Capital punishment involves the taking of the offender’s life after an individual has been found guilty of committing a capital offence by a competent court. Eighteen out of the fifty states of America have abolished capital punishment in their jurisdictions. Only twenty-five of the remaining thirty-two retentions’ states have actually executed convicted offenders over the last ten years.
The mandatory death penalty is imposed on murder and capital offences. It constitutes a breach of the most rudimentary human right, the entitlement to life. The notion of universality of Human rights has become a widely accepted aspect in recent years and as a result the death penalty debate has intensified.
Both proponents and opponents of the capital punishment agree that the existing laws providing for capital punishment need reforms; what they have failed to agree on is how these reforms should be achieved. The intensity of the death penalty debate has forced many countries to reconsider their positions on the issue over the years. This paper examines in detail the facts why the death penalty is broken and seeks to establish that the only way to fix it is through reforms.
The paper will critically analyse the mandatory death penalty from both the abolitionists and retentionist point of view. Based on various schools of thought the research will proceed to illustrate why reforms on capital punishment are long overdue. The paper seeks to show the reasons why reforming the existing death penalty laws is part of a move towards a more civilized and liberal society.
Is the death penalty just? Punishing offenders needs a justification (Cavadino, 2007)The six theories of sentencing: retribution, incapacitation, denunciation, rehabilitation, deterrence and restitution justify the punishing offenders.
Sentencing is an important element of the USA criminal justice framework in that it amasses the goals of protecting the public and at the same time providing justice for the accused and the victims of crime.
Before an offender is convicted, judges should determine what the sentence seeks to achieve. Should sentences strive to punish or rehabilitate the particular offender or protect societies from the risk posed by the individual offender? Once this question has been answered, the courts are then able to dictate how grave the punishment of individual offenders should be because to be subjected to punishment is a direct way of paying debt due to the violation of a given law (Myers, 1987)
The literature review will be limited to agreements against the death penalty.
Hugo Adam Bedau, in his book, The Death Penalty in America (1982) provides strong arguments that capital punishment for crimes which result in the loss of the victims’ lives is not, as is commonly supposed, “a punishment that is proportional to the crime.” He also presents evidence of cases where wrongful executions of suspects who were possibly innocent of the crimes for which they died, were carried out.
In his book, killing as Punishment: Reflections on the death penalty in America. ‘Using moral principles to argue about the death penalty,’ H. A. Bedau asks the following questions of fact;
What is the risk that innocent people could actually be wrongfully executed for crimes committed by others?
Is the death penalty a better deterrent to the most serious crimes than the alternative of imprisoning the convicted offenders for life without parole?
It is impractical to calculate the risk that an innocent person will be executed, but the risk is not nil. What if a mistake is made? Bedau implied that Chances of executing someone who is not guilty is too big a risk because the wrongful execution of an innocent person is a miscarriage of justice that can never be amended because the death penalty is irreversible and irreparable.
Rhonda K.M. Smith, in her book, Texts and materials on international human rights law (2010), admits the fact that at the time when many of the international instruments were being drafted, the death penalty imposition was a widely accepted practice. She further claims that the situation is different today because many states have adhered to those instruments and abolished the death penalty. Rhonda opines that for those states in which the death penalty is prescribed by law, safeguards need to be built into the judicial process to ensure that there is no mistrial/error and that extra care must be taken to see to it that the death mandatory is administered in a fair and humane manner.
Case- law and legislation: Capital punishment violates the Eight Amendment provisions on the protection against cruel and unusual punishment, when the circumstances render it not to be in proportion to the crime in question. In Cocker v Georgia,(1977) the court held that imposing the death sentence as a penalty for raping an adult woman was grossly disproportional because it did not result in the victim’s loss of life. This holding was reaffirmed years later in Kennedy v Louisiana. (2008)
The Reforms Long Overdue
The critics of the death penalty are of the view that it should be scrapped both in law and practice because it has no place in the penal and criminal justice systems of modern civilised nations which uphold human rights.
In modern societies, the death penalty debate raises one contentious question: has our justice and penal systems been established out of a desire to rehabilitate or out of retribution? Critics argue that the death sentence is not only reserved for the worst criminals because it is also imposed on offences which do not involve the loss of life. They assert that the notion of an eye for an eye is primitive and barbaric in nature and does not equal justice because it blocks the advancement of civilization. They opine that even the guilty and worst of the worst have a right to life because no one knows enough to say when somebody will die.
No person shall be put to torture or harsh, inhuman or demeaning treatment or punishment. Carrying out the death sentence destroys life, it annihilates human dignity, and its enforcement is also arbitrary and irremediable. During the execution of Angel Nieves Diaz in 2006, it took the executioners approximately thirty-four minutes to kill him. It is reported that Diaz was tortured to death because during the execution he appeared to be in pain because he winced, jolted and gasped for air. This proved that he died from a cruel and unusual punishment.
Careful safeguards need to be built into the judicial process to ensure that no error exists. There is danger that guiltless persons may be sent to the hangman’s noose, and once an execution occurs, the error is final. This is because the death penalty is irreversible and irreparable. An innocent man may be wrongfully executed as a result of inadequate legal representation and police and prosecution misconduct. Chances are that citizens may lose faith in the criminal justice system if the states execute innocent people (Preajan, 2006)
The cases of Carlos De Luna, troy Davis, Joseph O’Dell and others showed strong evidence of innocence years after the victims were wrongfully executed. If the death penalty was not in force, the wrong done to these individuals might have been avoided, and their lives saved.
In his Evangelism Vitae (encyclical stating the stand of the roman catholic on the sanctity of life), The late pope John Paul II stated that the mandatory death penalty should be used as a last option; it should only be used when there is no alternative means to protect and defend the society from the criminal in question. Life sentence/imprisonment can be a better alternative of the death penalty.
Life imprisonment is also a severe punishment because convicted criminals will spend the rest of their life in `confinement; their right to freedom is waived for life. Like the death penalty, life sentence guarantees both protection of society and punishment for the offender.
One of the sensible alternatives of capital punishment is life imprisonment without parole because capital punishment poses a greater risk of wrongful executions of the innocent. Since convicted criminals are locked in prison until they die, wrongful convictions may be corrected when new evidence is discovered. Unlike the death penalty it is remediable, and it can be reversed by giving a wrongfully convicted person his freedom back.
Life imprisonment without parole is also severe for hard-core criminals because there is no possibility of their sentences being reviewed, and there is no prospect of their release. Offenders are locked up until they die and the key is thrown away.
Between imprisoning criminals for life and death penalty, confining them for life is the lesser evil of the two. It also serves the same purpose of deterring crime. It also serves the purpose of deterring criminals without necessarily taking their lives.
The deterrence theory is based on the assumption that the fear of punishment puts a check not only on criminals to refrain from criminal behaviour but also on all other evil-minded individuals. If this is the case, then all murders should have stopped the moment the first convicted murderer was executed because the emotion of fear plays a vital role in man’s life.
However, this is not the case because crime is still happening despite the many executions taking place for the same crimes. This suggests that the death penalty only deters the executed rather than all other evil minded individuals.
Those in support of the death penalty argue that the society has a moral duty to ensure the safety of its citizens. To ensure that convicted murderers don’t commit heinous murders in future, the society believes that suspects proven guilty of murder should be sentenced to death.
This has a brutalization effect on society because it legitimizes the primitive notion of an eye for an eye. The society sets a bad example by encouraging its citizens to kill their enemies and, as a result, depreciate the value of life.
There is no clear documented evidence which shows that the imposition of capital punishment is a more effective deterrent punishment than other alternative punishments for the crime of murder; there exists only flawed assumptions.
A good example is the USA which has the highest homicide rate among the developed countries yet it has retained the death penalty in its criminal justice system (Blumberg & Porter, 1990)
The world is slowly drifting towards abolition of capital punishment, however, countries such as US back pedalling this global move; this is because reports by human rights bodies (such as Amnesty International) have indicated that the USA continues to carry out large numbers of executions.
For many decades, many philanthropists have examined the criminal justice and penal systems; the capital punishment debate has intensified greatly. From the discussion in earlier chapters, it is evident that much has been said about the contentious death penalty. The penalty is deeply flawed because it seems to contravene international human rights law and also it has been reported that many innocent people have been sent to the hangman’s noose.
Our societies have evolved with time and have embraced human rights. The death penalty threatens the enjoyment of the entitlement to life. Although different people have conflicting views on this form of punishment, in civilised countries the winds of change are blowing strongly and a result a common ground has been reached; reforms!
Both parties who are against and in support of the mandatory death sentence agree that the existing death penalty laws need reforms, but they fail to agree on how it should be done. The opponents argue that the best way to reform the existing death penalty laws is to scrap the punishment from our statute books and eliminate it in practice whereas proponents of the penalty maintain that instead of abolishing it completely, it should be reserved for the most terrible /grave crimes and blameworthy offenders.
The critics have acknowledged the fact that the process of reforming the existing laws providing for the death penalty will be a long one. Despite the fact that the established facts which indicate that the punishment has some serious flaws, some states have remained adamant by making it clear that they want to retain the penalty both in law and practice.
The death penalty is broken and the only way to reform it is through reforms. Considering the rate at which countries are reforming the laws providing for the death penalty, it is evident that the punishment is slowly dying a natural death and with time it will be extinct. Before this is achieved, those countries that have remained adamant in retaining this penalty should put mechanisms in place to ensure that the punishment has integrity and that due process is followed to the core to make it more accurate, just and fair
Cavadino M. (2007). The penal system: An introduction (P. 37).
Bedau, H.A. (Ed). (1998).The death penalty in America: current controversies. Oxford University Press.
Bedau, H.A. (2004). Killing as punishment: reflections on the death penalty in America.UPNE.
Myers, M.A., & Talarico, S.M.A.(1987).The social contexts of criminal sentencing (p.2). Newyork: springer-Verlag
Prejean, H. (2006).The death of innocents: An eyewitness account of Wrongful executions. Random House LLC.
Rhona, S. (2nd ed.). (2010). Texts and Materials on International Human Rights. NewYork: Routledge