Punishment for crimes that are considered cruel and unusual is prohibited by the Eighth Amendment to the U.S. Constitution. This amendment is frequently invoked when speaking of the legal merits regarding the death penalty. Utilizing the death penalty is considered by some to be the most heinous and obvious instance of cruel and unusual punishment. Those against the use of capital punishment do not think that the government should be given with the power to kill any of its citizens. Opponents also assert that the practice is overtly costly and racially biased while not realizing the intended outcome. Proponents think it is neither cruel nor unusual, quite the opposite, they think it fair and just. The objective of this study is to discuss the moral and legal concerns that literally are a life and death issue and is a key barometer when measuring a cultures collective conscience. The ‘eye for an eye’ faction not only accepts but insists that the death penalty be sustained and has supporting rational to back up their argument which will be covered comprehensively in this discussion. It will also take into account the opponents’ reasoning concerning why it should be eliminated along with the legal precedents concerned in an effort to achieve a comprehensive view of the capital punishment debate.
Legal speaking, capital punishment is not unusual, by definition, unless one acknowledges the racial bias that exists throughout the justice system. The law cannot define whether it is cruel or not. Cruelty can be defined only by the collective social conscious of a society. The legal interpretation of the combined ‘cruel and unusual’ is open to debate, to some extent but the general usage of the word ‘cruel’ refers to vicious punishments that cause extreme pain. Most legal scholars agree that punishments that include body dismemberment or torture are unquestionably classified as cruel. The term torture was evidently open for debate during the past decade but the word means essentially the same universally; causing unwanted physical or mental anguish. The word ‘unusual’ is normally understood to mean going beyond what is an equitable application of punishment for an offense. For instance, if ten people were ticketed for a traffic violation and judge fined nine of them $150 but one was charged $1500, this punishment would be considered ‘unusual.’ Taken together in the phrase, ‘prohibiting cruel and unusual punishment’ signifies that the penalty should be apportioned equitably according to the specific offense committed. A ‘life’ prison sentence is an acceptable punishment but not if this punishment was imposed for jaywalking, that would be an obviously unacceptable sentence imposition because it is considered excessive and extreme given the nature of the offense. Excessive is a term that is also open to broad interpretation in both the legal and public realm. Some would contend, for example, that any amount of time imposed for ‘crimes’ such as the possession of drugs, prostitution and gambling should be interpreted as excessive consequently ‘unusual.’
The Supreme Court has on many occasions judged the merits of the death penalty and this action is interpreted as punishment which is cruel and unusual by the Constitution. The Court has consistently ruled the language of the Eighth Amendment does not prohibit the death sentence as punishment. The Constitution was meant to be and is a malleable document, however. The judicial interpretation of the Eighth Amendment has evolved to some extent throughout the years. Therefore the Court could potentially reverse this standpoint at a future time as result of changing societal values. For instance, whipping convicted criminals was routine until the late Eighteenth Century. This practice is now considered to be inappropriate because society’s attitude changed to define it as a ‘cruel’ punishment. With respect to capital punishment, however, “the Court has maintained that there remains broad public support for the death penalty as a remedy for the most serious of crimes” (Mott, 2004).
Historically, the reason for punishing people has been to avenge crime, to guard society by separating the criminal from it, as deterrence to future crimes by that person and other potential offenders and to take reparations from the offender. This rational has not changed substantially throughout the history of civilization. The four basic reasons societies punish can be categorized into two areas. One is to acquire desired consequences for the inappropriate action which includes “protecting society, seeking compensation and deterrence. The other, retribution, or vengeance, involves punishment for a wrong perpetrated on society.” (Wolfgang, 1998). Those that believe retribution is a justification for the death penalty usually use the Bible’s Old Testament reference to ‘an eye for an eye.’ Hostility must be met with hostile punishment (Olen & Barry, 1996: 268). “This use of punishment is society’s way of striking back at one who has disturbed the emotional and ethical senses of a people” (Lunden, 1967: 232). Interestingly, persons who borrow that quote from the Old Testament to justify utilizing the death penalty deeming it moral either did not notice or disregarded Jesus’ words in the New Testament where he reminded people of that quote, refuted it and then reminded his followers to instead to ‘turn the other cheek.’ However, this ‘eye for an eye’ justification is still used more than 2000 years later by many. Those of this opinion are certainly right, that the death penalty assures that the offender will not commit another crime. In addition to being a vengeful action, the death penalty is the ultimate preventative tool. (Olen & Barry, 1996).
Those persons opposed to capital punishment think every life should be respected, regardless of circumstance and that sending a person to prison for life without the opportunity for parole is sufficient punishment. Opponents also believe that revenge is immoral and eventually more destructive to society’s value system than is the crime itself. Additionally, opponents feel that outlawing the death penalty will “allow opportunities for confronting those who had been hurt most and possibly encourage remorse or reconciliation (and) suggest those that have killed be made to service the community as a way of partially making amends” (Olen & Barry, 1967: 272). According to opponents of capital punishment it is morally and ethically objectionable. Some are against it because of religious reasons citing morality as the primary issue; however, different religions and individuals within those religions have differing opinions. Christians living in Europe, for instance, tend to oppose the death penalty but in America, they tend to favor it.
The Supreme Court has ruled that capital punishment cannot be legally classified as exceptionally ‘cruel’ but has upheld that it would violate the Eighth Amendment if it could be demonstrated as unusual. In 1972 the Supreme Court ruled that the death penalty was being subjectively applied regarding the Furman v. Georgia case because a disproportionate number of minorities had been executed which made the procedure ‘unusual’ (“Furman v. Georgia”, 1972). As a result of the high Court’s decision, nearly 600 persons had their death sentences commuted to life. An infamous example of mass commutation was the members of the ‘Mason Family. No executions were performed until it was reinstated in 1976. However, “the majority of death penalty opponents believe that the practice continues to be intrinsically biased against those of lower income and minorities” (Olen & Barry, 1996: 272).
Capital punishment opponents maintain that wealthy and/or white perpetrators are less prone to be executed than the poor and/or minority members of society. Conversely, if the victim is white and/or wealthy, the death penalty is more likely to be utilized. The statistics offer evidence for this claim. Since 1976, blacks and Hispanics represent 43 percent of executions in the U.S. These two minority groups account for 55 percent of persons currently on death row but only about 27 percent of the U.S. population. Approximately half of persons murdered in the U.S. are white. However, 80 percent of all murder cases brought to trial involve white victims. (“Race”, 2003). It would appear that the ‘unusual’ feature of the death penalty continues to be a convincing argument but another facet must be there for the procedure to again be eradicated. “There is ample evidence that the death penalty is applied with a discriminatory impact based on the race of the victim, but a constitutional challenge requires intentional discrimination” (Mello, 1995: 933). Those opposed also think a justice system that disproportionately kills its citizens cannot be thought of as anything but corrupt, a circumstance which devalues the entire justice system.
Statistics prove that the death penalty does not deter crime. Additionally, if offenses that caused ‘no harm’ to other persons were decriminalized, such as drug possession, prostitution and gambling the inmate population would decrease by nearly half. If the proponents are concerned with the economic aspect, this would solve that for them. Furthermore, and more importantly, violent criminals could serve their entire sentence because the problem of over-crowded prisons would not necessitate their early release. Many studies have been conducted to determine if the death is indeed deterrence. They are conducted by “comparing homicide rates in contiguous jurisdictions, some of which had abolished capital punishment; examining time series data on homicide rates within a jurisdiction during the years before and after the abolished capital punishment; and comparing homicide rates in a jurisdiction before and after the imposition of the death sentence or execution” (Hagan, 1985). These studies have conclusively shown that the capital punishment does not deter crime.
The societies of Europe long ago already came to the consensus opinion that capital punishment is both a ‘cruel’ and ‘unusual’ punishment which remains principally ineffectual. Most Europeans enjoy health care from ‘cradle to grave’ and are far less likely to be imprisoned than U.S. citizens. Although there is a good deal of evidence to the contrary, the Americans people are becoming more compassionate with the passage of time. The 1964 Civil Rights Act is just one example. Someday, and hopefully sooner than later, it will be an empathetic society that does stops relying on the emotion of revenge to determine its laws. At that point the death penalty will follow in the path of the Salem witch trials, an embarrassing, barbaric punishment of the distant past.
“Furman v. Georgia.” The Supreme Court Collection. Cornell Law School Legal Information Institute. (1972). April 10, 2011
Hagan, J. “Modern Criminology: Crime, Criminal Behavior, and its Control.” New York: McGraw-Hill, Inc. (1985).
Lunden, W.A. “Crimes and Criminals.” Iowa: The Iowa State University Press. (1967).
Mello, M. “Defunding Death.” American Criminal Law Review. Vol. 32, pp. 933-1012. (1995).
Mott. Jonathan. “Is the Death Penalty Constitutional?” This Nation. (March 2000). April 10, 2011
Olen, Jeffrey & Barry, Vincent. “Applying Ethics.” Belmont, CA: Wadsworth Publishing Co. (1996).
“Race and the Death Penalty.” Unequal Justice. New York: American Civil Liberties Union. (February 26, 2003). April 10, 2011
Wolfgang, M.E. “We Do Not Deserve to Kill.” Crime and Delinquency. Vol. 44, pp. 19-32. (1998).