Punishment for crimes which are deemed cruel and unusual is forbidden by the Eighth Amendment to the U.S. Constitution. This amendment is often invoked when discussing the legal merits of the death penalty. The use of the death penalty is considered by some to be the most obvious and heinous example of cruel and unusual punishment. Those opposed to capital punishment do not believe that the government should be vested with the power to put any of its citizens to death.
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Opponents also maintain that the practice is racially biased, overtly costly and does not achieve the intended outcome. Proponents believe it to be neither cruel nor unusual, on the contrary, they think it just and fair. The ‘eye for an eye’ group not only accepts but vocally insists that the death penalty be continued for many reasons which will be covered thoroughly in this discussion. It will also include the opponents’ reasoning regarding why it should be abolished along with the legal precedents involved in an effort to gain a comprehensive overview of the death penalty debate. The discussion will conclude with an opinion regarding the future of Capital punishment in the U.S.
By definition, capital punishment is not unusual, legally speaking, unless one considers and acknowledges the racial bias that exists in the justice system. Whether or not it is cruel is not definable by law. It can only be defined by the collective social conscious of a culture. The legal interpretation of ‘cruel and unusual’ is somewhat open to debate but in general, the term ‘cruel’ refers to brutal punishments that cause excessive pain. Most legal experts agree that punishments including bodily dismemberment or torture are undoubtedly classified as cruel. Again, terminologies are open to interpretation as evidenced by the current debate at the highest level of government involving the definition of torture. The term ‘unusual’ is commonly understood to define the equitable application of punishment for a particular offense.
The Supreme Court has on several occasions dealt with judging the merits of the death penalty and whether or not it is interpreted by the Constitution as punishment which is cruel and unusual. The Court has always ruled the terminology of the Eighth Amendment does not exclude the implementation of death as punishment. The Constitution is a malleable document, however. The interpretation of the Eighth Amendment has evolved somewhat throughout the years and the Court could possibly reverse this point of view sometime in the future as result of changing societal values. For example, the whipping of offenders was commonplace until the late Eighteenth Century.
This practice came to be considered inappropriate because society’s opinion changed to include it as a ‘cruel’ punishment. With respect to capital punishment, though, “the Court has maintained that there remains broad public support for the death penalty as a remedy for the most serious of crimes” (Mott, 2004).
Capital punishment opponents claim that wealthy, white criminals are less likely to be executed than underprivileged minority members of society and if the victim is not white or wealthy, the sentence once gained is more likely to be imposed. The statistics provide evidence for their claim. Since 1976, 43 percent of executions in the U.S. have been black or Hispanic. This group accounts for 55 percent of those currently on death row.
About half of those murdered in the U.S. are white but 80 percent of all murder cases involve white victims. From 1976 to 2002, 12 whites were executed for killing a black person while 178 blacks were executed for murdering a white person (“Race”, 2003). It would seem that the ‘unusual’ aspect of the death penalty continues to be a valid argument but another aspect must be present for the practice to again be abolished.
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Those that subscribe to retribution as justification for the death penalty often invoke the Bible’s reference to ‘an eye for an eye.’ Aggression must be met with aggressive punishment (Olen & Barry, 1996: 268). Interestingly, those that use the quote from the Old Testament to justify the use of the death penalty as moral either overlooked or ignored the passage in the New Testament where Jesus rebuffs this statement explicitly then reminds his followers to instead to ‘turn the other cheek.’
However, the ‘eye for an eye’ justification is still used by many today. Those that hold this view are certainly correct when they say that the death penalty insures that the criminal will not commit another crime against society. In addition to a vengeful act, the death penalty is the ultimate preventative measure (Olen & Barry, 1996).
Those that oppose capital punishment believe that every life should be valued and that imprisoning a person for life without the possibility for parole is adequate punishment. Opponents also think that revenge is wrong and ultimately more destructive to the value system and very fabric of society than is the crime itself. In addition, opponents feel that outlawing the death penalty will “allow opportunities for confronting those who had been hurt most and possibly encourage remorse or reconciliation (and) suggest those that have killed be made to service the community as a way of partially making amends” (Olen & Barry, 1967: 272).
According to opponents, capital punishment is ethically and morally objectionable in today’s society. Some oppose it based on religious grounds citing morality as the fundamental issue; however, differing religions and people within those religions have differing opinions. Christians who live in Europe, for example, tend to oppose capital punishment but in America, they tend to support it.
Opponents of the death penalty argue that the penalty is unjust but proponents disagree with this position because they believe what is truly unjust is the deliberate act taking of another life, murder. Further, an injustice society should not condone is allowing murderers to keep their lives after imposing the death sentence themselves on another and by that act, also sentencing the victim’s family to a life-sentence of anguish. If someone steals a car, for example, and was allowed to keep and drive it around town without fear of retribution, no one would think that fair. It is it neither fair to allow anyone that steals a life to keep their own. By allowing people who have been convicted of acting as a self-appointed executioner to keep their own life devalues human life on the whole.
Although the U.S. court system is at least among the most equitable in the world, no system of justice can expect to provide perfect results 100 percent of the time. Mistakes are inherent within all systems that rely on the human element for proof and for judgment. The justice system correctly demands that a higher standard be imposed for determinations of guilt in death penalty cases. With extraordinary due-process that is applied in all death penalty cases, the risk of making a mistake is minute. Since the reinstatement of the death penalty in 1976, there has been no credible evidence provided that confirms any innocent persons have been executed.
The more than 100 ‘innocent’ death row inmates that were ‘exonerated’ is a sham. The actual figure of innocent death row inmates is nearer 40 which should be considered in context with the 7,000-plus death –row inmates added to the roles since 1973. Mistakes within the system, though few and unavoidable, should not serve as justification to eradicate the death penalty. We should never disregard the dangers of permitting murderers to kill again (Stewart, 2006).
Many proponents of the death penalty believe that it is an option of last resort for criminals that cannot be rehabilitated. They also argue that every murderer executed is one less person that the taxpayers are not feeding and housing. An execution is less costly to taxpayers than the alternative, long imprisonment. They believe “the cost of supporting criminals in maximum security prisons until they die is very high and they feel the innocent tax payer should not have to foot the bill for the care of depraved criminals who’ve demonstrated that they have no respect for society’s laws or human life” (Olen & Barry, 1996: 273-274).
Additionally, a lengthy appeals process is a costly process that ties-up the court system. This cost is considered by opponents to be an insignificant argument because the value of human life cannot possibly be broken down into columns on a profit and loss ledger. Department of Justice statistics clearly illustrate that the death penalty contains many constitutional flaws. Between 1973 and 1993, almost half (forty-two percent) of inmates awaiting the death sentence had their sentences commuted or reversed. Capital punishment is “a waste of money and resources in producing what turns out to be counterfeit death sentences in almost one out of every two instances” (McCloskey, 1996: 7).
Capital punishment opponents argue that the practice does not deter crime, which statistics reprove. In addition, if offenses that caused ‘no harm’ to others were decriminalized, such as gambling, prostitution and drug possession, the inmate population would decrease by about half. This would allow for the violent offenders to serve their entire sentence without having to be paroled early because of over-crowding. Thus, society would be properly protected.
Opponents also deny that the death penalty is a deterrent to crime because of the nature of the reasons people commit homicide. People cannot conceive their own demise therefore cannot contemplate or appreciate the consequences. In addition, these crimes are usually committed as a result of impulsive actions and not carefully considered beforehand. If the person committing the murder does contemplate the consequences, they may kill not only the victim but any witnesses as well rather than risk being caught (Olen & Barry, 1996). Again, the opponents view has been substantiated.
Many studies have been performed to determine if the death penalty is indeed deterrence. They are conducted by “comparing homicide rates in contiguous jurisdictions, some of which had abolished capital punishment; examining time series data on homicide rates within a jurisdiction during the years before and after the abolished capital punishment; and comparing homicide rates in a jurisdiction before and after the imposition of the death sentence or execution” (Hagan, 1985). These studies have unanimously demonstrated that the death penalty does not deter crime.
The societies in European countries have already formed the opinion that the death penalty is both ‘cruel’ and ‘unusual’ punishment that remains largely ineffectual. Most European citizens enjoy cradle to grave health care and are much less likely to be incarcerated than those in the U.S. Though there is much evidence to the contrary, American society is growing more compassionate through time. The 1964 Civil Rights Act is but one example of this. One day, it will be a compassionate society that does not use the emotion of revenge to decide its laws and the death penalty will go the way of the Salem witch trials, a barbaric punishment of the distant past.
Hagan, J. (1985). “Modern Criminology: Crime, Criminal Behavior, and it’s Control” New York: McGraw-Hill, Inc.
McCloskey, J. (1996). “The Death Penalty: A Personal View.” Criminal Justice Ethics. Vol. 15, pp. 2-9.
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Mott. Jonathan. (2000). “Is the Death Penalty Constitutional?” This Nation. Web.
Olen, Jeffrey & Barry, Vincent. (1996). Applying Ethics. Belmont, CA: Wadsworth Publishing Co.
“Race and the Death Penalty.” (2003). Unequal Justice. New York: American Civil Liberties Union. Web.
Stewart, Steven D. (2006). “A Message from the Prosecuting Attorney.” The Death Penalty. Clark County, IN: Office of the Clark County Prosecuting Attorney.