Reviewing Capital Punishment And The Death Penalty Criminology Essay

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capital punishment, also referred to as the death penalty, "is the execution by the government of individuals who have committed a specified crime punishable by death (a 'capital' crime)" (Levinson, 2002). The methods utilized in the U.S. have progressed from extremely violent public executions to more humane methods witnessed only by those who need to be involved. "Putting to death people judged to have committed extremely heinous crimes is a practice of ancient standing, but in the United States in the latter half of the twentieth century…" (Lowe, 2010). Capital punishment has been one of most controversial and emotional topics in the United States and all over the world. Capital punishment serves as a deterrent to lower murder rates, but sometimes it is just retribution. People who are pro capital punishment see killing the prisoners as a way to stop their crimes and prevent them from training and tainting future generations. The death penalty should be administered only for particularly heinous crimes. The Supreme Court of the Unites States of America said, "Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death" (Hall, 2010). Capital punishment is essential to deter criminals, to protect society, and in order for justice to prevail.

History and Development

According to the Death Penalty Information Center (2009), the first death penalty laws date as far back as the Eighteenth Century B.C. and can be found in the Code of Hammurabi. "King Hammurabi of Babylon codified the death penalty for 25 different crimes" (DPIC, 2009). For justice to be served King Hammurabi believed in the "eye-for-an-eye" and "tooth-for-a-tooth" (Hanawalt & Wallace, 1998). The death penalty also became a part of the Hittite Code, the Draconian Code of Athens, the Roman Law of the Twelve Tablets and became a part of Britain's code of laws as well. The death penalty in the Fifth Century involved the use of cruel methods and public executions (DPIC, 2009). "Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive, and impalement" (DPIC, 2009). The death penalty did not reach American soil until 1608 because the Europeans came to America and brought with them their practice of capital punishment (DPIC, 2009). Since the Colonial times there were about 15,000 people have been legally put to death. In 1608, the first recorded execution was carried out in the Jamestown colony of Virginia. Captain George Kendall was convicted of being a spy for Spain and executed. Kendall was hanged. "In the subsequent four centuries an uncounted number, rapists, horse thieves, spies, witches, and kidnappers, among others, have met a similar fate (Bedau, 2004, p.15). In 1632, Jane Champion was the first colonial woman to be executed, but her specific crime was never recorded.

"In 1612, Virginia Governor Sir Thomas Dale enacted the Divine, Moral and Martial Laws, which provided the death penalty for even minor offenses such as stealing grapes, killing chickens, trading with Indians, and in New York for denying the "true god" (DPIC, 2009)." It was through public executions that the sovereign state could demonstrate its power. According to the Death Penalty Information Center (2009), in the Tenth Century A.D. "hanging became the usual method of execution in Britain." William the Conqueror, the King of England, did not permit persons to be hanged or put to death for any crime except in times of war. However, Henry VIII in the Sixteenth Century executed about 72,000 people. In the Sixteenth Century, Henry VIII's methods of execution were "boiling, burning at the stake, hanging, beheading, and drawing and quartering" (DPIC, 2009). In Henry VIII's time capital offenses included marrying a Jew, not confessing to a crime, and treason (DPIC, 2009). "The number of capital crimes in Britain continued to rise throughout the next two centuries" (DPIC, 2009). This continued to increase up until the 1700s at which point 222 crimes were punishable by death (DPIC, 2009). The crimes included stealing, cutting down a tree, and robbing a rabbit warren. British juries would convict an offender even if the crime was not serious according to modern standards. This led to reforms. Between the years 1823 to 1837, "the death penalty was eliminated for over 100 of the 222 crimes punishable by death" (DPIC, 2009). This became important because "Britain influenced America's use of the death penalty more than any other country" (DPCI, 2009). All executions were public.

That is to say that without a public audience state killing would have been meaningless (Sarat, 1999). In the end, some Americans began to voice their opposition to public executions. This led to a period of reform. The violent methods of execution in concurrence with the public nature of the executions had served as a means of social control in the past (Hanawalt & Wallace, 1998). The more brutal the method of execution; the better because the people who were the targeted audience would be obedient subjects as a result.

According to Hugo Adam Bedau, in an Abolitionist's Survey of the Death Penalty in America Today (2009), during the Revolutionary era a diverse group of Americans found the death penalty "morally and politically repugnant" (Bedau, 2004, p.16) and became opponents of it. Dr. Benjamin Rush, a signer of the Declaration of Independence and founder of the Pennsyvania Prison Society, believed that the death penalty was a deterrent. However, Rush was significant because he led the abolition movement in the country (Bedau, 2004). In 1794, Pennsylvannia repealed the death penalty for all offenses except first degree murder.

"If we execute murderes and there is in fact no deterrent effect, we have killed

a bunch of murderers. If we fail to execute murderers, and doing so would in

fact have deterred other murders, we have allowed the killing of a bunch of

innocent victims. I would much rather risk the former. This, to me, is not a

touch call."

-John Mcadams-Marquette University/Department of Political Science,

on deterrence.

Rush attacked public executions through lectures and a pamphlet titled "Considerations on the Injustice and Impolicy of Punishing Murder by Death" (Bedau, 2004, p.16). As a result of his work and the works of others there were a number of developments in laws involving the death penalty (Bedau, 2004). Two such developments were the ending of public executions and the use of more humane methods of execution (Bedau, 2004).

From the 1920's to the 1940's, there was a rebirth in the U.S. of the use of the death penalty. The reason was that the writings of criminologists argued that the death penalty was a necessary social measure. There were more executions in the 1930's than in any other decade in American history, an average of 167 per year. There was a temporary suspension of capital punishment from 1972-1976. In 1976, the Supreme Court approved the use of discretion in the application of the death penalty sentencing guidelines in Gregg v. Georgia, Jurek v. Texas, and Proffitt v. Florida; all these cases are referred to as the Gregg decision. This landmark decision held that the new death penalty statutes in Florida, Georgia, and Texas were constitutional; this reinstated the death penalty in those states. The Supreme Court also held that death itself was constitutional under the Eighth Amendment.

The federal government has employed capital punishment for certain federal offenses such as murder of a government official, kidnapping resulting in death, running a large-scale drug enterprise, and treason. In 1994, President Clinton signed a Violent Crime Control and Law Enforcement Act that expanded the federal death penalty to some sixty crimes, three of which do not involve murder. Those three exceptions are espionage, treason, and drug trafficking in large amounts.

The United States has a yearly average of 15,000 murders. Since 1976, there were a total of 1,203 executions. Executions have reached 1,000 per year in only a little more than thirty years. This is proof that the number of cases of capital punishment has been reversed. According to the Pro Death Penalty webpage, in 2003 a nationwide study results showed that "every execution deters an average of eighteen murders" (Lowe, 2010). In the year of 2006, there was another study in Illinois showing that execution in 2000 led to 150 additional homicides over the four years following. Obviously, execution was not a deterrent in Illinois. "Since 1967, there has been one execution for every 1600 murders" (Hall, 2010). According to the FBI's Uniform Crime Report and Bureau of Justice Statistics, from 1967-1996 there have been roughly about 560,000 murders and 358 executions (Hall, 2010). "According to a 2004 study by an Emory University Professor speeding up executions would strengthen the deterrent effect. For every 2.75 years cut from time spent on death row, one murder would be prevented. In the U.S., during the temporary suspension of capital punishment from 1972-1976, the murder rate doubled" (Lowe, 2010).

Goals and Mission

One of main arguments about capital punishment is whether the death penalty deters criminals or not. Some States may say that the death penalty does not deter murder, but some states see a drop in murder rates with the application of the death penalty. "Dismissing capital punishment on that basis requires us to eliminate all prisons as well because they do not seem to be any more effective in the deterrence of crime" (Lowe, 2010). During the Presidential debates in 2000 George W. Bush said, "I think the reason to support the death penalty is because it saves other people's lives, and further that it's the only reason to be for it" (Donohue and Wolfers, 2006). Attorney General Reno, said capital punishment is a deterrent, but there is not much research to support Reno's argument. A study found that between 1965 and 1980, the murder statistics in the United States jumped from 9,960 to 23,040 (Lowe, 2010). In 1960, there were fifty-six executions and in 1980, there were only two executions. That is to say that as the murder rates increased as the number of executions decreased. Texas, a prime example, executes more murderers than any other state. Since the death penalty was reinstated, the murder rate in Texas has decreased from 701 to 241 (Lowe, 2010). This shows that the death penalty does in fact act as a deterrent. According to John Lott, from the pro death penalty webpage, "The media is a bit Johnny-come-lately in recognizing all the research that has been done on the death penalty over the last decade, with nine of the twelve referenced academic studies by economists finding that the death penalty saves live" (Hall, 2010). Based on this evidence the death penalty is a result of belief and not based on statistical reports. There is still a dilemma of whether the death penalty acts as a deterrent because the data is too fragile. A study done by John Donohue and Justin Wolfers in 2006 at the National Bureau of Economic Research is inconclusive. The research showed that the death penalty "may increase the murder rate although it re­mains possible that the death penalty may de­crease it. If capital punishment does decrease the murder rate, any decrease is likely small" (Donohue and Wolfers, 2006).

Another point against capital punishment is the cost. The death penalty cost taxpayers more than life imprisonment without the possibility of parole. John Bailey, Chief State's Attorney in Connecticut, said "Every dollar we spend on a capital case is a dollar we can't spend anywhere else…We have to let the public know what it cost [to pursue a capital case]" (DPIC, 2009). A state spends too much money on capital cases due to the appeals, attorneys, trials, jury selection, experts' testimonies, witnesses, and incarceration. The cost to keep inmates on death row is approximately $50,000 compared to the cost of keeping inmates sentenced to life without the possibility of parole which is $90,000 per year per inmate. The cost does not include appeals, testimony, witnesses, and trials. "California's current death row population of 670 accounts for $63.3 million annually" (DPIC, 2009). Maryland is a prime example of how much taxpayers spend per case. Researchers found that if "prosecutors did not seek the death penalty because it will cost Maryland taxpayers more than $1.1 million, including $870,000 in prison costs and $250,000 in costs of adjudication" (Roman, 2008).

A capital-eligible case in which prosecutors unsuccessfully sought the death

penalty will cost $1.8 million, $700,000 more than a comparable case in

which the death penalty was not sought. Prison costs are about $950,000,

and the cost of adjudication is $850,000, more than three times higher

than in cases which were not capitally prosecuted (Roman, 2008).

The money spent on death penalty cases and keeping prisoners on death row increases the total cost to taxpayers. The decision in every death penalty case is made by prosecutors, juries, and judges.

Agencies and Resources

There are two recommended procedures for imposing the death sentence in capital cases. The two procedures are "bifurcation and the criteria for guiding the decision to impose [capital punishment]" (Samaha, 2008, pg. 283). "Bifurcation [requires] that the decision of the death penalty be decided in two phases" (Samaha, 2008, pg. 283). The two phases are "a trial to determine guilt and a second separate proceeding, after a finding of guilt, to consider the aggravating factors for, and mitigating factors against, capital punishment" (Samaha, 2008, pg. 283). "The criteria for decision must be limited by the criteria established and announced before the decision to sentence the defendant to death" (Samaha, 2008, pg 283).

Judges or juries where state law authorizes judges to decide,

have to consider aggravating and mitigating factors before making

their decision. They cannot actually impose the death penalty unless

they find one of the aggravated circumstances…and further finds

that there are no mitigating circumstances sufficiently substantial

to call for leniency (Samaha, 2008, pg. 283-284).

The key element in determining whether a defendant deserves the death penalty or not is how the defendant's lawyer represents him/her. "Almost all defendants in capital cases cannot afford their own attorneys. In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases" (DPIC, 2010). There were lawyers representing defendants who were inexperienced, unprepared during trials, and have slept through trials. As a result, an experienced attorney is necessary in capital cases and he/she have the resources to fulfill their client's agreement. Illinois is a prime example of a state in which the prosecutor decides who will face the death penalty, "who will get a plea deal or even who may get a complete pass on prosecution" (Ryan, 2004, pg. 226).

The next important element in determining whether a defendant deserves the death penalty is whether the trial jury also has the power to sentence the defendant to death. During jury selection in capital cases the prospective jurors must be "death qualified." The prosecution and the defense attorneys have to question the jurors about their knowledge and ability to consider both aggravating and mitigating circumstances and their willingness to impose the death penalty. The attorneys on both sides and the judge must determine unequivocally that the sentence does not violate the defendant's Eight Amendment rights. Aggravating circumstances include: "The murder was committed by a convict under sentence of imprisonment," "At the time the murder was committed, the defendant also committed another murder," "The murder was committed for pecuniary gain," etc… (Samaha, 2008, pg. 284). Some mitigating circumstances consists are: "The defendant has no significant history of criminal activity," "The defendant acted under duress or under the domination of another person," "The defendant was [of] a young age at the time of the crime," etc…(Samaha, 2008, pg. 284). The jurors in a death penalty case will choose between a sentence of life without the possibility of parole or a death sentence.

According to Franklin Zimring in his book The Contradictions of American Capital Punishment (2003), the states also decide what special procedures (if any) they will provide when a defendant faces the death penalty. By the time the 1960s came about there were a number of Constitutional challenges to capital punishment that were making their way to the Supreme Court. The two major cases sent to the United States Supreme Court which set precedents for states were Furman v. Georgia and Gregg v. Georgia (Bedau, 2004).

According to Zimring (2003), in Furman v. Georgia (1972), the Court decided that "allowing juries in first-degree murder cases to choose between imprisonment and death for convicted offenders without any further legal guidance was cruel and unusual punishment forbidden under the Eighth Amendment" (Zimring, 2003, pp.70-71). As a result of this decision death penalty provisions in every then-current state law were struck down (Zimring, 2003) and a de facto moratorium was placed on executions (Bedau, 2004). According to Bedau (2004), the Court ruled that the typical death penalty statute was so arbitrary that states needed to refashion their statutes if they wished to preserve the death penalty. This ultimately led up to the case of Gregg v. Georgia (1976) four years later and the eventual reinstitution of death penalty executions.

According to Bedau (2004), in Gregg v. Georgia, the court ruled that the death penalty was not unconstitutional and required set standards and guidelines for states. This meant that the Court was making an effort to supervise the way "death penalty states" administered punishment, and it also meant that they were editing individual states' provisions in the laws (Bedau, 2004). According to Bedau (2004), the only death penalty statutes to survive Constitutional challenges were those that punished forms of homicide. Currently there are five authorized methods of execution that have evolved over time. The United States presently uses hanging, gas chambers, firing squads, electrocution, and lethal injections.

There are only thirty-six states still maintain the death penalty including: Alabama, Arizona, Florida, Texas, and Washington. All thirty-six states have lethal injection. According to the Death Information Center (2010) nine states including Alabama, Arkansas, and Florida use electrocution. Two states, New Hampshire and Washington use hanging. Arizona, California, Maryland, Missouri, and Wyoming use gas chambers. Utah is the only state that uses firing squad. If a state has more than one method of execution the inmate can chose how to be executed. States with the death penalty include: Alabama, Arizona, Florida, Texas, and Washington. Here are some states without the death penalty: Alaska, Hawaii, Iowa, New York and Wisconsin. All states without the death penalty have life without the possibility of parole as substitutes for the death penalty. The death penalty is not used for mental retardation, child rapist, and juveniles. In March 2005, the landmark case, Roper v. Simmons, "ruled that the death penalty for those who committed their crimes at under the age of eighteen was cruel and unusual punishment and hence barred by the Constitution" (DPIC, 2010).

Prior to the Supreme Court's decision barring the practice, 19

states with the death penalty did not allow the execution of

juveniles…[Before] 2005, twenty-two inmates were executed

in the modern era for crimes committed while under the age

of eighteen (DPIC, 2010).

In 1997, the continued obligation of the death penalty on the mentally retarded and juveniles contributed to the America Bar Association's call for a nationwide suspension on the death penalty (DPIC, 2010).

For every state who allows watching an execution has its own legislation providing only certain people to watch an execution. The United States carries out their executions "behind prison walls with only a small group of witnesses in attendance" (Bonsor, 2001). These are the people who are allowed to be present during an execution: "relatives of the victim(s), relatives of the prisoner, prison warden, medical personnel, spiritual advisor(s), prison guards, official group of 'reputable citizens,' official group of state-selected witnesses, and media representatives" (Bonsor, 2001). Supporter of public executions believe that America should "be able to see or hear what they have chosen" (Bonsor, 2001). Some believed that public executions would deter criminals. Some say that public executions would be a shocking display. Public executions ended in 1936.

An overview of Capital Punishment

Capital punishment would impact criminal justice agencies on both macro and micro levels because capital punishment does show a deterrent in crime rates. However, capital punishment does not give satisfaction to the victim's families and sometimes the court system are naive and corrupt because they let prisoners who are death row get their sentence reduce to life imprisonment. The parole board will sometimes parole the inmates out of prison due to the overcrowding in prison. Kenneth Allen McDuff is an example of an inmate who initially got sentenced to death row, but later reduced to life imprisonment because of the temporary suspension of capital punishment in 1972. McDuff was later paroled due to the overcrowded prison. Three days after McDuff was released from prison he began to kill again. In 1992, McDuff was arrested in a landfill south of Kansas City. He was indicted on one count of capital murder and on February 18, 1993. The jury sentenced McDuff to death. McDuff was executed on November 17, 1998. "Kenneth Allen McDuff is absolutely the most vicious and savage individual, and has absolutely no conscience, and enjoys killing" (Lowe, 2010). McDuff killed at least nine people, probably more. "If McDuff had been executed as schedule, no telling how many lives would have been saved" (Lowe, 2010).

When an inmate is executed, does the family have closure? Most of the time executing someone does not bring closure because killing someone does bring someone back to life. However, some family members may take years to recover from the loss of a loved one. Some family members may never recover. Executing someone has helped family members to attain some kind closure. When an inmate gets life in prison they are still around to taint and taunt other people in prison. Life in prison for a capital punishment that deserves the death penalty is to get off easily. To be locked away in a world in which drugs, alcohol, weapons, and corruption exist. In a world in which criminals control our prison system is right under our noses in a broken structure. "A death sentence brings finality to a horrible chapter in the lives of these family members" (Messerli, 2009).

Capital punishment does indeed deter crime based on the researcher's results. Researchers looks at "executions and homicides by year and by state or county in order to figure out the impact of the death penalty on homicides by accounting for other factors, such as unemployment data and per capita income, the probabilities of arrest and conviction and more" (Lowe, 2010). A researcher, Naci Mocan, an economics professor at the University of Colorado at Denver re-examined the 2006 results (Lowe, 2010). Mocan discovered that "each execution results in five fewer homicides, and commuting a death sentence means five more homicides" (Lowe, 2010).


The evolution of the death penalty is clearly evidenced by the movement from unbelievably violent and painful practices to more acceptable humane methods. Perhaps the newest wave of evolution will be that of the abolition of the death penalty altogether. This is not too farfetched seeing as there have always been attempts to improve the application of capital punishment. With the possibility of error and failed executions the greatest improvement may not be to further humanize the methods of execution, but to come up with reliable alternatives or get rid of the death penalty altogether

Truly there are those who believe that the death penalty should not exist; yet people and monsters such as Kenneth McDuff exist. A man who had a death sentence suspended, and then released shows a great example of the state failing the community with safety and rational decisions; monsters such as these should not be able to walk the streets ever again.

Public executions of the convicted murderer would serve as a reminder that crime does not pay. Public executions of criminals seem an efficient way to communicate the message that if you shed innocent blood, you will pay a high price... I agree... on the matter of accountability but also believe such publicity would serve to deter homicide." Pojman