Public Opinion Regarding the Death Penalty - Essay Example

In Furman, Justice Brennan writes: "When an unusually severe punishment is ized for wide-scale application but not, because of society's refusal, inflicted save in a few instances, the inference is compelling that there is a deep reluctance to inflict it. Indeed, the likelihood is great that the punishment is tolerated only because of its disuse." Provide an analysis of how issues of public opinion indicate support or rejection of Brennan's reasoning. What is the Marshall hypothesis and what role does it play in the support or rejection of Brennan's argument Include both national and international examples in your response. Public opinion regarding the death penalty has been a controversial subject for many decades. The public's attitude towards the matter seems to depend upon the question that is asked as much as what they actually feel about the death penalty. Thus if given the choice between the death penalty and life imprisonment without the possibility of parole, the public tends to choose life sentences. If asked merely whether they support the death penalty - with no other choices - they support it. It should be seen that a "reluctance" on the part of society to use the death penalty, or a happiness with it, is more difficult than Justices on either side of the death penalty would admit. The background to the Furman decision is important to understanding the context in which Brennan's comments need to be considered. The case of Furman v. Georgia occurred after a burglar, William Henry Furman was interrupted while inside a house by its owner. As he was trying to escape Furman tripped and fell, and the gun he was carrying accidentally fired. One of the residents was shot and killed and Furman was convicted of murder. Subsequently he was sentenced to death. The case of Furman v. Georgia reached the Supreme Court, which did not, despite popular belief, strike the down the death penalty per se under the cruel and unusual punishment clause (even though two Justices did use this thinking), but rather on the much narrower basis that the death penalty was unfairly and capriciously used in some cases and not in others. Justice Potter Stewart wrote for the majority: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race. See McLaughlin v. Florida, 379 U.S. 184 (1964) But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed." (Stewart, 1972) This was the Majority's opinion, but Justices Brennan and Marshall went even further, suggesting that the death penalty was incompatible with evolving standards of decency within society. Ironically, the very fact that the death penalty was being imposed "wantonly" and "freakishly" was used as proof by both of these justices that in fact society was evolving beyond the death penalty. The central point of Brennan's argument is that the death penalty is only allowed by society because it was so rarely imposed and even more rarely carried out. This rarity made it capricious in nature and would, had it been needed, have also been contrary to the ideas of equal treatment under the law. One argument that can be made regarding the public's attitude towards the death penalty is that the enormously long appeals process that, while it has been shortened somewhat, still actually exists in most states, shows the public, through its representatives, have put in a place death penalty system which takes many years to actually carry out the sentence. The Appeals process, involving as it does local, State and Federal courts, is often so convoluted that most prisoners can postpone their actual execution almost indefinitely, or at least until arguments can be made that the person being executed is so removed chronologically from the person who committed the crime that it becomes cruel and unusual punishment on those grounds alone. Thus in Florida the average length of stay on Death Row is currently about 12.05 years (Florida, 2006). In California, the state with the most prisoners on death row, "the leading cause of death on death row is old age", as Chief Justice Ronald George suggests. Indeed, since the California legislature reinstituted the death penalty in 1974, more than 600 inmates have been sentenced to die, but only 12 have actually been executed. To all intents and purposes it seems as though the public has put in place a system in which the death penalty exists in theory, but in which the practice of it rarely occurs. As Marc Klaas suggested after he received a letter explaining the delay in the execution of Richard Allen Davis: We've passed the 11th anniversary of my daughter's murder. We've passed the eight anniversary he was sentenced to die. Yet his Appeal has not even been done. It has not even been filed. (Klaas, 2004) The death penalty seems to bring about a case of justice delayed for the victims of crime, if such a constitutional right is interpreted from the US Constitution. The public's reluctance to see the death penalty carried out is shown within those states, such as Texas and Virginia which attempted to speed up the execution process through limiting inmate appeals. In the year 200, Virginia had an average stay on death row of six years, but this was perceived as "a rush on Virginia's death row" (Masters, 2000). A comparison to the United Kingdom, one of the last Western countries to ban the death penalty, shows that six years is hardly lightning speed within most justice systems. In Britain a condemned person could appeal his/her sentence to the Home Secretary and to the House of Lords. They ruled on the case normally within a few days. The prisoner was traditionally given three Sundays to prepare to die and to come to some kind of peace with their Maker, and they were then hung. The process from sentencing to execution normally lasted less than a month (Baird, 1995). This would seem to reflect a public that has put into place a system in which the death penalty, for good or ill, is actually carried out. Hanging was abolished in England in 1966, although it had been rarely used for more than a decade after a mentally retarded man, Timothy Evans, was hanged for the murder of his wife and child after "confessing". It was later discovered that a lodger at the house, who had testified against Evans, was actually a serial killer and had committed the crimes. Evans was posthumously pardoned. It is thus clear that those countries which have what might be termed a "genuine" death penalty that is summarily carried out, often rid themselves of it after tragic miscarriages of justice and the physical embodiment of something that is always known theoretically: the death penalty cannot be reversed. Within the United States it is clear that support for the death penalty has been waning since it has been actually carried out more often. More than 1000 people have been executed in the United States since the reinstitution of capital punishment in 1976 with the firing squad death of Gary Gilmore in Utah. A general unease with the death penalty, together with the possibility that innocent men may have been convicted, and perhaps even executed has led to a fall in support for the death penalty from 80% in 1994 to 64% in 2005 (Gallup, 2005). When offered the choice between the death penalty and life imprisonment without the possibility of parole, the number supporting death goes down to 50% (Gallup, 2005). It seems as if the so-called Marshall Hypothesis is at work within US attitudes towards the death penalty. Justice Marshall stated the following: The American public is largely unaware of the information critical to a judgment on the morality of the death penalty. If they were better informed they would consider it shocking, unjust and unacceptable. (Marshall, 1972) The Marshall hypothesis sounds transparent enough and perhaps even simple to test, but it is neither. First which "information" should be regarded as critical to making a decision on the death penalty Second, how can they be "better informed" and who should be set the task of educating them Third, how can "shocking, unjust and unacceptable" be defined and measured It seems as though in recent years "information" that has been given to the public has caused them to lessen their support for the death penalty. What is the nature of this information and how has it come about One of the major new developments within the death penalty in particular, and within the justice system in general, is the use of DNA testing to both convict and, as has been often the case, to exonerate those on death row. Since 1989 more than 200 criminals convicted of serious crimes such as rape and murder have been exonerated through DNA testing. 188 of these "criminals" have been exonerated by The Innocence Project, created by Barry Scheck. It is an organization that seeks to exonerate innocent people in prison through DNA testing. The numbers exonerated appear to be increasing exponentially. On the very day of this paper's writing (December 13, 2006) Alan Newton, who had served 21 years for rape was exonerated. The sheer numbers of people that have been found to be innocent of crimes they have served decades for, or been sentenced to death for has caught the public's imagination and created considerable unease. It seems highly likely that innocent people have been executed since the death penalty was reinstituted in 1976. The fact that certain counties within certain states, for example Harris County and Dallas County in Texas, which have very high death penalty convictions, also have high rates of exoneration (Dallas 10 wrongful convictions proved in the last 5 years) causes even more alarm among the public. The public's reaction to the increasing uncertainty as to whether the death penalty is being given to the right people, or even to guilty people, led in 2000 to a remarkable step being taken by Illinois governor George Ryan. Ryan placed a moratorium on the death penalty and commuted the sentences of all those currently on death row to life sentences. He stated the reasons for these remarkable actions quite simply: We have now freed more people than we have put to death under our new system - 13 people have been exonerated and 12 have been put to death. There is a flaw in our system, without question, and it needs to be studied. (Ryan, 2000) Ryan also stated that the public lacks confidence in a criminal justice system that seemed to be convicting the wrong people on a regular basis. Is this public reaction to the increasing number of exonerations a proof of both the Marshall hypothesis and of the general reason behind the 5-4 vote overturning the US death penalty in 1972 There is no clear-cut answer. The fact that public support for the death penalty appears to have dropped because innocent men have been condemned does not imply that there would be a similar attitude towards the patently guilty. The public do not want to risk the tragedy of an innocent man being executed. If this means that the whole death penalty needs to be scrapped then increasing numbers would seem to support that policy. But in an ideal justice system in which there were no miscarriages of justice then death penalty support might be as high as it was at its peak in 1994: 80%. The idea that evolving standards of decency should decide the constitutionality (or otherwise) of a law/sentence seems, on face value at least, to be sensible. But what if the same standards were applied to segregated education in the Deep South during the 1950's If the population directly involved had been polled, then the standard of "decency" then in vogue would have keep the school segregated. The same might be said of slavery in the Civil War. The dangers of laws being made, adapted and rendered unconstitutional by the Justices' opinion of what the public wants are thus clear and present. However, the need to make the Constitution a living and adapting document that can at least be interpreted within the context of the present time does seem to dictate at least some sense of "evolving standards". To conclude, it seems that public reactions to the death do tend to follow a course dependant upon the perceived risk from violent criminals and knowledge of how the criminal justice system is (and is not) working. Brennan's paradoxical point of view that Americans are only prepared to have a death penalty if it is not actually used seems to be held out by the precipitous drop in support for the death penalty in the last decade, when increasing numbers of criminals have been put to death. The fact that the rest of the Western, developed world has abolished the death penalty should at least give pause to the Justices when they consider it in the future. Evolving standards of decency are increasingly international rather than just national in origin. ________________________________________ Works Cited Baird, Robert. Rosenbaum, Stuart. Punishment and the Death Penalty: The Current Debate. Prometheus Books, London: 1995. Florida Department of Corrections, "Death Row Statistics". www.dc.state.fl.us/oth/deathrow/index.html. Furman v. Georgia, 408 U.S. 238 (1972) Gallup Organization, "Death Penalty Attitudes", 2005. George, Ronald. "Slow Death: Endless appeals of capital cases". San Diego Union-Tribune. December 10, 2004. Klaas, Mark. "Slow Death: Endless appeals of capital cases". San Diego Union-Tribune. December 10, 2004. Masters, Brooke. "A Rush on Virginia's Death Row". The Washington Post, April 28, 2000. Ryan, George. Statement. CNN, January 31, 2000. State of Utah vs. Gilmore Read More