Essay on "Philosophy and Law"

Essay 3 pages (1171 words) Sources: 1

[EXCERPT] . . . .

Punishment vs. Appropriateness -- an Enlightened View for the Twenty-First Century

It is not popular in the conservative environment of America to consider "liberal approaches" to crime and imprisonment. However, in an era of deep economic recession and after decades of following practices that largely has not worked justice and the public trust mandate that new approaches are considered. In this short paper, this author will consider the death penalty and the appropriateness of punishment vs. sentencing. Because of brevity, we will focus most exclusively on the decriminalization and establish a civil approach to the drug problem.

While in theory the death penalty was mandated for certain crimes in Judaism, it was rarely enforced and has been in fact been a dead letter for some 2000 years. While certain Talmudic passages would seem to support the penalty, the normative position was laid down in the Mishna (Makkot 1:10):

A Sanhedrin that executed [more than] one person in a week is called a "murderous" [court]. Rabbi Elazar ben Azarya states: "[More than] one person in 70 years [would be denoted a murderous court]." Rabbi Tarfon and Rabbi Akiva state: "If we had been members of the Sanhedrin, no defendant would ever have been executed (Diament)."

This Mishnaic passage echoes the rabbinical disconnection from the death penalty that came from both their reluctance to carry it out when they felt that it was counterproductive as well as the fact that the Sanhedrin itself was forbidden by the Romans from carrying out. While Jewish law allows a death penalty, it is not seen as a panacea for all crimes. Indeed, the death, even for murder to be carried out under Jewish law, several safeguards were in place to insure an extremely high probability that the alleged perpetrator was guilty. These include two uncontroverted witnesses, mental fitness and knowledge by the perpetrator, intense investigation and cross examination (as well as a host of other provisions). Such safeguards made the death penalty rarely carried out across the board. Since Judaic tradition underlies a great deal of United States law, it is only reasonable to expect that this tradition should frame the philosophical as well as legal underpinnings of our American tradition. These traditions should clearly argue for and should mandate a capital justice system where the judicial processes yield a high level of certitude that the person sentenced to death will in fact be guilty of the crime and deserving of the punishment meted out. To do any less is an injustice (Ibid).

The answer to the question of capital punishment is to only apply it in extreme situations where not other solution works. That is, when the criminal is so dangerous, society can not deal with him in any other way.

With relevance to the contemporary conditions found in America today, it appears that conditions to exist that do not meet the high standards of Jewish justice. Divided as it is between State and Federal systems, standards between State and Federal jurisdictions vary. Questions of fairness and accuracy in the system are many. According to a U.S. Department of Justice study in 2000 there were substantial disparities in federal death sentences. In addition, there have been disturbingly persistent questions as to whether factors such as racial bias plays a role in capital punishment system since a majority of death row defendants over the years have been comprised of minorities (Ibid).

Since the death sentence is the ultimate punishment for the ultimate crimes (the taking of the criminal's life as… READ MORE

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