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There has always been a struggle among society and lawmakers over the use of capital punishment, particularly the death penalty. The death penalty refers to judicial killings, as ordered by the government against convicted criminals for both federal and capital crimes. Such penalties are generally reserved for crimes such as murder, drug offences, treason and, in certain countries, adultery. As of 2009, 58 countries still practice the death penalty, however in that year only 18 countries know to have enforced it, executing at least 714 people. Execution methods included lethal injection, shooting, gassing, hanging, electrocution, beheading and stoning.* Capital punishment, particularly the death penalty, is an extremely controversial issue, with people disagreeing on both moral and legal grounds. Proponents argue the issue of deterrence whereas opponents speak of wrongful execution and the death penalty being unconstitutional.
Though both sides are in favour for punishing criminal behaviour, each side has differing beliefs about what is best for the general welfare of the nation The death penalty if favoured for numerous reasons. Supporters believe that it is an effective form of punishment and can be used to deter crime; potential offenders may think twice before committing crimes, knowing that their actions could cost them their lives. For the death penalty to be seen as an active deterrent, one must assume all potential offenders are rational people and before committing a criminal act, they are evaluating the risk of apprehension and punishment which may be inflicted if caught, rather than focusing on the criminal act itself, and how best to conceal it. However most of the time felons are under the influence of drugs or alcohol and are in a state of rage in which they do not think of the consequences. Jim Mattox, a Texas Attorney General, agrees, "Those executed in Texas were not deterred by the existence of the death penalty law. I think, in most cases, you'll find that the murder was committed under severe drug or alcohol abuse"
Deterrence is a theory is based on the idea that the threat of punishment must be harsh enough to counter any of the benefits the criminal would receive from the act. There are two elements of the deterrence theory. The first is specific deterrence, which is applied to the individual convicted offender to stop them re offending. The second element being a general deterrent, with widespread discouragement directed at potential offenders through the punishment of the individual. For the general element of deterrence to be effective, the punishment must be administered swiftly so that potential criminals will see a clear cause and effect relationship between crime and punishment. If all criminals were struck by lightning immediately after committing a homicide, it would be an effective general deterrent. However convicted offenders in the United States of America are on death row for an average of 12.75 years before their actual execution***.
The implementation of an execution is irreversible. While this means there is no chance of re offence, it also means no new evidence can be introduced and mistakes made in trials cannot be rectified. With the finality of an execution there is always a chance an innocent person could be executed. The Death Penalty Information Center states that "Since 1973, over 138 people have been released from death row with evidence of their innocence."****In 17 of these cases DNA evidence was a considerable factor in establishing innocence. These prisoners spent an average of 9.8 years on death row before being released.
There are constant debates attempting to decide if the death penalty falls under unusual and cruel punishment. It is thought by opponents to be unconstitutional and violation the eighth amendment which is states "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" The eighth amendment serves the purpose of protection of those who are innocent until proven guilty and to ensure that all persons are treated fairly in the criminal justice system. Defendants who are not released on bail are being denied the opportunity to prepare their defence. Also, denying bail or having excessive bail imprisons the defendant without being properly convicted. There are cases, however, where bail must be denied or set excessively high. If an unconvicted defendant is feared to be a danger to the community or a flight risk, the constitution allows the denial of bail (FindLaw, 2010).
In the late 1960s, all except 10 states in America had laws authorizing capital punishment (Justice, 2009). During Furman v. Georgia in 1972, the U.S. Supreme Court decided against capital punishment on federal and state levels. The majority ruled in a five to four vote that the death penalty violated the rights of the eighth amendment (Justice, 2009). Over 600 inmates sitting on death row had their sentences overturned between the years 1967 and 1972. This suspension of the death penalty continued until 1976.
During the Gregg v. Georgia case in 1976, the court decided to uphold a procedure in which the trial of "capital crimes was bifurcated into guilt-innocence and sentencing phases" These proceedings called for a jury to first decide if a defendant is guilty. Based on that decision, then a jury decides whether any aggravating and mitigating factors in assessing the ultimate penalty, either life in prison or the death penalty. It was ruled that capital punishment was constitutional in the United States. The first prisoner to be executed under the newly imposed death penalty laws was a convicted murder named Gary Gilmore on the 17th of January, 1977 by firing squad.
In 2002, the United States Supreme Court decided that the execution of criminals who are mentally ill to be cruel and unusual punishment. Also, in 2005, it was decided that the execution of criminals under the age of 18 to be cruel and unusual as well.
Mr. Justice Brennan spoke out about the death penalty and life without parole in the case of Gregg v Georgia 1976 stating,
"An executed person has indeed `lost the right to have rights.' Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment"@@
It has been argued however, that if a convicted murderer's life is protected by the state, they have more rights than their victim or victims.
The public cannot agree on the effectiveness of the capital punishment laws. The Gallup Poll of 2006 found that Americans overall support of the death penalty was 65%. However given the choice between life without parole and the death penalty, 48% thought life without parole was a better sentencing option than the death penalty at 47% *****
The public believed life without parole rather than the death penalty to be a more effective deterrent, as prison was an immediate threat and offenders knew of the appalling prison conditions and the life within. As only a small proportion of offenders are sentenced to death, and even fewer are executed, the the death penalty was seen as to be inconsistent and not an effective deterrent. It was thought an execution would seem removed and statistically unlikely to the offender.
The 2008 Gallop Poll revealed that 88.2% of the criminologists included in the polls did not believe the death penalty to be a deterrent******
Evidence in the USA and Canada does not show that the absence of the death penalty increases violent crime. The average murder rate for states in the USA which used the death penalty was 5.71 per 100,000 of the population in 2004. However in states without the death penalty, the murder rate was only 4.02 per 100,000. In Canada 2006, the murder rate had fallen by 44 per cent from the rates in 1975 - before the death penalty was abolished. The Death Penalty Information website claims "For 2009, the average Murder Rate of Death Penalty States was 4.9, while the average Murder Rate of States without the Death Penalty was 2.8, For 2008, the average Murder Rate of Death Penalty States was 5.2, while the average Murder Rate of States without the Death Penalty was 3.3"&&
The National Policy Commission raises the issue of research being unable to definitively answer the question of the death penalty having any measurable deterrent effect on violent crimes. National of Academy of Sciences stated that
...non-experimental research, to which the study of the deterrent effects of capital punishment is necessarily limited, almost certainly will be unable to meet these standards of proof. [Therefore], research on this topic is not likely to produce findings that will or should have much influence on policy makers."
The issue of deterrence may never be solved. It can be seen that there is no definitive way to answer the question of deterrence from criminal acts through use of the death penalty, as there is factual evidence that appears to support either side of the argument. Use of it as a punishment and deterrent must be weighed against justice for the victim and their families, and the knowledge that the justice system is not flawless, therefore innocent people could be put to death. It must then be decided if the death penalty is a worthwhile deterrent, potentially saving lives.
FindLaw (2010). The eighth amendment. Retrieved on January 30, 2010 from http://www.findlaw.com/
p4 no deterrent.
**Shepard J. 2005 deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among
States, Michigan Law Review, vol. 104, no 2, pp 203-255
****Innocence: List of Those Freed From Death Row
The Innocence List
@@http://deathpenalty.procon.org/sourcefiles/GreggvGeorgia.pdf (pp 32, 33.)