West Coast Publishing
2007 September-October NFL LD—Death Penalty
Table of Contents
SECTION 1. BACKGROUND: PERSPECTIVES ON THE DEATH PENALTY
SECTION 2. RESEARCH GUIDE
SECTION 3. A. THE AFFIRMATIVE
INNOCENT PEOPLE MAY BE WRONGFULLY CONVICTED AND SENTENCED TO DEATH
THE DEATH PENALTY IS AN UNJUSTIFIED EXPRESSION OF STATE VIOLENCE
THE DEATH PENALTY IS AN INHERENTLY ARBITRARY FORM OF PUNISHMENT
SECTION 3. B. THE NEGATIVE
RESPECT FOR HUMAN LIFE REQUIRES THE USE OF THE DEATH PENALTY
CAPITAL PUNISHMENT IS AN EFFECTIVE DETERRENT TO CRIME
PROCEDURAL SAFEGUARDS ENSURE THE JUST NATURE OF CAPITAL PUNISHMENT
“Resolved: A just society ought not use the death penalty as a form of punishment.”
Kari Wohlschlegel
Pomona College
Capital punishment has long been a contentious issue, both in the United States and around the world. Early scholarly records detail that many philosophers have long criticized the use of the death penalty as a form of punishment, while others have promoted it as the panacea of crime. Recently, in the United States, this debate moved to the forefront of political discussion with the execution of Stanley ‘Tookie’ Williams in the state of California. Protesters around the world proclaimed Tookie’s innocence and argued that the imposition of the death penalty in this situation was tantamount to murder. His death itself also sparked discussion about execution as a form of cruel and unusual punishment since many believe the medicines given to him to stop the pain were ineffective. Many nations around the world have begun placing moratoriums on capital punishment or simply abolishing the practice, and European countries in particular have begun to put political pressure on the United States to follow suit. However, the debate over the value of capital punishment is far from over. Central to this controversy is questions about the actual role of a just society. Proponents of capital punishment argue that a just society must protect its citizens by deterring crime and punishing offenders, while opponents of capital punishment believe that a government cannot execute a person and still maintain its legitimacy. When preparing for this topic, you should ask yourself several questions such as: What is a just society? Is the state required to take proportional action in response to a crime? And, how can justice best be achieved?
This brief is designed to introduce you to the issues relevant to the resolution and to provide you with resources to continue your research. To accomplish this task, it is divided into three sections. The first section offers an overview of capital punishment, focusing on its historical roots as well as popular arguments on the efficacy of capital punishment. There is also an examination of key terms and resolutional analysis. The second section provides you with both print and non-print resources that you can use to research the issues yourself. Finally, the third section provides you with a sample affirmative and negative case, as preliminary value and criteria extensions.
SECTION 1. BACKGROUND: PERSPECTIVES ON THE DEATH PENALTY
This section will introduce you to the relevant issues pertaining to the death penalty. It first discusses the development of capital punishment, the justifications for its continued use, and criticisms of the death penalty. Second, it explains the parameters of the debate and defines key terms. Finally, it identifies affirmative and negative strategies and provides potential case areas.
1. A. CONCEPTUAL OVERVIEW
The Development of Capital Punishment
Throughout history, the death penalty has been a popular form of punishment for crimes ranging from treason to stealing a tree. Dictators and popularly elected leaders have long employed the death penalty as a means of deterring crimes, silencing dissent, and punishing offenders. However, the methods of execution as well as its justifications have varied greatly over time.
Capital punishment was first codified into law during the 18th Century, when King Hammurabi of Babylon introduced the Code. This Code was a set of laws that he had carved upon a black stone monument and placed in public view. In fact, it is one of the earliest known examples of codified law, though he was most certainly not the first ruler to put people to death. Under this criminal code, King Hammurabi identified twenty-five different crimes as deserving of capital punishment, and required its use in such cases. Following the creation of the Code, many other societies began to implement capital punishment into their criminal laws. For example, in the 14th Century B.C., the death penalty was an integral part of the Hittite Code. The death penalty continues to be a common practice today.[1]
Over time, the use of the death penalty and its brutality has been dramatically reduced. In early history, the death penalty was practiced capriciously for minimal crimes, and often was coupled with cruel torture techniques. For example, in the 7th Century B.C., Athens followed the Draconian Code, which mandated the execution of every criminal. Though this Code was extreme, executions were very prevalent during this time. The most common forms of executions involved crucifixions, drowning, beating to death, burning alive, and impalement.[2]
Even in more modern history, the employment of the death penalty has been egregiously abused. King Henry the VIII of England executed over 72,000 people during his reign in the 16th Century. Under his government, people could be executed for such crimes as marrying a Jew and refusing to confess to a crime. The forms of punishment most commonly used during his reign were boiling, beheading, hanging, and drawing and quartering.[3] His daughter, Queen Mary, who came to power after his death, was particularly known for her brutality, earning her the name Bloody Mary. During her five-year reign, she had 283 people burned at the stake, more than twice the amount killed in a similar fashion during the previous century and a half. Most of these people were executed during her attempt to return the nation to Catholicism.[4]
By the 1700s, 222 crimes in Britain were punishable by death. However, soon the public began to recognize the draconian nature of these laws, and thus began to find individuals innocent if they thought the punishment was not proportional to the crime. As a result, the British government began to reform the death penalty, and between 1823 and 1837, the number of capital offenses was reduced by over 100.[5]
Due primarily British influence, capital punishment was adopted in both the American colonies and later by the government of the United States. And, as in the rest of the world, the death penalty was often overused. For example, in 1612, the governor of Virginia enacted the Divine, Moral and Martial Laws, which mandated the death penalty for offenses as simple as stealing grapes or killing chickens.
Over time, the arbitrariness and brutality of the death penalty has been dramatically reduced. European philosophers such as Montesquieu, Bentham and Voltaire criticized the exercise of the death penalty and greatly influenced public opinion during their time. Cesare Beccaria’s essay, On Crimes and Punishment, was particularly powerful when it was published in 1767, with its argument that the state has no right to take a life. This article is particularly important because it garnered immense support for the abolitionist movement by changing the focus of the debate.[6] Initially, abolitionists primarily argued that the death penalty was unjust because killing is wrong, however many people were not supportive of such a view when it came to convicted murderers. Beccaria, however, switched the debate to focus on the duties and rights of the federal government, and found a much more welcoming crowd. No longer were abolitionists arguing for mercy for criminals, instead they began to critique the expansive powers of the government and thus found common ground with many people who would otherwise be in support of capital punishment. Thus, many scholars argue that this one essay helped fuel the abolitionist movement that continues today.
As a result of the efforts of the abolitionist movement, many aspects of the death penalty have been reformed. For example, in 1794 Pennsylvania instituted degrees of murder based on culpability, and allowed the death penalty to be used only for first-degree murder. In 1846, Michigan abolished the death penalty for all crimes except treason, followed by Rhode Island and Wisconsin who abolished executions for all crimes. In fact, by the end of the nineteenth century, the death penalty had been abolished in Venezuela, the Netherlands, Ecuador, Costa Rica, Brazil and Ecuador. However, when the Civil War in the United States began, the anti-capital punishment movement began losing support as the anti-slavery movement usurped its popularity. As a result, this period of reforms came to a halt.[7]
The evolution of the death penalty since this period has been marked by fluctuations based on social unrest. One of the interesting things to note about the death penalty is that support for it often increases during periods of violence or when social cleavages begin to cause unrest. Many scholars argue that this is because the society feels unsafe and so supports the death penalty as a way to maintain order. For example, during the early part of the twentieth century, six states abolished the death penalty. However, when the Russian Revolution took place, many Americans began to fear the possibility of a socialist revolution in the United States, and this was complicated by the intense class conflicts occurring as a result of World War I. Thus, five of the six states had repealed the ban on the death penalty by 1920. Furthermore, up until the 1940s, the number of executions increased as criminologists argued that such measures were necessary for public safety. The unrest caused by the Great Depression and Prohibition further aggravated this situation. This trend can be noticed in other countries as well.[8]
It was not until the 1950’s that public sentiment turned once again against the death penalty. Nations worldwide began reforming their death penalty practices in an attempt to make them humane, and many countries simply abolished state executions. In the 1972 case, Furman V. Georgia, the Supreme Court found that the implementation of the death penalty in Georgia violated the prohibition against cruel and unusual punishment because it was too arbitrary. Though the death penalty was later reinstated in the United States, many other countries have adopted the abolitionist stance. As of 2006, 87 countries have completely abolished the death penalty, 25 nations have not used it for 10 years though it is legal, and 11 countries have abolished it for all offenses except under special circumstances. There is now a growing international consensus that the death penalty is not a just form of punishment, and the United States has come under increasing pressure to reform its capital punishment laws. In fact, the United States stands with many nondemocratic nations such as Somalia, China, and Uganda in its continued use of the death penalty.[9]
Justifications for the Death Penalty
Governments have used the death penalty as a popular form of punishment throughout history because of the perceived benefits it offers. Supporters of capital punishment have justified the death penalty primarily on two premises: capital punishment serves as an effective deterrent, and the government is obligated to ensure retributive justice.
Advocates of capital punishment have long held that the death penalty is essential to maintaining social order. Supporters argue that the death penalty serves as an effective deterrent, because potential criminals would be more likely to respond to the disincentive posed by death as opposed to the disincentive of prison time. Thus, they argue that the death penalty should be maintained because ultimately it saves lives by encouraging potential murderers not to commit those crimes. Some individuals who follow this line of thought maintain that the death penalty is justified on deterrent grounds even if a few innocent people are executed. They argue that even if a few innocent people die, many more innocent people will be saved by the deterrent effect of the death penalty. Thus, its use is justified.
However, few people in at least the US public believe in the deterrent effect of the death penalty. In fact, a recent Gallup poll found that only 34% of Americans believe that the death penalty deters future murders, whereas 64% believe it has no effect. Many people criticize the deterrence theory as being to simplistic, and argue that a potential criminal is just as likely to respond to the disincentive of prison time as they do to the death penalty. However, despite the lack of faith in this argument, 2 in 3 Americans continue to support the death penalty, and the justifications they provide extend beyond deterrence.[10]
In an argument related to deterrence, many supporters of the death penalty maintain that it is the most effective way to ensure a criminal never commits a crime again. When an individual is put into prison, there is always the possibility that he or she could reoffend. There is this possibility because the person maybe released back into society, either on parole or after completion of his/her sentence, or the person may escape. Either way, there is always an opportunity to commit another crime. Supporters of capital punishment argue that some people who are simply too dangerous to leave open the possibility of their release into society. Furthermore, even if the person is imprisoned for life without the possibility of parole, and is unable to escape, there is the possibility that he or she could commit a crime inside the prison. Thus, many people support capital punishment simply because it is the only way to ensure that a convicted murderer does not commit another crime.
Finally, capital punishment is often justified on the basis of retribution. Supporters argue that an individual who takes the life of another human being sacrifices his/her own right to life. Philosopher John Stuart Mills maintained that a government could only show respect for the sanctity of life by using the death penalty as punishment for murder. He stated in front of the British parliament, “Does fining a criminal show want of respect for property or imprisoning him, for person freedom? Just as unreasonable is it to think that to take the life of a man who has taken that of another is to show want of regard for human life. We show, on the contrary, most emphatically our regard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself.” Supporters of the retribution argument maintain that some individuals have committed such heinous crimes that they simply don’t deserve the live. Thus, it is the obligation of the state to execute them in order to return order and peace to the society.
It is important to note that the theory of retributive justice is the basis for law. Though supporters of the theory argue that offenders deserve punishment, it is distinct from revenge. As Professor Thomas R. O’Connor of Austin Peay State University explains:
Retributivism as a theory of punishment requires retribution as a rational for law. A retributionist assumes that the law exists for a reason – a moral reason. All crime, even victimless crime, involves a social harm -- a moral harm. In other words, violating the law not only offends against the law of the land, but the moral code of the land. As Moore (1997) states, retributivism holds to a legal moralist theory of law where the only worthwhile legislation is that which addresses morally wrongful behavior, or in other words, legislates morality. Since the law as written not only includes a description of the criminal act, but the appropriate penalties and punishment for that act, it follows that the exercise of punishment -- as the law demands -- is a moral act in itself.[11]
Retributive justice, though, not only requires a response but a proportional response. Therefore, supporters of capital punishment maintain that the only way to have a proportional response, and thus the only way for a government to maintain morality of the law, is to enact the death penalty in response to a heinous crime.
Criticisms of Capital Punishment
Despite its widespread use, supporters of capital punishment have faced opposition for centuries. For example, in the 11th Century, William the Conqueror banned executions for all crimes except in times of war.[12] Though his reforms were not popularly adopted, the abolitionist movement has continued to offer powerful opposition to the imposition of the death penalty. As noted previously, the criticism offered by the movement has led to the banning of the practice in many countries.
Current opponents of the death penalty offer many arguments against its practice. Initially, many opponents maintained that the death penalty was unjustified because people should not be forced to forfeit their right to have rights. They pointed to the moral horror of taking another individual’s life, and maintained that no one deserved to have their life ended by the state. The crux of the argument is that respect for the sanctity of life must be absolute, and if a government is to be just, it must protect the lives of all of its citizenry.