CAPITAL PUNISHMENT CONTROVERSIAL ISSUE IN WESTERN JUSTICE

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The capital punishment, one of a few most controversial issues in western justice system, continues to generate significant social, political and judicial debate. Many social scientists, theologians and legal experts explain that capital punishment is morally wrong, and thus should be abolished and replaced with more humane but adequate criminal penalties. Simultaneously, on the other side of the debate are families of victims, prosecutors and other specialists arguing that heinous offenders do not deserve to live and proper retaliation must be applied. The politics of death penalty are popular in the United States, and this trend flourishes even despite the empirical evidence highlighting its unfairness and ineffectiveness, and despite abolition of capital punishment by many developed countries like the European Union. Moreover, federal and state legislators initiated a broader expansion of capital punishment and stricter limitations on procedural rights. Simultaneously, social activists and right protection organizations called for a moratorium on death penalty until the American judicial system achieves an acceptable degree of accuracy and ensures highest levels of fairness in capital punishment processes. From the critical perspective, there are at least several reasons to suspect capital punishment as an effective public policy against serious crimes. The capital punishment in its current state in the United States seems to be so poorly adjusted to accomplish its primary objectives and so extremely costly that it raises serious doubts regarding its validity. Being inhumane, discriminatory, costly, ineffective and prone to mistakes, capital punishment should be abolished in the United States and replaced with more civilized and efficient legal penalties.

DISCUSSION

CRUEL, INHUMAN AND DEGRADING PUNISHMENT

Opposition to capital punishment argues that this policy is degrading. No matter what method of death penalty is used, an execution is the taking of a life, which is an inhumane act that affirms the concept of using violence as a solution to society's problems. A statement from the North Dakota Catholic Conference articulates this viewpoint: "The fundamental purpose of all punishment is to preserve and enhance the common good. We must never lose sight of this purpose by disregarding the effects of resorting to violent death as a means of dealing with crime. A society that chooses violent death as a solution to a social problem gives official sanction to a climate of violence" (Winters, 1997, p.57). Helen Prejean, a Catholic nun, an anti-death penalty activist and author of Dead Man Walking, believes government killings are too morally costly: "Allowing our government to kill citizens compromises the deepest moral values upon which this country was conceived: the inviolable dignity of human persons" (Winters, 1997, p. 59). Supporting this perspective on capital punishment, numerous states narrowed their statutes for imposing capital punishment, and several suspended or banned it completely. The US Supreme Court referred to this change as "evolving standards [of decency]" (Atkins v. Virginia, 2002), taken to mean that as our society has matured, its understanding of crime and punishment has also grown.

Death penalty proponents argue the death penalty is not cruel, inhumane, or degrading. They believe it is appropriate for a civilized society to execute its citizens that have been found guilty of murder: "an offender deserves and his victim has the right to impose suffering on the offender equal to that which he imposed on the victim' (Reiman, 1998, p.255). They do not believe that by killing a murderer, a society endorses or legitimizes unlawful killing. In an essay by Ernest van den Haag (1998), author states that "although all punishments are meant to be unpleasant, it is seldom argued that they legitimise the unlawful imposition of identical unpleasantness. Imprisonment is not thought to legitimise kidnapping; neither are fines thought to legitimize robbery" (Van den Haag, 1998, p.249).

The policy of capital punishment is degraded because of its obsolete methods of execution. There are many different methods of execution used in the United States. The primary methods are death by electrocution, lethal gas, and lethal injection. Only two states offer the possibility of death by hanging or firing squad, but only as a secondary method, with lethal injection being the primary method (DPIC, 2010). Abolitionists argue the death penalty is cruel and inhumane primarily because of the methods used. They indicate too many instances of botched executions. For instance, the execution of John Evans in 1983 is very illustrative example of this inhumane, inefficient and degraded policy. The Death Penalty Information Center recounts the event:

After the first jolt of electricity, sparks and flames erupted from the electrode attached to Evan's leg. The electrode burst from the strap holding it in place and caught on fire. Smoke and sparks also came out from under the hood in the vicinity of Evans's left temple. Two physicians entered the chamber and found a heartbeat. The electrode was reattached to his leg, and another jolt of electricity was applied. This resulted in more smoke and burning flesh. Again the doctors found a heartbeat. Ignoring the pleas of Evans's lawyer, a third jolt of electricity was applied. The execution took 14 minutes and left Evans's body charred and smoldering (DPIC, 2010).

Lethal gas, which causes death by asphyxiation, has also been plagued with problems. The prisoner is strapped to a chair in an airtight chamber. Chemicals are combined to form hydrogen cyanide gas. The inmate eventually dies of hypoxia, the cutting-off of oxygen to the brain (DPIC, 2010). Many condemned inmates have suffered while dying - thrashing, struggling violently, and gasping for air. According to a former penitentiary warden, "At first, there is evidence of extreme horror, pain, and strangling. The eyes pop. The skin turns purple and the victim begin to drool" (DPIC, 2010). According to Dr. Richard Traystman of John Hopkins University School of Medicine, "The person is unquestionably experiencing pain and extreme anxiety The sensation is similar to the pain felt by a person during a heart attack, where essentially the heart is being deprived of oxygen" (DPIC, 2010). Thus, the idea of taking someone's life in this inhumane way is fundamentally wrong and cannot be justified.

Lethal injection is the preferred method in many states because the public perceives it as a humane way to put someone to death. Lethal injection consists of the administration of sodium thiopental for anaesthesia, pancuronium bromide to induce paralysis, and potassium chloride to cause death (DPIC, 2010). Even this method of execution is plagued with problems. Over the last twenty years, there have been many documented cases where problems occurred while administering the lethal injection. Some inmates experienced violent reactions to the lethal drugs, to include gagging, gasping for air and suffering from severe muscle spasms. Executioners have been unable to find suitable veins to insert the needles. In one case, the needle kept popping out of the inmate's arm while technicians attempted to administer the drugs. It is not surprising that executioners face problems when administering the drugs, since they are not doctors and nurses. The American Medical Association (AMA) strictly opposes physician participation in executions. The AMA believes medical professionals "should not be a participant in a legally authorized execution" to include prescribing, preparing, administering, or supervising injection drugs or their dosage or types" (AMA Policy, 2000). Mistakes in administering lethal injection result in physical and emotional suffering for the condemned, making death penalty to be inhumane and degraded punishment.

There is more contemporary evidence that suggests inmates suffer during the administering of lethal injection. In 2005, a study published in the British medical journal The Lancet postulated that "methods of lethal injection anaesthesia are flawed and some inmates might experience awareness and suffering during execution" (Koniaris et al, 2005, p.1413). According to Koniaris et al (2005), pprotocol information from Texas and Virginia revealed that executioners had no anaesthesia training and that drugs were administered remotely with no monitoring for anaesthesia. The data in the study suggests: "Failures in protocol design, implementation, monitoring and review might have led to the unnecessary suffering" (Koniaris et al, 2005, p.1413). If this study is correct, those who think death by lethal injection is a humane way to die might re-evaluate their position.

INEFFECTIVE DETERRENCE

Deterrence has also been at the centre of much of the debate on capital punishment. Despite the fact that only 34% of the public believe that the death penalty is a deterrent to future crimes, it is still one of the main arguments used in support of the death penalty. Those supporting this addition argued that the current laws were not tough enough and did not deter offenders from reoffending.

Despite the prevalence of this argument, research has shown that the death penalty does not, in fact, act as a deterrent. In 1997, Michael Radelet, chairman of the University of Florida's sociology department conducted a study in which 90 percent of the nation's top criminologists say killing people to deter violent crime is an immense waste of time and money (Hunter, 1997). He stated, "Among the experts, there is overwhelming consensus that the death penalty never has been, is not and never could be a deterrent to homicide over and above long imprisonment" (Hunter, 1997). For something to be an effective deterrent, the penalty must persuade a person not to commit a crime - in the case of the death penalty, the execution of a prisoner must send a message to others to persuade them not to kill. Radelet believes the death penalty is an example of a case of diminishing returns: "After a while, increases in the severity of punishment have decreasing incremental deterrent effect. So if you haven't deterred somebody by life, you're not going to deter them by death" (Hunter, 1997).

From the critical perspective, ddeterrence is problematic because it implies rational premeditation of the crime. However, Bowers and Pierce (1980) found that in only 10% of all murder cases was the crime premeditated. If the crime is not premeditated, then the death penalty cannot act as a deterrent. Other studies have shown that the reinstatement of capital punishment actually produced an abrupt and lasting increase in the level of stranger-related homicides (Cochran, Chamlin & Seth, 1994). This relationship is explained by a lack of social ties between the parties involved and an absence of informal social control mechanisms to counteract the brutalization effect of the death penalty (Cochran & Chamlin, 2000).

Crime statistics also show that, with the exception of Michigan, the top twenty states with the highest homicide rates per capita all use capital punishment (Statemaster, 2010). Studies have also shown that states that use the death penalty have an average murder rate of 5.9 homicides per 100,000, while states that do not use the death penalty have an average murder rate of 4.2 homicides per 100,000 (DPIC, 2010). These studies clearly reveal that deterrence should obviously not be a consideration in the death penalty debate.

INNOCENCE AS THE PROBLEM FOR CAPITAL PUNISHEMENT

One of the most recent and compelling arguments for ending capital punishment is the acknowledgment that innocent people have been convicted of capital crimes and are on death row. Since the death penalty was reinstated in 1976, 123 people in 25 states have been freed from death row because of evidence proving their innocence (DPIC, 2010). In addition, Bedau and Radelet (1988) examined 416 cases involving 496 defendants. They believe that among the 416 cases, twenty three innocent people were executed and another twenty-two were released within seventy-two hours of their execution (Bedau and Radelet, 1998). Eighty-four percent of those sentenced to death were convicted prior to 1976, and 96% of those who were innocent were executed prior to 1976, as well (Bohm, 2007). Since Gregg v. Georgia and the implementation of sentencing guidelines, 128 people have been released from death row due to innocence (DPIC, 2010). The leading states are Florida, which has released twenty-two people, Illinois with eighteen people, and Texas, Louisiana, Arizona, and Oklahoma tying for third with eight people each (DPIC, 2010). Sixty-three of those released are black, 50 are white, 12 are Latino and in one case race was not identified (DPIC, 2008). From the critical perspective, the argument that there is always a chance innocent people can be convicted to death sentence due to procedural and evidence mistakes questions the validity of death penalty as criminal policy.

Capital punishment should be eliminated as a form of criminal policy, because scientific advances, particularly criminological advances, recently started to question capital sentences' validity. For instance, according to the Death Penalty Information Centre, the use of DNA testing has assisted in overturning the wrongful convictions of 206 inmates (DPIC, 2010). Michael Lee McCormick spent twenty years in prison, sixteen of which were on death row, for a murder that he did not commit. DNA testing of hair left in the victim's car did not match that of McCormick. Practically, the case of McCormick was not a notable example of evidential mistakes in capital sentence cases (DPIC, 2010). For instance, in 1984 Darryl Hunt was arrested for the murder of Deborah Sykes, a local news journalist (Duke Law, 2004). Despite the absence of any physical evidence against Hunt, this 19 year old boy has been convicted on the testimony of a witness. Because Deborah Sykes had been sexually assaulted at the time of the murder, her bodily fluids were collected as evidenced and saved. When criminological laboratories started employing DNA analysis as their regular criminological procedure, in 1994 Hunt was cleared of the sexual assault charges due to his DNA mismatch.

In addition to DNA criminological techniques, multiple scientific advancements like EEG, MRI and other neuroimaging technologies offered valuable insights to explain abnormal offender's behavior. For instance, modern neuroscience is capable to explain how criminal's brain functioning differs from one of normal individual. Structural abnormalities of criminals experiencing child abuse long time ago can provoke specific mental illnesses and subsequent criminal behavior (Pincus, 2001). Thus, the capital punishment and its validity are challenged with modern scientific advancements.

RACE AND CAPITAL PUNISHMENT

The policy of capital punishment is discriminatory against race. Systematic discrimination occurs when race is an important factor in the prosecutor's decision to seek the death penalty and the jury's decision to impose the death penalty. Systematic discrimination may refer to either the defendant's race or the race of the victim. Research has shown that black defendants, especially those with white victims, are likely to be treated more punitively than white defendants, especially those with black victims (Paetzold & Willborn, 1994). The Death Penalty Information Centre looked at interracial murder cases and found that in only 15 cases was a white defendant with a black victim sentenced to death while these were 223 cases where a black defendant with a white victim was sentenced to death (DPIC, 2010). A study conducted in Georgia also found that defendants with white victims were 4.3 times more likely than defendants with black victims to receive the death penalty (Baldus & Woodworth, 2003). Additionally, a study conducted by the United States General Accounting Office (GAO) found that the race of the victim influenced whether or not a case would be tried as a capital offense, whether or not the case would go to trial and whether or not the defendant would be sentenced to death. Eighty two percent of the cases the GAO examined found the victims race to influence how the case was tried, once again finding that those who murdered whites were more likely to be sentenced to death (U.S. General Accounting Office, 1990). While on average, cases involving white victims are more aggravated than cases involving black victims, Baldus, Woodworth, and Pulaski (1990) found racial disparity in sentencing even when controlling for level of culpability. While this finding does not take into account the possibility that these cases may have different levels of culpability, it leaves the door open to question the possibility of racial bias in the system (Baldus & Woodworth, 2003).

COST OF CAPITAL PUNISHMENT

It has also been argued that cost should be a consideration in whether or not to place someone in prison for life, with or without the possibility of parole or to execute them. Many believe that it is more costly to incarcerate prisoners for their natural lives than it is to execute them. However, several studies have shown this to be untrue. A study conducted in Texas found that the average cost to execute a prisoner was roughly $ 2.3 million per case. This was about three times higher than housing a prisoner for forty years (Hoppe, 1992). Other states have found similar cost comparisons. A Kansas death penalty report also found that the cost of a death penalty case was roughly 70% higher than the cost of a non-death penalty case. It cost an average of $1.26 million to seek the death penalty versus $740,000 for a non-death penalty trial (DPIC, 2010). California found that the death penalty system was costing tax payers an extra $114 million a year beyond the cost of keeping inmates in prison for life and Indiana found that the death penalty cost 38% more than keeping an inmate housed for life without the possibility of parole (DPIC, 2010). Texas found that the average cost for two defence attorneys, three prosecutors, investigators, and experts to be about $150,452 per case (Hoppe, 1992). The cost for judges, court reporters and bailiffs was found to be approximately 3.5 times greater for a capital punishment case (Spangenberg & Walsh, 1989).

Much o f the extra cost associated with capital punishment comes from trial. Capital trials are longer and more expensive than other murder trials. The budget includes pre-trial motions, expert witness investigations, jury selection, and the separation of trials to determine guilt and sentencing. The appeals process then makes it even more costly (DPIC, 2010). Because of the extra expenses, it is argued that the death penalty has actually made America less safe. Money that could be used to strengthen effective crime prevention programs is being diverted to finance capital punishment (DPIC, 2010).

CONCLUSION

From the critical perspective, capital punishment is an extremely controversial and complex policy, which has been largely formed by moral, social and political debates. Many ethical, legal and scientific arguments eventually have helped to formulate moral and logical arguments against capital punishment. It is evident that death penalty as policy is prone to mistakes and can result in innocent persons being sentenced to death. Moreover, it is widely recognised that capital punishment in any of its current forms, lethal injection, gas chamber or electrocution, is inhumane and cruel punishment. Furthermore, capital punishment is racially discriminatory and extremely costly policy comparing with more effective and moral policies like lifetime imprisonment, which should be abandoned and substituted with more viable alternatives like it was done in the European Union.

In order to be successful, opponents of capital punishment must challenge this policy

In every way. From the critical perspective, policy opponents should be mindful of recent history, the current political climate, and the power of the media in determining the strategy that will bring them success. The most progressive arguments, including the cruel and unusual nature of lethal injection, the potential of innocent people being put to death and invalidity of death penalty to serve as an effective deterrence should be the primary but not absolute focus of their public relations campaign. Abolitionists need to press their arguments at the local and state level, both through the judiciary and legislative process. They should strongly promote non-controversial cases that clearly articulate their position. And although activism at the state level is unlikely to produce country-wide abolishing policies, it may eliminate the capital punishment one state at a time.

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