The Death Penalty in 1976

Could anyone know better—or in this case, worse—the feeling of brutally losing someone other than the family of the victim themselves? The families of the murder victims are among the most fervent supporters of the death penalty. They often use press and political channels to agitate for the hasty demise of the monster who shattered their lives (Kozinski 8). Pojman points out that “retributivism is the theory that the criminal deserves to be punished in proportion to the gravity of his or her crime—whether or not the victim or anyone else desires it” (21).

However, according to Roger Hood in his book The Death Penalty: A Worldwide Perspective: “there is a large gap between believing that some persons 'deserve to die' for the crimes they commit, and believing that the state system for the administering of capital punishment can be devised which meets the high ideals of equal, effective, procedually correct, and humane justice that civilized societies seek to implement” (7). The methods of imposing the death sentence has been changed gradually over time—from public hangings to private executions from electric chair to gas chambers to lethal injections.

The changes has also been part of the government's response to the Eight Ammendment. The Eight Ammendment which had become a part of the US Constitution in 1791 provides that “Excessive bail shall not be required, nor excessive fine imposed, nor cruel and unusual punishments be inflicted” (Palmer 11). There was a question raised as to whether the death penalty violates this clause provided in the constitution—that in essence the death penalty is an extreme form of cruel, inhuman and degrading punishment.

Many people appear to believe that criminals who violate the right to life of others by murdering them deserve to lose their own right to life (Hood 7). A Supreme Court ruling in the case of Gregg vs. Georgia in 1976 held that “the inflicition of death as a punishment for murder is not without justification and thus is not unconstitutionally severe” citing that “death penalty undoubtedly is a significant deterrent.

” It is with the same ruling that the Supreme Court held that “the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the communities belief that certain crimes are themselves so grievious an affront to humanitythat the only adequate response may be the penalty of death. ” The death penalty does not violate the Cruel and Unusual Punishment clause (Palmer 14). During that same year (1976), the Supreme Court declared that mandatory death penalty statutes are unconstitutional in their ruling on the case of Woodson vs.

North Carolina. In mandatory penalty, if a person is convicted of a crime, the person must be sentenced according to the requirements of the statute—such that a person who was convicted of a capital crime, i. e. murder, that person is automatically sentenced with a death penalty. Mandatory sentencing statutes remove the discretion of trial judges to determine the appropriate punishments for defenants on an individualized basis. In their ruling, the Spreme Court states:

“This Court has previously recognized that for the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender. Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development.

While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eight Amendment, requires consideration of the character and record or the individual offender and the circumstances of the particular offense as a constitutionally inderspensible part of the process of inflicting the penalty of death.

This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long... Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. (Palmer 15-16) The abolishing of mandatory death penalty has been around as early as 1838. Discretionary death penalties were first enacted in Tennessee and Alabama during that same year (Death Penalty Information Center [DPIC]).

Consider this case: Stephen Clark was hanged in Salem Massachusetts in the spring of 1821 for a fire that he had set out in a barn late one night in the previous summer that had spread to some of the neighboring houses. No one had been hurt but arson of a dwelling during the night was a capital crime during that time. Clark was only sixteen years old, pale and thin, with no criminal record and came from a respectable family. Petitions presented to commute the death sentence to imprisonment has been denied.

(Banner 1) Today, the crime of murder is the only offense that is punished by death. But not every murder justifies capital punishment consideration. Legislators have pointed out specific factors or conduct that may appear in some murders which are called special circumstances that form the basis of death-eligible offenses. A special circumstance constitutes an element of the capital offense and the Constitution requires a special circumstance be proven at the guilt phase beyond reasonable doubt.

The decision of whether to impose death is controlled by statutory aggravating circumstances at the penalty phase. (Palmer 22) Beccaria has also argued the distinction of crimes from which he proposes that defferent crimes have different levels and must have different levels of punishment. “If an equal punishment be ordained for two crimes that injure society in different degrees, there is nothing to deter men from committing the greater as often as it is attended with greater advantage” (ch. 6). This is the same principle why not all murders is punishable by death.

Abolitionists claim that the state is vulnerable to mistakes and that the death penalty might be imposed on the innocent. With the procedure of hearing cases with death penalty taking decades, this mistake is minimized, if not at all avoided. Surely, prosecutors and judges of different several courts could not repeat the mistakes over and over again—in which case there really must be something seriously wrong with the judicial system. Wouldn't you think it better to abolish the justice system altogether if such is the case?

Furthermore, in 1984, the Economic and Social Council of the United Nations had provided the safeguard guaranteeing protection of the rights of those facing the death penalty including: to ensure that capital punishment is only implemented for the most serious, intentional crimes with lethal or other extremely grave consequences; to ensure that it is only applied when there is no possibility of wrongful conviction, and only after a fair trial with legal assistance; to provide for appeals and the possibility of a pardon or commutation of sentence and to ensure that no executions are carried out until all such procedures have been completed; and to carry the capital punishment  so as to inflict the minimum possible suffering (Hood 1). Alex Kozinski describes the procedure of death penalty cases: “Except in rare cases where the prisoner decides to give up his appeal rights, death cases are meticoulously litigated, first in state court and then in federal court—often bouncing between the two systems several times—literally until the prisoner's dying breath. Once the execution date is set, the process takes on a frantic pace.

The death warrant is usually valid only for a limited time—in some states only for a single day—and the two sides battle furiously over that piece of legal territory. If the condemned man... can delay the execution, long enough for the death warrant to expire, he will have bought himself a substantial reprieve—at least a few weeks, sometimes months or years. But if the state can carry out the execution, the game ends in sudden death and the prisoner's argument's die with him. (5) As a judge of the US Federal Court of Appeals for the Ninth Circuit, Kozinski holds jurisdiction of cases, over from nine states and two territories over the Western United States and Oceania, sentencing the death penalty to those who deserve it.

He states that “refusing to enforce a valid law is a violation of the judge's oath—something most judges consider a shameful breech of duty... I do it because I have taken an oath. But there's more. I do it because I believe that the society is entitled to take the life of those who have shown utter contempt for the lives of others. And because I hear the tortured voiices of the victims crying out to me for vindication” (Kazinski 7, 14).

Works Cited

Banner, Stuart. The Death Penalty: An American History. Harvard University Press, 2002. Beccaria, Cesare. On Crimes and Punishments. Death Penalty Information Center. “History of the Death Penalty”. April 10, 2008 <http://www. deathpenaltyinfo. org/>