Thesis on "Perspective of the Families of the Accused and Victim"

Thesis 13 pages (3684 words) Sources: 9 Style: APA

[EXCERPT] . . . .

Life After Execution -- Perspectives of the Families

Capital Punishment -- Background and History:

Capital punishment is the imposition of a death sentence upon a criminal or prisoner by a court, tribunal, or other government authority, and in all likelihood, it predates recorded human history. The practice is known to have occurred since the earliest times before the Common Era and was relied upon extensively throughout the Ancient Far Eastern, Persian, and Early Roman Empires, and especially during the nearly thousand years of the Dark Ages in Europe (Schmalleger, 2008).

In the United States, records dating back to the earliest Colonial period suggest that nearly 19,000 individuals were executed by local, state, and federal authorities in between the beginning of the 17th century and the 21st century (Schmalleger, 2008). The execution rate was highest in the U.S. during the 1930s and continued until 1967 when modern rulings of the Supreme Court imposed a defacto moratorium on capital punishment as a violation of the Eighth Constitutional Amendment prohibition against "cruel and unusual punishment" (Friedman, 2005; Schmalleger, 2008).

In Europe, no such constraints limited the purposeful infliction of torturous pain during the execution process, and considerable ingenuity was applied to devising myriad methods of inflicting horrific pain and disfigurement as punishments for criminal conduct, but also for political opposition and even for practicing "heretical" religions. During the Spanish Inquisition period, Church authorities implemented the trial by ordeal in which innocent and guilty alike were tortured in the belief that those who were truly innocent would be protected from suffering by God (Schmalleger, 2008). Even in Britain, the disembowelling by "drawing and quartering" persons condemned to death persisted until well into the middle of the 19th century. In France, the Guillotine was used extensively throughout the Industrial Revolution and post-Industrial Revolution period and, as in Britain, death sentences were routinely imposed for hundreds of crimes that would be considered relatively minor criminal offenses by any modern standard in addition to capital crimes such as murder (Friedman, 2005).

In the modern era of criminal justice, most European countries and many in other parts of the world as well have abolished the death penalty on the basis of humanitarian concerns and the United Nations has issued its (non-binding) condemnation of capital punishment as well (Lancet, 2008). Ironically, the U.S. has a much longer judicial record of formal challenges to the practice of capital punishment, yet remains among a very small minority of countries that still imposes death sentences within its criminal justice system (Kaveny, 2008; Lancet, 2008).

The defacto moratorium that existed in the U.S. was attributable to the Furman v. Georgia (408 U.S. 238) decision that invalidated the Georgia death penalty, but did so on procedural grounds without directly addressing the constitutionality of capital punishment on the basis of defining "cruel and unusual" referenced in the Eighth Constitutional Amendment (Dershowitz, 2002). Instead, Furman merely struck down the constitutionality of allowing juries the exclusive determination of whether capital punishment was appropriate in particular cases.

A decade later, in 1976, the Supreme Court finally addressed the "cruel and unusual" issue directly, in Gregg v. Georgia (428 U.S. 153), and specifically decided that the imposition of death was neither inherently cruel nor unusual, provided it was reserved to certain kinds of crimes for which such a harsh penalty was appropriate and also provided that the procedural elements of proceedings and the mechanical aspects of its administration were also consistent with constitutional principles (Dershowitz, 2002; Friedman, 2005).

Since the Gregg decision, almost three-quarters of American states do authorize the death penalty, although the practice is still subject to intense opposition on several moral grounds. In addition to the objection that killing is never justified, revelations that more than a few individuals have been wrongly convicted and sentenced to death also generates opposition. Since the advent of DNA-based forensic science, the entire concept of capital punishment has been questioned anew, substantially on the basis of cases in which evidence determined by modern forensic scientific techniques to be faulty have resulted in erroneous convictions in death penalty-eligible cases (Dershowitz, 2002).

Similarly, substantial volumes of data strongly suggest that race, ethnicity, and economic factors contribute very directly to the outcome of prosecution of death penalty-eligible cases and that minority defendants as well as those who are poor and uneducated are tremendously more likely to receive death sentences for comparable crimes where other defendants receive less harsh sentences (Nagin, 1998; Zalman, 2008).

Finally, substantial evidence has also been introduced to establish that lethal injection, the most commonly used method of implementing death sentences in the U.S., may often cause physical suffering that constitutes torture and therefore violates the U.S. Constitution on that ground alone (Lancet, 2008). Specifically, of all of the methods authorized by American law (electrocution, firing squad, gas chamber, and lethal injection), that method may actually result in greater suffering than any other where it is administered improperly.

That is a legitimate concern, particularly because in most states, there is no requirement that physicians administer the three-drug "cocktail" despite the fact that improper administration can result in prolonged suffering by producing death very slowly by suffocation instead of by chemical paralysis of the heart muscle (Kaveny, 2008; Lancet, 2008). Even the most enthusiastic supporters of capital punishment acknowledge that the process of slow suffocation by (unintentional) paralysis of the diaphragm and lungs without simultaneously inducing loss of consciousness satisfies the fundamental definition of "cruel and unusual" punishment under constitutional principals.

Similarly, the concern over wrongful conviction is equally legitimate because the punishment cannot be reversed in the event subsequent errors of fact are revealed exonerating the individual convicted. In the U.S., the constitutional principles arising from the concept of the Equal Protection Clause of the Fourteenth Amendment raise particular concern over the evidence suggesting that capital punishment is enforced even partly by virtue of race, ethnicity, or social class. Therefore, to the extent evidence exists documenting either unfairness in its application or the unnecessary infliction of cruelty in its implementation, the American criminal justice system must institute changes sufficient to redress both issues even if the threshold issue of the morality and constitutionality of capital punishment in principle is settled as a matter of law.

The Effectiveness of Capital Punishment as a Deterrent:

In the last quarter of the 20th century, a significant amount of effort was directed at evaluating the relative effectiveness of criminal sanctions in general and of the death penalty in particular with respect to the deterrence of serious criminal behavior. In principle, one of the main hypotheses for the increased dedication to strict criminal enforcement and harsher criminal penalties was that such an approach to crime would have the effect of deterring criminals and potential criminals from perpetrating crimes by virtue of the awareness that strict enforcement would likely result in arrest, prosecution, and lengthy periods of incarceration (Lynch, 1999). Likewise, with respect to capital crimes in particular, the hypothesis was that prior knowledge of death penalty eligibility on the part of criminals would reduce the incidence of murder and other capital crimes for the same reason (Lynch, 1999).

However, the bulk of the evidence (on both counts) suggests that neither hypothesis is true and that neither criminal sanctions in general nor death penalty applicability in particular is an effective means of deterring criminal activity or capital offenses, respectively (Lynch, 1998; Nagin, 1998; Schmalleger, 1998; Visher, 1987). More specifically, the fact that approximately fifteen American states have outlawed the death penalty since the end of any federal restrictions on its constitutionality provided a direct means of comparison between crime rates and criminal recidivism rates in states with the death penalty and states without the death penalty. Virtually all such empirical studies established that no appreciable difference in crime rate or in the rates of criminal recidivism exists as a function of whether or not a given state still imposes capital punishment (Lynch, 1998; Nagin, 1998; Schmalleger, 1998; Visher, 1987).

Conversely, considerable evidence collected during the same time period actually suggests that harsher criminal penalties (i.e. longer periods of incarceration) may contribute to criminal activity in at least two different ways. Many first-time offenders and other non-habitual criminals conceivably have the potential to be diverted from continued criminal conduct through effective intervention administrated by the criminal justice system and imposed in conjunction with their first formal involvement in the criminal adjudication process (Henslin, 2002; Macionis, 2003). Where other sentencing options exist instead of incarceration, especially in cases involving non-violent crimes, non-habitual younger criminals have the potential for remedial development when given the benefit of training, education, in conjunction with appropriate monitoring within the court system (Henslin, 2002; Macionis, 2003).

Conversely, where first-time offenders and non-habitual younger offenders are subject to prolonged incarceration, they are much more likely to develop an institutionalized sociopathic or antisocial psychological identity that virtually guarantees subsequent involvement with the criminal justice system as a repeated offender once the individual is released back into society (Gerrig & Zimbardo, 2008; Schmalleger, 2008). This is even… READ MORE

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