deterrent obtained from it. (Nicolau, 2013) The Prussian Code renders it impossible to impose the death penalty when there exists in a given situation, diminished capacity with the defendant. The Austrian Penal Code of 1852 exempted from capital punishment cases where the finding of guilt was based on circumstantial evidence and in cases where the defendant is less than 21 years of age. However, there was not an allowance for mitigation due to extenuating circumstances. The Bavarian Code proclaimed in 1861 had a similar regard for minors, those where there was diminished imputability, and for certain crimes that were committed abroad. (Nicolau, 2013) In Hamburg the maintenance of capital punishment was confirmed as being a necessary expression of the religion among the people, and to get rid of it would cause an imbalance between crime and punishment would be destroyed. In France there was allowance to consider extenuating circumstances in cases where the death penalty could have been imposed, but the sentence would have been disproportionate to the crime. (Nicolau, 2013) In North America there is considerable debate over the rightness and wrongness of capital punishment and when a jury is empanelled in a case where capital punishment is an option, each individual potential juror is asked whether or not they oppose such a penalty, and if they suggest that they are opposed, they are immediately dismissed from the jury box. The death penalty was entirely abolished in Michigan in 1846, in Rhode Island, 1852, and in Wisconsin in 1858. (Nicolau, 2013) The death penalty was active in Italy, but was imposed with as much mildness and possible under the circumstances. However, in 1847 it was abolished to be reinstituted in 1852. It is important to note that the judge was given the power to impose life imprisonment in situations where there were sufficient mitigating circumstances. (Nicolau, 2013) San Marino abolished the death penalty from its code in 1859. Although there were powerful arguments for abolition in the Netherlands, so opposed to abolition were they that they have maintained the penalty for infanticide and theft even. (Nicolau, 2013) Even though Portugal had a strong attitude in favor of rehabilitation in its criminal code, even they have made it necessary to impose the death penalty for such crimes that are of such a depraved nature that there was no hope of reformation possible. However, there were the following restrictions imposed within this enactment: (1) that it will not be imposed for political crimes; (2) it will apply to only two crimes; (3) that on account of extenuating circumstances the judge must pass a milder sentence; and, (4) it is not applicable to minors, under 19 years of age. (Nicolau, 2013) Sweden utilizes the death penalty in the case of a murder conviction, but requires that the judge imposed life in prison if there are sufficient extenuating circumstances. (Nicolau, 2013) It is clear from these examples that Europe will no longer impose the death penalty because it was customary or there was a precedent to do so. There is a recognition that the governmental authorities cannot get by with carrying out matters, unless there is sufficient support from a majority of the people of a place. The government with wisdom recognizes that it should not stifle those objections of the people, and the opinions that are considered and valid, as the best manner of determining where there needs to be amendments of the law. No area of the law depicts this development of civilization better than that of the criminal code and specifically on the issue of capital punishment. So out of sync with the law were the practices concerning the death penalty, between 1967 and 1977 the United States experienced a moratorium on executions as a result of the finding by the United States Supreme Court that the application of the death penalty statutes at the time, were in violation of the 8th amendment to the Constitution, against cruel and unusual punishment, in Furman v. Georgia (1972). However, within 3 years 35 states had reauthorized death penalty statutes allowing more discretion to the sentence, narrowing the class of death penalty recipients, as set out in Gregg v. Georgia (1978). Further restrictions imposed individualized sentencing as evidence in Lockett v. Ohio (1978). Finally, the United States Supreme Court required that sentencing with the death penalty needed to be reasonably consistent in its application, or not at all as articulated in Eddings v. Oklahoma (1982). As of 2009 the United States was ranked 4th in the world in the number of defendants executed. (Amnesty International, 2009) Moral Perspective Arguments in favor of the death penalty from a moral perspective include the fact that fundamental to the nature of all men is the concept that the evil inflicted on an innocent man ought to be returned by the state in kind. Thus, for such a crime as murder, the only true equity would be to kill the killer. Further, there is a collective sense of what is right and wrong in the heart and minds of all men and when that is violated by imposition of a penalty that is not sufficient, men collectively will rebel against the failing. Arguments based in morals against the death penalty include the fact that from the beginning of time, the idea of killing a person who is not guilty has been considered a shock and outrage to any decent society of people. The thinking of course is that if a mistake can have been made in killing that person, what is there to stop me from being killed for doing not? There have certainly been sufficient examples of those that have been executed that were subsequently discovered to have been innocent. Further the damage that occurs to those who were not ultimately executed but were just in a position to be executed for a period of time, is life altering. Many good men have succumbed to committing suicide when waiting to be executed, and knowing that they have not committed the crime that they are scheduled to be executed for. The damage does not stop there as it by necessity extends to all of the family members of such victims either directly or indirectly. Finally, who with a trace of conscience can want to continue to be a member of a society who is capable of doing this moral wrong? Along those same lines, many who believe in a sovereign God believe that vengeance is best left with our creator and it is an issue that we have no jurisdiction to be meddling in. To conclude this analysis one needs to look at the issue from the perspective of it being such an action that to not oppose it with all of your might, by association makes all involved guilty. Some of the strongest moral arguments against a continuation of the death penalty were issued by the American Law Institute (ALI) when it abandoned its model statute for capital punishment, several years ago. These arguments include the “conflict that exists between the clear statutory statement concerning which crimes should be subject to the death penalty, and the constitutional requirement that determination be made depending upon the individual defendant; the difficulty that exists with limiting the number of aggravating circumstances such that they do not cover a large percentage of murders; the virtual impossibility of dealing by legal rule, the racial bias that exists within the criminal justice system that results in racial disparity in death sentences, based upon the race of the victim; the enormous economic costs of administering a death penalty regime; the findings that legal representation of death penalty defendants is inadequate; the likelihood that with current DNA testing that defendants will be proven to have not committed the crime, in some cases too late; and, the politicization of the death penalty issue.” (Entzeroth, 2011-12, p. 814) Social Perspective Social based arguments in favor of imposition of the death penalty include that at the moment that the State as the representative of the collective mind of the people, fails to impose sufficient punishment on those that commit, for example, murder, the risk of the people taking matters into their own hands, will always exist. A good example of this is the Lynch Laws that existed as a de facto matter in the United States, notwithstanding the argued wrongness of this, it is the ultimate result of the State’s failure to appropriately deal with criminals that commit certain outrageous and unacceptable crimes. This is one of the strongest forces at play on a societal level, in favor of the death penalty. A sense of balance must by necessity be maintained for a society to tolerate things for any reasonable period of time. Many perceive the death penalty as the single strongest deterrent to those individuals that would otherwise commit wrongs of such a grave nature. Further, but for the presence of the potential death penalty, many lives would be snuffed out, so arguably this penalty in place, whether it is used or not, affords the greatest safety to society. In addition, there is a powerful argument to be had concerning the trend that would be established in the minds of many, if the death penalty were to be abolished, in that it would have a corrosive effect on any criminal code in place. Further, the absence of such a penalty, would by definition require that more heinous crimes, such as murder and rape be subject to the same or equal punishment as lesser crimes, so why not commit the greater crime, if the punishment is going to be the same? The point is you cannot deal lightly with something of such gravity. There has to be reasoned sound thought given to any actions taken on this subject matter. Social arguments opposed to the imposition of the death penalty include that on a fundamental level the notion of being executed is the ultimate punishment that any society can impose upon one of its members. Because of the understanding of the average man there is a realization that such a final punishment should be exercised with much discretion or care. For this reason most societies prefer to impose such punishment for crimes that are of such a nature that there would be a reasonable connection between the crime and punishment. This would limit capital punishment for crimes such as rape and murder or crimes where these crimes were committed in the course of carrying out other crimes or in a conspiracy situation for example. Further, this punishment would be limited to crimes where there was sufficient evidence beyond that which is considered circumstantial in nature. Capital punishment is viewed by most societies as a necessary deterrent to most individuals to keep them from committing crimes of an extreme nature. It is viewed as a necessary evil to further the best interests of a society. Unfortunately many times those individuals that are charged with crimes that carry the death penalty are not able to afford to hire an attorney to represent their interests in a court of law. As a result they are left with the option of having an attorney appointed to represent them or represent themselves, which many judges will not even allow in a case where death penalty is a possible outcome. I believe we all have heard of the nightmare that occurs when a court appointed attorney represents an individual in a criminal proceeding that has the potential for capital punishment. As a rule, court appointed attorneys are not the experts in the areas of law otherwise they would not be on a panel of attorneys that are appointed by the state. The pay is small and the attorney is usually overworked if he or she does even a half way decent job in representing their clients. A striking example of the failure of a court appointed attorney to present evidence that could have eliminated a finding of guilt and the subsequent execution took place in the case of State v. Anthony LaRette, who was given the death penalty in 1980 and subsequently executed in 1995. There was an abundance of evidence that Mr. LaRette suffered epileptic type seizures during which he was not cognizant of his actions, much less had any memory of them during the time these seizures occurred. There was evidence that Mr. LaRette was most likely in the midst of such a seizure at the time he murdered the woman he was charged with murdering, and as such did not have the capacity to know about, much less appreciate the wrongness of his actions, at the time they were committed. (LaRette Petition, 1985) Another just as compelling argument exists with the outcome of the case of State v. Griffin, wherein the defendant was in fact nowhere in the vicinity at the time of the murder, but on the testimony of a career criminal, was ultimately executed for a crime that he did not commit, which was subsequently established through the statements, not only of the sole witness, that he had lied, but by the lookout man for the actual guilty parties. (Griffin, 1996) This sort of scenario, where the more guilty defendant where there is more than one, cuts a deal and testifies against the less guilty defendant, which results in a more unequitable outcome, whereby the instigator or mastermind of a criminal conspiracy ends up doing jail time, not even life, while the less guilty defendants are sent to be executed. So at this point the way most societies operate, the criminal defendant has two barriers he or she is dealing with, poverty and incompetence in representation. When you add to this the fact that in most cases there is usually sufficient circumstantial evidence to have charged the defendant with a capital punishment crime, the defendant looks guilty from the beginning and is then under a magnifying glass as to every expression made and every sound uttered in a court of law. Because of those that came before any attempt to claim innocence is seen as a tiresome and unbelievable claim by the average person, as this is what they all say, right? (Parker & Yocum, 2001-2) Bottom line, most people are inclined to believe that where there is smoke there is fire, and as such if there is very adequate circumstantial evidence, many jurors are going to opt for guilt before they would find innocence. The presumption of innocence is turned inside out especially with “death qualified” voters, which are more likely to convict. (Huff, et al, 1996) and (Bowers, et al, 1998) Finally, when you consider that most defendants charged with a crime carrying capital punishment as an option, are not going to be allowed to get on the stand, it only makes the defendant look guiltier in the eyes of the average person I believe. The consideration that a jury is to make hinges on whether the evidence that has been presented to them supports a finding of guilt “beyond a reasonable doubt.” How one considers this standard is not necessarily consistent because as humans we all have our own subjective ideas about what is “reasonable” based upon our individual experiences. Therefore, this is a hit or miss approach, at best in my opinion. However this is the standard in most jurisdictions or societies today. The result is that even though there are supposed rights in the form of the right to the presumption of innocence, the right to appointed council, and the right to appeal, as a practical matter when all is said and done, these rights are not meaningful in any real sense of the word. Conclusion There has been an historical consideration of the death penalty in various locations as well as a consideration of the arguments in favor of and arguments opposed to the death penalty, from both a moral and social point of view. It is clear that the trend is away from a blanket imposition of the death penalty for many jurisdictions or states or countries. However, the notion of putting an individual to death for certain violations of criminal codes throughout the world is alive and well, notwithstanding the considerable arguments against it by many. Even though the greatest equity and protection is said to exist in the United States, they rank fourth in the world in the number of people they put to death there. References Anonymous, Amnesty International, (2009), The Death Penalty in 2009, available at http://www.amnesty.org/en/death-penalty/death-sentences-and-executions-in-2009. Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) Entzeroth, L., (2011-12), End of the Beginning: The Politics of Death and the American Death Penalty Regime in the Twenty-First Century; 90 Or. L. Rev. 814. Furman v. Georgia, 408 U.S., 238, 237-40 (1972) Gregg v. Georgia, 428 U.S. 153 (1978) Griffin v. State, 662 S.W. 2nd 856 (1996) Huff, R., et al, (1996), Convicted but Innocent; Wrongful Conviction and Public Policy, 213- 25. Lockett v. Ohio, 438 U.S. 586 (1978) Nicolau, I., (2013), Historical Evolution of the Death Penalty Abolition as a Fundamental Human Right; 5 Contemp. Readings L. & Soc. Just. 280. Parker, P., & Yocum, W., (2001-2002) Time to Delay Killing: Evidence for a Death Penalty Moratorium in Missouri, 70 UMKC L. Rev. 986. Petition for Clemency for Anthony J. LaRette Jr., LaRette v. State, 702 S.W. 2d 37 (Mo. Ct. App. 1985) Read More