The Death Penalty: Cruel and Unusual Punishment or Useful Deterrent?

September 23, 2004

The Death Penalty: Cruel and Unusual Punishment or Useful Deterrent?

American Military University

SS 121, American Government I

by James Landrith

Capital punishment, also known as the death penalty, is one of modern society’s most controversial and divisive topics. The use of capital punishment is ancient in practice and has existed in cultures all over the globe for centuries. Further, the death penalty has been used for both serious and minor offenses in many nations and civilizations dating back for centuries (Kronenwetter 11). As both a deterrent and a form of retribution, the death penalty is appealing on many levels to a wide range of cultures, political systems and individuals.

One of the more popular arguments presented by those in favor of capital punishment is its potential use as a deterrent to future criminals (Jackson 92). For instance, former Illinois State’s Attorney Robert E. Crowe believed that it is “the finality of the death penalty which instills fear of punishment which protects safety” (Kronenwetter 5).

According to journalist Michael Kronenwetter, former Attorney General Crowe advocates the use of the death penalty against murderers as a deterrent “not to protect society from them, but to protect society from others who might come after them” (5). In other words, the deterrent rationale held by Crowe and his compatriots reveals that their advocacy on behalf of the death penalty is less about punishing the individual being executed and more about using that person as an example for others to heed. This position creates an interesting conflict with the twin concepts of justice and punishment of the guilty.

Such an argument is clearly in conflict with the American legal system’s function of punishing the guilty and protecting the innocent. In addition, death penalty abolitionists believe that particular rationale cannot be reconciled with the Constitution’s Eighth Amendment’s prohibition against “cruel and unusual punishment” (Volkomer 316). In fact, in 1972, the Supreme Court ruled in Furman v. Georgia that capital punishment violated the Eighth Amendment’s prohibition against “cruel and unusual punishment” (Jackson 92).

Another common justification for use of the death penalty is that of retribution or revenge for the victim or their family (Kronenwetter 44). This justification of capital punishment has great emotional appeal and plays well in both media and political circles. For instance, when my grandfather was murdered during an armed robbery in the late 1970’s, the State of Illinois had not yet reinstated its death penalty following the Supreme Court’s Gregg decision. Had the death penalty been an option, I have no doubt that my family, like many others who’ve experienced the loss of a loved one to violent crime, would have fought hard in both the courtroom and the media to ensure my grandfather’s murderers were sent to death row. For a prosecutor, it must be extremely difficult to look at a grieving family and tell them that in addition to the pain of their loss, they will have to look forward to remembering their loved one by attending the annual parole hearings of a murderer.

At the heart of this issue, however, is the fairness and fallibility of our legal system and the ability of our government to inflict such a final and irreversible disposition in response to a conviction.

Disparities by race, social class and geographical origin in the application of the death penalty have led to a public outcry by human rights and civil liberties organizations for a permanent embargo on executions in the United States. Moratoriums on the death penalty have been occurring state by state, as more and more death row inmates are freed due to new evidence and scientific advancements. Further, access to competent counsel, parity of resources and double standards in the recommendations and application of capital punishment cast great doubt on the fairness and effectiveness of the death penalty as a means of deterrent.

Professor Christopher Waldrep of San Francisco State University points out that from 1872 – 1940 “blacks made up only 10 percent” of Kentucky’s population, but they made up “57 percent of those executed” (Waldrep 12). Further, “80 percent of the men executed for rape were black” in that same time period (Waldrep 12). When one takes into consideration the fact that these Kentucky executions took place during the Jim Crow era, very little imagination is required to cast considerable doubt on the fairness of these trials and the guilt of those executed. While not proven, it is likely that many innocent men were put to death in Kentucky during that era. Waldrep further points out that Supreme Court Justice Lewis Powell feared that racism in the legal system, particularly with regard to the death penalty, would ultimately undermine the public’s faith in the legal system.

In 2001, the NAACP Legal Defense Fund acknowledged that blacks on death row are no longer the majority, but are still represented at a far higher rate than their national population (Kronenwetter 49). That said, in today’s post-Jim Crow era, such disparities continue on due more to class and income differences than the race of the defendant (Kronenwetter 48). Economically disadvantaged defendants, unable to secure top-shelf legal representation, are far more likely to end up on death row than famous, affluent suspects like athlete/actor O.J. Simpson and actor Robert Blake. This is, however, an unfortunate state of affairs spanning across the entire justice system.

Further complicating this issue is the arbitrary nature of prosecutorial application of the death penalty. The inconsistent application of capital punishment has skewed the statistics towards putting the murderers of white victims to death at a far greater rate than those of blacks (Kronenwetter 49). When viewed in tandem with the historically racist manner in which the death penalty was applied in the first half of the twentieth century, this statistical outcome only further taints the practice of capital punishment.

However, some notable exceptions to this trend have occurred in recent memory when the crime is gruesome, the public outraged, and the details are well covered by the media. For instance, the 2002 death penalty convictions of John William King and Shawn Allen Berry for the horrific murder of James Byrd, Jr. in Jasper, Texas is one such high profile case (Waldrep 255). The death penalty conviction of King is further credited to have helped the town of Jasper, Texas begin to heal from the trauma of the horrible crime committed against James Byrd, Jr. on June 7, 1998 (Temple-Raston 232).

Another instance where the horrific nature of the crime ensured a death penalty conviction was the case of Timothy McVeigh. McVeigh was convicted and executed for the 1995 terrorist bombing of the Alfred P. Murrah Building in Oklahoma City, which resulted in the deaths of hundreds of innocent men, women and children.

An argument can easily be made that while capital punishment is clearly applied in an arbitrary, unequal fashion, any convicted murderer sent to death row is a victory for the victims of violent crimes and their families. The unconsidered portion of that equation, however, is what may happen in our courtrooms as a result of the growing skepticism of a public becoming more aware of such disparity and arbitrary application. This skepticism may not be without cost. Jurors, incensed at unequal application of the death penalty, may become more likely to convict a person on lesser charges in order to avoid sending a defendant to their death.

Key to the Constitutionality of capital punishment, however, is the retribution argument made by advocates of the death penalty. In the Supreme Court case Furman v. Georgia, Justice Thurgood Marshall wrote that “retribution has been condemned by scholars for centuries” (Kronenwetter 45). Further elaborating on this theme, Justice Marshall remarked that the “Eighth Amendment was adopted to prevent punishment from being synonymous with vengeance” in his opinion in Furman (Kronenwetter 45). Justice Marshall’s views make it clear that he considered the death penalty to be in violation of the Eighth Amendment to the Constitution.

The most dire consideration of this debate, however, relates to the finality of the death penalty itself. Due to recent advances in DNA and the forensic sciences, many death penalty convicts have had their sentences overturned. These newly freed defendants are now at liberty to rebuild their lives and renew family relationships destroyed by years of imprisonment. Had their executions occurred on schedule, innocent men, convicted in a court of law, would have been executed by their government. The finality of the death penalty prevents the possibility of reversing a miscarriage of justice, whether through circumstantial evidence or outright prosecutorial misconduct. How can the possibility of such an outcome not be considered “cruel and unusual punishment”?

However, there is an option at our disposal that deals with the arbitrary nature of the death penalty’s application, without allowing the guilty to get away with their crimes. That option, of course, is sentencing a murder defendant to life in prison without parole. This option would also allow a defendant the possibility of new evidence or technological advances leading to a new trial or the reversal of a conviction. Justice should be the goal of our court proceedings, not retribution or an ineffective deterrence. A legal function that lends itself to the possibility of the state executing the innocent is a practice we can no longer afford and cannot be considered anything but “cruel and unusual punishment.”

References

Jackson, Byron M. “Capital Punishment.” Encyclopedia of American Public Policy. Santa Barbara: ABC-CLIO. 2001. 92.

Kronenwetter, Michael. Capital Punishment. Santa Barbara: ABC-CLIO. 2001.

Temple-Raston, Dina. A Death in Texas. New York: Henry Holt and Company. 2002.

Waldrep, Christopher. Racial Violence on Trial. Santa Barbara: ABC-CLIO. 2001.

{mos_sb_discuss:5}