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Capital Punishment Can Deter Juvenile Violence Chris Lindorfer
Capital Punishment Cannot Be Justified Sunil Dutta
A Long and Tortured History. (Chronology) U.S. News & World Report
Capital Punishment Around the World Mei Ling Rein.
Capital Punishment Harms Society John D. Bessler
Capital Punishment Exacerbates Violence Robert Grant
Capital Punishment Grants Reasonable Retribution Burton M. Leiser
Capital Punishment Deserves Cautious Support by James Nuechterlein
Arguments Against the Death Penalty Are Flawed Thomas R. Eddlem
Arguments for the Use of Capital Punishment as a Deterrent Are Flawed Ernest
Partridge
Capital Punishment Can Deter Juvenile Violence
Chris Lindorfer
Chris Lindorfer is a mother of five living in California.
Source Database: At Issue: Does Capital Punishment Deter Crime?
To protect the public and affirm the value of human life, the death penalty should be reconsidered as the
standard punishment for murder, even if it is perpetrated by a juvenile. The cold, premeditated homicides
carried out by youths in recent years should not be condoned. Capital punishment is needed to make
these violent youths pay for their crimes, prevent them from committing other offenses, and to deter other
youths from committing murder. The juvenile justice system must implement the death penalty in order to
end this disturbing trend of juvenile violence.
How can murder be taken seriously, if the penalty isn't equally as serious? A crime, after all, is only as
severe as the punishment that follows it. As the former mayor of New York City Edward Koch once said:
"It is by exacting the highest penalty for the taking of human life, that we affirm the highest value of
human life." Our society needs to reconsider the death penalty as the standard punishment for murder. To
deter crime and make the death penalty more effective we should not condone murders that children
between 11-17 commit.
Executions of juveniles began in 1642 with Thomas Granger, Plymouth Colony, MA. In the more than
350 years since that time, approximately 346 persons have been executed for juvenile crimes. The current
age of juvenile offenders on death row range between nineteen and thirty nine. Since the reinstatement of
the death penalty in 1976, there have only been 9 executions of inmates sentenced for juvenile crimes.
Children who kill
Statistics obtained for the US Department of Justice, Bureau of Justice Statistics, maintains that 13
percent of the death row population were under the age of nineteen, at the time of arrest. They also state
that 2.2 percent of the population were seventeen or under at the time of arrest. As of December 31, 1997,
there were 67 juvenile arrests on death row. Their time there, ranges between two weeks to over 19 years.
All 67 were there for murder and their total victim count was 89. These are more than just statistics, these
are children who kill.
On September 2, 1996, Barry Loukaitis, a 14 year old honor student in Moses Lake, Washington, broke
into an algebra class with a high powered rifle and shot three students and their teacher. Two of the
students and their teacher died.
In 1996, 11 year old Ray Martin Deffered, was charged with eight counts of murder after setting a lethal
fire in a suburban apartment complex, west of Portland, Oregon. The fire killed eight people, including a
teenage mother and her newborn child.
On October 1, 1997, Luke Woodham, opened fire on a room full of schoolmates at Pearl High School,
killing two and wounding seven. Luke, a sophomore, started his day, by slitting his mother's throat before
heading to school in her car, with a rifle tucked under his trench coat. Witnesses stated he then walked to
an atrium crowded with hundreds of students and started blasting at "anybody he could find."
On December 1, 1997, a high school freshman, Michael Carneal, went on a deadly rampage, killing three
fellow students and wounding five others. Carneal, a self-professed atheist, shot 11 rounds into a Morning
Prayer Circle in the lobby of his Paducah, Kentucky High School. The boy had in his possession three
spare clips of ammunition and four guns.
In a new trend, that's turning rural schools into the post offices of the 90's, on March 24, 1998, Michael
Johnson and Andrew Golden, heavily armed and dressed in camouflage, opened fire on classmates and
teachers in Jonesboro, Arkansas, killing five and wounding 10. The two boys laid in hiding in the woods
behind their school and started taking down students as they exited during a fake fire alarm. The boys
were caught heading for a white van where they had more guns and ammunition. The van was also their
planned escape.
When police searched the pockets of 11 year old Andrew's camouflage fatigues, they found 312 shells,
two speed loaders, a rifle, and two hand guns. On 13 year old Michael, they found a 30.06, Remington
rifle with a round in the chamber, four other guns and 142 rounds of ammunition. Items in the mini van
included a camouflage jacket, a military duty belt with a 10 inch survival knife, four other knives,
insulated vest, crossbow, plastic tool box filled with food items, a propane torch, assorted ammunition,
and Michael's hunters education card.
The day prior to the shooting, both boys had warned classmates of the impending danger, making
statements like "Tomorrow you will find out if you live or die." Yet, even before that, a counselor had
talked to Michael about telling another young boy that he wanted to "shoot up the school." But Michael
passed it off as a dream in which he died, and it scared him so he wouldn't do it. Yet the rebel and the
choir boy did do it. These children entered the ranks of mass murderers.
One of the requirements for the death penalty, is that the crime be carried out with malice aforethought.
These were children who knew what they were doing. They thought out, planned and executed it with
more thought and preparation than many adults. They had a motive, acquired the means, and carried out
the execution of five others. Their murders were in cold blood, premeditated, and wrong. Under Arkansas
law, they are too young to be tried as adults. They can only be held as juvenile delinquents until the age of
18. According to one witness, "These two are cold blooded, evil children, and I don't care how bad that
sounds. The four girls who died don't get to start over."
The death penalty makes perfect sense
I felt it necessary at this point to ask for input from a youth to see if the severity of what was done was
understood, on a level equal with the children committing these crimes. I found that in cases, they did
understand and felt that the punishment should fit the crime.
Juveniles will continue to commit crime as long as they feel it is in their best interest. The purpose of our
current juvenile justice system is to protect the public and the public safety. It is supposed to promote the
concept of punishment for criminal acts. To remove, where appropriate, the taint of criminality from
children committing certain crimes, and to provide for treatment, training, and rehabilitation. To achieve
this, the juvenile justice system needs to make the crime "Not in the child's best interest." In other words,
the punishment for the crime must be harsh enough to deter the juvenile from committing the crime.
Under this, the death penalty makes perfect sense. Here is a punishment that truly makes the violent
juvenile pay for his crime, stops him from committing future crimes, and deters other juveniles from
committing the same crime. When considering the death penalty, both its merits and its faults, we need to
keep in sight, the victims.
Source Citation: "Capital Punishment Can Deter Juvenile Violence" by Chris Lindorfer. Does Capital
Punishment Deter Crime? Roman Espejo, Ed. At Issue Series. Greenhaven Press, 2003. From "Capital
Punishment and Youth," by Chris Lindorfer, Ink Droppings, 1998. Copyright © 1998 by Chris Lindorfer.
Reprinted with permission.
Opposing Viewpoints Resource Center. Thomson Gale. 19 May 2006
<http://galenet.galegroup.com/servlet/OVRC>
Document Number: X3010009214
Capital Punishment Cannot Be Justified
Sunil Dutta
Sunil Dutta is a sergeant of the Los Angeles, California, police department.
Source Database: Current Controversies: Capital Punishment
Table of Contents: Further Readings | Source Citation
A few months before the birth of Israel, my family lost our ancestral home in the village of KanjrurDuttan, a village where Duttas had lived since the time of Emperor Babar. Kanjrur-Duttan happened to be
on the wrong side of the line when India was divided in two (Hindu India and Muslim Pakistan) by
British colonialists. The entire Hindu village fled in the dark of the night to escape being massacred by a
rampaging mob of Muslim goons who were looting, raping, and murdering. Some did not make it, and
were caught and slaughtered.
My great-grand uncle became a dispenser of retributive justice. He joined a roving gang of Hindu
vigilantes in the border town of Dera Baba Nanak, where he extracted revenge for the murder of his
mother and sisters. He killed many Muslim refugees who were trekking defenselessly in the opposite
direction from my family--towards the newly created Pakistan from the Hindu-majority India. During my
visit to India ..., I sat across from him and asked if he felt remorse for what he had done during the time
when the entire Indian subcontinent had been submerged into a bloodbath in which almost one million
people died. He avoided my gaze and kept puffing at his cigarette. I persisted, "Do you ever think that
people you killed were also innocent refugees, just like you and the family members we lost?" The old
man looked down and defiantly said, "I may have killed some innocent people, but there must have been
some sinners in there too!"
When people play God and dispense the Ultimate Justice, they create Himalayan blunders. Whether they
are avenging the blood of their family members by slitting their enemies' throats, blowing them up with
bombs, or passing orders to execute criminals while sitting on their judge's throne, human beings cannot
morally justify taking another human's life.
A Serious Failure in Humanity
As a police officer, I often see the results of human depravity. I see incidents of such brutal behavior that
my compassion dissolves like a candle flame swept by a tornado. I vividly remember responding to a
double homicide scene.... The bodies on the grass were covered with white sheets. As soon as the news
helicopters hovering above us left, detectives pulled the sheets off to look at the victims. An elderly
woman with a ghostly expression stared at me through hollow eyes. Her neck was almost severed. Her
skin was burnt and peeling; her body was giving off smoke. A blood-soaked, semi-burnt shirt was
sticking to the torso of her husband. Though his body was badly burnt, the watch on his left wrist was still
working.
The murderer had viciously executed his frail victims by slitting their throats, then started a fire to cover
up the crime. The gentle couple, loved by their neighbors, had been married for the last fifty years. Now
they were dead. I stood silently, shaken by human savagery that no other animal could match.
The crime-scene photographer walked slowly to me and whispered, "I hope they find the guy and hang
him!" She sees a lot in her job, but the brutality of the crime and the elderly age of the victims had visibly
shaken her. I didn't have the courage to tell her that executing the depraved killers would not turn back the
clock and erase this blot on the sheer fabric of humanity. As I looked at the young photographer, I
thought, would I have the courage to look into the eyes of the victims' daughter and self-righteously
proclaim that the death penalty is immoral? Could I emphatically say that the cold-blooded monster who
planned this robbery and viciously murdered these defenseless people could or should be rehabilitated?
No. It would be presumptuous of me to tell the victims' families that I feel their pain. It would be even
more preposterous to ask them to forgive the murderer and not root for capital punishment.
Nevertheless, although I am deeply aware of the suffering that murder causes, I don't believe the death
penalty can be justified. When I find myself faced with murder, I think about my great-uncle, who used
senseless murder to justify senseless murder. The practice of capital punishment, particularly by our
"justice system," reveals a serious failure in our humanity. We no longer burn witches or keep slaves or
have monarchs dictate our lives. Capital punishment is similarly anachronistic.
I am not some soft-hearted ignoramus arguing for going easy on murderers. As a police officer, I am
sometimes confronted by vicious people who have so lost their humanity that they don't belong in any
neighborhood. Some are such cold-blooded killers and others bring such misery to the world around them
that they should be locked up forever. I want the people who calculatingly and brutally murder others to
pay severely for their heinous crimes. Wanting to keep dangerous people out of society is different,
however, from wanting to respond to violence with violence. No society can reach a peaceful existence if
its people resolve their problems with violence.
Playing God
I have heard many arguments in favor of capital punishment. For example, some people argue that if I
kill someone, I give up my right to live. That principle would qualify as a moral argument only if it were
applied evenly. However, we do not sentence every murderer to death. Why isn't a reckless drunk driver
who kills an entire family not sentenced to death? Because murders are different from each other, is the
response--some are more cruel than others. But how do we quantitatively measure the heinousness of a
murder? When mistake-prone humans send some criminals to the death chamber and others to prison are
we not appropriating God's authority? What could be more immoral?
Not only do we play the role of God by judging who will die and who will live, by supporting the death
penalty we send out the dangerous message to impressionable minds that violence is a way to resolve
problems. "Thou shalt not kill" cannot be taught by the state-sponsored execution of criminals. To tell
others not to kill by killing someone makes a mockery of the message. We need only to look around the
world to remember that subservience to violence as a way to resolve problems has brought us perpetual
misery and suffering: just look at Israel, Kashmir, East Timor, Rwanda, Serbia ...
Capital Punishment Is Flawed
Death penalty support in law-enforcement comes from a deeply-held conviction by police officers that it
is a deterrent. Demagogues exploit the fear of crime in the community and use their support for capital
punishment as a badge of honor. As a police officer myself, I can emphatically state that many of my
colleagues are wrong: the death penalty has no deterrent effect on crime. Capital punishment fails to
deter those who commit crimes of passion. Capital punishment also has no dissuading power over
criminals who are opportunistic, calculating, or overcome by drugs. A person taking a chance that he will
not be caught for the crime he is planning to commit does not discriminate between the death penalty and
life in prison without parole. Killing a criminal will prevent him from committing another crime--but so
will putting him behind bars forever.
The only practical justification for the death penalty is revenge and punishment. I am not one to defend
the actions of murderers. After seeing the pain and loss faced by the victims' families and the cruelty of
remorseless killers, I do not find merit in the argument that criminal behavior can be explained away by
childhood abuse or a lack of opportunities and therefore excused. I know countless people who grew up in
miserably wretched conditions and turned out to be caring adults. I also cannot fault a victim's family's
demand for revenge. Only those who have lost their family members at the hands of vicious reprobates
have the right to make such judgements. However, even as a means of revenge, the death penalty is an
absolute failure. Candlelight vigils, media coverage, and an endless judicial process turns the criminal into
a celebrity while the victim's family seethes with resentment, sometimes for decades! Not only does the
criminal become glorified, the taxpayer-subsidized court costs are horrendous. Victims are re-victimized
repeatedly as the loss of their dear ones is downplayed and they are portrayed as despicable people
because some of them want the execution to proceed. This sort of revenge is not sweet. Despite the hopes
of most pro-death penalty victims, executing criminals does not necessarily bring resolution and healing
to the victim's family. In a calculated act so depraved that even sick people would deplore it, Reynaldo
Rodriguez walked into the wealthy suburban home of his ex-girlfriend Maria Calderon in Simi Valley and
systematically killed three of her family members and wounded two others. After his heinous crime, he
drove to a campground in Los Padres National Forest and killed himself. Maria Calderon's feelings reveal
the profound flaw in capital punishment. She said to the Los Angeles Times, "I would have much rather
he stayed alive. That way he could face the justice system and live with the fact that he murdered three
people, and suffer what we're suffering. Now he took his own life--and he's not suffering anymore."
Miscarriages of Justice
Even if we were to accept the arguments in favor of capital punishment, the clearest reason to forego
killing criminals comes from the inevitable miscarriage of the punishment itself. I shudder at the fact that
ninety-four innocent individuals in the last decade were released from death row. They had been
wrongfully condemned to death for crimes they did not commit. Some were minutes from execution. For
each person exonerated, how many innocent people have we executed? This utter disgrace should make
members of the criminal justice system hang their heads in shame. I cannot even imagine the anguish of a
wasted life, the years away from friends and family, the disrepute and shame suffered by these poor souls
who spent precious moments of their lives locked away in a maximum security prison for crimes they did
not commit. What does the sword hanging over one's head do to the psyche of a wronged person who
awaits the hand of the executioner while the appeals process is being exhausted? Frank Lee Smith was
convicted of a 1985 rape and murder and condemned to death row. Smith died in prison after spending
fifteen years there. His innocence was proven by DNA tests after his death! This is only one of many
poignant examples that cries out loud against capital punishment.
In many of these cases, nothing in the legal appeals process helped uncover the innocence of these
wrongly convicted individuals. Instead, it was investigations conducted by journalists or college students,
or the confessions of the true perpetrators of these crimes that helped to exonerate the innocent. In fact,
the justice system has at times worked to wrongly criminalize the innocent. Reckless prosecutors and
police lab chemist teams like Robert Macy and Joyce Gilchrist of Oklahoma have been criticized for
playing with the rules to convict people in murder trials. This makes a mockery of the system when
professional enforcers of the law mangle the spirit of the law to get convictions, forcing outsiders to
rescue the hapless victims of the criminal justice system.
People also make mistakes; research shows that even eyewitnesses are unable to recall events accurately.
Yet we brazenly act as if we were God and condemn people to death, calmly ignoring that we are
mistake-prone humans. Furthermore, our history is replete with stories of governments framing people
they did not like. Individuals such as Geronimo Pratt can attest to the effectiveness with which innocent
people can be framed by a determined government. Criminal cops such as Rafael Perez ride roughshod
over prosecutors and juries and railroad people into prison or worse. Corruption in FBI crime labs, lying
forensic analysts, biased juries, and prosecutors bending to local politics make a dangerous mixture,
making the legal process highly unsafe for those on the lower socio-economic stratum of the society. I am
not saying that a majority of people on death row are innocent; most are brutal killers who deserve to be
there. However, even if a minute fraction of individuals on death row are innocent, it is immoral to
support capital punishment. When our government executes an innocent person in our name, all of
society is responsible for the death of that innocent person.
At least the members of death row in the United States had the opportunity to go to trial. To see the
logical extension of this willingness to kill in the name of the state we need only look to Israel, which in
[2002] has begun an even more brazen and barbaric application of capital punishment: the selective
assassination by the Israeli government of those suspected of being involved in terrorist activities. It is a
disgrace that a government can indulge in such a sinister practice. Even in the United States, an argument
to execute hard-core gang members in the inner-city because that would prevent them from killing others
would jolt the conscience of the most callused hard-on-crime person. The pre-emptive executions of
"suspected" terrorists by the Israeli government are based on similarly fallacious reasoning. What about
proving someone's guilt before meting out the ultimate punishment? Not only do such executions backfire
and lead to more violence against the Israeli people, they result in a complete loss of moral authority for
the state; we should take heed from this example of the inherent immorality of the state playing God.
Alternatives to the Death Penalty
People have asked me whether I would support capital punishment if the criminal is absolutely
identified beyond a shadow of a doubt. What if the wickedness of the crime shocks the conscience of
everyone? The dastardly bombing in Oklahoma by Timothy McVeigh and the evil mass murder [on]
September [11, 2001], of people in the World Trade Center come to mind. Is it moral and practical to
execute a terrorist whose sole reason for existence is causing pain and suffering? Well, I don't think that
capital punishment would make such terrorists rethink the shallowness of their reasoning and understand
the insanity of their behavior. Instead, we would make them martyrs. Capital punishment is not a
deterrent to these terrorists, but a goad. It is more important to look to social and political circumstances
to prevent such monumental catastrophes from happening.
Instead of using the death penalty to express society's rage at wanton murder, we would be better off
forcing remorseless and callous criminals to confront their depravity and make them realize how much
pain they cause to others. It would be even more useful to turn our energies away from revenge on the
perpetrators of crime and concentrate them instead on community support for the victims, who are often
neglected as the criminal justice system focuses on retribution. Those of us who oppose the death penalty
should never concentrate our efforts solely on the manifold problems of the death penalty or, as some do,
on the humanity of the killer. We must pay equal attention to compassionate support for the families and
other loved ones of the victims. We must feel the loss, agony, and anger of the survivors, and build social
and institutional support for them. It is as immoral to ignore the pain of the victims as it is to support
capital punishment.
An effective alternative to the death penalty exists. Life in prison without parole is moral, practical, and
far less expensive than the complicated process that leads to the death chamber. With life imprisonment,
the cold-blooded murderer is removed from society and immediately forgotten, so that attention can be
turned to the victims and their needs.
Revenge may bring momentary satisfaction, but only the potential to reach into someone's callused heart
can bring healing. We cannot be a civilized society while we indulge in hatred and consign forgiveness to
the sidelines. Anyone can be a knee-jerk reactionary and demand blood; it takes enormous courage to
forgive the depraved who have caused us such enormous pain and sorrow.
Source Citation:
Dutta, Sunil. "Capital Punishment Cannot Be Justified" Capital Punishment. Mary E. Williams, Ed.
Current Controversies Series. Greenhaven Press, 2005.
U.S. News & World Report May 8, 2006 v140
i17 p36-37 -A Long and Tortured History.
(Chronology)
1608. George Kendall's execution on charges of spying for Spain is the first recorded in the Colonies.
1612. Virginia enacts the Divine, Moral and Martial Laws, allowing the death penalty for even minor
offenses such as stealing grapes.
1907-1917. Nine states abolish or limit the death penalty.
1930s. Executions in the United States reach an average of 167 per year, the highest ever.
1953. Executions average around 100 per year; poll shows 68 percent support for capital punishment.
1966. Death penalty support falls to 42 percent; two executions are the last for more than 10 years.
June 29, 1972. Supreme Court rules that the death penalty, as administered by 35 states, is
unconstitutional and suspends its use.
1972. Backlash boosts death penalty support; states move to revise capital punishment statutes.
1976. Supreme Court restores capital punishment.
1977. Gary Gilmore is first person executed in the United States in 10 years.
1977. Lethal injection is first adopted as a method of execution by Oklahoma.
1982.Texas inmate Charles Brooks is the first person executed by lethal injection.
1986. Supreme Court rules that the Eighth Amendment prohibits execution of the insane.
1988. Supreme Court bars executions for crimes committed at age 16 or younger.
1993. Kirk Bloodsworth is the first wrongly convicted death row prisoner to be released based on DNA.
1994. President Clinton signs a law expanding the federal death penalty; public support for death penalty
peaks at 80 percent.
1997.Death Penalty Information Center names 69 "innocent" defendants released from death row based
on improper convictions or evidence uncovered after their sentencing; the American Bar Association
votes to seek a moratorium on capital punishment.
April 1998. Supreme Court rules that a federal appeals court abused its discretion by halting the execution
of a rapist and murderer in California and makes it more difficult for judges to delay executions.
November 1998. Northwestern University Law School conference on wrongful convictions features more
than 30 former death row inmates whose sentences were overturned.
1999. Number of executions peaks at 99, most since 1951.
Jan. 31, 2000. Illinois Gov. George Ryan declares moratorium on state executions, cites risk of executing
innocents.
June 11, 2001. Oklahoma City bomber Timothy McVeigh is put to death; first federal execution since
1963.
2002. Supreme Court rules that juries, not judges, should decide sentence of death.
2003. Governor Ryan grants clemency to 164 Illinois death row inmates before leaving office.
2005. Kenneth Lee Boyd is 1,000th person executed in the United States since capital punishment was
reinstated in 1976.
SOURCES: CONGRESSIONAL QUARTERLY; DEATH PENALTY INFORMATION CENTER
U.S. News & World Report May 8, 2006 v140 i17 p36-37
Capital Punishment Around the World
Source Database: Information Plus: Capital Punishment: Cruel and Unusual?
United Nations Resolutions
Capital punishment is controversial not only in the United States but also in many other countries of the
world. The ethical arguments that fuel the debate in the United States also characterize the discussion in
other countries. The United Nations' position on capital punishment is a compromise among those
countries that want it completely abolished, those that want it limited to very serious offenses, and those
that want it left up to each country to decide. In 1957, after 11 years of debate, a statement on the death
penalty was included in the International Covenant on Civil and Political Rights, which the General
Assembly adopted in Resolution 2200 (XXI) of December 16, 1966. Article 6 of the Covenant states,
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Every human being has the inherent right to life. This right shall be protected by law. No one shall
be arbitrarily deprived of his life.
In countries that have not abolished the death penalty, sentence of death may be imposed only for
the most serious crimes in accordance with the law in force at the time of the commission of the
crime and not contrary to the provisions of the present Covenant and to the Convention on the
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Prevention and Punishment of the Crime of Genocide [systematic killing of a racial, political, or
cultural group]. This penalty can only be carried out pursuant to a final judgment rendered by a
competent court.
When deprivation of life constitutes the crime of genocide, it is understood that nothing in this
article shall authorize any State Party to the present Covenant to derogate [turn away] in any way
from any obligation assumed under the provisions of the Convention on the Prevention and
Punishment of the Crime of Genocide.
Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence
[replacement of the death sentence with a lesser sentence]. Amnesty, pardon, or commutation of
the sentence of death may be granted in all cases.
Sentence of death shall not be imposed for crimes committed by persons below eighteen years of
age and shall not be carried out on pregnant women.
Nothing in this article shall be invoked to delay or prevent the abolition of capital punishment by
any State Party to the present Covenant.
The United Nations (UN) has dealt with the death penalty in several other documents and meetings.
Among them is General Assembly Resolution 2393 (XXIII) of November 26, 1968, which specifies the
following legal safeguards that should be offered to condemned prisoners by countries with capital
punishment:
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A person condemned to death shall not be deprived of the right to appeal to a higher judicial
authority or, as the case may be, to petition for pardon or reprieve [postponement or cancellation
of punishment].
A death sentence shall not be carried out until the procedures of appeal or, as the case may be, of
petition for pardon or reprieve have been terminated.
Special attention shall be given in the case of indigent [poor] persons by the provision of adequate
legal assistance at all stages of the proceedings.
Since then the UN has come out more strongly for eliminating capital punishment. General Assembly
Resolution 2857 (XXVI) of December 20, 1971, observed,
In order to guarantee fully the right to life, provided for in Article 3 of the Universal
Declaration of Human Rights, the main objective to be pursued is that of progressively
restricting the number of offenses for which capital punishment may be imposed, with a
view to the desirability of abolishing this punishment in all countries.
The UN Economic and Social Council Resolution 1574 (L) of May 20, 1971, made a similar declaration.
In 1984 the Economic and Social Council adopted the Safeguards Guaranteeing Protection of the Rights
of Those Facing the Death Penalty, including those of persons younger than age 18 at the time the crime
was committed. Subsequently, over the years, General Assembly and Economic and Social Council
resolutions have called for the eventual abolition of the death penalty.
On December 15, 1989, the UN General Assembly, under Resolution 44/128, adopted the Second
Optional Protocol to the International Covenant on Civil and Political Rights, aimed at abolishing the
death penalty. This international treaty allows countries to retain the death penalty in wartime as long as
they reserve the right to do so at the time they become party to the treaty. As of November 2, 2003, seven
countries had endorsed the treaty by signing, indicating their intention to become parties to it at a later
date. Signatories are not legally bound by the treaty but are obliged to avoid acts that would go against the
treaty. Fifty countries became parties to the protocol by ratification or accession, which means that they
were legally bound by the terms of the treaty. Accession is similar to ratification, except that it occurs
after the treaty has entered into force. In 1992 the United States ratified the International Covenant on
Civil and Political Rights but had not signed the Second Optional Protocol to this treaty as of January 10,
2004.
Recent UN Initiatives
On December 18, 2000, the secretary general of the United Nations, Kofi Annan, received a petition
signed by more than 3 million people from more than 130 countries, appealing for an end to executions.
Subsequently, the secretary general called for a worldwide moratorium on the death penalty, noting that
the taking of life as punishment for crime is "too absolute [and] too irreversible."
Since April 1997 the UN Commission on Human Rights has adopted resolutions calling for a moratorium
on executions and an eventual abolition of the death penalty. At the commission's meeting in Geneva,
Switzerland, on April 25, 2001, the United States voted against the resolution on the death penalty.
Ambassador George E. Moose stated that "[i]nternational law does not prohibit the death penalty when
due process safeguards are respected and when capital punishment is applied only to the most serious
crimes."
In its 2002 session, the commission, in Resolution 2002/77, asked countries with the death penalty "[t]o
ensure that... the death penalty is not imposed for non-violent acts such as financial crimes, non-violent
religious practice or expression of conscience and sexual relations between consenting adults." The part of
the resolution referring to sexual relations between consenting adults resulted from the potential execution
of a Nigerian woman, who became pregnant while divorced. She was convicted of adultery and, in March
2002, was sentenced to die by stoning. The man who fathered the child claimed innocence, brought in
three men to corroborate his claim as required by law, and was released. On September 25, 2003, the
woman was acquitted.
The UN Commission on Human Rights adopted Resolution 2003/67 on April 24, 2003, in Geneva,
Switzerland. For the first time, the commission asked countries that retained capital punishment not to
extend the application of the death penalty to offenses to which it does not currently apply. It also
admonished those countries to inform the public of any scheduled execution and to abstain from holding
public executions and inhuman forms of executions, such as stoning. The UN also called on death penalty
countries not to impose the death sentence on mothers with dependent children nor on offenders who
committed the crime when they were under 18.
Retentionist Countries
Amnesty International (AI), a human rights organization headquartered in London, United Kingdom,
maintains information on capital punishment throughout the world. (AI vehemently opposes the death
penalty, considering it the "ultimate form of cruel, inhuman, and degrading punishment.") The
organization refers to countries that retain and use the death penalty as retentionist countries; those that no
longer use the death penalty are known as abolitionist countries.
As of January 1, 2003, 83 countries and territories in the world retained and used the death penalty as a
possible punishment for ordinary crimes. Ordinary crimes are crimes committed during peacetime.
Ordinary crimes that could lead to the death penalty include murder, rape, and, in some countries, robbery
or embezzlement of very large sums of money. Exceptional crimes, however, are military crimes
committed during exceptional times, mainly wartime. Examples are treason, spying, or desertion (leaving
the armed services without permission).
Although many of the retentionist countries had not executed anybody in many years, in 2002, 31
countries carried out at least 1,526 executions. AI reported that of these countries, China, Iran, and the
United States accounted for four out of five executions (81 percent). An estimated 1,060 persons were
reportedly executed in China, although AI believed the actual number was larger. Iran had at least 113
executions, while the United States counted 71. Sixty-seven countries sentenced more than 3,200 people
to death. According to Amnesty International, the actual number of death sentences was much higher than
known to the organization.
United States
The United States remains the only Western country that practices capital punishment. (The federal
government and 38 states have the death penalty.) In September 1997, for the first time, a UN monitor
investigated the use of the death penalty in the United States. In his report to the UN Commission on
Human Rights, the special investigator accused the United States of unfair, arbitrary, and racist use of
capital punishment. He claimed that "allegations of racial discrimination in the imposition of death
sentences are particularly serious in southern states, such as Alabama, Florida, Louisiana, Mississippi,
Georgia and Texas, known as the 'death penalty belt.'"
Foreign Nationals
Mark Warren of Human Rights Research (Ontario, Canada), who provides information and expertise on
human rights issues to government, nongovernmental organizations, consulates, and lawyers, reported
that as of October 1, 2003, 120 foreign nationals representing 29 nationalities were on death row in the
United States. Capital punishment opponents claim that the United States generally does not inform
foreign nationals under arrest of their right to consult with the consulate of their home country as required
by Article 36 of the Vienna Convention on Consular Relations. Article 36 requires local law enforcement
to notify all detained foreigners "without delay" of this right. The United States ratified (formally
approved and sanctioned) this international agreement in 1969. Since 1976, 20 foreign nationals have
been executed.
The United States Defies the UN's Highest Court
Angel Francisco Breard, a Paraguayan national, was arrested on charges of attempted rape and capital
murder in 1992. In 1993 Breard was sentenced to death for these crimes. Following the denial of his
appeals before the Virginia Supreme Court and the U.S. Supreme Court, Breard invoked the provision of
the Vienna Convention on Consular Relations. The U.S. District Court, in Breard v. Netherland (945 F.
Supp. 1255, 1266 [E.D. Va. 1996]), rejected Breard's claim because he had "procedurally defaulted" the
claim when he failed to raise it in state court. In addition, the district court concluded that Breard could
not show cause and prejudice for this default.
That same year, 1996, the Republic of Paraguay brought suit against Virginia officials for violation of the
Vienna Convention because they failed to notify the Paraguayan consulate of Breard's arrest. The district
court dismissed the suit, a decision that the appellate court affirmed. On April 3, 1998, the Republic of
Paraguay brought the case before the International Court of Justice (ICJ; the UN's highest court), which
ruled, on April 9, 1998, that the United States should stay Breard's execution pending the ICJ's final
decision. Paraguay had also petitioned the U.S. Supreme Court.
On April 14, 1998, the day of execution, the U.S. Supreme Court, voting 6-3, refused to intervene in the
case despite requests for a stay of execution from then-Secretary of State Madeleine Albright. In
Paraguay et al. v. Gilmore (No. 97-1390 [S-738]), the Court stated,
It is the rule in this country that assertions of error in criminal proceedings must first be
raised in state court in order to form the basis for relief in habeas.... Claims not so raised
are considered defaulted. By not asserting his Vienna Convention claim in state court,
Breard failed to exercise his rights under the Vienna Convention in conformity with the
laws of the United States and the Commonwealth of Virginia. Having failed to do so, he
cannot raise a claim of violation of those rights now on federal habeas review.
As for Paraguay's suits (both the original action and the case coming to us on petition for
certiorari [a petition to the Supreme Court to review the issues brought up in the direct
appeal]), neither the text nor the history of the Vienna Convention clearly provides a
foreign nation a private right of action in United States courts to set aside a criminal
conviction and sentence for violation of consular notification provisions.... Though
Paraguay claims that its suit is within an exemption dealing with continuing consequences
of past violations of federal rights, we do not agree. The failure to notify the Paraguayan
Consul occurred long ago and has no continuing effect.
In November 1998 the United States formally apologized to Paraguay for failing to inform Breard of his
right to seek consular assistance. Paraguay withdrew its lawsuit following the apology.
Germany Sues the United States
In 1982 German brothers Karl and Walter LaGrand killed a bank employee during a robbery attempt in
Tucson, Arizona. They were sentenced to death in 1984. In February 1999 Karl LaGrand was executed.
On March 2, 1999, the day before Walter LaGrand's execution, Germany sued the United States at the
ICJ. According to Germany, the United States violated Article 36 of the Vienna Convention by failing to
inform the defendant without delay after the arrest of his right to contact the German consulate for help.
Germany also claimed that Arizona prosecutors violated Article 36 because they knowingly failed to
inform Germany of the arrest and conviction until 10 years after the murder. By that time it was too late,
under "procedural default," for the defendant to raise the issue of the treaty violation. The U.S. rule of
procedural default requires that claims challenging conviction and/or sentence have to be presented at the
appropriate appeals stage. Walter LaGrand had not argued for his Article 36 rights in previous court
proceedings and, therefore, could not raise a violation of that right in later proceedings.
The ICJ ordered the United States to stay Walter LaGrand's execution, but Arizona let the execution take
place. Despite the execution, Germany proceeded with the lawsuit. During a November 2000 hearing
before the ICJ, the United States argued that Article 36 does not confer personal rights to individual
nationals. In other words, the United States conceded that while it violated its treaty obligations to
Germany, it did not violate its obligations to the brothers. The United States added that although German
authorities knew of the LaGrand case in 1992, they waited until 1999 to intervene for the brothers.
On June 27, 2001, the ICJ, in Germany v. United States of America, ruled 14-1 that the United States had
violated its obligations to Germany and to the LaGrand brothers under the Vienna Convention on
Consular Relations. The ICJ also ruled that domestic law must not prevent the review of the conviction
and sentencing when a defendant's right to consular notification has been violated. In addition, the United
States must provide review and remedies should a similar case arise.
Mexico Sues the United States
In 2003 the International Court of Justice (ICJ) again was asked to settle a case involving the United
States and consular notification. On January 9 Mexico sued the United States for allegedly violating the
Vienna Convention on Consular Relations with respect to 51 Mexican nationals on U.S. death row Avena
and other Mexican Nationals [Mexico v. United States of America]). Mexico also asked the court,
pending final judgment of the case, to issue provisional measures ordering the United States to abstain
from executing any Mexican national or schedule any such execution. The United States argued that
Mexico's request for provisional measures should be rejected by the court because they were equivalent to
"a sweeping prohibition on capital punishment for Mexican nationals in the United States, regardless of
United States law."
On February 5, 2003, the court unanimously issued an order directing the United States to take all
necessary measures to ensure that three Mexican nationals, who faced possible execution in the coming
months or even weeks, not be executed pending its final decision. The court, however, noted that the other
48 death row inmates were not included in the provisional measures order because they were not in the
same situation as the other three men.
Although Judge Shigeru Oda (Japan) voted with the other 14 court members regarding the order for
provisional measures, he expressed his doubts about the court's definition of "disputes arising out of the
interpretation or application" of the Vienna Convention. He had expressed the same doubts in the Breard
and LaGrand cases. Judge Oda stated that since the United States had admitted its failure to abide by the
Vienna Convention, no dispute concerning consular notification existed. He believed the current lawsuit
"is essentially an attempt by Mexico to save the lives of its nationals sentenced to death by domestic
courts in the United States." Judge Oda observed that the International Court of Justice cannot act as a
court of criminal appeal, adding that "if the rights of those accused of violent crimes are to be respected,
then the rights of the victims should also be taken into consideration." As of November 30, 2003, final
judgment on the case had not been handed down.
China
Human rights groups have found that China executes more persons each year than all other nations
combined. In October 1999 the Chinese government passed a law allowing the imposition of the death
sentence on leaders of the Falun Gong movement charged with murder and endangering national security.
The government claimed the "cult" movement has caused the death of more than 1,000 followers by
dissuading them from seeking medical help.
In 2001 a massive increase in executions occurred as a result of a nationwide anticrime campaign called
Strike Hard. Chinese officials had allegedly been very inconsistent in determining which crimes
warranted the death penalty. Law enforcement, under pressure to achieve results, sped up the criminal
process, reportedly subjecting defendants to torture to extract confessions. It is reported that the general
public approves of the death penalty.
Persons convicted of nonviolent offenses, such as tax fraud, bribery, embezzlement, and counterfeiting,
have been put to death. During the last Strike Hard campaign in 1996, AI reported, more than 4,400
inmates were shot to death. Between April and July 2001, nearly 3,000 death sentences had been handed
down. About 1,780 were executed during those four months alone.
Human rights organizations report that China, which introduced lethal injection in 1997, was using
mobile execution buses in Yunnan province in the southwest region of China. The buses are outfitted with
a bed and automatic syringe. Amnesty International reported in March 2003 that government officials
admitted that four individuals participate in executions--the executor, a court representative, a doctor, and
an official from the procuratorate (legal supervisory organ of the state).
Japan
Amnesty International reported that, as of September 30, 2003, at least 118 persons in Japan were under
sentence of death. About 50 of these inmates had seen their sentences confirmed. Between 1988 and 1992
the number of prisoners sentenced to death declined, from 12 in 1988 to 5 in 1992. Thirteen inmates were
executed from 1982 to 1989. No executions occurred from November 1989 to March 1993 because two
Ministers of Justice, who opposed capital punishment, refused to issue execution orders. Executions
resumed in March 1993. Between 1993 and 2000, 39 prisoners were put to death by hanging.
Death row inmates are forbidden from meeting with journalists and researchers collecting data on the
death penalty. Any information gathered by these persons usually results from significant investigations
of their own. Families have limited access to the inmates, many of whom spend their days in solitary
confinement.
Japan is also known for its drawn-out process of appeals. A case that drew worldwide attention involved a
prisoner who, in 1997, after having been on death row for 30 years, was executed in secrecy. The inmate
had committed multiple murders at age 19 (a minor under Japanese law) but was convicted as an adult.
The law requires the Justice Ministry to carry out an execution within six months after appeals are
finalized. According to human rights organizations, the ministry, nonetheless, arbitrarily sets the
execution date.
Many inmates have been on death row for more than 30 years. In 1987, 95-year-old Sadamichi Hirasawa
died while awaiting execution. He had been on death row for 32 years. In September 2003 Tsuneki
Tomiyama died of kidney failure after having been on death row for about 39 years. His death sentence
was finalized in 1976. Tomiyama was 86 years old, the oldest inmate on death row in 2003. Hakamada
Iwao has been in prison for 37 years. He was 67 years old in 2003.
The Japanese government does not announce any pending execution or notify families and lawyers of
death row inmates about the impending execution. Even the inmate scheduled to be put to death learns of
his or her fate only about two hours before the execution. The government has been known to carry out
executions when the Diet (Parliament) is not in session or during holidays in order to avoid parliamentary
debate.
Human Rights Features, in "Japan Hanging on to Death Penalty" (Vol. 6, Issue 3, March 31-April 6,
2003), noted that Japanese law does not provide judges with the criteria needed to impose the death
penalty. For example, homicide may be punishable by execution, life imprisonment, or a prison term of
not less than three years.
Forum 90 is an abolitionist group that monitors capital punishment in Japan. In The Hidden Death
Penalty in Japan (Sachiho Takahashi and Thomas Mariadason, eds., Tokyo, Japan, June 2001), Forum 90
reported that in addition to the other secret elements of the death penalty in Japan, the general public is
not informed of the identities of those executed. Since Japan has no jury system, ordinary citizens find out
about an execution only after the Ministry of Justice announces that it has occurred.
The government of Japan claims that the public, as shown by its 1999 poll, approves of the death penalty.
Experts, however, point out that this percentage resulted from a problematic polling question. The people
were asked whether they agreed that the death penalty system should be abolished in any case or whether
the death penalty is necessary through unavoidable circumstances. A majority (79.3 percent) chose the
second response.
Some initiatives toward abolishing the death penalty in Japan have begun. In November 2002 the Japan
Federation of Bar Associations called for a moratorium on the death penalty and a public debate on the
issues of the death penalty system. In July 2003 the Japan Parliamentary League Against the Death
Penalty, composed of 122 multiparty members, planned to introduce a bill to suspend executions while a
commission is formed to discuss capital punishment. The opposition blocked this effort.
Abolitionist in Practice
As of January 1, 2003, Amnesty International considered 21 countries as abolitionist in practice. They
have death penalty laws for such crimes as murder but have not carried out any execution for the past 10
years or more. Some of these nations have not executed anyone for the past 50 years or more. Others have
made an international commitment not to impose the death sentence.
Roger Hood, in The Death Penalty--A Worldwide Perspective (3rd ed., Oxford University Press, Inc.,
New York, 2002), noted that just as countries that are abolitionist in practice have eventually outlawed
capital punishment, some countries that have not carried out executions for at least 10 years might
resume executions at some time in the future. The author gave as examples 10 countries that have
resumed executions since 1994: the Bahamas, Bahrain, Burundi, Guinea, Guatemala, the Philippines, St.
Christopher and Nevis, Trinidad and Tobago, Qatar, and the United States, where the federal government
resumed executions in 2001, 38 years after the last execution.
Abolitionist Countries
In 1863 Venezuela became the first nation to outlaw the death penalty. Since that time many countries
have abolished capital punishment. Several countries, however, including Argentina, Brazil, and Spain,
restored it after previously rejecting it. Argentina revoked the death penalty in 1921 and then again in
1972, reinstating it in 1976 after a military takeover. Then, in 1984 it abolished capital punishment again
for ordinary crimes. Brazil abolished the death penalty in 1882, restored it in 1969, and revoked it again in
1979 for ordinary crimes.
Similarly, Spain repealed the death penalty in 1932, brought it back for certain crimes in 1934, totally
restored it in 1938, and then abolished it again in 1978 for ordinary crimes. Finally, in 1985, Spain
outlawed the death penalty for all crimes. The switching back and forth between abolition and the
reimposition of capital punishment often reflects these countries' shift between democracy and
dictatorship.
As of January 1, 2003, 76 countries had abolished the death penalty for all crimes. Since 1976, when the
United States reinstated the death penalty after a nine-year moratorium, many countries have stopped
imposing capital punishment. Belgium and the United Kingdom, the last two Western European
democracies to have the death sentence, abolished it for all crimes in 1996 and 1998, respectively. In
reality, Belgium has not executed any prisoner since 1950. The last two executions in the United
Kingdom occurred in 1964. Hong Kong returned to Chinese jurisdiction in July 1997. Having abolished
capital punishment in 1993, the former British colony remains abolitionist. In 1999 East Timor (now
Timor-Leste), Turkmenistan, and Ukraine became abolitionist nations for all crimes. In 2000 Cote
d'Ivoire and Malta also abolished the death penalty for all crimes. In 2002 Cyprus and Yugoslavia (now
Serbia and Montenegro) abolished the death penalty for all crimes.
Abolitionist Countries for Ordinary Crimes Only
Fifteen countries do not impose the death penalty for ordinary crimes committed during peacetime,
though they may impose it for exceptional crimes. Since 1997 six countries--Bolivia (1997), BosniaHerzegovina (1997), Latvia (1999), Albania (2000), Chile (2001), and Turkey (2002)--have joined this
group.
Capital Punishment Is Seldom Reintroduced
Amnesty International notes that once a country abolishes capital punishment, it seldom brings it back.
Between 1985 and January 1, 2003, more than 50 countries either enacted laws abolishing the death
penalty or, having revoked it for ordinary crimes, eventually outlawed it for all crimes. During this period
just four abolitionist countries reimposed the death penalty--Nepal, the Philippines, Gambia, and Papua
New Guinea. Nepal, which reinstated the death penalty for murder, abolished it for all crimes in 1997.
Gambia and Papua New Guinea remained abolitionist in practice. Although they retained the death
penalty for ordinary crimes, Gambia last carried out an execution in 1981, and Papua New Guinea last put
an offender to death in 1950.
After banning capital punishment in 1987, the Philippines reintroduced it in 1993. In February 1999 the
first execution since 1976 took place, followed by six others. In March 2000 then-President Joseph
Estrada suspended all executions in honor of the Christian Jubilee year. In October 2001 newly elected
President Gloria Macapagal-Arroyo lifted the moratorium on the death penalty in light of the rising
numbers of kidnapping cases for ransom money. The president restored the moratorium in late 2003,
saying she might commute the death sentence to life imprisonment. More than 1,000 persons were under
sentence of death as of November 30, 2003.
Death Penalty Against Minors
According to Amnesty International, between 1990 and 2000 seven countries--the Democratic Republic
of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, the United States, and Yemen--had executed offenders
who were under the age of 18 when they committed their crime. Since then, Pakistan (2000) and Yemen
(2001) have raised the age for the imposition of the death penalty to 18. From 1990 to April 2003, 33
inmates were executed for crimes committed when they were minors. Of these, 19 executions occurred in
the United States. In 2002 Texas was the only jurisdiction that executed inmates (three) who committed
their crime as minors. As of November 30, 2003, one inmate who was a minor at the time of crime was
executed in Oklahoma.
Those countries were said to violate international human rights agreements when they impose the death
sentence on minor offenders. The International Covenant on Civil and Political Rights, the UN
Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, and
the American Convention on Human Rights all ban the imposition of the death sentence on persons who
were less than 18 years old at the time of the crime. In addition, the UN Convention on the Rights of the
Child further prohibits the sentence of life without the possibility of parole for those younger than 18.
Today virtually all countries in the world either have statutes prohibiting the execution of minors or are
believed to be abiding by the provisions of one or another of the aforementioned treaties.
Although the United States ratified the International Covenant on Civil and Political Rights on 1992, it
has reserved the right to execute juveniles. While signing an international treaty is just a general
endorsement of the treaty's provisions, ratifying that treaty signifies that a country is legally bound by its
terms. In reserving the right to execute offenders who were juveniles when they committed the crime, the
United States stated "[that it] reserves the right, subject to its Constitutional constraints, to impose capital
punishment on any person (other than a pregnant woman) duly convicted under existing or future laws
permitting the imposition of capital punishment, including such punishment for crimes committed by
persons below eighteen years of age." The United States has signed but not ratified the United Nations
Convention on the Rights of the Child and the American Convention on Human Rights.
Source Citation: "Capital Punishment Around the World." Capital Punishment: Cruel and Unusual?
Mei Ling Rein. Information Plus® Reference Series. Gale Group, 2004.
Opposing Viewpoints Resource Center. Thomson Gale. 19 May 2006
<http://galenet.galegroup.com/servlet/OVRC>
Capital Punishment Harms Society
John D. Bessler
John D. Bessler is an attorney and an adjunct professor of law at the University of Minnesota Law
School. He is also the author of Death in the Dark: Midnight Executions in America.
Source Database: Current Controversies: Capital Punishment
The September 11, [2001,] terrorist attacks on New York City's World Trade Center buildings profoundly
affected everyone. The images of smoke billowing from the twin towers, people plummeting hundreds of
feet to their deaths, and then the collapse of the skyscrapers themselves, are gruesome and unforgettable.
The coordinated terrorist plot, with hijacked planes also crashing into the Pentagon and in Pennsylvania,
claimed thousands of lives even as the attacks steeled the world's resolve to fight international terrorism.
As we mourn the loss of life, one question that will remain unanswered for some time is the extent to
which the terrorist attacks will affect America's domestic anti-death penalty movement, which appeared to
be gaining strength in the months before that fateful day.
In the aftermath of the hijackings and the mailing of deadly letters containing anthrax spores, the
American people face a host of new challenges. How do we defend ourselves against future terrorist
attacks while protecting the constitutional rights of Arab Americans? How do we bring Osama bin Laden1
and terrorists in al Qaeda to justice, yet not kill hundreds of innocent Afghan civilians in the process? And
how should we administer justice to those who killed, harbored terrorists, or facilitated the terrorist
attacks who are not themselves killed in the military campaign in Afghanistan? Openly or in secret? The
answers to these questions are not trivial, for the whole world is watching what we do and how we
conduct ourselves. Just what kind of example will America's government set for the rest of the world?
Although the world changed on September 11, my firm conviction is that we must not allow acts of
terrorism to change our aspirations for a nonviolent society and a lasting global peace. The terrorists, of
course, must be brought to justice, but on the home front and abroad Americans must act to reduce
violence and human suffering, which are all too often a root cause of violence. In other words, as we
tighten airport security and make the U.S. mail safe for everyone to use, we also must take concrete steps
to reduce gun crimes and poverty; to address the global threat of chemical, biological, and nuclear
weapons; and to eliminate the use of land mines. The death penalty--already abolished in Europe--needs
to be done away with as well.
The Death Penalty in a Violent Society
While many people are sure to call for the death penalty's widespread use after the September 11 terrorist
attacks, my own opposition to capital punishment remains unchanged. For me, even in the post-
September 11 world, America's death penalty continues to be just another form of violence in an already
too-violent society. The problems with the death penalty--the conviction of the innocent, racial
discrimination in its application, and the abysmal quality of representation most death-row inmates
received at their trials--are legion and have certainly not changed since September 11, and no past or
future terrorist attack will affect those realities. Elected officials such as Illinois Governor George Ryan
had compelling reasons before September 11 to call for a moratorium on executions, and none of those
reasons has gone away. Indeed, so long as the death penalty exists, there will be men like Anthony Porter,
one of many death-row inmates recently exonerated in Illinois alone, who are sent to death row in error.
When crimes of violence such as murder, rape, and assault are committed, any just system of laws
obviously demands that the perpetrators be punished. This makes perfect sense. Maintaining public safety
is one of the government's most important obligations, and justice requires that criminals be held
accountable for their actions. Just as Osama bin Laden and terrorist networks around the globe cannot be
allowed to continue to operate, anyone who murders, rapes, stabs, or shoots someone must go to prison
after guilt is established. The whole purpose of incarcerating criminals is, after all, to eliminate the risk of
future acts of violence in society at large.
What makes no sense to me is for a government that already has a criminal in custody to use violence-that is, the death penalty--to try to reduce violence. Using capital punishment only sends the misguided
message to members of society that killing already-incarcerated criminals can somehow solve the
problem of violence in American life. Statistics and history, in fact, show that just the opposite is true;
when the death penalty is used, it tends to brutalize society, not make our lives any safer. While American
death-penalty laws may give some a false sense of security, only incarcerating offenders and taking steps
to prevent violence will make us safer in the end. Timothy McVeigh's2 execution did not put a stop to acts
of terrorism on American soil, just as death-penalty laws do not stop homicides in Dallas or Houston and
did not deter suicidal fanatics from hijacking commercial airliners and killing thousands of innocent
people in a single day.
I prefer life-without-parole sentences to the death penalty because capital punishment has a corrosive
influence on any society, and there is no evidence that the death penalty really does anything to fight
crime. In fact, a recent study commissioned by the New York Times examined FBI data and found that
death-penalty states' average murder rates consistently exceeded those of non-death-penalty states. The
study reached the very disturbing conclusion that, over the last twenty years, death-penalty states'
homicide rates have been, on a per capita basis, an astonishing 48 percent to 101 percent higher than in
non-death-penalty states. Of America's twelve non-death-penalty states, ten have murder rates that are
below--often far below--the national average.
The State of Minnesota, where I live, for instance, abolished capital punishment in 1911 and yet has one
of the lowest violent-crime rates in the country. While the national homicide rate was 6.3 murders per
100,000 people in 1998, Minnesota's rate that year was less than half that figure; in contrast, active deathpenalty states such as Texas and Louisiana regularly have some of the country's highest murder rates. I
think anyone who fairly considers the evidence should be extremely troubled by the fact that, year after
year, America's death-penalty states have higher homicide rates than do non-death-penalty states.
Obviously, many factors can affect a state's homicide rate. However, these compelling statistics--indeed,
logic itself--compel the conclusion that the death penalty is, at bottom, really nothing more than part of a
culture (still prevalent in many places) that condones the use of violence.
Executions Out of Sight
That executions are brutalizing to American society was actually clear at least more than a century ago.
Indeed, in the 1830s, American states began moving executions out of public squares because of ... the
general disorder that often prevailed at them. This trend started in northeastern states and then gradually
spread to all parts of the country. Midday executions on the public commons were, over the next hundred
years, gradually replaced by after-dark executions that, by the late 1930s, universally took place behind
prison walls. State laws specifically limited attendance at executions to a few official witnesses, and
county sheriffs and prison wardens regularly barred children and women from attending them. In the
twentieth century, new laws were passed throughout the country forbidding television cameras from
filming these events.
Because civic leaders saw public executions as corrupting morals, many states even passed laws in the
nineteenth century forbidding newspapers from printing any details of executions. Public executions, it
was recognized, often drew pick-pockets and drunken spectators, and state legislators concluded that if
executions were creating unintended consequences, so too were newspaper accounts of hangings. Thus, in
many locales such as Arkansas, Minnesota, New York, and Virginia, only the bare fact that a criminal
was executed could be printed or published. Any reporter who violated one of these laws and described an
execution in print could be criminally prosecuted and jailed.
To further restrict public access to information about executions, many states actually mandated by law-as some still do--that executions take place "before sunrise." The constitutionality of one of these laws,
dubbed by its contemporaries as the "midnight assassination law," was upheld by the Minnesota Supreme
Court in 1907. That court ruled that the "evident purpose of the act was to surround the execution of
criminals with as much secrecy as possible, in order to avoid exciting an unwholesome effect on the
public mind." Executions "must take place before dawn, while the masses are at rest," the court held, to
give effect to the law's "purpose of avoiding publicity."
The modern-day contention by some that executions deter crime better than life-without-parole sentences
is thus totally at odds with both American history and the facts. If executions were such a wonderful
deterrent, why would the government choose to hide them from public view and even pass laws to
prohibit the dissemination of news about them?
Today, most American executions still receive very little media attention, with the exception of higherprofile ones such as Timothy McVeigh's. Of the 313 executions that were carried out in the United States
from 1977 to 1995, more than 82 percent of them actually took place between 11:00 p.m. and 7:00 a.m.,
when most people are asleep. More than 50 percent of those executions took place between midnight and
1:00 a.m., with laws in Louisiana and Delaware specifically requiring that executions take place between
midnight and 3:00 a.m. Because they are conducted in private, American executions are, to most people,
mere abstractions, not tangible events that would seem more real if they were broadcast on the nightly
news. Ironically, while we see horrific film footage on CNN of the Taliban3 executing a civilian in an
Afghan soccer stadium, American executions, without exception, remain hidden from public view.
Although executions are kept out of sight by state legislators and the federal government, it must never be
forgotten that when a democratic government takes a life, it does so on behalf of its citizens. The United
States of America is, after all, governed by "We, the People." Our own elected representatives pass deathpenalty laws, ordinary Americans sit on juries that impose death sentences, and the public's money pays
for lethal-injection machines and executioners' salaries. What I find so troubling about the death penalty is
that our most valued democratic institutions (the judiciary, the Congress and state legislatures, and the
executive branch) all sanction (and are tainted by) the very same horrific act--senseless killing--that we so
rightfully decry when terrorists or murderers commit their crimes.
Curtailing Violence by Committing Violence?
In the wake of terrorist attacks, workplace shootings, carjackings, or gun violence ... effective measures
can and should be taken to curtail violence. More sophisticated computer systems to track offenders,
beefed-up security at public places, and better regulation of firearms are all steps that we can take to make
the United States a safer place in which to live and work. Although lethal injections have largely sanitized
executions, it cannot be doubted that the death penalty is a form of violence. Whether carried out by firing
squad, hanging, electrocution, the gas chamber, or lethal injection, the result is the same: the killing of
human life.
In wartime or when someone acts in self-defense to preserve his or her own life, the use of violence can
be justified to protect life. World War II, for example, was fought to stop Nazi aggression and end the
Holocaust. But when a government already has someone in prison, what purpose is served by an
execution? All an execution does is inject more violence into a society. Because the government should
be setting an example for its people, executions are especially counterproductive. The need for public
safety and what should be any government's goal--that is, a nonviolent society--can be easily reconciled
by making life-without-parole sentences the maximum penalty allowed by law for murder.
The amount of violence in American society, whether on the streets or as seen on prime-time television, is
astonishing. We see hijacked planes piloted into the World Trade Center and bursting into flames; we see
murder scenes with yellow police tape on the evening news; and family-friendly television programming
often seems to be a rare commodity. The media, acting under the guarantees of the First Amendment,
must be allowed to report and expose acts of violence. However, the sheer amount of violence we face
does not mean that we should inject even more violence into our lives by using the death penalty. Indeed,
everyone from parents to our nation's lawmakers must play a role in shaping a better, more nonviolent
future for our children.
When our country's governors or judges sign death warrants for people already confined in prison, they
send the wrong message to our nation's youth. Do we really want some of our most educated members of
society, who should be role models of the highest order, telling our children that killing locked-up
criminals is the way to solve problems? We certainly do not hold up executioners as role models for our
children, yet when executions occur aren't all members of our society in some way responsible for what
those executioners are doing? It is, after all, our own laws that allow executions to happen within our
borders. If anything, the death penalty only perpetuates the mistaken notion that state-sanctioned
executions can somehow curtail violent crime in the United States. Just as the NAACP [National
Association for the Advancement of Colored People] successfully crusaded against lynching in the last
century, it is time for all of us in this century to work to do away with state-sponsored executions.
If America is to have a safer society, we must stop seeing the death penalty as a "crime-fighting" tool,
which it clearly is not. Instead, we must start seeing capital punishment for what it is: just another form
of violence in our society. Thus, as we grapple with the thorny issues of how to bring heavily armed
terrorists in Afghanistan to justice, America's domestic political agenda cannot be allowed to stand still.
The abolition of America's death penalty is, in fact, one way already within our grasp to reduce violence.
Instead of putting needles into criminals who are brain-damaged, mentally retarded, or who do not share
our value for human life, our crime-fighting efforts should focus on real solutions such as tougher guncontrol laws, stiffer penalties for violent offenders, better child-protection laws, and combating truancy to
keep kids in school and out of gangs.
In the final analysis, the death penalty does nothing more than validate the use of senseless violence,
which is not a wise or sensible thing to do in the first place. As Martin Luther King, Jr., warned: "The
ultimate weakness of violence is that it is a descending spiral, begetting the very thing it seeks to destroy."
America's death penalty, inflicted after murders have already been committed, only creates more violence
and represents yet another roadblock that we must dismantle if we are ever to realize King's dream of a
nonviolent society based on the principles of equality and respect for human life.
Footnotes
1. Saudi exile and radical Islamist leader Osama bin Laden is believed to have orchestrated the September
11, 2001, terrorist attacks.
2. McVeigh was convicted for his role in the 1995 bombing of the Oklahoma City federal building, which
killed 168 people.
3. The Taliban, a Muslim sect, ruled Afghanistan between 1996 and 2001.
Source Citation: "Capital Punishment Harms Society" by John D. Bessler. Capital Punishment. Mary E.
Williams, Ed. Current Controversies Series. Greenhaven Press, 2005. John D. Bessler, "America's Death
Penalty: Just Another Form of Violence," Phi Kappa Phi Forum, vol. 82, Winter 2002, p. 13. Copyright
© 2002 by Phi Kappa Phi Forum. Reproduced by permission.
Opposing Viewpoints Resource Center. Thomson Gale. 19 May 2006
http://galenet.galegroup.com/servlet/OVRC
Capital Punishment Exacerbates Violence
Robert Grant
Robert Grant is an attorney and former judge living in Augusta, Georgia. He teaches American
government in the political science department of Augusta State University. He is also the author of
American Ethics and the Virtuous Citizen: The Right to Life, from which this essay is adapted.
Source Database: Current Controversies: Capital Punishment
To understand the debate over capital punishment, it is necessary to identify the purpose of the criminal
justice system. To a majority of Americans it is, essentially, to retaliate and punish those who commit
crimes, especially brutal and vicious murders, thus balancing the scales of justice. To others its goal is to
reduce violence overall. The question of capital punishment, then, pits two great demands of society
against each other: the demand for retribution for violating the most basic duty of the social contract--the
duty not to murder another--and the need to eliminate, or at least minimize, society's culture of violence.
A History of Capital Punishment
In the United States, capital punishment was adopted from British common law. Then, from the time of
the American Revolution through the Civil War, degrees of murder were developed, dividing the crime
into first degree premeditated murder, to which the death penalty applied, and a second degree crime of
impulse or passion. This was a compromise between those (mostly Quakers) who wanted to abolish the
death penalty entirely and those who wished to keep the law essentially unchanged. From the Civil War
until the 1960s many states first abolished and then reinstated capital punishment.
But by the 1960s the role of the federal appellate courts had greatly expanded as they applied the federal
Bill of Rights to state criminal proceedings in capital cases, especially the prohibition against cruel and
unusual punishment and the requirements for due process and equal protection of the law. This coincided
with an increased public demand for an end to capital punishment. As a result, capital punishment laws
were repealed in several states and no executions were carried out anywhere in the country from 1968 to
1976.
These changes led in June 1972 to the U.S. Supreme Court decision in Furman v. Georgia. The Court
ruled that the way in which capital punishment statutes were administered was unconstitutional. After
reviewing the statistics from the 1920s through the 1960s, the majority concluded: "The death sentence is
disproportionately imposed and carried out on the poor, the Negro, and the members of unpopular
groups." The conviction and execution of blacks were particularly disparate when the murder victim was
white and especially when a white woman was raped. Justice William J. Brennan observed, "When a
country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year,
the inference is strong that the punishment is not being regularly and fairly applied." The Court also found
that excessive punishments are prohibited and concluded that, since life imprisonment is as effective a
deterrent as execution, capital punishment was excessive. Justice Thurgood Marshall added, "I cannot
believe that at this stage in our history, the American people would ever knowingly support purposeless
vengeance."
In response to the decision in Furman, the state of Georgia amended its law to provide for capital
punishment of certain crimes in a way designed to eliminate excessive penalties as well as discrimination
and arbitrariness in deciding who will die. The amended law was then used to convict and sentence to die
Troy Gregg for the 1973 murder of two men during his theft of their car. The case, Gregg v. Georgia, was
appealed to the U.S. Supreme Court, which determined in 1976 that the defendants had been accorded due
process of law and that the death penalty in this case didn't constitute cruel and unusual punishment. The
Court thus reinstated capital punishment on the ground that the practice wasn't unconstitutional per se.
This decision was reached on the following two bases. First, the Fifth Amendment to the U.S.
Constitution expressly recognizes and, to that extent, authorizes the death penalty when it states, "No
person shall ... be deprived of life ... without due process of law." This is because, by implication, a
person may indeed be deprived of life with due process of law. Second, regarding the matter of cruel and
unusual punishment, the majority stated that "the petitioners on Furman and its companion cases
predicated their argument primarily upon the asserted proposition that standards of decency had evolved
to the point where capital punishment no longer could be tolerated" and that the Eighth Amendment
prohibiting cruel and unusual punishment could now be construed "as prohibiting capital punishment."
However, "developments during the four years since Furman have undercut substantially" that
proposition. The majority referred to new death penalty laws that had been enacted in at least thirty-five
states in response to Furman and to Congress' 1974 passage of a law "providing the death penalty for
aircraft piracy that results in death." The majority of justices concluded that all of these "post-Furman
statutes make clear that capital punishment itself has not been rejected by the elected representatives of
the people." Therefore the social evolution in which Justice Marshall had previously placed his belief
didn't actually appear evident.
Retribution and Revenge
Today it seems even less evident. Many in U.S. society demand vengeance and retribution for violent
criminal conduct. Retributive justice means that the criminal must be made to pay for the crime by a crude
mathematics that demands the scales of justice be balanced; this appeals to humanity's basest animal
instincts and ancient demands for an eye for an eye, a life for a life. Retributive justice is fueled by hatred
and satisfied only with full and complete revenge--the more cruel, the more satisfying. Civil liberties
defender and lawyer Clarence Darrow observed that the state "continues to kill its victims, not so much to
defend society against them ... but to appease the mob's emotions of hatred and revenge." After Oklahoma
City bomber Timothy McVeigh was executed amid wide television coverage, over 80 percent of the
viewers polled said that he deserved to die; many said his death was too clinical and he should have died
more painfully. One man said that McVeigh should have been stoned to death. Others were willing to
forego his execution because they thought that life behind bars with no possibility of parole would be a
greater punishment.
Retributive justice has a bad history, however, as it has historically been used to enforce a class society by
oppressing the poor and protecting the rich. It has been used to impose racism by applying the law in an
unfairly heavy-handed way upon African-American citizens and in a lenient manner upon white
Americans. The U.S. justice system has imprisoned more than two million people; about all are black,
although African-Americans constitute only 12 percent of the total population. The prison system has
been likened to a twenty-first century form of slavery.
More astonishing, perhaps, is that execution statistics from 1977 through 2002 show that capital
punishment isn't so much a national problem as it is a problem local to the South. Nationally, 563
executions occurred during this period and the eleven states of the old Confederacy account for about 87.5
percent of these. Texas is way ahead of the pack, having performed about one-third of all executions. In
2002 Texas alone killed thirty-three death row prisoners. It's no coincidence that the South is also the
most violent region of the country. However as more and more death row prisoners in other states exhaust
their appeals, capital punishment will become more of a national problem.
A Deterrent to Murder?
Of those who favor capital punishment, not all would agree that retribution is their motive. Many argue
that it is a deterrent to murder. But is it? Think of the troubled boys at Columbine High School who killed
a teacher and students first and then committed suicide.1 Many violent people--particularly violent
adolescents--resort to violence toward others only as an alternative to suicide and, in many cases, kill
themselves anyway after killing others. Capital punishment wouldn't be a deterrent to them.
If these might be viewed as exceptional circumstances, then a way of covering all circumstances would be
to compare statistics between states and nations with and without capital punishment. However, the
majority of the justices in Gregg, after reviewing the evidence, concluded, "Statistical attempts to evaluate
the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal
of debate. The results simply have been inconclusive." This may be because whatever deterrence factor
exists for capital punishment probably exists almost equally for life imprisonment.
A far greater deterrent than either, however, would be more efficient police investigation. An average of
twenty-two thousand murders and non-negligent manslaughters are committed annually in the United
States but only two-thirds, or fifteen thousand, suspects are arrested. And only 45 percent, of about ten
thousand, of all accused killers are convicted.
So, in the end, there is only one purpose, one motive, one true reason for demanding death over life
imprisonment: revenge. The issue isn't whether the state has the right to execute those who commit
premeditated murder; it has. The issue is whether the state ought to execute convicted murders.
Intensifying Violence
The U.S. justice system has reverted to a strictly punitive method in order to prove "tough on crime" and
in the hope that stronger punishment will somehow deter future criminal activity. But the reality is that
severe punishment isn't working. Kids and petty offenders under the current system become hardened,
violent, and persistent criminals. The present punitive and retaliatory justice system is unworthy of the
American people's high standard of justice, which values the individual and demands equal justice for all.
Many who seek to eliminate the culture of violence in society assert that capital punishment actually
exacerbates the level and intensity of violence in the community. They observe that the state is
backwardly killing people in order to teach others not to kill. They search for ways to heal the effects of
crime upon society, the victim, and the offender. Restorative justice seeks to eliminate violence from the
community and heal the harm done to the extent possible.
Violence is a highly contagious social disease that causes emotional, psychological, and physical damage
and turns a peaceful person into a hostile one. The essence of violence is hatred, anger, rage, and desire
for revenge caused by an act of wrongful violence internalized by the victim. When one allows oneself to
be filled with these emotions in response to a violent attack, it allows the attacker to do more than just
cause physical injuries. The attacker then does emotional and psychological damage as well. She or he has
destroyed the victim's sense of inner tranquility and stability--a destruction that remains long after the
physical injuries have healed. When anger, rage, hatred, and vengeance fill that space, the victim is turned
from a peaceful to a violent person. This violence is the self-inflicted destruction of one's inner peace.
And violence begets more violence. It is a contagion spreading hatred, anger, rage, and desire for revenge
to others out of empathy for the victim. Moreover, a violent victim may seek revenge against the original
perpetrator and can be tempted to take out that anger on family members and friends when emotional
triggers enflame the violent condition. Violent people don't have ample social skills to resolve differences
peacefully and thus the contagion spreads. Each time a person commits a violent act with the intent to
injure or kill, the attacker not only causes physical, emotional, and psychological injury to the victim but
becomes a more violent person as well. Every act of violence makes the perpetrator more violent-whether the person is someone assaulting an innocent shopkeeper, acting in self-defense, performing a
state execution, or soldiering in war. The contagious nature of violence infects the morally righteous
police officer as well as the brutal lawbreaker. In his study of young murderers, Cornell University human
development professor James Garbarino observes:
Epidemics tend to start among the most vulnerable segments of the population and then
work their way outwards, like ripples in a pond. These vulnerable populations don't cause
the epidemic. Rather, their disadvantaged position makes them a good host for the
infection.... The same epidemic model describes what is happening with boys who kill.
Horrifically, this is a social disorder that can turn innocent people against each other.
How to Respond to Violence
A productive way to react to an act of violence is to have the courage to resist the normal impulse for
revenge and punishment, to refrain from allowing anger, hatred, rage, and vengeance to destroy one's
inner peace. Civil rights activist Martin Luther King Jr. observed: "Returning violence for violence only
multiplies violence, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out
darkness, only light can do that. Hate cannot drive out hate; only love can do that."
On the day of McVeigh's execution, a pastor at a memorial service for some of the victims' families
asked, "Is there another way we can respond to this violence without doing violence ourselves?"
Restorative justice doesn't promote anger, hatred, rage, or revenge by society or by the victim but offers a
nonviolent response to the violence done. The focus of restorative justice isn't the punishment of the
offender; it is the separation of the violent person from peaceful society for the protection of law-abiding
citizens. With a peaceful attitude and conscious decision to choose a nonviolent and nonvengeful
response, the cycle of violence can be broken and the contagion stopped. It is all a matter of attitude and
the realization that violence should be countered in a mature and rational manner in order to protect
society without doing damage to its citizens.
So we need to approach the problem of capital punishment not as a legal matter determining the rights
and duties of the parties but as if we were treating a disease--the disease of violence. The past one
hundred years have comprised the most violent century in human history. That violence is reflected in our
television programs, movies, video games, literature, political attitudes, militaristic paranoia, the alarming
abuse toward children, pervasive domestic violence, hostility toward the genuinely poor and helpless, the
persistence of racism and intolerance, the way we treat petty juvenile offenders, and the mistreatment of
prisoners. When we impose severe and excessive punishment, when we seek an eye for an eye, a tooth for
a tooth, a life for a life, when we seek revenge on lawbreakers by some clumsy arithmetic we call justice,
we become violent law abiders. We become what we say we abhor--more like criminals--more violent
people. And the contagion spreads.
Every time we send a criminal to jail, especially a juvenile offender, it is a failure of society; every time
that we execute a murderer, it is another failure of society. Where were the caring family members,
helpful friends, concerned teachers, and supportive social workers when that criminal was a child being
abused and neglected? Who loved that child? Who educated that child so that he or she could succeed in
this world? Who demeaned that child because his or her skin color or religion or ethnicity was different
from the majority in the community? Who did violence to that child by relegating him or her to poverty
and then hating that child because he or she was poor? Generally speaking, children who are loved and
cared for don't become criminals. Family and community violence toward children, including top-down
governmental violence, turns some of them into criminals. Ethical communities don't need a police officer
on every street corner because ethical communities care for all their children. Criminals aren't born; they
are made.
And once made, society gives little thought to rehabilitating the offender, since the purpose of retributive
justice is to punish. Or they view punishment as itself rehabilitative. Americans pretend that state-inflicted
cruelty will somehow teach a violent felon not to be cruel and violent; and then 97 percent of these
"rehabilitated" violent criminals are released into civil society. The theory seems to be that punishment
teaches one how to become a good and respected member of the community. Yet the current punishments
only succeed in destroying an offender's self-esteem by imprisoning that person and separating him or her
from family and friends, then dehumanizing the prisoner by referring to him or her by a number instead of
a name. Prisoners also become victims of the internal violence of prison life and, when not building up
resentments, become schooled by other inmates in the techniques of crime--aware that society's rejection
will continue once they are released.
Restorative Justice
In order to foster a less violent society, the treatment of the offender should be as humane and non-violent
as forcible incarceration can allow. Rehabilitation of the offender ought to be a necessary condition of
parole. Life imprisonment without the possibility of parole ought to be the alternative to capital
punishment.
Restorative justice seeks to eliminate the culture of violence in U.S. society and replace it with a culture
of caring. It's a matter of attitude. We must not allow our hearts to be filled with hatred, anger, rage, and
the desire for revenge. It's hard to put aside such feelings when a child or loved one is murdered,
especially if the killing is particularly brutal of cruel. This is why violence is so hard to subdue. Look at
the difficulties in restoring peace in countries like Northern Ireland, Israel, Bosnia, and India and Pakistan
which have engaged in civil wars. Similarly, if we don't find a way to break the cycle of violence we will
never be able to end the culture of violence that infects the United States.
Restorative justice doesn't ask that we "turn the other cheek." Restorative justice doesn't seek mercy of
forgiveness for those who, by the calculus of duties and rights, deserve to die. Rather, it asks us to protect
ourselves from the disease of violence by not killing the despised one. Someone must go first to stop the
cycle of violence; the obvious candidate is the state. The words of John Donne from his poem "No Man Is
an Island" seem particularly appropriate when we execute a condemned prisoner: "Ask not for whom the
bell tolls; it tolls for thee!"
Footnotes
1. a reference to the April 1999 school shootings in Littleton, Colorado, which resulted in fifteen deaths
Source Citation: "Capital Punishment Exacerbates Violence" by Robert Grant. Capital Punishment.
Mary E. Williams, Ed. Current Controversies Series. Greenhaven Press, 2005. Robert Grant, "Capital
Punishment and Violence," Humanist, vol. 64, January/February 2004, p. 25. Copyright © 2004 by the
American Humanist Association. Reproduced by permission of the author.
Opposing Viewpoints Resource Center. Thomson Gale. 19 May 2006
http://galenet.galegroup.com/servlet/OVRC
Capital Punishment Grants Reasonable
Retribution
Burton M. Leiser
Burton M. Leiser is a professor of philosophy and law at Pace University in New York. He is also the
author of Liberty, Justice, and Morals: Contemporary Value Conflicts.
Timothy McVeigh, the terrorist who bombed the federal building in Oklahoma City in 1995, resulting in
168 deaths and untold anguish for the friends, relatives, and colleagues of the victims, is scheduled to be
executed by the federal government about a month after I write these words.1 The only regret he has
expressed was, "Damn, I didn't knock the building down." Far from being remorseful about the children
in a day care center in the building who were killed by the explosion he set off, he referred to them simply
as "collateral damage." As for the survivors, he said, "I understand what they felt in Oklahoma City. I
have no sympathy for them."
One Rational Justification
Of the four traditional justifications for punishment--reform, deterrence, incapacitation, and retribution-only one seems to be relevant to the McVeigh case and others like it:




Reform is clearly not at issue here. The execution of a mass murderer, or of anyone else, for that
matter, is not designed to improve his character or to persuade him to mend his evil ways.
Deterrence is almost as irrelevant as reform in this case. There is ample evidence that critics of the
death penalty are generally wrong in supposing that it is ineffective as a deterrent to other
potentially violent criminals. Interviews with prisoners on death row prove only that some people
are not deterred by the threat of death. No one has ever claimed that any penalty would effectively
deter every potential offender. A more meaningful inquiry would explore the relationship, if there
is one, between fear of the death penalty and the fact that some people who have been tempted to
commit serious crimes did not carry them out. In any event, deterrence alone would not be
sufficient to justify McVeigh's execution. Potential mass murderers are not likely to deliberate
over McVeigh's execution as they plan further acts of terrorism. Indeed, some terrorists welcome
martyrdom. Others believe that, like many before them, they will either get away with their crimes
because they will never be caught, or that if they are caught, their colleagues will engage in further
acts of terrorism, taking hostages and demanding their release--a threat that has often been
acceded to by the political authorities of many nations.
Incapacitation is of course an absolute certainty when executions are carried out. Executed
criminals are unable to pursue their criminal careers from beyond the grave. But terrorists and
other evil people can be incapacitated with methods short of the death penalty. High security
prisons are generally quite effective in preventing even the worst criminals from engaging in
further serious mischief. If our purpose is simply to make an evil person harmless, death will
certainly do the job, but it seems unnecessary since there are other ways of achieving the same
result.
Retribution, then, appears to be the only rational justification for the execution of Timothy
McVeigh--assuming, of course, that capital punishment can be justified. Indeed, it is the only
reasonable justification for the execution of most criminals against whom the death penalty is
invoked. Reform is irrelevant, deterrence is speculative at best, and incapacitation can be achieved
with far less controversy.
In the remainder of this article, I will examine the nature of retribution, its moral standing as a motive for
criminal punishment, and the validity of using it as a rationale for inflicting capital punishment on
violent criminals.
Is Vengeance Ours?
Retribution and revenge (or vengeance) bear some resemblance to one another, but some important
distinctions must be noted. Revenge is essentially a private matter between the perpetrator and the victim
or the victim's family. The avengers discussed in various parts of the Bible are of this type: individuals or
family members seeking to exact private justice against a person they believed had wronged someone
close to them. The blood feuds so vividiy portrayed in Romeo and Juliet, in tales from the Ozarks, and in
the many stories of vendettas among Italian and Sicilian families derive from this desire for vengeance.
They are based upon the assumption that the injured party or his or her clan has the right to punish the
wrongdoer and to see that the harm done is exacted from the wrongdoer to a degree equal to or greater
than that which he or she inflicted upon the victim. The remedy sought is essentially a private one:
satisfaction of the desire of the injured parties to inflict evil upon the person or persons who harmed them
or their loved one.
The law has often sanctioned private revenge. Ancient Middle Eastern law codes such as the code of
Hammurabi contained provisions for the lex talionis (law of retaliation) and often employed language
similar to several passages in the Hebrew Bible: a life for a life, an eye for an eye, a tooth for a tooth, and
so on. The principal difference between those pre-biblical codes and the Bible itself is the fact that the
pre-biblical codes sanctioned literally gouging out the perpetrator's eye or amputating a limb in retaliation
for the loss of the eye or limb of the victim, while the biblical code appears instead to sanction some form
of financial compensation for the victim's loss. In any event, the focus was always upon satisfaction of the
victim of the crime or the tort. The law, as enforced by the king or his court, simply enabled the victim or
the victim's family to mete out the penalty without interference from the legal system or the officials who
administered it. The basic sense of the matter is very much like what we find in tort law, or the law of
damages. A person who has lost an eye or a limb, for example, due to the negligence of his or her
neighbor, is entitled to be paid for the loss at least to a degree equivalent to it. This is exceedingly difficult
to do, of course, as it seems impossible to place a monetary value on an eye or a leg. The fact is, however,
that judges and juries do exactly that every day of the week, assessing the value of eyes and legs and
arms, and even lives, as best they can and imposing upon negligent automobile drivers, physicians, and
manufacturers the duty to compensate their victims for losses sustained. In some cases, the court may add
to the value of the limb itself the wages the victim has lost because of the injury, the medical expenses
incurred, and the pain and humiliation he or she has suffered.
In contrast to such private or personal remedies, retribution is a concept that seems to have arisen with the
development of the modern state and its enforcement of public criminal law. The sense that once an
injustice has been done it must be corrected, made right, by a payment in kind by the wrongdoer was
carried out by the state as the aggrieved party rather than the individual victim or his or her surrogates.
The notion grew that the state itself was wronged by criminal behavior. Thus, cases came to be entitled R.
v. Smith, i.e., The King (Rex) against Smith. Once the United States was formed as a republic without a
king, criminal cases were entitled State v. Jones, The People v. Smith, or Nebraska v. Owens. Private
individuals were no longer entitled to punish the wrongdoer. Apprehension, trial, and punishment were all
to be conducted by organs of the state itself. To some degree, they served as surrogates for the aggrieved
parties. Note that the victims were no longer parties to the case. If they survived the damage the criminal
had done them, they might serve as witnesses at trial, or bring a complaint to the authorities. The state,
however, was considered to be the chief victim, for the perpetrators had broken its laws and shattered the
peace of the realm. Through their actions, perpetrators had also brought fear and insecurity to all of the
state's inhabitants and disturbed the equilibrium that prevails when members of a community live together
in harmony and in accordance with the law. It was therefore the state's duty to punish them if it could
satisfactorily establish that they were indeed at fault. Private vengeance, "taking the law into one's own
hands," was forbidden and could result in criminal prosecution.
By the same token, the immediate victims of a crime could not provide amnesty or any other form of legal
pardon to the criminals, for the injury was not theirs alone. The injury was inflicted upon the entire state
collectively, and in a sense, upon each of its inhabitants. Although the prosecutor and the jury might give
some consideration to pleas for mercy by the immediate victims, they were under no obligation to do so,
and were entitled to ignore such pleas altogether.
The State's Business
Well-intentioned people sometimes urge crime victims to forgive the criminals who have victimized
them. The immediate victims or their survivors may choose to act compassionately, if they wish, and they
may in turn ask the state's representatives to treat the perpetrators mercifully. But they have no right to
demand that the state do so, for it has its own agenda, its own priorities in dealing with criminals. And it
has no obligation to accede to the wishes of individuals who have been harmed by the persons being
prosecuted. The state's business is to protect its citizens from suffering preventable harm and exacting
punishment from those who inflict such harm through their unlawful conduct.
It is not enough, however, to distinguish revenge and retribution on the ground that one is private and the
other public. The drive for vengeance is a highly emotional determination to "get back at" the wrongdoer,
while retribution is a carefully calculated, reasoned, orderly process of exacting punishment for the crime
the perpetrator has committed. A vengeful father or brother may slaughter someone who is believed to
have violated a female member of the family, without affording the accused a hearing and without giving
due consideration to the appropriateness of the penalty relative to the injury allegedly sustained by the
victim or others. Retribution is based upon the same basic concept: exacting a kind of payment from the
wrongdoer for the crime committed. But the penalty for a given type of criminal behavior is considered
before the particular case occurs, and is enacted into legislation by the authorities based upon a careful
study of the law and after giving due consideration to the type of penalty appropriate for it. Thus, persons
close to the victim do not set the penalty in the heat of passion. Instead, it is prescribed in a legal
enactment after careful deliberation by the legislature, and is assessed by an impartial judge or jury only
after due consideration of all of the relevant facts surrounding the case and in accordance with the law.
The Principles of Retribution
The basic principles behind retribution are these:
1. The state has the right to punish the wrongdoer for the crime he or she has committed.
2. The penalty should be proportionate to the crime.
3. So far as possible, the penalties imposed upon various persons for similar crimes should be equal.
Although it is impossible to be very precise in assessing penalties, because moral factors that are
exceedingly difficult to quantify must be assessed, people generally have a sense of justice that enables
them to agree, at least in a fairly rough way, as to the general parameters of penalties that they deem
appropriate for various kinds of offenses.
There is general agreement, for example, that the proper penalty for overtime parking is a relatively small
fine. The amount of such fines may vary from city to city because the seriousness of the offense varies. In
the little village in which I live, the village council has determined that a ten-dollar fine is appropriate. In
New York City, on the other hand, an overtime parking ticket may result in a fine of sixty dollars or more.
Many factors enter into these calculations, including the relative difficulty of finding parking space in a
particular community, the price of real estate and off-street parking (for it would hardly do to impose a
fine so low that it is cheaper to pay the fine than to pay the fee of a parking lot or garage), and the
desirability of encouraging people to patronize local merchants without making it too onerous for them to
find suitable parking while they do so. On the other hand, everyone would surely agree that prison terms
often to twenty years would be utterly disproportionate to the seriousness of the offense of overtime
parking. Such prison terms would effectively discourage most overtime parkers and would get them off
the streets. They would be seen, however, as a despotic abuse of governmental power disproportionate to
our sense of justice.
Similarly, a fine of ten or twenty dollars for rape would be viewed as utterly inappropriate to the gravity
of the crime. Indeed, such a "penalty" would amount to a license to commit the crime; it would even be
less expensive than the going price of streetwalkers. Women would rightly feel outraged by a legislature
that valued their bodily integrity so little as to create open season for sexual predators willing to pay a
piddling fee. Because we feel that sexual violence causes such grievous injury and is so utterly despicable,
we unhesitatingly impose heavy penalties upon those who engage in it.
Notice that this has little or nothing to do with deterrence, though fines and prison terms generally tend to
deter such offenses, at least with most normal persons. If deterrence were our only object in setting
penalties, we would make them as heavy as possible in order to deter potential violators. But we don't do
that, because our sense of justice--our sense of proportionality--would be outraged by such a policy.
Retribution is based, then, upon the sense that particular crimes warrant the imposition of certain
penalties. Those that are more severe in the harm they inflict upon their victims and upon society deserve
harsher penalties than those that cause less damage or are perceived to be less morally iniquitous.
Due Process of Law
We have long taken it for granted that people are entitled to certain fundamental rights, enumerated in
various political and philosophical works and in the founding documents of the United States as life,
liberty, and property (or the pursuit of happiness). Possession of these rights implies a corresponding duty
by the government not to interfere with them. However, under appropriate circumstances the Constitution
(in the fifth and fourteenth amendments) recognizes that each of those fundamental rights may be
forfeited, and provides that no person may be deprived of life, liberty, or property without due process of
law. The obvious corollary of this provision is that with due process of law, a person may be deprived of
property (e.g., by imposing a fine), liberty (e.g., by imprisonment), or life.
Our sense of justice and proportionality in punishment is embodied in the penal laws enacted by our state
and federal legislatures, which have affixed varying degrees of penalties for the many varieties of harm
that people can inflict upon the state. These penalties range from the least severe fines for minor
violations to periods of incarceration for more serious crimes, and finally to the penalty of death for the
gravest of all. Although many crimes once earned the perpetrator the penalty of death, relatively few such
crimes remain on the books, at least in this country. Those few are among the most outrageous crimes
known: the deliberate, premeditated, wanton taking of innocent human life, terrorism, and others that
entail gross violations of human rights and the security of the state and its citizens.
No crime is comparable to murder, for we see no right as more precious than the right to live one's life to
the fullest. We find it impossible to imagine a greater evil than the deliberate extinction of a human life. A
person whose life has come to an end is deprived forever of any pleasure, any happiness, any contact with
other people, any of the joys that life may offer; all those who loved the murder victim are forever
deprived of the opportunity to express their love or to enjoy the companionship of their loved one; and the
community loses the opportunity to benefit from the contributions that the ability, the talent, and the
efforts of that person might have produced.
Just as our sense of proportionate justice is offended by the notion that a small fine would be an adequate
penalty for the crime of rape, we are or ought to be offended by the suggestion that anything less than the
death penalty is a suitable punishment for those who commit crimes as monstrous as those of Timothy
McVeigh and others like him. McVeigh did far more than outrage the citizens of Oklahoma City. He
destroyed close to two hundred human lives and all the potential that they might have enjoyed and
contributed. The damage he did is incomparable and irreparable, both to those who died in the explosion
he engineered and to those who loved them, as well as to the community whose laws he broke and whose
tranquility he shattered. Consequently when he detonated his bomb, he forfeited all of the rights he had
previously enjoyed, and the government that had nurtured and protected him was relieved of any duty it
might have had to preserve and defend him. No penalty that anyone can exact from him can possibly
begin to repair the damage he did. And it cannot satisfy or provide "closure" to the survivors of the
devastation he caused. They will live the rest of their lives without "closure," for they will always
remember and suffer from the losses that McVeigh inflicted upon them.
A Symbolic Statement
The execution of Timothy McVeigh is right and proper because it is the worst punishment our society can
impose upon him without turning to barbarism and cruelty. The death penalty is a symbolic statement by
our government that we have utter contempt for anyone who tramples upon our laws and violates the
rights of our people to such a degree, and that we will not abide such a person's living in our midst. It is a
declaration that any person who commits such a breach of our most fundamental norms is so unworthy as
to have no right to live. And it announces to the world that the law must be obeyed, that people must bend
their wills to obedience to the law, and that the state will use all measures necessary to see that they do.
The defense of human life is so central to the mission of every government that the state must be prepared
to take the lives of those who violate their most fundamental obligations--that is, in retribution for their
willful defiance of lawful authority as regards the preservation of human life and the maintenance of
peace and security in their community. No other penalty can be remotely proportionate to the penalty of
death for such crimes.
Footnotes
1. McVeigh was executed on May 16, 2001.
Source Citation: "Capital Punishment Grants Reasonable Retribution" by Burton M. Leiser. Capital
Punishment. Mary E. Williams, Ed. Current Controversies Series. Greenhaven Press, 2005. Burton M.
Leiser, "Capital Punishment and Retributive Justice," Free Inquiry, vol. 21, Summer 2001, p.40.
Copyright © 2001 by the Council for Democratic and Secular Humanism, Inc. Reproduced by permission
of author.
Opposing Viewpoints Resource Center. Thomson Gale. 19 May 2006
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Capital Punishment Deserves Cautious
Support by James Nuechterlein
James Nuechterlein is the editor of First Things, a monthly journal published by the Institute on Religion
and Public Life.
You get to a certain age and you know--or ought to know--what you think about important issues. Openmindedness, when understood as a willingness to change one's mind if presented with new information or
deeper insight, is a considerable virtue. But open-mindedness understood as perpetual indecision, a
principled refusal to make up one's mind in the first place, is no virtue at all. It is evidence rather of
intellectual and moral slack.
I have never had much trouble deciding what I think about things, or in being willing to share with others
the views I hold. (Ask my wife and children.) But sometimes I waffle--and on no question more than
capital punishment. I have come, after a lifetime of wrestling with the issue, to favor the death penalty.
But I do so with unwonted uncertainty and uneasiness. The execution of Karla Faye Tucker in a Texas
prison on February 3, 1998, brought out all my ambivalence.
Mixed Feelings Toward Capital Punishment
There was a time when I felt no ambivalence on capital punishment at all. I was firmly opposed. As
editor of my college newspaper, I wrote an impassioned editorial condemning the execution of Caryl
Chessman, a multiple murderer whose case roused national attention before his death in the San Quentin
gas chamber in the spring of 1960. The death penalty, I argued, was a barbarism that no civilized society
can countenance. Christians in particular, I added, should oppose capital punishment as a refusal to
recognize life as God's sacred gift.
It was only over a long period of time that I came to change my mind. To be sure, many of the arguments
against the death penalty have never impressed me. The suggestion, for example, that it is
unconstitutional, a violation of the Eighth Amendment's prohibition of "cruel and unusual punishments,"
collapses in light of the fact that capital punishment is explicitly provided for elsewhere in the
Constitution. Justice William Brennan's argument that "evolving moral standards" have changed the death
penalty's constitutional standing was as blatant an expression of judicial imperialism as one could
imagine: given the overwhelming approval of capital punishment by the American people and their
elected representatives, Brennan could only mean that the robed guardians of the Court are sovereign
arbiters not just of the constitutional text but of the moral principles that inform it. Acting in that
sovereign capacity, they need be inhibited neither by the plain meaning of the text nor by the expressed
will of the American people.
Other, more direct, arguments against the death penalty seem little more persuasive than the constitutional
one. I have never quite understood, for instance, what people mean when they condemn capital
punishment as an act of "vengeance." My dictionary defines "vengeance" as "punishment inflicted in
retaliation for an injury or offense." In that sense, any form of punitive action against crime constitutes
vengeance. Those who uphold the death penalty see it as an act of justice, not of revenge ("an act or
instance of retaliating in order to get even").
There is among experts a good deal of debate as to whether the death penalty acts as a deterrent to
prospective murderers. My dabbling in the technical literature leads me to the conclusion that the issue is
unresolved (and perhaps, given the number and complexity of the variables involved, unresolvable). But
even if it could be conclusively demonstrated that capital punishment has no deterrent effect, that would
not clinch the case against it. Protection of society is one potential argument for executing murderers, but
it is hardly the only, or even necessarily the decisive, one. Again, for most defenders of capital
punishment, the primary issue is justice.
Some Christians, in the Catholic Church especially, have argued against the death penalty as part of a
"consistent ethic of life." They include capital punishment in a package with such other issues as
abortion and war. But that, it seems to me, muddies the moral waters. Christians should unequivocally
oppose abortion because it takes innocent life. The difference with the death penalty, on this point at least,
hardly requires argument. As to issues of war and peace, there is a venerable but by no means monolithic
Christian tradition of pacifism. Most Christians--myself among them--think a more fruitful approach to
the legitimacy of military action is to be found under the rubric of "just war." (Even most pacifists
concede that World War II is a hard case for their position.) In any case, it would seem difficult to argue
that opposition to war is morally of a piece, either in the Christian tradition or in Christian ethical
analysis, with opposition to the death penalty.
But that is not to say there is no good case, Christian or otherwise, to be made against capital
punishment. Moral philosophers have suggested that one test of the validity of the ethical positions we
establish is their compatibility with our considered moral intuitions. For a great many people today, there
are few if any such intuitions more compelling than the presumption, in all relevant situations, against the
taking of life. (Thus the appeal to a "consistent ethic of life.") It is precisely that presumption that lies
behind the argument I made as an undergraduate that the death penalty is inherently uncivilized, a moral
atavism that diminishes respect for life and coarsens our moral sensibilities. Witness, in support of that
argument, the unlovely spectacle of the drunken, cheering crowds that regularly materialize as an
execution draws near. (Most defenders of the death penalty, of course, are as appalled by such spectacles
as are those who oppose it.)
The dilemma for people like me is that in capital punishment we are confronted with competing moral
intuitions. We acknowledge the presumption against the taking of life, but we also are possessed of a deep
conviction that in certain circumstances the requirements of justice are most adequately met by imposition
of the death sentence. Those who coldly and brutally take innocent life, we argue, may justly have their
own lives taken in return. In so acting, society not only expresses its moral abhorrence of certain heinous
crimes but also--paradoxically, but not, we think, contradictorily--indicates its reverence for innocent life.
It may well be that the case of Karla Faye Tucker confuses rather than clarifies the general argument
about capital punishment. Hers was a special set of circumstances, which is why it attracted so much
attention and brought to her side a number of people who normally favor the death penalty. I confess that,
quite reflexively, I hoped her sentence would be commuted--although I'm not sure I could construct a
rationally persuasive argument as to why, given the brutal double murder she participated in, hers should
have been a case for leniency.
Perhaps it was simply that, in the almost fourteen years between her conviction and her execution, she had
so transformed herself. Unlike most inhabitants of death row, she was attractive, winsome, and not given
to self-pity or self-justification. She had undergone a manifestly genuine conversion to Christianity, and
she faced the possibility of death with admirable courage and affecting faith. (Skeptics stressed the fact
that she was white, but I saw no evidence that racial feelings played a significant role in garnering support
for her.) None of that, of course, changed the fact of what she had done, and perhaps those who refused to
lift her sentence were concerned most of all with the precedent they would thereby set. Hard cases, as they
say, make bad law.
Still, my uncertainty about her execution remains, and though it does not change my mind on the death
penalty in general, it reminds me that none of us who hold that position should ever feel entirely at ease
with it or forget for a moment that we might be quite terribly wrong. And if we are wrong, the judgment
for error on this life or death issue will weigh on us more severely than it will on those who, if it turns out
that way, erred in the gentler direction.
Source Citation: "Capital Punishment Deserves Cautious Support" by James Nuechterlein. Capital
Punishment. Mary E. Williams, Ed. Current Controversies Series. Greenhaven Press, 2000. Reprinted,
with permission, from "An Unwonted Uncertainty," by James Nuechterlein, First Things, April 1998.
Opposing Viewpoints Resource Center. Thomson Gale. 19 May 2006
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Arguments Against the Death Penalty Are Flawed
Thomas R. Eddlem
Thomas R. Eddlem is the editor of the Hanson Express in Massachusetts. He is a frequent contributor to
New American and Point South magazines.
Summary: Death penalty abolitionists make misleading arguments by using false logic and emotional
appeals. Arguments against capital punishment, ranging from the need to grant mercy to the guilty to the
dangers of executing the innocent can be systematically refuted point for point. Supporters of capital
punishment thus have strong evidence for their position.
Renewed attacks on the death penalty are likely as the trial of accused Twin Tower bombing accomplice
Zacharias Moussaoui proceeds. Federal officials have charged Moussaoui with six crimes, four of which
carry a potential death sentence. Amnesty International has already issued an "urgent action alert" to call
on the world to condemn this "outdated punishment" in the United States. Therefore, there is no time like
the present to review some of the misinformation and faulty reasoning of capital punishment opponents.
Fallacy #1: Racism
"The death penalty is racist.... The federal death penalty is used disproportionately against minorities,
especially African Americans.... According to [Justice Department] figures, nearly 80% of inmates on
federal death row are Black, Hispanic, or from another minority group." (Campaign to End the Death
Penalty)
"The imposition of the death penalty is racially biased: Nearly 90% of persons executed were convicted of
killing whites, although people of color make up over half of all homicide victims in the United States."
(National Coalition to Abolish the Death Penalty)
"Death row in the U.S. has always held a disproportionately large population of people of color relative
to the general population." (ACLU Briefing Paper on the Death Penalty)
Correction: The claim that the death penalty unfairly impacts blacks and minorities is a deliberate fraud.
The majority of those executed since 1976 have been white, even though black criminals commit a slim
majority of murders, if the death penalty is racist, it is biased against white murderers and not blacks.
According to the U.S. Bureau of Justice Statistics, blacks committed 51.5% of murders between 1976 and
1999, while whites committed 46.5%. Yet even though blacks committed a majority of murders, the
Bureau of Justice Statistics reports: "Since the death penalty was reinstated by the Supreme Court in 1976,
white inmates have made up the majority of those under sentence of death." (Emphasis added.) Whites
continued to comprise the majority on death row in the year 2000 (1,990 whites to 1,535 blacks and 68
others). In the year 2000, 49 of the 85 people actually put to death were whites.
So how can abolitionists claim that the death penalty unfairly punishes black people and other minorities?
The statistics they cite are often technically accurate (though not always), but they don't mean what most
people assume they mean. Abolitionists often start by analyzing the race of the victims rather than the
murderers. Because most murders are intra-racial (white murderers mostly kill other whites and most
black murderers kill other blacks), imposing the death penalty more frequently on white murderers means
that killers of white people will more likely be executed. In essence, abolitionists playing the race card
argue that black murder victims are not receiving justice because only the murderers of white people are
punished with the death penalty. Death penalty proponents may consider this denying justice to black
people.
New "hate crimes" laws are likely to worsen the hypocrisy. A "hate crimes" mentality translates into
tougher sentences for interracial "hate crimes." Because white people are killed by black people 2.6 times
more frequently than black people are killed by white people, more killers of white people will be
susceptible to receiving the death penalty than killers of black people.
Fallacy #2: Cost
"It costs more to execute a person than to keep him or her in prison for life. A 1993 California study
argues that each death penalty case costs at least $1.25 million more than a regular murder case and a
sentence of life without the possibility of parole." (deathpenalty.org)
Correction: While these figures are dubious at best, this argument deserves no response. Justice isn't up
for sale to the lowest bidder.
Fallacy #3: Innocence
"A review of death penalty judgments over a 23-year period found a national error rate of 68%." (ACLU
Death Penalty Campaign statement)
"Serious error--error substantially undermining the reliability of capital verdicts--has reached epidemic
proportions throughout our death penalty system. More than two out of every three capital judgments
reviewed by the courts during the 23-year study period were found to be seriously flawed." ("Broken
System: Error Rates in Capital Cases, 1973-1995" by James Liebman et al.)
Correction: The major media reported this highly publicized Columbia University study uncritically when
it was first released in 2000. But Reg Brown from the Florida governor's office exploded it: "The 'study'
defines 'error' to include any issue requiring further review by a lower court.... Using the authors'
misleading definition, the 'study' does, however, conclude that 64 Florida post-conviction cases were rife
with 'error'--even though none of these Florida cases was ultimately resolved by a 'not guilty' verdict, a
pardon or a dismissal of murder charges."
Brown noted that even political overturning of death penalty cases added to the figure. "The nearly 40
death penalty convictions that were reversed by the California Supreme Court during the tenure of liberal
activist Rose Bird are treated as 'error cases' when in fact ideological bias was arguably at work." Paul G.
Cassell of the Wall Street Journal explained how the 68% figure is deceptive: "After reviewing 23 years
of capital sentences, the study's authors (like other researchers) were unable to find a single case in which
an innocent person was executed. Thus, the most important error rate--the rate of mistaken executions--is
zero."
Fallacy #4: DNA evidence
"Since the U.S. Supreme Court ruled in 1976 that capital punishment is not 'cruel and unusual,' 618
prisoners have been executed across the nation and about 80 have been exonerated.... Those disturbing
odds beg the question: If the chances of executing an innocent person are so high, should we have capital
punishment?" (ABCNews.com, March 6, 2000)
Correction: While most of those released from death row have been released for political purposes or for
technical reasons unrelated to guilt, it is true that a small number have been released because DNA
evidence has proven innocence.
But even though ABC may not agree, its news story reinforces why the release of those on death row
argues for, not against, the death penalty: "Widespread use of DNA testing and established standards for
defense lawyers will virtually eliminate the argument that the death penalty cannot be fairly applied." If
DNA evidence can really prove innocence, it can prove guilt as well and society can be all the more
certain that criminals sentenced to death will be guilty. The system as a whole is already working well.
Since reinstituting the death penalty in 1976, not one person executed in the United States has been later
proven innocent as a result of DNA evidence.
Fallacy #5: "Cruel and unusual"
"The death penalty: Always cruel, always inhuman, always degrading ... there can be no masking the
inherent cruelty of the death penalty." (Amnesty International)
"Capital punishment, the ultimate denial of civil liberties, is a costly, irreversible and barbaric practice,
the epitome of cruel and unusual punishment." (ACLU Briefing Paper on the Death Penalty)
Correction: The death penalty is not unusual. All of the nations of the world have had the death penalty on
the lawbooks throughout most of their recorded history, and the death penalty remains on the statute
books of about half of the nations of the world. The death penalty was on the statute books of all the states
of the U.S. when the Constitution was adopted. It is far more unusual to have no death penalty than to
have a death penalty.
More importantly, the Founding Fathers who adopted the Bill of Rights banning "cruel and unusual
punishment" had no problem with implementing the death penalty.
Fallacy #6: Pro-life consistency
"We see the death penalty as perpetuating a cycle of violence and promoting a sense of vengeance in our
culture. As we said in Confronting a Culture of Violence: 'We cannot teach that killing is wrong by
killing.'" (U.S. Catholic Conference)
Correction: If capital punishment teaches that it's permissible to kill, do prison sentences teach that it's
permissible to hold someone against his will, and do fines teach that it's permissible to steal? In actuality,
this fallacy confuses killing the innocent with punishing the guilty. To punish the guilty via the death
penalty is not to condone the shedding of innocent blood. Just the opposite, in fact, since capital
punishment sends a strong message that murder and other capital crimes will not be tolerated.
A related fallacy is that the pro-lifer who defends the right to life of an unborn baby in the mother's
womb, but who does not defend the right to life of a convicted murderer on death row, is being morally
inconsistent. But there is no inconsistency here: The unborn baby is innocent; the convicted murderer is
not. It is the pro-abortion/anti-death penalty liberal who is morally inconsistent, since he supports putting
to death only the innocent.
Pro-lifers deceive themselves if they imagine abolishing the death penalty will lead to abolishing abortion
or a greater respect for life. To the contrary, nations with the death penalty generally restrict abortion
more than nations who have abolished the death penalty. Islamic nations and African nations have the
death penalty and also have the most prohibitive abortion laws. By contrast, European nations have
abolished the death penalty and have liberal abortion laws. Do pro-lifers really want to follow the
example of Europe?
Fallacy #7: The company we keep
"The USA is keeping company with notorious human rights abusers. The vast majority of countries in
Western Europe, North America and South America--more than 105 nations worldwide--have abandoned
capital punishment. The United States remains in the same company as Iraq, Iran, and China as one of
the major advocates and users of capital punishment." (deathpenalty.org)
Correction: The arbitrary use of capital punishment in totalitarian societies argues for ensuring that
government never abuses this power; it does not argue against the principle of capital punishment,
which, in a free society, is applied justly under the rule of law.
The reference to Europe is misleading. Capital punishment advocates are the ones keeping company
with common Europeans, while abolitionists are merely keeping company with their elitist governments.
Public opinion remains in favor of the death penalty for the most severe murderers throughout much of
Europe, but elitist European governments have eliminated using capital punishment.
Fallacy #8: No deterrence
"Capital punishment does not deter crime. Scientific studies have consistently failed to demonstrate that
executions deter people from committing crime." (Death Penalty Focus)
Correction: Death penalty opponents love to assume that the principal purpose for capital punishment is
deterrence, possibly realizing it is a perfect straw argument. Tangible proof of deterrence alone is not a
valid reason for capital punishment (or any other form of punishment, for that matter), nor is it the main
rationale employed by astute death penalty advocates. As Christian writer C.S. Lewis observes,
"[deterrence] in itself, would be a very wicked thing to do. On the classical theory of punishment it was of
course justified on the ground that the man deserved it. Why, in Heaven's name, am I to be sacrificed to
the good of society in this way?--unless, of course, I deserve it." Inflicting a penalty merely to deter-rather than to punish for deeds done--is the very definition of cruelty. A purely deterrent penalty is one
where a man is punished--not for something that he did--but for something someone else might do. Lewis
explained the logical end of this argument: "If deterrence is all that matters, the execution of an innocent
man, provided the public think him guilty, would be fully justified."
Men should be punished for their own crimes and not merely to deter others. That said, the death penalty
undoubtedly does deter in some cases. For starters, those executed will no longer be around to commit
any more crimes.
Fallacy #9: Christian forgiveness and vengeance
"The death penalty appears to oppose the spirit of the Gospel. In the Sermon on the Mount, Jesus urges us
to replace the old law of 'an eye for an eye, a tooth for a tooth' with an attitude of charity, even toward
those who would commit evil against us (Mw 5:38-48). When asked for his opinion in the case of the
woman convicted of adultery, a crime that carried the penalty of death, he immediately pardoned the
offender, while deploring the action, the sin (Jn 8). It is difficult for us to accommodate Jesus' injunction
to forgive and love, to reconcile and heal, with the practices of executing criminals." (Statement on
Capital Punishment by the Christian Council of Delaware and Maryland's Eastern Shore)
"In Leviticus, the Lord commanded 'You shall not take vengeance or bear any grudge against the sons of
your own people.' Here the Old Testament anticipated Jesus' teaching: 'You have heard it said, "an eye
for an eye and a tooth for a tooth." But I say to you, do not resist one who is evil. But if anyone strikes you
on the right cheek, turn to him the other one also.' Paul likewise proclaimed that vengeance is reserved
for God and that Christians should feed their enemies, overcoming evil with good (Rom 12:19-21)."
(Christianity Today 4-6-98)
Correction: Punishment--sometimes called retribution--is the main reason for imposing the death penalty.
The so-called "Christian" case against the death penalty can be summed up in one sentence: We cannot
punish wrongdoers because punishment is always a form of vengeance.
A careful reading of the Bible does not back up the idea that punishment is synonymous with vengeance.
The proportionate retribution required by the Old Testament generally replaced disproportionate
vengeance. The same Old Testament that ordered "an eye for an eye and a tooth for a tooth" also
prohibited vengeance. Evidently, the Hebrew scriptures view retribution and vengeance as two separate
things.
In the New Testament, Jesus denied trying to overturn the Old Testament law. "Do not imagine that I
have come to abolish the Law or the Prophets. I have come not to abolish them, but to complete them."
(Matthew 5:17) The apostle Paul told the Romans that revenge and retribution are different things
entirely. "Never try to get revenge: leave that, my dear friends, to the retribution. As Scripture says,
vengeance is mine--I will pay them back, the Lord promises." But then just a few verses later, Paul notes
that "if you do wrong, then you may well be afraid; because it is not for nothing that the symbol of
authority is the sword: it is there to serve God, too, as his avenger, to bring retribution to wrongdoers."
(Romans 13:4) "Authority" refers to the state, which is empowered to put evildoers to the "sword." Paul
asserts that the state's retribution of capital punishment is the retribution of God.
Clearly, the Christian Testament regards retribution by the state as not only different from vengeance, but
rather as opposites. Vengeance is always personal and it is only rarely proportional to the offense. The
Hebrew standard of justice for "an eye for an eye" replaced the hateful and very personal "head for an
eye" standard of vengeance. Retribution is impersonal punishment by the state. And impersonal
punishment is far more likely to be proportionate to the crime meaning that it comes closer to the standard
of "eye for an eye."
By forgiving the adulterous woman, Jesus was not making a statement against the death penalty. Jesus'
enemies thought they had put Christ into a no-win situation by presenting the adulterous woman to him. If
Christ ordered the woman's release, they could discredit Him for opposing the Law of Moses. But if He
ordered her put to death, then Christ could be handed over to the Roman authorities for the crime of
orchestrating a murder. Either way, His opponents figured, they had Him. Christ, of course, knew the
hypocritical aims of His enemies had nothing to do with justice. The absence of the man who had
committed adultery with the woman "caught in the very act" must have been glaring. His rebuke to "let he
who is without sin cast the first stone" was the perfect reply; it highlighted the hypocrisy. Christ's
response was in no way a commentary about the death penalty.
Fallacy #10: No mercy
"Capital punishment is society's final assertion that it will not forgive." (Martin Luther King)
"It is a hell of a thing, killing a man. You take away all he's got, and all he's ever gonna have." (Clint
Eastwood's character in the movie Unforgiven)
Correction: The person opposing the death penalty on these principles opposes it from worldly reasoning
rather than spiritual reasoning. The above statement by Clint Eastwood's character in the movie
Unforgiven typifies this surprisingly common "religious" objection to capital punishment. The
underlying assumption is that this world and this life is all that exists. It suggests that only a hateful and
vengeful person would seek to take everything from anyone.
But it is not true that most supporters of capital punishment seek to take everything from the murderers.
Thomas Aquinas noted in his Summa Theologica that "if a man be dangerous and infectious to the
community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to
safeguard the common good." The death penalty for murderers, the Catholic Church's most famous
theologian argued, was a form of retributive punishment. He explained that this "punishment may be
considered as a medicine, not only healing the past sin, but also preserving from future sin." Though life
may be taken from a murderer, he will be better off with the punishment because "spiritual goods are of
the greatest consequence, while temporal goods are least important."
Unfortunately, it doesn't seem to dawn on proponents employing this faulty reasoning that perhaps a just
punishment in this world would best prepare a criminal for the next.
Source Citation: "Arguments Against the Death Penalty Are Flawed" by Thomas R. Eddlem. The Ethics
of Capital Punishment. Nick Fisanick, Ed. At Issue Series. Greenhaven Press, 2004. Thomas R. Eddlem,
"Ten Anti-Death Penalty Fallacies," The New American, vol. 18, June 3, 2002. Copyright © 2002 by
American Opinion Publishing Inc. Reproduced by permission.
Opposing Viewpoints Resource Center. Thomson Gale. 19 May 2006
http://galenet.galegroup.com/servlet/OVRC
Arguments for the Use of Capital Punishment
as a Deterrent Are Flawed
Ernest Partridge
Ernest Partridge is a research associate in the Philosophy Department at the University of California,
Riverside, and publishes the website "The Online Gadfly."
Supporters of capital punishment assert that capital punishment deters murder on the
assumption that people's behavior can be influenced. Simultaneously, advocates also
contend that convicted murderers deserve the death penalty on the assumption that human
nature cannot be changed and thus criminals cannot be rehabilitated. Because these
arguments rest on contradicting assumptions about human behavior, the use of capital
punishment to deter crime is problematic. In order for the penal system to work
effectively, a third alternative to these contradictory theories must be recognized. People
must be viewed as being significantly influenced by external factors, such as poverty and
abuse, which can result in criminal behavior. Moreover, according to the same theory,
criminals can be taught moral responsibility so that they can attain their freedom.
On Friday, March 9, 2001, Lionel Tate, a Black fourteen-year-old Florida boy, was sentenced to life in
prison without parole--for a crime he committed when he was twelve. This life sentence rests upon the
assumption that, at twelve, Lionel Tate was fully responsible for the killing of Tiffany Eunick, age six. In
addition, the sentence appears to presume that at no time in the long life remaining to him can this child
be rehabilitated. He freely chose to do what he did, we are told, and now "He must pay for it."
The same defenders of the criminal justice status quo assure us that sentences such as these deter similar
crimes. This opinion is shared by defenders of capital punishment. While insisting that the death penalty
deters murder, they would have us believe at the same time that convicted killers are beyond redemption-that all attempts to rehabilitate them will fail.
Few proponents of this theory of justice seem to be aware that it rests upon two fundamentally
contradictory views of human nature: it is both deterministic (in holding that punishment can cause others
to be deterred from crime) and indeterministic (in proclaiming that incarceration cannot cause the culprit
to be rehabilitated). This incoherent view of human nature reflects a larger inconsistency that is
manifested in the extant politics and corporate practices of our day. One face of this contradiction, which
we will call "the operative theory," is presupposed in marketing strategies and political campaigns. The
other face, "the public theory," is encountered in political rhetoric and corporate public relations
campaigns.
The operative theory
By this account, human motives can be identified, mapped, and measured, and, when applied to a
marketing or a political campaign, this knowledge can be put to effective use. (Lately, the strategies and
tactics of advertisers and politicians have become virtually identical, as the same "experts" manage both
marketing and political campaigns). If public tastes and opinions do not incline toward the company's
product or the party's candidate, then these tastes can be "manufactured" to order.
Evidence? Consider annual expenditures for advertising--more than $30 billion just for television ads.
Business enterprises will not casually throw that kind of cash at the television industry without a firm and
proven expectation that such investments will produce the intended results, namely sales. As [journalist]
Vance Packard pointed out a generation ago, and [interviewer] Bill Moyers a decade ago, all the
accumulated skills and knowledge of behavioral science are put to use to the task of utilizing, and
perchance creating, public motives and tastes to profitable ends. No laboratory of applied psychology is
more lavishly funded than that of the market researcher. From Dr. Ernest Dichter's application of Freudian
"depth psychology" in the 1930s to GOP pollster Frank Luntz's "focus group" microanalyses in the 2000
presidential campaign, "the consumer and citizen mind" is examined, cross-examined, and meticulously
inventoried, and this information is then applied to the greater benefit of the candidate or the bottom line.
In the jargon of philosophy, the operative theory of marketing and politics is deterministic: that is, it holds
that human behavior ("output") is the result of prior experiences ("input"), and that if the inputs are
carefully designed and skillfully manipulated, then public motives, tastes, and behavior can be "usefully
directed" and even manufactured. Of course, public relations is not an exact science; however, it is a
highly empirical and experimental science. Numerous strategies and devices are tried until the public "hot
button" is located, whereupon it is "pushed" as long as it "works out." ("Let's run it up the flagpole and
see if anyone salutes.") But while there is much trial and error in marketing and political strategies,
implicit throughout is the assumption that public behavior is the result of external causes. What then
remains is the task of finding and applying the most "efficacious" causes.
The public theory
Corporate spokesmen and their political fellow-travelers (the so-called conservatives) have prepared a
contrary theory for public consumption. According to this account, each human personality appears ex
nihilo, independent, autonomous, and undetermined. Being "unformed" by outside causes, each individual
is fully and completely responsible for his or her behavior. "But why does poverty correlate with crime?"
No explanation is offered or even felt to be necessary. To cite a typical example, when a conservative
lawyer was recently asked on a television talk show why the Columbine High School killers did what they
did, her reply was, "Those boys were just evil, that's all." Why they were "evil" was regarded as a
pointless question.
Behavior isn't "caused," this theory asserts, it is simply freely "chosen," and that is all there is to it. "Don't
ask me, or 'society,' or (heaven forbid!) the government to do anything about it. It's just not my concern."
Clearly, according to this public theory, the only appropriate response to those who commit crimes is
"lock 'em up." If the culprits are given less than a life sentence, then we can only hope for the best when
they are released. No point in attempting rehabilitation or teaching a useful skill to prepare them for life
after release.
As with behavior, so too with public taste and preferences. Tobacco companies tell us that "We are only
giving the public what it wants." Likewise, from the media we hear, "Don't complain to us about the sex,
violence, and vulgarity in the movies, on television, or in rock lyrics. We're only giving the public what it
wants." Those "wants," we are told, which free enterprising entrepreneurs are so generously satisfying,
also appear ex nihilo--uncaused and freely chosen by each consumer-citizen. "What the public wants" is
thus unexplained and unexplainable, and thus out of reach of "cultivation." It follows that there is no need
to squander tax money on art and music education, or on noncommercial public broadcasting.
According to the public theory, marketing has no side effects or unintended consequences. Sex-saturated
ads and media are totally disconnected from the incidence of teen pregnancy and single-parent families.
"Just do it!" say the ads. "Just say no!" reply the Christian conservatives. But if the teens "do it" anyway,
don't blame the promoters. The kids are "just sinful." A child's encounter with tens of thousands of
depictions of violent murders on television, we are expected to believe, has nothing to do with whatever
violent behavior he or she might exhibit. "Guns (and the gun culture) don't kill people, (autonomous)
people kill people."
In sum, the public theory insists that "private enterprise" bears no responsibility whatever for social
problems. "The social responsibility of business," [political commentator] Milton Friedman once wrote,
"is to increase its profits." All social problems, according to this theory, issue from the uncaused and
freely chosen behavior of "simply evil" individuals.
The contradiction
It is abundantly clear that these two "theories" are radically contradictory. If business executives
genuinely believed the nondeterminist theory that they present to the public, they would not invest a thin
dime in their advertising campaigns. On the other hand, if they were to extend the determinist operative
theory beyond their corporate conduct, they would be burdened with a responsibility for the harmful "side
effects" of their marketing schemes--effects upon public health, taste, and morality. Instead, they move
back and forth between these contradictory determinist and indeterminist theories, as the requirements of
public relations and the bottom line demand--all with the ease with which one sheds one's raincoat and
puts on one's sunglasses as the weather changes.
In the same way, when conservatives claim (contra the evidence) that capital punishment deters murder,
they are determinist. But when they refuse to attempt to rehabilitate incarcerated prisoners, preferring
"retribution" and "punishment," they are indeterminists again. According to this latter view, because
convicted murderers are "beyond redemption," the only suitable response to their crimes is to "do away
with them."
There is a third alternative to these contradictory theories--what philosophers call "compatibilism." By
this account, human beings are significantly influenced by the circumstances of their birth and upbringing,
and thus criminals are more likely to emerge from conditions of poverty and abuse. However, unless
severely traumatized by such misfortunes, most individuals can be educated to a condition of moral
responsibility--informed as to the consequences of their acts, recognizing the humanity and dignity of
others, and capable of acting according to moral principles--whereupon each attains the freedom to
conduct his or her own life.
This is the humane theory and practice of penology found in most enlightened nations. Sadly, the United
States of America has yet to achieve this stage of civilization.
Source Citation: "Arguments for the Use of Capital Punishment as a Deterrent Are Flawed" by Ernest
Partridge. Does Capital Punishment Deter Crime? Roman Espejo, Ed. At Issue Series. Greenhaven Press,
2003. From "The Two Faces of Justice," by Ernest Partridge, Free Inquiry, Summer 2001. Copyright ©
2001 by the Council for Secular Humanism. Reprinted with permission.
Opposing Viewpoints Resource Center. Thomson Gale. 19 May 2006
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