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The Reality of Capital Punishment is Contrary to Popular Belief The Truth Regarding the Constitutionality & Efficiency of the Death Penalty |
This paper below was originally submitted my senior year of high
school, in July of 1995. It has not yet been revised and is still in
"freshly scanned" form, so I extend my apologies for any obvious
typographical errors. Footnotes and bibliography were finally put on-line
in October 1999. Thank you for your patience!
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Introduction Although over seventy percent (1) of Americans support the death penalty, the majority of these supporters are unversed in the manner by which the United States government carries out this form of punishment. In addition, the arguments put forth to support their position are either myths or easily refuted. The issue of capital punishment has been tossed back and forth in our nation's courts for quite a while, but both sides of the issue have also been argued for hundreds, if not thousands, of years prior to the rash of court cases beginning in the 1970's. The issue at hand, though, is that capital punishment, first, is unconstitutional in that it violates due process, is applied in an unfair and biased manner, and constitutes "cruel and unusual punishment" through extreme physical and mental anguish; second, demands an exorbitant cost; third, is an unjustifiable act of revenge; forth, is found lacking in grounds when argued on moral bases; fifth, lacks positive proof of deterrence, and sixth, is carried out by the government workers who have no love of their required duties.
History It is in easy reach of the electrical science at this day to so generated and apply to the person of the convict a current of electricity of such known and sufficient force as certainly to produce instantaneous and therefore painless death. (3)This common but incorrect assumption foreshadowed many Supreme Court cases that alternately upheld and struck down this view.
Court Cases
The above was further supported in the Court's decision in Gregg v.
Georgia, in which the Court stated that the death penalty was justified
regardless of whether its deterring effect on society was equal to that
of life imprisonment.(8) However, statements by the two most adamant
abolitionists on the Court accurately reflect capital punishments
difficulties and the public's knowledge thereof. When a country of more than 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied. (9) -J. William Brennan, concurring in FurmanJustice Brennan realized that executing 1 in 4 million (or 0.00000025 percent) did not qualify as regular implementation, nor were these relative few necessarily comprised of the worst offenders in the nation.
According to Justice Marshall, citizens are not aware of all the nuances
essential to having a more thorough understanding of capital punishment. ... the American people are largely unaware of the information critical to a judgment on the morality of the death penalty.. if they were better informed they would consider it shocking, unjust and unacceptable. (10) -J. Thurgood MarshallThis theory was confirmed by a study done in 1975, (11) in which support decreased upon even minimal education regarding the idiosyncracies of the death penalty. The above quote is corroborated by Chaplain Stogumber's comment after watching Joan of Arc burn: If you only saw.. you would think quite differently about it. It would give you a great shock.. I did a very cruel thing once because I did not know what cruelty was like. I had not seen it, you know.... It was dreadful.. But it saved me. I have been a different man ever since... (12)These excerpts were also supported by the 1986 Gallup Poll, which discovered that public approval of the death penalty decreased from 70 to 43 percent with consideration given to life imprisonment without parole. (13) Upon analysis, the states realized they could comply with the Court by reworking the capital statues to increase jury regulation, an action made simpler by the nine separate opinions, especially that of Chief Justice Burger. (14)
Four years later, after the existing statutes had been revised to remove
the offending clauses, the Court heard Gregg v. Georgia (1976). Their
decision overturned Furman by stating that capital punishment was not
forbidden under the 8th Amendment's "cruel and unusual punishment", but
was permissible, rather, when aggravating circumstances were taken into
consideration. (15) It would not be unconstitutional if its imposition
was controlled by "objective standards so as to produce nondiscriminatory
application." (16) In its support of a bifurcated system, (17) in which
the defendant's guilt is decided prior to his sentencing trial, the Court
hoped to encourage capital punishment's unbiased application. Most of
the justices admitted that "scientific evidence regarding deterrence was
inconclusive," (18) but assumed it probably acted as a deterrent, except
in crimes of passion (which make up percent of the murders currently
committed).
The next few death penalty cases argued before the Court involved its
applicability to rape, the mentally retarded and the insane. Coker v.
Georgia (1977), a 7-2 decision with Chief Justice Burger and J,.
Rehnquist dissenting, stated that although rape deserved serious
punishment, it did not merit death, (19) a decision leaving only murder
and perhaps treason open to capital punishment.
The 1986 case of Penry v. Lynaugh allowed the mentally retarded to be
executed, claiming that... (**say why**)....;(20) that same year, Ford v.
Wainwright outlawed the execution of the insane, but did not determine
the criteria for insanity. Ford said execution is permissible if the
inmate can be made lucid (his mental well-being having been decided by
the state medical examiner) through medication or therapy.(21) The Ford
case played a significant role in Varnall Weeks' case: he was executed
May 12, 1995 in Alabama, having spoken of the Garden of Eden's
"unforbidden fruit" and of his belief that he would be transformed into a
tortoise and rule the universe. (22) Although he seemed unable to
comprehend his death, he was determined to be sane enough to be
executed.
The next landmark case, McCleskey v. Kemp, appeared in 1987. The Baldus
Study, comprised of 2,484 Georgian capital cases between 1973 and 1979,
(23) was presented to the Supreme Court, which admitted
the existence of "a discrepancy that appears to correlate with race." (24) Regardless of this admission, they declared the
disagreements to be "an inevitable part of our criminal justice system."
(25)
In Thompson v. Oklahoma (1988), the Court permitted the executions of
minors in a 5-3 decision with Justices Brennan and Marshall
dissenting.(26) Two similar cases, Stanford v. Kentucky and Wilkins v.
Missouri, came the following year. Most states with the death penalty
now have minimum ages of execution, Montana with the lowest age at 12
years, but nine states have no minimum age.(27)
Keeney v. Tamayo-Reyes (1992) is the most recent case, involving federal
habeas appeals. The Supreme Court said if state courts did not hold
evidentiary hearings, the federal courts were not required to either,(28)
whether or not the client could show that inadequate counsel violated due
process. Although this may quicken the process, it tramples upon the
prisoner's rights. Were they allowed, such hearings could overturn a
sentence on constitutional grounds, as has taken place in 558 cases
between January 1973 and April 1994.(29) This process is fairly common,
as 40 percent of federally reviewed cases have been found to contain
constitutional errors.(30)
Due Process
Minorities, principally blacks, are victims of discrimination, as shown
in McClesky v. Kemp. David Baldus proved that defendants were eleven
times as likely in white-victim cases to be recipients of a death
sentence than in black victim cases.(32) Currently, 42
percent of death row inmates are black, while 95 percent of death row
prisoners' victims are white. (33)
The ultimate distinguishing characteristic uniting condemned prisoners is
their affluence; almost all are indigents. As stated in Sister Helen
Prejean's Dead Man Walking, the death penalty is a "poor man's punishment;"
the rich are never condemned to death because they can afford top-notch
attorneys who can "play the system" (34) or as said by former Warden
Duffy, "The death penalty is a privilege of the poor." (35) One political
cartoon wrote, "Capital punishment means them (sic) without the capital
get the punishment." (36) Society has been aware of the influence wealth
holds over the judicial system since biblical times, evident from its
inclusion in the Old Testament. " The rich should have no advantage and
the poor no disadvantage," (37) and "Defend the poor... do
justice to the... needy." (38) Unfortunately, our system
finds this equality too difficult to enact.
Because they are indigents, the accused are provided with a public
defense attorney, which leads to a calamitous overcrowding of the public
defender offices. Because counsel is unable to effectively manage such a
multitude of cases, the quality of care given to each client is poorer.
Louisiana's only prerequisite for handling capital cases is involvement
in any type of law for five or more years, (39) which results in a lot of
attorneys from private firms doing pro bono work. The post-conviction capital defendant who cannot afford a lawyer is left to the mercy of volunteer lawyers. If voluntary representation is not available, the defendant must act pro se or accept death without attempting habeas proceedings. ne shortage of volunteer attorneys and the ever-growing death raw population raises the specter of pro se defendants lacking adequate skill to present the issues in habeas proceedings, or worse, executions of defendants unable ever to marshall such an effort. (40) -J. MarshallSometimes the appointed defense arrives distressingly unprepared, resulting in catastrophic situations. ... there are cases where defense attorneys in capital cases have actually shown up for trial drunk, or so ill prepared they told the judge they didn't know what they were doing, and even then the appeal courts wouldn't concur on ineffectiveness of counsel. (41)This behavior, which is not even sufficient to overturn sentences, leads to the aforementioned large indigent population on death row. When Sister Prejean realized this, she wrote, I had always known... that there were imperfections in the system, but I honestly thought that when a person faces death, he... would at least be given adequate legal defense. I thought the Constitution promised that. (42)
Further due process infringements stem from the stricter regulations
recently imposed. Under the current system, higher courts claim that the
accused waived his rights to bring up issues later if the defense fails
to make objections or mention these issues during trial.(43) All
paperwork may also be denied if submitted past the due date, regardless
of content and relevance.(44) While shortening the process, the
government neglects the defendants' rights.
One of the shortcomings of supporters' arguments is their inaccuracy.
Among the four elements in the retentionists' argument is the notion
that humane executions are carried out swiftly. It is thought that the
client dies instantly, therefore preventing a transgression of "cruel and
unusual punishment."
Regardless of their conclusions, death by electrocution was and is
neither quick nor painless. A reporter who witnessed New York's first
execution by electrocution wrote the following: The current had been passing through his body for 15 seconds when the electrode at the head was removed. Suddenly the breast heaved. There was a straining at the straps... A purplish foam covered the lips and was spattered over the leather head band. The man was alive. .... [E]verybody lost their wits. There was a startled cry for the current to be turned on again... An odor of burning flesh and singed hair filled the room, for a moment, a blue flame played about the base of the victim's spine.... The electricity flowed four minutes ... (45)Initially, a portable chair traveled among the local jails, where the prisoners were lined up and run through. In this period, the inexperienced executioners would apply the electrodes incorrectly, causing sparks to shoot from eyes and ears. The executioners would pull "Old Sparky's" switch, but with insufficient current to cause death. They would wait for the body to cool, check for life, and reapply the electricity up to four or five times.(46) Although that was in the past, the process is still far from painless.
Many suppose the prisoner dies instantly upon receiving a 2,000-volt
charge. To kill immediately, the entire charge must reach the victim's
brain.(47) The body acts as a conductor between the electrodes fastened
to the shaven cranium and calf. Since the full voltage fails to reach
the brain, the inmate endures severe burns while remaining conscious.
Electrocutions last an average of six or seven minutes. This may not
seem to be a large amount of time, but is more easily imagined when put
into perspective. Attempting to hold one's breath for seven minutes
while grasping a red-hot poker accurately describes the experience. In
his dissenting opinion in Glass v. Louisiana, Justice Brennan quoted, [T]he cords of the neck stand out like steel bands.. 7he prisoner's limbs.. and face are severely contorted.. the prisoner's eyeballs sometimes pop out on his cheeks... 7he prisoner often defecates, urinates, and vomits blood and drool.. Sometimes the prisoner catches fire.... There is a sound like bacon frying and the sickly sweet smell of burning flesh... when the post-electrocution autopsy is performed the liver is so hot that doctors said it cannot be touched by the human hand ... (48)This commentary developed from a supposedly painless and humane invention.
Another aspect of the "cruel and unusual" component lies in botched
executions, which are even more barbaric. These fouled deaths are by no
means restricted to the past. In 1983, smoke and fire erupted from John
Evans' temple and leg on the first jolt; his death required 14 minutes.
In 1985, William Vandiver's execution required five charges, lasting 17
minutes. As recently as 1990, the sponge on Jesse Tafero's head caught
fire, causing a 6-inch flame to shoot from his skull. (49)
One cannot remain completely distanced from the process, sitting outside
the death chamber, protected by a plexiglass window. No execution is
perfect: Riley.. was small... and he was terrified. 7he guards had to carry him screaming.. into the gas chamber where... they strapped him into the chair.. Butjust before they dropped the... pellets into the... acid, Riley managed to pull his slim wrists out of the restraints and jumped up, racing around inside the chamber, beating frantically on the glass windows where witnesses and media watched horrified Prison officials had to stop the process, open the chamber, and strap him in again. This happened three times. (50)
Looking outside the physical, one must also acknowledge the mental pain.
This encompasses not only the pain of the victim's families, but also the
prisoner's. The friends and family of the deceased deserve to mourn.
But these families must realize that although they may never forgive the
transgressor, they will be forced to dredge up old memories as they
appear at Pardon Boards, hearings, and other judicial proceedings held
regarding the inmate. (51) All the appeals lead to a continual rehashing
of the crime.
One must also consider the offender's mental well-being. He is forced to
wait in fear for death, the terror of which is only compounded by the
shred of hope continually dashed by the string of endless appeals.
The second part of the supporters' argument is the assumption that
capital punishment is cheaper to enforce than life imprisonment.
Expense
Including cell building and construction with a price tag of $55,000 per
cell, housing as determined by the Bureau of Justice Statistics would
only amount to $11,302, significantly cheaper than execution. (57) As
frequently suggested by supporters, the procedure could be cheaper by
limiting appeals, but it would defy due process in the Constitution.
Such limitations also encourage the executions of innocents, a mistake
which the United States has made 23 times (58) to often.
Deterrence
Though 53 percent (60) of those polled believe the death penalty acts as
a deterrent, evidence suggests that the murder rate decreases with the
abolishment of the death penalty, and levels out to approximately the
same percentage as states with capital punishment (61). Some found cause
to believe it has a negative effect. In New Orleans, the murder rate
rose 16.39 percent after eight executions in a nine week period. (62) With
cases such as the following, When John Spenkelink died in the electric chair in May 1979, he became the first person executed in Florida in 15 years. A later study of the 6-month period before and after his execution, when the public controversy about the issue was at its peak, showed that homicides in the state increased 14 percent. (63)we must analyze whether such executions may have a detrimental effect, rather than being preventative.
By claiming executions act as warnings to the general public, one assumes
that those contemplating murder carefully weigh the results of their
actions. But the FBI admits that the majority of homicides are crimes of
passion. (64) It is a fact that a large percentage of murders are committed in the heat of passion, when the murderer is not in a position to reason; fear of the law plays no part at all. In the remaining few, whatever fear there may be is more than balanced by the belief on the part of the criminal that he is not going to get caught. There are also some who deliberately kill; but the knowledge that they will be caught and punished does not deter them. (65) - OsborneSince they are committed without awareness or concern of possible repercussions, this deterrent argument is moot.
Moreover, the death penalty's preventive effect is lessened further by
its infrequent implementation. According to the Bureau of Justice
Statistics, 260 people from 25,000 murders (66) have received death
sentences per year between 1990-92. This results in a .01 percent
execution rate for murderers. These odds are not threatening enough to
worry potential criminals.
Biblical References
If one is uses the above quotes to demand absolutely equal retribution,
one should consider Camus' assessment of this topic. For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him ... for months. (70)
In addition, advocates may no longer continue this selective reading of
the Bible. The Book is filled with references to forgive, show
compassion, (71) and not to wreak vengeance upon others.(72) One of the
more relevant passages on retaliation is Ezekiel 33:11, in which God
declares, "As I live... I have no pleasure in the death of the wicked,
but that the wicked shall live." (73) and later, "For I have no pleasure
in the death of anyone. "(74) The Bible also declares, " Do not repay
anyone evil for evil, but take thought for what is noble in the sight of
all." (75) This seems very evident that state-imposed death is not
biblically supported. This message sufficiently counters the
retentionists' arguments.
According to the Bible, other acts also carry a sentence of death. If
death is meted out for homicides, then this penalty must also be
inflicted for incest, prostitution, adultery, and profaning the Sabbath,
(76) among others. We ignore these because we have passed beyond the
barbaric stage. Consideration should also be given the old adage, "Two
wrongs don't make a right," in which killing one would not bring back the
other.
Christians, especially Roman Catholics, believe they may morally support
the death penalty, as there has been no official declaration from the
Church to direct its people. However, Pope John Paul II recently wrote
"The Essence of Life", in which he denounced capital punishment. And in
reference to the past, a quote was found to substantiate the
abolitionists' side.
Believers might also be reminded that Emperor Julian, before his
conversion, did not want to give official offices to Christians because
they systematically refused to pronounce death sentences or to have
anything to do with them. For five centuries Christians therefore
believed that the strict moral teaching of their master forbade killing.
(77)
As the Supreme Court looks to English common law for Constitutional
interpretation, so should we investigate the past to direct ourselves.
By the above accounts, one may not assume Christianity and the Bible
overwhelmingly approve of capital punishment.
Government Workers Involvement
Generations of families work as guards on death row,(79) a steady but
unpopular job. Wardens who supervise the process found no purpose in the
deaths. (80) Electricians who rig the chair refuse to be paid blood
money, and executioners are paid by verbal contracts only.(81) Governors
try to rid themselves of the responsibility.
The governor has found a moral niche in this process, a position from
which he can make decisions and still lay his head on the pillow at night
and go to sleep. He is a public official.. He subordinates his
conscience to the "will of the people " The law speaks for itself- if it
is the law, it must be right, it must be true... he simply "does his job"
within the law. (82)
Conclusion |
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