American jurisprudence states: “the death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by potential offenders” (Delfino, Day, 2009, p. 1). Today, several states impose capital punishment on both homicide and certain non-homicide-related crimes; murder and rape are in and of itself not capital crimes and as such are not subject to capital punishment (Delfino, Day, 2009, p. 2). 36 out of the 50 states practice capital punishment today, though numbers of executions have significantly lowered through the years.
The state where the crime was committed and the state where the trial will be held makes all the difference between life or death as some states demonstrably impose the capital punishment more often than others (Delfino, Day, 2009, p. 7). Depending on the state where the trial is held, the defendant may be tried by jury, by a majority of jury votes or by a unanimous vote of a jury. Alternatively, a defendant can waive the right to trial by jury and instead have his or her innocence determined by three or more judges (Delfino, Day, 2009, p. 5).
If the defendant has been handed capital punishment, he or she is entitled to a review of the case by the state supreme court to determine if the case has been “influenced by passion, prejudice or any arbitrary factor…and whether the death sentence is excessive disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant (Delfino, Day, 2009, p. 11). If that fails, the appellant must then go through appeals with the Supreme Court and if denied the appellant may seek a habeas corpus review, habeas corpus being a court order determining if a person was imprisoned unlawfully.
If the judicial process has been exhausted, the appellant may ask for clemency or commutation to life imprisonment, which only the President can grant on federal cases (Delfino, Day, 2009, p. 12). Getting out of death penalty can be a long and arduous process with an expiration date; and many civic groups have called for its total abolition, stating an imperfect judicial system that has executed many innocent individuals, bias against certain racial groups, the inhumane methods of the execution itself, the effectiveness of capital punishment as deterrence, and whether or not capital punishment is in fact better than life sentences.
This paper will attempt to gauge the public opinion on capital punishment, and the place of capital punishment in the judicial system and in the people affected by it—judge, jury, victim, defendant and their families. Literature Review In the United States, judges carry the responsibility of imposing sentences. Judge Alex Kozinki’s essay Tinkering with Death reflects on the imposition of capital punishment and his role in it.
Judge Kozinki acknowledges that, like any normal human being, reading the particulars of brutal crimes that eventually wound up as capital punishment cases brought upon a knee-jerk reaction of wanting retribution for the victims, despite his legal training both as a judge and a lawyer. Kozinki also acknowledges that the difference between life and death lay between the manipulations of lawyers, the push and pull of juries and the American law and its jurisprudence.
He also reflects the necessity of capital punishment, and whether it has become an expensive sideshow to what should’ve been a more improved process of preventing criminals to moving on to worse crimes. Kozinki’s essay brings up many issues related to capital punishment. First, the knee-jerk reaction he’s experienced having is an experience he’s shared with his fellow Americans. In 1994, 80% of Americans voted in favor of capital punishment but recently dropped to 65% (Bardes, Shelley, Schmidt, 2010, p. 140), which is still a majority vote.
A similar vote was held in Wisconsin, where 55% of the constituents voted favorably for capital punishment (Delfino, Day, 2009, p. 1). Many advocates for the death penalty state that capital punishment is necessary for the traumatized family of the victims looking for closure. Indeed one may surmise that those voting for or against capital punishment may be functioning on a knee-jerk reaction, using empathy with the victims (“What if it was me? ”) to decide. Yet Kozinki reflects that he finds no pleasure in the actual execution of the capital punishment, and that he even avoids one such case over which he was also an instrument of.
And indeed, those against capital punishment also point out that it is not necessarily the way for the victims’ families to gain closure. The trial, appeals and the handiwork of very good lawyers and sympathetic judges can stretch the whole process into decades. The time it takes to reach the sentencing, and the subsequent appeals the appellant can file can stretch the time between the judgment and the execution even longer, which may have traumatic effects on the families of the victims.