Capital Punishment: Opposing Perspectives On Moral, Ethical, and Legal Arguments
The use of capital punishment and its moral basis has an extensive history in all cultures worldwide. The right of the state to end one's life has been argued in a variety of formats in descent from eternal law, natural law, and positive law, hence the actual standing code regardless of it's authorship. Exactly what is the nature of this law and one's relation or participation to such frames the major argument. Is there a right to perform the act of an execution on an individual for any particular misdeed? Arguing from the eternal law position would posit an immutable, infallible entity or law that is the support for our existence. The human experience does not qualify one to challenge the dictate from this descending power. The duty to fulfill the authority outweighs any other particular individual consideration. The argument of natural law is used by both religious and materialist philosophy. This case basically has centered on what is not in violation of the functioning of the laws of nature, which are independent of human interference. In turn the positive law will be argued here as to that which is legal regardless of authorship. A mixed form of law is possible (Anderson, 1988) (Aquinas, 1992).
The above state a very simple format common to basic political science and are a point of departure for stating a moral basis for a claim. The ethical position here will be argued in light of norms of conduct in relation to the moral principle. Of interest are the conduct of those persons involved in capital punishment, judges and lawyers, sentencing (equality and proportionality), and the means of performing the act. The legal case will primarily focus on standing code whether such is pro or con. International law is increasingly becoming a deciding factor in many nations' position to abolish capital punishment. The right of the state in this environment will also be discussed.
A focus of the debate is the moratorium movement. There is no disguise that the United States moratorium platform extends from the abolitionist platform, which is based legally in international law.
There are a large degree of system effects operating on individuals and groups that are both public and private in an extremely emotive issue. The United Nations, the Universal System (international commissions), large religious and secular groups as the Catholic Church, and Amnesty International are operating on the heads of states, local governors, and attorney generals to abolish the death penalty. The United States in reciprocity is exerting it's influence on the exterior, as capital punishment is a major issue leading to the election of conservative candidates as President George Bush III.
Sister Helen Prejean, a Nobel Peace Prize nominee and author of Dead Man Walking leads The Moratorium Campaign which is the spearhead for the abolitionist movement in the United States.
Major international treaties that call for the abolition of the death penalty while permitting party states to retain such are:
The Second Optional Protocol to the International Covenant on Civil and Political Rights
Protocol No.6 to the European Convention for the Protection of Human Rights and Fundamentals Freedoms
The Protocol to the American Convention on Human Rights to Abolish the Death Penalty
Case law has established by precedent the current status of capital punishment in the United States.
Furman v. Georgia, 408 U.S. 238 (1972) (USSC+). This case stated that capital punishment was cruel and unusual treatment
Gregg v. Georgia, 428 U.S. 153 (1976) (USSC+). After states rewrote their codes capital punishment is upheld.
Does eternal law sanction the use of capital punishment?
Eternal law is an efficient operation free from the defects of the material laws of nature and human reason. It would bind both the murderer and victim equally in participation. Since both persons are created from the same substance predating such, the eternal law is also injured. Taken in equal measures from the rule the murderer must compensate for the injury that one's act has occurred to the victim. This may be argued as lex talonis or the position of retributive justice for an offense, an eye for an eye (Anderson, 1998) (Aquinas, 1992).
Amnesty International states that major world religions emphasize mercy, compassion and forgiveness in their teachings. All major religious faiths are still found in states that practice capital punishment. Similarly these faiths are found in states that have abolished the death penalty. Abolishment does not oppose religion. In relation a desire for retribution states that one has earned the right to be executed (Foley, 1983). One may oppose such on the ground that all life is sacred and that killing is always wrong (Honeyman & Ogloff, 1996).
Does natural law sanction the use of capital punishment?
Natural law does sanction the use of capital punishment. Such is second in participation to the first law or eternal law. The function of the demonstrable laws of science are a reflection of their creation from eternal law but the material nature is mutable. The natural law is fair to all. There is no distinction in the operations of nature from one country or one person to the other. The natural reason of humans is fallible due to their birth in nature (Aquinas, 1992). Murder is an unnatural act and compensation to the injured is still justifiable. Capital punishment is proportional to murder.
Natural law does not support capital punishment. Execution is only an additional unnatural act of state sponsored murder. If murder is an unnatural act; such should also be kept for the state and the administration of justice. Capital punishment condones unnecessary violence. Execution therefore could not be proportional by reason.
Does positive law sanction capital punishment?
All capital punishment and it's administration is the right of the sovereign to protect it's citizens. This is a legal right, not an act of the use of crime or vice to retaliate. Judicial and juridical punishment must be distinguished from natural punishment. Capital punishment is inflicted on a person who has committed a crime and is legally convicted. In such light the civil state and the sovereign are immune from guilt as the agent of the victim and collective will as has been argued by Kant (Anderson, 1998).
The use of capital punishment is the premeditated and cold blooding killing of a human by the state in the name of justice. It is cruel, inhuman, and degrading treatment. Such is like torture subjecting the individual to an extreme physical and mental assault. Capital punishment legitimizes an irreversible act of state violence. Eventually innocent lives will be taken. Capital punishment should be abolished worldwide unconditionally.
Is capital punishment a sound instrument for the state to punish crime?
Capital punishment provides individual incapacitation of the criminal and as well as collective deterrence towards those who may be future perpetrators. Such clearly punishes the criminal and provides for standards in future cases (Reid, 2003). Deterrence is the number one reason that supporters cite. Twenty six percent of respondents claim lex talonis and 55% percent support the death penalty even if it does not act as a deterrent. The government would lose credibility and stability if it ceased to prosecute capital offenses. The state has an obligation in terms of human life to fulfill capital punishment.
In the past ten years executions rose and the murder rate declined nationwide in the U.S.A. In reality states without the death penalty fared better than those with in reducing their murder rates. In 1990 the gap between the two groups was four percent. In 2000 the murder rate in pro death states was 35% higher than those without. In 2001 the gap was 37%. Murder is a local crime and costs are variable. North Carolina has spent $2.16 million per execution. Florida spent an extra $57 million dollars to facilitate 18 executions between 1973 and 1988. This is an average of $3.2 million per execution.
The human reason is fallible; the conduct of those persons in charge of dispensing with capital punishment is under scrutiny. Should the errors inherent in their acts as sentencing or executing an innocent person end the death penalty?
The government should apply all the laws equally to all persons. The civil contract between the government and it's citizens has guaranteed the right of punishment to the perpetrator, to the immediate family, and society writ large for its self defense and protection (Rousseau, 1968). The lack of cognition and behavior in those persons capacitated to represent the government and defendant however does not negate the taking of life. The taint of errors of those persons in dispensing with justice does not replace the unnatural and illegal act of murder. The errors of those persons pertain to such individuals and not to the victim who is already dead and corollaries. Those persons should face justice for their mistakes, not the persons and society whom have a right to justice under the standing law.
The Commission on Capital Punishment in Illinois found that in 250 cases since 1977 21% of the reversals were to deficiencies in defense council conduct. The Supreme Court found about 26% of the cases were reversed based upon conduct by the prosecutor that was improper and reversible. The trial judge has the immediate responsibility of discretion in these matters before appeal. It is implied here that all professional conduct was less than desired. The use of life imprisonment shields the state and society from the ill effects of a wrongful execution or death sentence.
The use of DNA or forensic testing should eliminate errors in convictions and permit those convicted to prove their innocence or guilt. Has this tool upheld the argument for or against capital punishment?
DNA testing is the most important crime fighting tool since finger printing. DNA testing provides a powerful safeguard in both pre conviction and post conviction processes. This tool lends to the credibility of capital convictions and executions. The problem with post conviction DNA testing is the admissibility, integrity, and saving of biological evidence in nexus with other evidence as fingerprints. There must be a consistent standard to guarantee the recovery, safeguarding and genuineness of all materials (Hatch, 2000).
The State of Illinois had 25 persons on death row. Twelve were executed and 13 were exonerated. Universal DNA testing has proven serious defects in the confidence of law enforcement and trial procedures. As of January 2002, DNA testing has exonerated 100 persons from capital punishment. The Innocence Project states that a revolution has occurred due to DNA testing. This organization argues that exonerations have exposed wrongdoing based on eyewitness errors, official misconduct, race and economic disparities, which posit the use of DNA to aid the abolition of capital punishment.
Historically has the use of proportionality and equality supported the use of capital punishment?
The end is the measure. Any act drawn from the rule must bear in ratio and proportion to that rule or it would be unjust (Aquinas, 1992). Justice requires punishing the guilty even if only some can be punished and sparing the innocent. Morally, justice must always be preferred to equality. Equality cannot be upheld to suspend the operations of justice. Justice cannot ever permit sparing some guilty person, or punishing the innocent. Penalties should be upheld to guarantee that the operations of justice, which are so integral to the sustainability of the individual and state. The application of justice is more than a nobilesse oblige, it is upholding the legal right of the individual and state.
In the dispensation of capital punishment there are disparities along several lines. In U.S.A. death penalty states there are 1794 white DAs, 22 African Americans, and 22 Latinos. In Philadelphia during 1983 to 1993, blacks were 3.9 times more likely to receive a capital sentence. On a scale of 1-2, being black increased the likeliness of the death penalty of 1.4. On a severity scale of the crime of 1-8, murders of 3-7, especially a scale of 5 yielded a 25% more likelihood of capital punishment for blacks. A culpability index of .6 for black defendants with non black victims was in relation to a .4 sentencing for non-black defendants with non black victims (Dieter, 1998).
In the U.S.A. murder is a local crime with some states retaining the right to capital punishment, the federal government has the right to use the death penalty also. The domestic law seems to apply differential treatment. How does this effect capital punishment?
The jurisdiction of capital punishment was returned to the states under the tenth amendment. A law that changes from time to time, place to place, and from person to person does not seem to be a law at all. It has the appearance of being judged by the capriciousness of human nature. In the U.S.A. this is a problem of democracy. The use of polling of public support is a key to the legal disposition of capital punishment and is used by both sides of the argument.
As a result problems with the quality of process have occurred. The federal government has not been effected to the degree of the states.
There are 38 states with the death penalty. Over 820 persons have been executed since 1973. There are over 3,700 prisoners on death row in the U.S.A. In contrast to the two tier system of state and the federal levels of government, international law argues universal jurisdiction with absolute rights of citizenship. This would guarantee only one standard everywhere. That is the abolition of capital punishment and the commutation of all capital sentences to life in prison.
In light of the prevailing arguments, should there be a moratorium on the death penalty at the state or federal level in the U.S.A.?
In principal there should be no moratorium as capital punishment is a weighted argument of applied legal justice. There have been defects with procedural law in various states. Illinois is one such case. This does not mean that all states are defective. The federal system seems to be functioning with less controversy. A moratorium would only deprive justice to the injured victimizing such twice. As stated death sentences should be reviewed on a case by case basis retaining the statute.
International law no longer accepts the argument that the state is the legal actor in providing self defense to citizens through the use of capital punishment. There are times when the state must use deadly force to insure the public safety. Capital punishment is legally cruel and unusual treatment. A moratorium is supported by the use of differential treatment to equal persons under the law. It also puts the party state in ascension or conformity to international standards of law. This is inclusive of the U.S.A. The International Movement is pro abolitionist in all cases.
Are the methods of legal execution consistent with the argument of justice and capital punishment?
In Gregg v. Georgia the United States Supreme Court in the majority decision ruled that the death penalty does not result in cruel and unusual treatment. In particularity this case deals with murder. There are non capital crimes of enormity as rape where such would be cruel and unusual treatment in the U.S.A. Although a legislature is permitted to choose a punishment it does not have to use the least severe method. The existence of capital punishment has a long history in the U.S.A. and was accepted by the framers of the constitution. The court in re: Kemmler asserted that electrocution was not cruel and unusual treatment (Stewart, Powell, & Stevens 1976).
Any form of execution is inhuman. The search for a humane method should be seen for what it is; a quest to make such more palatable to those who carry out the execution, the government and the public. Lethal injection avoids many of the unpleasant effects of other forms of execution: bodily mutilation and bleeding due to decapitation, smell of burning flesh in electrocution, disturbing sights and or sounds in lethal gassing and hanging. However, lethal injection increases the risk that medical personnel will be involved in killing for the state, in breach of long standing principles of medical ethics. Capital punishment should be abolished unconditionally.
The case on capital punishment represents two polarities of abstract thought concerning justice descending into concrete acts on a historical and international basis. The pro capital punishment alignment has origins in theological and secular thought, as does the abolitionist encampment. A theocracy would endeavor to have a clear descent of authority from eternal, natural, to the positive law. The moral argument on the former is justice based with a retributive argument lex talonis balanced with deterrence the more popular support for the death sentence. The historical secularization of culture at times pairs the propagated infallibility of religious thought to acts which contradict this case. A contrarian position, which at times uses capital punishment to achieve other political goals, is apparent. This appears to be democratic and of a power and control perspective. If one were to argue the political philosophies, levels of government as international, federal, and state law, one would notice system effects as these structures operate and change the boundaries of one another (Reid, 2003).
A transitional figure in the secularization of western thought is Immanuel Kant whose writings are in favor of capital punishment. Kant's writings are one of the most common sources of support for the classical position (Anderson, 1998). The Social Contract theory is the universally accepted correct model of constitutions. The text of the same name by Jean Jacques Rousseau postulates how man gives up natural rights to the collective in order to live under the civil state (Rousseau, 1968).
Anderson, D. (1998). The Death Penalty - A Defense (Chapter 2). Retrieved April 2, 2003 from the World Wide Web: http://w1.155.telia.com/~u15525046/ny_sida_1.htm
Aquinas, St. T. (1992). Treatise On Law. Washington D.C.: Gateway Editions
Dieter, R. (1998). The Death Penalty In Black and White; Who Lives and Who Dies. Retrieved April 10, 2003 from the World Wide Web: http://www.deathpenaltyinfo.org/article.php?did=539&scid=45
Foley, M. (1983). Confessions of a Retributivist. Social Action and the Law, 9, 16-17. Reprinted from the Canadian Journal of Behavioral Science Volume 28: January 1, 1996. Retrieved April 2, 2003 from the World Wide Web: http://CJBS%20Capital%20 Punishment.htm
Hatch, O. (2000). Statement of Sen. Orrin Hatch. Retrieved April 14, 2003 from the World Wide Web: http://www.senate.gov/~judiciary/oldsite/6132000_ogh.htm
Honeyman, J.C., & Ogloff, J. R. (1996). Capital Punishment: Arguments for Life and Death. Reprinted from the Canadian Journal of Behavioral Science Volume 28: January 1, 1996. Retrieved April 2, 2003 from the World Wide Web: http://CJBS%20Capital%20 Punishment.htm
Kant, I. (2003). The Right of Punishing. Retrieved April 2, 2003 from the World Wide Web: http://w1.155.telia.com/~u15525046/ny_sida_1.htm
Reid, S. (2003). Criminology and Crime. U.S.A.: Holt, Rinehart and Wilson
Smith, Sharon C. (December, 1999). Historical Overview of Capital Punishment in the United States. Retrieved April 4, 2003 from the World Wide Web: http://www.closeup.org/intro
Stewart, Powell, & Stevens (1976). Gregg v. Georgia, 428 U.S. 153 (1976) USSC.
Characteristics of Prisoners Under Sentence of Death (2001). U.S. Bureau of Justice Statistics, Capital Punishment, annual, from Statistical Abstract of the United States, 2001.
Commission on Capital Punishment (April 15, 2002). (Chapter 14). Retrieved April 2, 2003 from the World Wide Web: http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/chapter_14.pdf