IS CAPITAL PUNISHMENT
CRUEL AND UNUSUAL?
Arguments for and against capital
punishment arouse strong feelings. Whenever an issue arouses
strong passions, it is difficult to think clearly about that issue.
This Brieflet tackles the issue of capital punishment by coming
at it from two angles.
On the one hand, it broadens the
issue by asking what the aims and limits of punishment itself
ought to be. Why punish? Do we have more than one goal in mind,
more than one reason? Do the various goals of punishment sit
well together? Does one goal call for greater punishment (in
a given case) than another? And, important to us, is one goal
of punishment more in keeping with the imposition of the death
penalty than another? If, for example, our only purpose in punishing
a criminal was to deter him or her from committing the crime again,
wouldn't life imprisonment serve just as well as execution? If
capital punishment is to be justified, the aims of punishment
must be broader than this.
On the other hand, we can explore
the issue of capital punishment by asking whether the imposition
of the death penalty is cruel and unusual? What makes a particular
punishment cruel and unusual? Since our strong feelings about
the death penalty tend to color our judgments, it's helpful to
think about a series of non-capital crimes for which judges have
imposed penalties and punishments that have been thought to be
"cruel and unusual." It's possible to develop one's
own intuitions about what is and what is not "cruel and unusual"
by examining these non-capital punishments suspected of being
"cruel and unusual." Once one has a clearer sense of
what might make a punishment "cruel and unusual," then,
and only then, does it make sense to raise the question about
capital punishment. Does the death penalty share any of the features
of those punishments which are, in your opinion and in some non-controversial
sense, "cruel and unusual"?
I. The Aims and Limits of Punishment
In 1975 in New York Rabbi Bernard
Bergman was indicted on charges of conspiracy to defraud the government
through the use of inflated Medicaid claims made in connection
with a number of nursing homes he operated. Bergman entered a
plea of guilty and came before Judge Frankel for sentencing.
Alan Dershowitz, Bergman's attorney, argued that no legitimate
(or useful) purpose would be served by punishing him (Bergman).
Weighing Dershowitz' contention, Judge Frankel entertained several
theories of criminal punishment and explored their applicability
to Bergman and his crime.
II. First Theory: Rehabilitation
First, Frankel considered the view
that the only legitimate purpose of punishment is with the rehabilitation
of the offender. On this view, the sole purpose of determining
whether a defendant is guilty or innocent is to sort out who is
and who is not "ripe" for rehabilitation, to identify
those individuals who need preventive detention and therapy.
Frankel rejected this purpose as a goal of punishment since punishment
ought to visit a hardship upon the convicted criminal. If punishment
is is seen as doing him some good, it fails to acknowledge what
it means to punish someone for their crimes, it fails to punish.
Frankel did not deny that rehabilitation might be something
to consider while a convicted criminal is serving out his punishment.
But he argued, rehabilitation cannot be the sole purpose for
punishing a convicted criminal nor can it replace the grounds
for sentencing a convicted criminal to confinement in the first
place. If rehabilitation is the sole purpose of punishment, Bergman
ought not to be punished.
III. Second Theory: Deterrence
Frankel then went on to consider
the differences between specific and general deterrence
theories of punishment, arguing that the latter is the basic aim
of punishment, i. e., the primary point of punishment is to induce
others to avoid acting as the offender did.
IV. The "Crime" of
Objecting to Frankel's analysis,
Dershowitz sought to undermine Frankel's appeal to a theory of
deterrence on the grounds that deterrence theories offend the
Kantian maxim that persons ought to be treated as ends in themselves,
never as a means only, and that punishing Bergman in order to
deter others was a way of using Bergman for the greater good of
others or of the society as a whole and that this was not fair
to Bergman. (Kant urges that a minimal respect for persons requires
that persons be treated as ends in themselves and not merely as
a means to other people's ends). Frankel confessed that he did
not "pretend to be an authority" on the work of Immanuel
Kant, but that he believed that he was treating Bergman as an
end in himself since Bergman had had the opportunity of abiding
by the law or breaking it and accepting the penalty. Our legal
system shows sufficient respect for persons, treating them as
ends in themselves, since it presupposes that persons make choices
and are accountable for their actions. Having defended his view,
Frankel of course was faced with having to decide what specific
punishment he should dole out in this case. What would deterrence
require? And what punishment would fulfill the goal of retribution?
V. Theories of Punishment: Utilitarianism
v. Deontological ethics
The various theories raised by Judge
Frankel's Sentencing Memorandum align themselves with two different
moral theories: utilitarianism and deontological ethics. Utilitarianism
is one of a variety of theories that takes the consequences of
an act as the arbiter of whether the act is right or good. So
if the consequences of an act or a policy are, taken together,
good, then the act is good. Deontological ethics, of which
Kantian ethics is an example, takes the moral correctness of an
act as given by its conformity to our duties and obligations to
treat one another in certain ways. A Kantian or retributive view
of punishment is intimately bound up with what a person deserves.
The utilitarian holds that for a punishment to be justified it
must do some good. The problem with the retributive view, a
utilitarian might say, is that it can produce situations where
we are required to punish someone even if it clearly doesn't do
any good and going about punishment in this way is inconsistent
with a humane and forward-looking approach to criminality. The
Kantian, however, might argue that a utilitarian approach to punishment
can lead to situations in which persons are undeservedly punished.
Suppose a judge decides to punish you with life imprisonment
for running a stop-sign. He decides to do so because he is "sick
and tired" of having to deal "time and again" with
lawlessness of this sort and he is hoping that by setting an example,
others will come to realize the consequences of acting as you
did and cease to behave so badly. Even assuming that the judge
is right and that lawlessness of this sort will decline dramatically
with the imposition of such a sentence, from a Kantian's point
of view, you have very good reason to wonder what gives the judge
the right to use you in this way. Indeed it is this wonder that
lies at the heart of the retributivist and Kantian insistence
that punishment must be deserved, if it is to be fair or just.
The difficulty with a utilitarian approach to punishment, the
Kantian will argue, is that it allows persons to be punished out
of all proportion to their guilt and even in the absence of any
guilt whatsoever, if it serves the best interests of the community
VI. The Capital Punishment of
the Dog Provetie (May 15,1595)
The dog Provetie bit the finger of
the child of Jan Jacobsz van der Poel while the child was playing
in the house with a piece of meat in his hand. A few days later
the child died of fright. The dog was arrested and imprisoned
and a confession was elicited from him "without torture or
being put in irons." The dog was then tried and condemned
to death. The court ruled that the dog Provetie be taken to Gravesteijn
"where evildoers are customarily punished" and hanged
by "a rope until death ensues" and then taken to the
gallows field, "to the deterring of other dogs and to all
as an example." Moreover, all "his goods, should he
have any" were ordered confiscated and forfeited to the local
authorities. Why is the trial and punishment of the Dog Provetie
strange? What makes it absurd? What does its absurdity suggest
about the rationale for punishment?
VIII. Utilitarian Theories of
The Utilitarian argues that punishing
a person is justified if and only if doing so has (or is likely
to have) better consequences than not doing so, "when, and
only when, it is a means to such future goods as reform
of the offender, protection of society against other offenses
from the same offender, and the deterrence of other would-be
offenders" (Feinberg) - by contributing to the individual's
retribution, by incapacitating the offender, thereby preventing
him from engaging in further undesirable behavior, and through
deterring others from committing the same offense. The utilitarian
holds that it is necessary for punishment to be justified that
it do some good.
IX. Deontological Views of Punishment
The deontological view of punishment
is usually referred to as retributivism. The deontological view
holds that punishment of an individual is justified if and only
if it gives him or her what he or she deserves. "Punishment
is justified only on the ground that the wrongdoing merits
punishment." (Feinberg) Justification is backward-looking
as opposed to forward-looking.
A utilitarian interpretation of proportionality
will rest on the future advantages of the punishment. A punishment
is disproportionate only if it is more or less than what is required
for the pursuit of a legitimate state purpose. Any punishment
which is inflicted beyond what is necessary, say, to deter the
offender and others from engaging in anti-social conduct is without
point. On a retributive theory the punishment must fit
the crime; it ought to be of a gravity or severity justly proportional
to the seriousness of the crime.
XI. The Function of Punishment
Punishment might be said to have
two distinctive features: hard treatment and reprobation.
If either is absent, punishment is lacking. Punishment expresses
the community's disapproval, indignation, resentment. Expression
of the community's condemnation is generally believed to be an
essential ingredient of punishment. "Indeed it can be said
that punishment expresses the judgment ( as distinct from
the feeling) of the community that what the criminal did was wrong."
(Joel Feinberg) The two features of punishment usually go hand
in hand. The community does not express its disapproval of what
the criminal did and then inflict unpleasant treatment, although
it may sometimes appear as if this is the case, i.e., a judgment
is expressed at the end of the trial and a punishment is then
inflicted. As Joel Feinberg says, "it would be more accurate
in many cases to say that the unpleasant treatment expresses the
XII. Punishments and Penalties
What is it that a punishment has
and a penalty lacks? Is the difference simply the degree of severity?
The loss of one's driver's license is a penalty; a day in jail
is a punishment. But for some people the loss of one's license
is significantly harsher than a day in jail. The key difference
is to be found in the stigma attached to punishment. What
separates a punishment from a mere penalty is that a punishment
condemns, the penalty does not. Furthermore, the difference is
far from inconsequential. Someone who is threatened by punishment
is entitled to certain safeguards and protections: the right to
a trial by jury, the right to confront witnesses, etc.; whereas
a person who is threatened by a mere penalty - a parking fine,
suspension of one's driver's license - is protected by no such
XIII. The Subversive Drivers
Act (New York State
In 1961 the NY State Legislature
enacted "The Subversive Drivers Act," requiring "the
suspension and revocation of the driver's license of anyone who
has been convicted, under the Smith Act, of advocating the overthrow
of the Federal government." According to the bill's sponsor,
Assemblyman Paul Taylor, the legislature was simply exercising
its right to regulate automobile traffic in the interests of public
safety. Was this punishment?
XIV. Flemming V. Nestor (United
States Supreme Court, 1960)
Nestor had immigrated to the United
States from Bulgaria in 1913. In 1955 he became eligible for Social
Security. But one year later, in 1956, he was deported under the
Immigration and Nationality Act, for having been a member of the
Communist Party from 1933 to 1939. At the time he was deported
he had been in America for 43 years and had been a member of the
Party for more than two decades. Although he was forced to leave
the country, he could look forward at least to the continuation
of his social security benefits. However, the Social Security
Act was amended in 1954 (in the height of the McCarthy period)
to allow the termination of the benefits of an alien who was deported
on a number of specified grounds, one of which was, past membership
in the Communist Party. Social security administrators stopped
Nestor's benefits. Nestor then brought suit in District Court
seeking a reversal of the administrative decision. The District
Court ruled in his favor, saying he was deprived of his benefits
without the the opportunity to exercise his constitutional rights
to defend himself. The Supreme Court, however, reversed the lower
Court's decision, arguing that the termination of Nestor's benefits
was within the plenary power of Congress to regulate an activity
and that it was not, did not constitute, a punishment, and hence
Nestor was not entitled to the usual safeguards and protections
of a criminal defendant. If you were on the Court, would you
side with the majority or with the dissent?
Strict-Liability, Penalty, and Punishment
Some commentators believe that imposing
imprisonment rather than fines for the violation of strict liability
statutes is improper, if not unconstitutional, when the defendant
is not the least at fault. Violations can only be punished by
a fine, forfeiture, or other civil penalty, and none of the disabilities
based on conviction of a criminal offense can follow. Statutory
rape and the felony-murder rule, and various "public welfare"
offenses (for example, the mislabeling of drug products) have
been among those offenses imposing strict criminal liability,
the defining feature of which is the refusal to require proof
of the actor's state of mind as a prerequisite for liability.
A basic principle of our law, however, has been that the punishment
must be deserved. And this principle has been interpreted to require
a finding of mens rea: Only where I have acted with the
intent to commit an offense against the law, and therefore acted
with a culpable or blameworthy state of mind, should I be subjected
to punishment. Justifications for strict criminal liability offenses
are often utilitarian in nature: appealing to the supposed good
consequences of imposing such liability. It can be argued, for
example, that it will deter crime by inducing those contemplating
felonious conduct to think again or think twice before engaging
in such conduct. One might object, however, that it is wrong and
unfair to thus use the defendant as an expedient to promote the
greater public good. Persons should be punished only when they
manifest a culpable state of mind for the offense with which they
have been charged. "There is something very odd and offensive
in punishing people for admittedly faultless conduct; for not
only is it arbitrary and cruel to condemn someone for something
he did (admittedly) without fault, it is also self-defeating and
XVI. Punishment and Taint
The principle of tainting dates back
to the origins of prosecution for criminal homicide. In 13th century
England the assumptions was that if a person caused the death
of another, he had upset the natural order; some response was
necessary to expunge the taint. English law extracted two forfeitures
in the case of homicide: one, the instrument of death was forfeited
to the Crown and two, the killer forfeited his lands and goods.
The model of taint haunts criminal law. The Subversive Drivers
Act might best be understood in this light.
XVII. Punishment and the Risks
of Wrong-doing (Offender Beware!)
In defense of the felony murder rule
one might argue that someone who engages in a felony runs the
risk that things will turn out worse than she expects. So in a
case where the defendant committed an assault against someone
who turned out to be a police officer, he was convicted of assaulting
an officer without regard to the reasonableness of his mistake.
The U. S. Supreme Court upheld the conviction because "from
the very outset ... his planned course of conduct was wrongful."
So the wrongdoer had, as it were, "to take his victim as
he found him." If wrongdoing justifies disregarding mistakes
about aggravating circumstances, then committing a felony can
justify disregarding whether the deadly outcome of the felony
is accidental or culpable. Both tainting and subjecting offenders
to the risks of a punishment greater than might otherwise "fit"
the crime violate the principle of just punishment: Punishment
must be proportional to wrongdoing.
and Unusual Punishments
Are the inflictions of some punishments
wrong in principle? The Eighth Amendment to the Constitution reads:
"Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted."One
way to deal with this question is to look at several cases where
judges have imposed punishments which have been allegedly "cruel
and unusual." What are your intuitions about the following
cases? In which instance or instances do you believe a "cruel
and unusual" punishment" was imposed? What makes a
particular punishment "cruel and unusual? Its disproportionality?
Or is there sometimes something else involved?
1. United States v. Carlston
(West's Federal Supplement, California, 1983)
The court ordered Carlston who was
convicted of tax evasion to purchase computers and to teach their
use to probationers and parolees, arguing that Carlston would
thereby be "constantly reminded that his conduct was legally
and socially wrong."
2. Bienz v. State (District
Court of Appeal, Florida, 4th District, 1977)
As a condition of his probation,
Bienz was ordered by the trial court to enter a halfway house
and obey all instructions given to him by his supervisors. A supervisor
accused him of "acting like a baby" and ordered him
to wear diapers over his trousers. Bienz appealed on the grounds
that these orders constituted cruel and unusual punishment.
3. People v. McDowell
(59 Cal. App. 3d 807, 1976)
Windell McDowell appealed his conviction
for purse snatching, complaining that the requirement that he
wear taps on his shoes whenever he left his residence was "tantamount
to a sign saying 'I am a thief.'"
4. United States v. William
Anderson Company, Inc. (698 F.2d 911. 8th Cir., 1983)
The court expressed approval of several
behavioral sanctions imposed on executives of the Anderson Company
as conditions of their probation, including speeches before civic
groups on the evils of price fixing. The court noted that "measures
are effective which have the impact of the 'scarlet letter' described
by Nathaniel Hawthorne or the English equivalent of 'wearing papers'
near Westminster like a sandwich-man's sign describing the culprit's
5. State v. Kirby (Oregon
Circuit Court for Lincoln County, Oregon, 1986)
In Oregon in 1986, Thomas Kirby was
placed on probation on the condition that he publish, at his own
expense, an advertisement, accompanied with a picture, in the
local newspaper. The ad was to read "Criminal's Apology."
6. State v. Bateman
(Oregon Circuit Court for Multnomah County, Oregon, 1986)
In 1985 Richard Bateman was convicted
on two counts of first degree sexual abuse. Though he faced a
maximum sentence of five years in prison and a large fine, the
court suspended his sentence and placed him on probation. As one
of the conditions of his probation, Bateman was required to place,
on the door of his residence, and on both doors of any vehicle
he might drive, in three-inch lettering, the words "Dangerous
Sex Offender-No Children Allowed."
7. Recent Legislation for Drug-related
Offenses in Texas and Delaware
Growing frustration with drug-related
crimes have prompted several state legislators to introduce bills
with harsh punishments. One such bill recently introduced in the
Texas legislature, would have punished convicted drug dealers
by cutting off their fingers, one finger for each conviction.
A bill recently introduced in the Deleware legislature would have
required felony drug offenders to receive "no fewer than
five no more than 40 lashes well laid" on a bare back.
8. Goldschmitt v. Florida
(District Court of Appeal, Florida, 2nd District, 1986)
Arthur Goldschmitt was convicted
of driving under the influence of alcohol. The trial court placed
Goldschmitt on probation (releasing him into the community under
the supervision of a court officer) on the grounds that he comply
with a condition: that he place on his car a bumper sticker reading
"Convicted while DRIVING UNDER THE INFLUENCE: Restricted
License." Goldschmitt objected to this punishment on several
grounds. First, that first time offenders who are convicted of
driving under the influence of alcohol are traditionally put on
probation to ensure their compliance with a provision that they
perform fifty hours of community service. This provision for first
time offenders was created by the legislature, but requiring him
to affix a bumper sticker to his car is a special condition invented
by the judiciary. Second, he argued that requiring the bumper
sticker "forced" him to broadcast "an ideological
message" and so violated his First Amendment rights. Third,
he argued that the bumper sticker amounted to cruel and unusual
punishment and so violated the Eighth Amendment.
9. Weems v. United States
(United States Supreme Court, 1910)
Weems was convicted of the crime
of falsifying public records in the Philippine Islands and sentenced
to twelve years and one day in prison, a "remedy" which
was mandated by Philippine statute and which carried with it certain
"other" conditions. The punishment known as cadena
temporal required not only that the offender be confined for
twelve years and one day but that he be chained at the ankle and
wrist, that he perform "hard and painful labor," and
that he lose all "marital and parental rights" throughout
the period of his confinement. After his release, he would be
under surveillance for the rest of his life and he would not be
allowed to move without giving notice or receiving permission
in writing. Weems argued that the imposition of the punishment
known as cadena temporal was cruel and unusual and violated
the Eighth Amendment prohibiting the imposition of a sentence
that is grossly disproportionate to the severity of the crime.
10. Rummel v. Estelle
(United States Supreme Court, 1980)
William James Rummel was convicted
in 1964 of fraudulent use of a credit card, in 1969 of forging
a check, and then in 1973 of obtaining money by false pretenses.
The sums involved were $80, $28.36, and $120.75 respectively.
Texas has a "recidivist" rule or "three-time-loser"
rule which directs that a criminal convicted of a third felony
be sentenced to life imprisonment. After Rummel was arrested and
charged with the third offense in 1973, the prosecution elected
to move against Rummel under the Texas "recidivist"
rule. A jury found him guilty and he was sentenced to life imprisonment.
In 1976 Rummel sought to have the decision overturned, arguing
that his penalty was "grossly disproportionate" to the
felonies he committed and that a sentence of life imprisonment
violated the ban on cruel and unusual punishment of the Eighth
11. Coker v. Georgia (United
States Supreme Court, 1977)
While serving time in prison for
murder and other violent crimes, Erlich Coker escaped from a Georgia
prison and committed armed robbery and several other offenses.
During the robbery he raped a woman after tying and gagging her
husband. Before making his getaway in their car, taking the woman
with him, he "brandished the kitchen knife he was carrying
and warned the husband that "if he would get pulled over
or the police was following him . . . he would kill [his] wife.
He said he didn't have nothing to lose - that he was in prison
for the rest of his life anyway." Coker was convicted of
armed robbery and sentenced to death on the rape charge, when
the jury found that two of the "aggravating circumstances"
necessary for imposing the death penalty under Georgia law were
present in Coker's case, i. e., that the rape was committed (1)
by someone who had been found guilty of a prior capital offense
(murder) and that the rape was committed (2) in the course of
committing another capital felony (armed robbery). The Supreme
Court overturned Coker's conviction, arguing that death as a punishment
for rape is grossly disproportionate and so violates the Eighth
XIX. The Death Penalty
(i) Is it "excessive"
or "cruel and unusual"? Armed with your sense of
what makes a punishment "cruel and unusual," gleaned
from your judgments of the punishments imposed in the above set
of cases, do you believe the death penalty, in light of any one
of the following facts and/or considerations, is "cruel and
unusual." Which of the following facts or considerations
incline your towards the opinion that the death penalty is "cruel
and unusual," what are several powerful objections to your
opinion, and how, if you believe the death penalty is a "cruel
and unusual" punishment, would you respond to them?
(ii) Beginning to think constitutionally:
Is the death penalty unconstitutional? In thinking about
the constitutionality of the death penalty, three amendments have
caught the attention of justices: the Fifth, the Eighth, and
the Fourteenth. They read as follows:
No person shall be held to answer
for a capital or otherwise infamous crime, unless on a presentment
of indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual service
in time of War or public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness against
himself; nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public
use, without just compensation.
Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishment
Section 1: All persons born or naturalized
in the United States, and subject to the jurisdiction thereof,
are citizens of the United States, and of the State wherein they
reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny any person within its jurisdiction
the equal protection of the laws. . . .
In thinking about the constitutionality
of the death penalty, some arguments are more peripheral, some
strike at the core of the arguments for or against the death penalty?
Which arguments are peripheral? which strike at the core? The
cost of executions, the arbitrary selection of defendants for
capital punishment, discrimination against minorities, the extent
of public opinion, the possibility of mistake, sentencing an innocent
victim to death, etc?
The Death Penalty and Homicide
Rates: Region by Region
Nearly all the executions that have
been carried out in the U. S. since 1976 have been in states in
the South. This is unrelated to the homicide rates. In 1984 63%
of those held under sentences of death were in the South compared
to only 4% in the Northeast, a disparity which also bore little
relation to the homicide rates in the two regions. By 1983 Pennsylvania
had 33 prisoners on death row and had executed no one; whereas
Georgia had 102 on death row and had executed six.
Prosecutors and the death penalty
Decision to seek the death penalty
is largely determined by the decision of the local prosecutors
who have considerable discretion whether or not to ask for the
death penalty. Their decisions are often influenced by factors
unrelated to the crime, such as the financial resources available
to the district, community sentiment about the death penalty,
the level of publicity given to the crime, and community pressure
in a given case.
Discrimination and the death
Between January of 1976 and 1986
53 of the 58 prisoners who were executed in the U. S. were convicted
of killing whites, even though the homicide rates for blacks and
whites are about equal throughout the country. Research in Texas,
Florida, and Georgia indicate that homicides involving black victims
are far more likely to be tried as capital offenses and lead to
the imposition of a death sentence than those cases involving
black victims. But what might these statistics have to say about
a particular case? Would it not be necessary to prove discrimination
in each particular case? What difference do these statistics
Plea bargaining and the death
Many capital crimes go uncharged
because of the plea bargaining of prosecutors in which a guilty
plea is negotiated in exchange for a lesser charge.
Representation of the indigent
Given the complexity of death penalty
appeals, there is far greater room for error in the handling of
such cases. This is especially true of habeas corpus appeals
which often focus on constitutional issues for which a volunteer
lawyer is usually ill-prepared.
Lengthy delay and undue suffering
The long waiting period during the
course of the appeal of a death penalty case can induce intense
suffering in the prisoner awaiting the outcome. Conditions on
death row are often worse than in the rest of a prison. Prisoners
are often confined in small, poorly equipped cells for prolonged
periods of time with little opportunity to associate with other
inmates or have access to educational or rehabilitative programs.
Just retribution and the death
If a punishment must "fit"
the crime, does this require retention of the death penalty?
What does "the punishment must 'fit' the crime" require?
that the punishment exactly reproduce the crime? that rapists
be raped and arsonists have their homes burned to the ground?
Death penalty and deterrence
In some U. S. states the homicide
rate has increased since the imposition of the death penalty.
Surrender to Public Opinion
Public opinion polls continue to
show that a majority of Americans are in favor of the death penalty.
The abolition of the death penalty has, however, always occurred
in the face of public opposition.
Restitution and the death penalty
Lengthy procedures and uncertain
outcomes often prolong the anguish suffered by the victim's family.
Indeed executions often draw the attention away from the victim
to the prisoner on death row, thereby increasing the victim's
family's feelings of abandonment by the system.
The finality of the death penalty
All criminal cases are subject to
"error," - to the possibility that the innocent will
be convicted. There are two kinds of innocence here: (1) those
who are completely innocent of any wrongdoing and those who merit
conviction for something (i.e. manslaughter) who do not merit
conviction for something else (i.e. murder in the first degree).
The "error" is greater depending upon the gravity of
the harm suffered by the innocent. It is therefore reasonable
to require higher standards of review for death penalty cases.
If these standards cannot be adequately met, should the penalty
Compensating an "innocent"
It is possible to imagine compensation
for the loss of property or income. The loss of one's liberty
is less obviously compensated, but the possibility remains open.
But what would it be like to be adequately compensated for being
radically mutilated or tortured? Attacks upon one's dignity as
a person are in some sense "beyond price."
Death and the development of
a moral character
A human life is the opportunity to
develop a moral character in such a way that one might be able
to speak of one's life in a coherent, meaningful, even admirable
way. The development of a morally coherent personality is the
most crucial project of a human life. To block such a project
is the gravest harm a human being can suffer. Given the exceptional
moral gravity of having one's prospects for a morally significant
life interrupted, should the community be denied the right to
impose the death penalty?
The number of people sentenced to
death has increased substantially to a rate of over 200 a year,
but the percentage executed has been reduced to less than 2 per
cent of the death row population.
Retribution and Severity
Severity of punishment need not fit
the crime in the sense of being "like" it, only sufficiently
grave. The more serious the crime the more serious the punishment.
So a certain number of "years" for a rapist, etc. and
an even graver punishment for murderers. Is the death penalty
required by the need to come up with a punishment sufficiently
serious to top, as it were, the seriousness of the punishments
for lesser crimes?
Is lethal injection an alternative
way of carrying out the death penalty or merely a way to sanitize
the death penalty, side-stepping the larger issue: whether the
state should have the right to take the life of a human being.
In Chaney v. Heckler eight prison inmates under the sentence
of death in Texas and Oklahoma petitioned the FDA to "take
action against the unapproved use of drugs in the state capital
punishment systems." Lethal injection often requires the
involvement of a physician. The AMA has adopted the position
that physicians should not take part in executions in large part
because "a physician, as a member of a profession dedicated
to preserving life when there is hope of doing so, should not
terminate life." Administering a lethal dose may make it
difficult to control the time of death. Administering the dose
the night before, for instance, may lead to pre-mature death thereby
turning the hangman into a murderer. In 1973 Ronald Reagan gave
his support to lethal injection: "Being a former farmer
and horse raiser, I know what it's like to try to eliminate an
injured horse by shooting him. Now you call the vet and the vet
gives it a shot and the horse goes to sleep - that's it. I myself
have wondered if maybe this isn't part of our problem with capital
punishment, if maybe we should review and see if there aren't
even more humane methods now - the simple shot or tranquilizer."
The death penalty and felony
Until recently the death penalty
was imposed equally on accomplices in a felony-murder. In Edmund
v. Florida (1982) the Supreme Court argued that states were
prohibited from sentencing to death accomplices without showing
that they actually did the killing or attempted to do it, or were
"in" on the planning.
Coker and Eberhart
In Coker (1977) the death
penalty was ruled as cruel and unusual for rape and in Eberhart
(1977) the Supreme Court ruled that it was disproportionate for
the crime of kidnapping.
Mandatory death sentences
In Woodson v. North Carolina and
Roberts v. Louisiana, both in 1976 the Supreme Court ruled
that mandatory death sentences were unconstitutional. In Roberts
it so ruled even in cases where the death penalty was restricted
to specific crimes (murder of a police-officer acting in the course
of his duty), arguing that the court must consider mitigating
circumstances. In Lockett v. Ohio the court struck down
an Ohio statute that required that a death penalty be imposed
unless one of three mitigating circumstances were present, ruling
that any circumstances be considered as mitigating.
- Amnesty International, The Machinery
of Death, 1995
- Hugo Bedau, Death is Different: Studies
in the Morality, Law, and Politics of Capital Punishment,
- Joel Feinberg, "The Expressive Function
of Punishment," from Doing and Deserving, 1970, pp.
- Furman v. Georgia,
United States Supreme Court (1972)
- Gregg v. Georgia,
United States Supreme Court (1976)
- H. L. A. Hart, Punishment and Responsibility,
- Karl Menninger, The Crime of Punishment,
- Stephen Nathanson, An Eye for an Eye:
The Morality of Punishing by Death, 1987
- Edmund L. Pincoffs, The Rationale of
Legal Punishment, 1966
- C. L. Ten, Crime, Guilt, and Punishment,
- Franklin E. Zimring & Gordon Hawkins,
Capital Punishment and the American Agenda, 1986
Back to top