THE DEATH PENALTY
Introduction.
The death penalty, also referred to as capital punishment, refers to when a person’s life is ended through a legal order as a punishment for crimes committed. Although the death penalty is often prescribed under criminal laws, there are circumstances where a special committee may prescribe it for offenses other than those stated under the law. The first recorded death penalty in American history was held in 1608 and was that of Captain George Kendal who resided in the Jamestown colony Virginia.[1] Although there have been attempts in recent years to abolish the death penalty, the practice is still observed in U.S even though it violates some human rights. Been the 1990s to date, there have been over 70 convicts sentenced to death, 3 of whom have been executed. In some circumstance, some death row inmates have had their sentences reduced to life imprisonment have successful but lengthy appeals.[2]
It is needless to point out that the issue of the death penalty is such a controversial one as some argue that hardcore criminals should be executed to protect the general public from further harm while there are those who argue that it is a violation of constitutional rights. The objective of this research paper is to look at the issue of the death penalty, constitutional provisions and address the question of whether the death penalty should be abolished.
Death penalty in U.S.
The first recorded execution in U.S was held in 1608 and was that of Captain George Kendal who was considered a spy for the Spanish army. After this many war convicts were executed on charges such as treason and providing weapons to the enemy camp. The development of the constitutional laws and the introduction of human rights affected the advancement of the death penalty. Early abolitionists and constitutional law scholars introduced the concept of the sacredness of human life. The Supreme Court taking into consideration the constitutional rights under the Eighth Amendment stated that it was about time the implementation of the law reflected a progressive society rather than from the original meaning.[3] Such rulings coupled with the constitutional law progression led to activists calling on the abolition of the death penalty.
In the historical case Furman v Georgia, the Supreme Court held that capital punishment violated the constitutional rights provided under the Eighth and Fourteenth Amendments. For this reason, the Court ruled that the death penalty be abolished.[4] However, most states were not pleased by this ruling citing that some crimes warranted the capital punishment. Hence, some states classified some crimes such as murder as crimes that automatically warranted death penalty. In Gregg v Georgia for instance, the Supreme Court ruled that the death penalty should be allowed in the States that had laws that provided for the necessity of the capital punishment.[5]
After the 1980s and the Courts decision that gave States the discretion to decide whether or not they wanted to uphold the practice. Some states have since abolished the death penalty for all criminal offenses. These include Michigan which was the first state to abolish the death penalty in 1884 and Colorado which is the most recent state to away with the death penalty. States such as California are yet to abolish capital punishment and there has been pressure by several human rights activists to have it done away with.
Constitutional issues.
Violation of the VIII amendment.
The Eighth Amendment makes it illegal for the federal government working through any legal agencies to impose outrageous bail, fines or use cruel and unusual punishment on any person accused of or found guilty of a criminal offense.[6] The part that strictly prohibits the use of cruelty and unusual punishments on crime suspects is the one that many have argued to be violated by the death penalty. Many have often wondered what the clause of unusual punishment and cruelty entails and if it does, in its purest interpretation, encompass using measures against a criminal convict that would otherwise lead to death. Another question has always been, in carrying out the death penalty, which methods of execution violate the Eighth amendment?
One of the most historic judicial decisions ever recorded in the United States on the issue of death penalty violation the VIII amendment was the court’s decision in Wilkerson v Utah. The facts in these cases were that the petitioner had in November 1877 been charged with murdering one Mr. Baxter. The petitioner had pleaded not guilty to the crime claiming that although he had on several occasions had verbal altercations with deceased, he had not been the one behind his murder. However, the court found him guilty of the crime and sentenced him to either death by decapitation, hanging or by a firing squad. The accused chose death by the firing squad. However, the accused appealed this decision on the ground that a death penalty and especially execution by the firing squad violated the principle of cruelty and was a very unusual punishment. The Supreme Court dismissed the appeal, upheld the decision of the lower court and emphasized that execution by way of the firing squad was not a violation of Eighth Amendment.[7]
The decision of the Supreme Court in Furman is a landmark decision of great importance to this topic. Furman v Georgia, where the facts before the court were that a person woke in the middle of the night to an ongoing burglary in his house. During the trial, the accused stated that, while fleeing from the deceased house, he tripped and stepped on the gun that fired into the darkness and resulted in killing the home owner. However, this confession was different from the one he had previously given the police during interrogation. He had confessed to the police that when he had the home owner asking what was going on, he had fired the gun mindlessly into the darkness thereby killing the home owner.[8] Since in both accounts Furman had confessed to killing the home owner, however it happened, and in consideration of the fact that the murder happened during the time Furman was committing a felony, the court would have found him guilty of murder and he automatically would have been convicted to execution.
In deciding this matter, the preceding judges were of the view that a death penalty was indeed cruel and constituted an unusual punishment. The court further reasoned that such an act of cruelty towards a crime convict violated the provisions of the VIII amendment. However the dissenting judges argued that the death penalty, being that at the time the matter was in court had been supported by not only the federal laws but by also 40 state statues, it could neither be in any way be viewed as a violation of the provisions of the Constitution nor be said to be contrary to evolution of better standards of morality.
This decision was very crucial as it led to all the death penalty convictions that had been issued prior to the judgment be reduced to life imprisonment.[9] This decision also started the journey towards the reinstatement of the death penalty. This led the Congress to be forced to revisit the issue of capital offenses and what would be the most befitting punishments for persons found guilty of offenses such as murder. This also saw that out of the 40 States that had state statute that supported the death penalty, 37 out of these enacted statutes that either abolished the death penalty within the state or laws that would guide the courts in deciding matters where the death penalty would be a possible result.
However, in the year 1976 the Supreme Court while deciding on the matter of Gregg v Georgia expressed a different view on the issue death penalty. This was mainly based on the new regulatory procedures that the state of Georgia had set in place following the landmark decision in Furman v Georgia. The issue for determination in Gregg v Georgia was whether, in consideration of the Constitution and the judgment in Furman v Georgia, the death penalty was unconstitutional or in violation of the Eighth amendment. The Supreme Court refusing to be bound by the decision in Furman stated that death penalty was not in any way a violation to the provisions of the Eighth amendment. This was argued based on the fact that the death penalty served to offer retributions to the entire society as well as serve to discourage and deter people from committing crimes that would otherwise get them execution.
What then, from the raised against the death penalty, would be described as cruelty and unusual punishment?
The issues raised in relation with the inhuman nature of the death penalty are founded upon how the act of taking another’s life is cruel. This was the dilemma in Francis v Resweber. The petitioner had been tried by the state court and found guilty of murder. He had been sentenced to be executed by way of the electric chair and the correct documentation of the execution granted. However, on the material date of the execution, the petition was tired to an electric chair as per the requirements of the exercise and was shocked with the intention of being killed which fortunately for him did not happen. He was returned to his prison cells and different execution documents prepared for him for a later date.[10]
The petitioner appealed stating that being subjected to a second trial of execution by the electric chair was cruel and unusual and violated his rights under the Eighth Amendment. The issue for determination before the Supreme Court was whether requiring that a person sentenced to executed being subjected to the electric chair for a second time violated the provisions of the Constitution under Fifth Amendment, which establishes the principle of double jeopardy, and the Eighth Amendment which established among other thing the principle of cruelty and unusual punishment against others by the federal government.
The Supreme Court held that re-execution of the petitioner by the electric chair neither violated the Fifth Amendment on double jeopardy nor the Eighth amendment on cruelty and unusual punishment.
The place of the death penalty in the United States in recent years.
Although the death penalty remains legal under the federal laws of the United States, most states have had to enact their own legislations on capital offenses that either uphold the provisions of the federal laws or one that distances itself from such provisions. Some states such as Michigan, Wisconsin and, Maine have since abolished the death penalty within their jurisdictions. These three states are unique because they abolished the sentence by execution long before the 20th century. However, in the recent past, other states such the Connecticut, Delaware, Illinois, Maryland, New Jersey, New Mexico, New York and, Washington have since abolished the death penalty for all crimes within their jurisdiction.
Courts in the States that are yet to abolish the death penalty are still facing the ever-growing dilemma surrounding the question of whether execution violates the provisions of the Constitution under the Eighth amendment. This was evidence in Baze V Rees where the offenders had been charged and subsequently found guilty of a double murder. They were sentenced to be executed by lethal injection. They appealed this decision claiming that execution by lethal injection violated their rights under the Eighth amendment. The issue for determination by the court was whether execution by lethal injection was a violation of the Eighth amendment. The Supreme Court of Kentucky held that the claims of the petitioners were not true. However, the U.S Supreme Court held that the chemical combination that was used at the time for the lethal injection would cause pain to the convict during death which would then be a violation of the VIII amendment. The U.S Supreme Court granted the petitioners certiorari. In 2008 however the U.S Supreme Court affirmed the decision of the Supreme Court of Kentucky.[11]
Similar dilemma was also witnessed in Glossip v Gross where the Supreme Court held that the use of lethal injection, where the composition of injection contained midazolam, did not violate the provisions of the VIII Amendment.[12] Furthermore, although some states still uphold the punishment of execution, some aspects such as the age of the prisoner, the health of the prisoner and the methods of execution have been changed. For instance, although the court in Stanford v Kentucky had ruled that persons aged between the ages of 16-17 and who were found guilty of capital offenses, would face the death penalty, this decision has been challenged.[13] In consideration of the methods used for execution in respect to the violation of the provisions under the VIII Amendment, the Supreme Court in Hill v McDonough held that the provisions of Section 1983 of the Civil Rights Act 1871 would be used to challenge the methods of execution if such methods would violate the prisoner’s rights under the VIII Amendments.[14]
Conclusion.
Although the law provides that criminal offenses are punishable, there are methods of punishment that are barbaric and cruel. The death penalty is a punishment that is not only cruel but against the facets of human rights. The death penalty may be considered as an effective method under penology, offering the needed retribution and to deter further crime. However, it leaves a lot to be desired as it seeks to take the life of one person which is unconstitutional. It would be desirable for states such as California that still uphold this practice to abolish its use and instead apply life imprisonment to hardcore offenses. The purpose of punishment is to reform the criminal and enable them to be accepted back into society once they have served their time. The death penalty eliminates this opportunity for a criminal to have a change of character and be a better person. This then beats the purpose of correctional facilities and goes against human rights.
References.
Statutes.
The Constitution of the United States.
Case law.
Baze v Rees, 553 U.S 35 (2008)
Furman v Georgia, 408 U.S 238 (1972)
Gregg v Georgia, 428 U.S 152 (1976)
Glossip v Gross, No. 14-7955, 576 U.S (2015)
Hill v McDonough,547 U.S. 573 (2006)
Louisiana ex rel. Francis v Resweber, 329 U.S 459 (1947).
Stanford v Kentucky, 492 U.S 361 (1989)
Trop v Dulles, 356 U.S 86 (1958)
Wilkerson V Utah, 99 U.S 130 (1879)
Articles/Journals
Barry Latzer, “Death Penalty Cases: Leading U.S Supreme Court Cases on Capital Punishment” (2010) Elsevier https://www.elsevier.com/books/death-peanlty-cases/latzer/978-0-12-382024-2
Federal Death Penalty, Death Penalty Information Center. (2019) accessed 18th April 2020<< https://deathpenaltyinfo.org/federal-death-penalty >>
H. Bedau, “The Death Penalty in America; Current Controversies” (1997) Oxford University Press
[1] H. Bedau, “The Death Penalty in America; Current Controversies” (1997) Oxford University Press
[2] Federal Death Penalty, Death Penalty Information Center. (2019) accessed 18th April 2020<< https://deathpenaltyinfo.org/federal-death-penalty >>
[3] Trop v Dulles, 356 U.S 86 (1958)
[4] Furman v Georgia, 408 U.S 238 (1972)
[5] Gregg v Georgia, 428 U.S 152 (1976)
[6] The Constitution of the United States.
[7] Wilkerson V Utah, 99 U.S 130 (1879)
[8] Furman v Georgia, 408 U.S 238 (1972)
[9] Barry Latzer, “Death Penalty Cases: Leading U.S Supreme Court Cases on Capital Punishment” (2010) Elsevier https://www.elsevier.com/books/death-peanlty-cases/latzer/978-0-12-382024-2
[10] Louisiana ex rel. Francis v Resweber, 329 U.S 459 (1947).
[11] Baze v Rees, 553 U.S 35 (2008)
[12] Glossip v Gross, No. 14-7955, 576 U.S (2015)
[13] Stanford v Kentucky, 492 U.S 361 (1989)
[14] Hill v McDonough,547 U.S. 573 (2006)
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