Death Penalty and Emile Durkheim Essay
The death penalty is a violation of human rights it is also unfair, unjust and practices the very behavior it is meant to condemn. In most countries it is applied in arbitrary and discriminatory ways.
The death penalty has been applied in western civilization for over two thousand years. About two centuries ago countries like France, Italy and England challenged issues surrounding its application and abuse. Despite being abolished in some countries mostly in Europe, it is still a very controversial and hotly debated topic. Innocent prisoners have narrowly escaped being executed while some have unfortunately been executed.
This research will focus on the sociological aspect of the death penalty and highlight the ineffectiveness of the method compared to other forms of punishment. It’s important to point out how our society has changed in terms of the methods used to punish criminals and the application of technology in performing executions.
This research will attempt to shed some light on issues surrounding the death penalty to not only prove its ineffectiveness but also address its sociological impact on our society. The study will set out to find the background of this method of punishment and find ways to solve negative issues that arise from executions.
The following research objectives have been identified:
To determine if punishment by death is the best form of punishment for capital crime offenders.
To determine whether punishment by death has been effective as a deterrent to criminal offences, especially capital crimes.
To identify what other effective alternative methods are available as punishment on capital crimes.
This research work seeks to answer the following questions:
Is execution the best form of punishment for those who commit capital or grave crime?
Has punishment by death been effective as a deterrent to criminal offences of murders?
What other effective methods are available as alternatives to the death penalty?
We tend to think that the death penalty is a deterrent to grave criminal offences when in fact it is a catalyst for more murders especially when the criminal in question is sure of being punished by death. The death penalty is also known as capital punishment, punishment by death, death sentence or execution. Davis states that “the death penalty is a penalty excluding all possibility of an executed person starting over” (98).
Definition of terms
Death penalty or Capital punishment or Punishment by death or Death sentence or Execution: A sentence of punishment by death.
Electrocution: Execution through the use of electric shock.
Gassing: Killing with lethal gas.
Lethal Injection: Death through injection of a fatal dose of drugs.
Humane: An act with humanistic values and concerns.
Deterrent: A retaliatory means of discouraging or stopping an act.
Review of Literature
In the debate about the death penalty, the justice system itself is an issue. Gottfried points out that “the so-called hanging judges, overly zealous district attorneys, lazy or incompetent defense counsels, biased juries and politically appointed pardon and parole boards have all been blamed for capital punishment injustices” (66). He adds that “they are all charged with withholding and distorting evidence, bargaining pleas to draw out damaging testimony, provoking emotions at the expense of truth and being more concerned with achieving political gain through death row convictions than in looking for facts or alleviating conditions” (Gottfried 66). The result of all this is a system in which justice for victims is never achieved.
Hood points out that “the death penalty is an extreme example of torture and a form of punishment that violates human rights” (13). He points out that “there is no convincing evidence that the rate of murder or other crimes threatened with the death penalty are consistently lower when capital punishment is on the statue book and enforced by executions” (Hood 13). The death penalty has not proved to be an effective deterrent than alternative sanctions of long-term and life imprisonment especially when all circumstances surrounding the way in which the death penalty can be used in democratic nations and under the rule of law are taken into account. Hood continues to state that “in nations that abide by the rule of law and take into account mitigating and aggravating circumstances capital punishment is inflicted on in a relatively small proportion of the cases which could fall within its scope” (13).
Hood states that “experience has shown that capital punishment cannot be administered without an acceptable degree of arbitrariness, inequity and discrimination even when it is practiced only for a restricted category of murderers” (14). It is clear that the death penalty is detrimental in the moral message it conveys because it practices the very behavior of killing that the law seeks to control. Those executed are viewed as victims and inspire mercy while from time to time innocent people are executed; this is an inevitable consequence of capital punishment. On this note Hood states “that capital punishment undermines the legitimacy and moral authority of the entire legal system and the same values which retentionists proclaim to protect the rights of victims of crime can also be invoked to protect the rights of the accused when threatened with state- inflicted death and more so when it can be proved that there is a risk of executing the innocent” (18).
According to Hood, “pressure on police and prosecutors to bring offenders suspected of committing grave crimes leads to shortcuts, breaches of procedural protections and lack of thorough investigation once a suspect is identified” (18). In the United States for example, two thirds of death sentences have been reversed by courts of appeal on grounds of error, investigative journalists have still uncovered cases that went through an appeal process without errors being noted and in which with the use of DNA in later investigation, convincing evidence of innocence has been found. Hood argues that “there is no criminological justification for the death penalty that would outweigh the human rights grounds for abolishing it, evidence that the death penalty is needed to deter crime has been discredited by consistent lack of scientific evidence” (25). The practice of capital punishment contradicts globally accepted penological goals of rehabilitating offenders which is in fact the ultimate goal of the justice system.
According to Barkan and Bryjak, “the death penalty is twice or thrice more expensive than life imprisonment, this is because the pretrial and trial stages of capital crimes involve various processes not present in non-capital cases and appeals following conviction are a must” (449). The entire process of capital cases consumes a lot of time causing it to be more expensive. “Death penalty scholars think that twenty four possibly innocent people or even more have been wrongly executed since the 1970s; this is approximately two percent of the total executions carried out during this period” (Barkan and Bryjak 449). Davis argues that “the death penalty is substantially irrevocable, death spells the end of a person; it completes one’s biography, terminates one’s interests and makes compensation impossible” (98). Punishment through the death penalty is a more severe than imprisonment; execution ends the life of a person while imprisonment only takes part of it.
According to Hood, “abandoning trials and the constitutional rights of suspects, defendants and convicts leads to a high risk of convicting the wrong person eventually executing the innocent” (19). This problem is inherent in the nature of the capital punishment system of execution. For example, “the United Kingdom would have had to deal with consequences of executing innocent people in the cases of those convicted of terrorist murders during the IRA bombing campaign yet most of them were later cleared off of these crimes years later by the court of appeal” (Hood 19). Michael Howard who was then the conservative Party Home Secretary changed his stand from seeking the re-introduction of capital punishment to supporting abolition after witnessing how many people would have been wrongfully convicted.
Legal punishment allures most people because it represents the criminal’s loss of freedom and conveys something about what kind of a society we have today. Barkan and Bryjak point out that “Emile Durkheim viewed punishment as serving a significant function of the society by expressing the society’s moral outrage when important social norms are violated” (428). Durkheim and other sociologists agree to the fact that there are basic ties that exist between the values of a particular society and the mode of punishment used by that society.
According to Durkheim et al., “Justice is in respecting the personality of others in an application of the moral law and the only way to respect another person’s personality is to treat him as an end a not a means” (265). No one should kill granted that he or she respects the body of the other person as this undermines life. Every individual should take this first step in the duty of justice. If all human beings adhered to the moral law there would be no reservation to the rule and principle of integrated morality. “This is not the case since men are different and there are those who regularly threaten others and are outside the bounds of morality, the result of this is a state of war which exists wherever criminals exist and powerful men who consider themselves above the law” (Durkheim et al. 265).
Durkheim et al. continue to state that “moral law no longer applies when dealing with criminals and it must be changed, valid exceptions of the laws take the fact that all people whose lives are threatened have the right to defend themselves and go as far as killing their aggressor when necessary” (266). Everyone has the right to do everything necessary to defend and preserve his life and this includes the right to kill those who threaten his life if necessary. “These rights extend only on the duty lying on their foundation and as soon as the danger of death disappears so does the right of a person to kill” (Durkheim et al. 266).
According to Durkheim et al., “this also applies to the society; the society has the right to defend itself by restraining a man who threatens it. This has been argued to be the basis on which a society can execute a criminal but when an offender appears in court he is already disarmed and therefore the society is no longer in danger. A society may henceforth take precautions to protect it but has no right to kill the offender” (266). “The death penalty has been said to deter criminals but the question is, which deters more the severity of the punishment or its certainty?” (Durkheim et al. 266). Abolition of ancient torture did not increase the number of crimes. The death penalty habituates human beings to the sight of blood which is wrong. Human beings have the instinct of fearing murder and death including the greatest of criminals. The strength of this instinct diminishes with executions in the name of justice and this compromises public security.
Barak agrees with Durkheim’s statement that” crime and punishment are normal and functional to societies because each serves the role of strengthening group solidarity by unifying people in their disapproval against those who violate the legal order” (128). “In his two laws of penal evolution Durkheim emphasizes on the negative aspects of punishment for those sanctioned and positive aspect for the rest of a law abiding society” (Barak 128). According to Durkheim “not only does punishment help define crime, it also constitutes crime and societies cannot have one without the other” (Barak 128).
In his two laws of penal evolution, Durkheim points out that “the variations through which punishment has passed in the course of history are quantitative and qualitative and that laws regarding each kind are naturally different” (Gane 48). “He states that under the law of quantitative variation, the intensity of punishment is greater as societies belong to a less advanced type and as centralized power has more absolute character. This law relates exclusively to the magnitude and quantity of punishments. The second law is related to qualitative modalities. Under the law of qualitative variation, Durkheim states that punishments consisting in privation of freedom and freedom alone for lengths of time varying according to the gravity of crime tend more and more to become the normal type of repression” (Gane 48).
Barak states that “Durkheim’s claims were incorrect in three areas” (128). First is the fact that civil laws have not replaced repressive laws and over time, the civil laws have only supplemented the repressive laws. He continues to say that “crimes have become less personal and violent and more impersonal and nonviolent and with the development of postindustrial and global society, criminality has not become less organized or more individualized. Imprisonment has also not taken over to become the dominant form of punishment replacing more barbaric forms of punishment although prisons still share the penal stage with fines, probation, community service, restitution and restoration” (Barak 128).
Gerber and Johnson state that “in the United States today, over ninety five percent of all criminal convictions are obtained by plea bargain, most criminal cases do not go to trial and this is common knowledge to all those who work within the criminal justice institutions” (24). They point out that the pervasive use of plea bargains to obtain criminal convictions produces the tendency to use the eye witness testimony of jailhouse snitches or other co-defendants or co-conspirators whose aim is to gain advantage by testifying against an alleged perpetrator. “Research has shown that eye witness testimony which is not corroborated by other evidence is the most consistent cause of false convictions and the use of jailhouse snitches has been found to be the most common cause of errors in the legal system Gerber and Johnson “(24).
Gerber and Johnson state that “the prosecutorial office emphasis on winning also produces a tendency for coerced confessions and faulty forensic work” (24). Resources available to the prosecution and defense are vastly unequal; this is because prosecutor’s offices normally have relatively few constraints on their resources for investigating cases compared to those of the defense. Gerber and Johnson continue to point out that “capital case defense requires great experience and legal sophistication but most defendants can rarely afford to pay for it so the defense counsel is appointed by the court from a list of lawyers with little or no experience in litigating capital cases” (24).
According to Gerber and Johnson, “the systematic nature of erroneous criminal convictions is dramatically emphasized by a study in 2002 done by James Liebman, Jeffrey Fagan, Andrew Gelman, According to Gerber and Johnson, Valerie West, Garth Davies and Alexander Kiss at the Columbia University Law School” (25). “They state that large-scale statistical analysis of 4,578 American capital cases between 1973 and 1995 were found to contain an overall rate of sixty eight percent judicial errors. This means that after full review, there were found to be serious reversible errors in almost seven of the tens of thousands capital sentences made during the twenty year period” (Gerber and Johnson 25).
Gerber and Johnson state that “in a comparable study done at the state level for the State of Arizona, the rate of serious reversible error was found to be seventy two percent” (25). this is concrete prove that the error rate was present for a long time since in twenty of the twenty three years reviewed in the Liebman study, more than fifty percent of all cases were found to be seriously flawed with reversible errors. Gerber and Johnson continue to add that “all this emphasizes the fact that reversible errors are routinely produced by the operations of a criminal justice system organized to do this” (25).
Guernsey points out that “the first known death penalty laws were contained in the Code of Hammurabi from ancient Babylonia which we call the nation of Iraq today” (9). Under the code, twenty five crimes were punishable by death. The crimes included adultery and helping slaves flee while murder was not among the crimes. “The Hebrew bible states that an offender should give an eye for an eye and a tooth for a tooth, this summed up means that a method of punishment should equal the crime committed. In this philosophy anyone who takes a life is meant to pay with his life” (Guernsey 9).
Guernsey points out that “during the middle ages executions took place in public, the dead body would later be put on display as a way of warning any future wrongdoers” (9). “Greeks, Hittites, Egyptians, Romans and other early societies also imposed the death penalty for certain crimes, they used very brutal methods of execution which included burning, beheading, drowning and stoning. Guernsey states that the middle societies would go as far as pressing a wrongdoer under heavy weight until he died or even boiling the person to death” (Guernsey 10).
Guernsey adds that “crimes like murder, theft, arson, cutting down another person’s trees and stealing rabbits were all punishable by death in ancient England and the English government sometimes executed children for such crimes” (10). In America, the death penalty was brought along by English colonists during the early 1600s. During the 1700, several writers and philosophers began to question whether the death penalty was just and ethical. One of the philosophers was Cesare Beccaria who believed that executing criminals made a nation more brutal.
Walker and Bix state that, “the death penalty was used in many states in the centuries that followed the founding of the United States” (6). “They state that in the early 1960s the United States Supreme Court began looking at issues surrounding the use of capital punishment” (Walker and Bix 6). Consequently the fifth, eighth and fourteenth amendments were considered in various cases that appeared before the court and in some of the cases capital punishment was considered unconstitutional. In 1972, the Supreme Court passed a ruling that stopped the imposition of death penalties on convicts. In later years the death penalty was introduced in the United States.
Walker and Bix point out that “in the legal world, there are two types of crimes namely misdemeanors and felonies. Misdemeanors are less serious crimes such as petty theft or vandalism and punishment for these crimes most likely constitutes fines and community service. Felonies are more serious crimes such as kidnapping, murder or rape, individuals who commit these crimes can be fined or put in community service but they are often sentenced to jail or prison with life imprisonment being an option sometimes” (9).
The death penalty on the other hand is reserved for severe or capital crimes. “Most civilizations in history used the death penalty as a method of punishment” (Walker and Bix 9). Most crimes leading to execution involved murder but some nations have used and continue to use capital punishment for crimes such as treason, rape, human and drug trafficking and renouncing of one’s religion.
Electrocution was introduced in 1890, “since its introduction, it became the preferred method of execution in the United States, people believed it was quick and painless therefore more humane and efficient than previous methods” (Guernsey 12). Guernsey points out that “gassing was introduced later; a condemned person would sit in an enclosed room strapped to a chair and executioners would release deadly gas into the room and the condemned person would die within minutes” (13).
Guernsey looks at the period of social reform movements in the 1950s and 1960s when Americans began to call for an end to capital punishment as groups charged that the death penalty was unjust and unethical (13). Despite this many states did not change their laws and in 1977 scientists invented lethal injection, a method that was thought to kill people quickly and painlessly. “Today lethal injection is the most common form of execution in the United States” (Guernsey 15).
According to Guernsey, “medical doctors have challenged claims of the injection being called a humane method of execution, this is because the drug can wear off too soon and if this happens the condemned person goes through great pain and suffering as the drug slowly takes effect” (17). He adds that “many doctors and nurses refuse to administer lethal injection” (17). It is for this reason that many prisons rely on less skilled medical personnel to administer lethal injections; such technicians are more likely to mix up the drugs or administer them in incorrect dosages.
This research will make use of both quantitative and qualitative research methods. Statistical analysis of data sets from government agencies such as the Federal Bureau of Investigation and other relevant organizations will allow testing of hypothesis and drawing of conclusions based on this hard quantitative data in order to get valid and reliable general claims.
Direct observation and interviews with relevant individuals will be used to gather qualitative data. A document analysis of government records, journals, historical documents and books by various scholars will also be conducted.
Capital punishment may succeed in stopping a single criminal but the possibility of being sentenced to death does not keep others considering committing a similar crime from committing it. This leads to questioning on the role of a sentence. A sentence should be meant for rehabilitation and not revenge.
The Universal Declaration of Human Rights, international and regional human rights instruments, national constitutions and laws recognize fundamental human rights for all individuals. Everyone has a right to life and the right not to be subjected to cruel inhuman treatment or punishment.
The death penalty should not be practiced by any civilized society. Human life is valuable and even criminals should not be denied the right to live, punishment by death violates a human right by denying those convicted the right to live. Possibilities of error in the justice system have also been witnessed. This is because a person gets convicted on the basis of evidence against him and sometimes false evidence may be given. A convicted person is released when there is error in judgment but in the case of death penalty an innocent person loses his life.
The judicial system in most countries is flawed and in most cases passes judgment on the basis of race, color and social class. The death penalty system in such countries is unfair and unjust and judgment is in most cases passed depending on how much money a person has, the skill of the attorneys and lawyers they hire, his race and where the crime took place. The purpose of capital punishment was primarily to deter crime but according to statistics it has not been effective in controlling murders. Studies reveal the opposite and shocking truth that executions have actually increased murder rates.
Capital punishment practices what it is meant to condemn, it is a premeditated murder itself and only brutalizes the society. Sometimes individuals who commit these heinous crimes suffer from emotional trauma and it is therefore unfair to hold them fully responsible. It is a social responsibility to sometimes show sympathy.
Gottfried, Ted. The Death Penalty: Justice or Legalized Murder? Connecticut: Twenty-first Century Books, 2002. Print.
Michael, Davis. Justice in the Shadow of Death: Rethinking Capital and Lesser Punishments. Maryland: Rowman and Littlefield Publishers, 1996. Print.
Gane, Mike. The Radical Sociology of Durkheim and Mauss. New York: Routledge, 1992. Print.
Durkheim, E., and Thompson, K. Readings from Emile Durkheim. New York: Routledge, 2004. Print.
Barak, Gregg. Criminology: An Integrated Approach. Maryland: Rowman and Littlefield Publishers, 2009. Print.
Walker, I., and Bix, B. The Death Penalty. Minnesota: ABDO Publishing Company, 2008. Print.
Durkheim, Émile. Emile Durkheim on Institutional Analysis. Chicago: University of Chicago Press, 1978. Print.
Barkan, S., and Bryjak, G. Fundamentals of Criminal Justice: A Sociological View. Ontario: Jones and Bartlett Learning, 2011. Print.
LaFollette, Hugh. The Oxford Handbook of Practical Ethics. New York: Oxford University Press, 2005. Print.
Bowers and Pierce, “Deterrence or Brutalization,” Crime & Delinquency (1980). Print.
Bailey and Peterson, in Criminology (1987), p. 22. Print.
Wolfson, “The Death Penalty in America, 3rd ed.” Bedau and Pierce (1982), p. 167. Print.
Blumstein, Cohen, and Nagin, eds., Deterrence and Incapacitation (1975), p. 358. Print.
West, Solomon, and Diamond, “Capital Punishment in the United States.” Bedau and Pierce (1976). Print.
Bedau, “Recidivism, Parole, and Deterrence,” Bedau and Pierce (1988).Print
Guernsey, JoAnn. Death Penalty: Fair Solution or Moral Failure? .Colorado: Twenty-first Century Books, 2009. Print.
Hood, Roger. The Death Penalty: Beyond Abolition, Part 285. Wacken: Council of Europe, 2004. Print.
Durkheim, Émile et al. Durkheim's Philosophy Lectures. New York: Cambridge University Press, 2004. Print.
Baldus, Woodworth, and Pulaski, “Equal Justice and the Death Penalty” (1990), p. 401. Print.
U.S. General Accounting Office, “Death Penalty Sentencing” (1990), pp.5, 6. Print.
Gross and Mauro, “Death and Discrimination” (1989), p. 224. Print.
Radelet, Bedau, and Putnam, “In Spite of Innocence” (1992). Print.
Bedau and Radelet, “Miscarriages of Justice in Potentially Capital Cases”, Stanford Law Review (1987). Print.
Gray and Stanley, “A Punishment in Search of A Crime” (1989). Print.
U S. Govt. Accounting Office, “Limited Data Available on Costs of Death Sentences” (1989), p. 50. Print.
Miami Herald, July 10, 1988. Print.
New York Times, Sept. 22, 1989. Print.
Hood, “The Death Penalty: A World-Wide Perspective” (1989). Print.
Spangenberg and Walsh, in Loyola of Los Angeles Law Review (1989), p. 47. Print.
New York Times, May 28, 1990. Print.
Fox, Radelet, and Bonsteel, N.Y.U. Review of Law and Social Change (1990-91). Print.
Ancel, “The Death Penalty in European Countries” (1962), p 55. Print.