The death penalty is the punishment of a law breaker by death. The sentencing by a court of law to a death penalty or what is commonly referred to as the capital punishment is called the death sentence. The crimes leading to sentencing to death are called capital punishments or the capital offenses. The word ‘capital’ came from a Latin word ‘capitalis’ that referred to the beheading of an individual (Bakken, 17). The death penalty has been practiced by a large number of societies in different societies globally as a punishment for given crimes or religious and political rebels. Historically, the carrying out of the death sentence was often accompanied by torture before the execution. The execution was public in most cases with the public cheering along. Some regions used the guillotine, others used hanging, and later some countries like the United States gave the options of an electric chair and lethal injections. The death penalty has over time been faced with sharp criticism and the question of its legality as at times it led to the infringement of fundamental human rights of individuals. Some regions of the world also have the capital punishment for minor crimes that may seem unnecessary for such measures. There are others that have carried out the capital punishments even on individuals that below the age of 18 years. The research below covers the etiology and the arguments for and against the death penalty that has faced heavy contention over its legality over time. However, the death sentence is no justice at all and is a violation of the basic human right to life of the victim as provided for in the Constitution and, therefore, ought to be abolished.
Abolishing the death penalty is a universally accepted issue with the majority of countries abolishing or controlling it over the recent past. Globally, just over 36 countries actively practice the capital punishment to date. However, 103 other countries have completely abolished it for all crimes, and about six states abolished it for simple offenses maintaining it crimes such as the war crimes. Fifty other countries have abolished the crimes de facto in that they have not used it in the past ten years. In the United States alone, there are 31 states with the death penalty while 19 other states have abolished the capital punishment. Since its reinstatement in 1976, 36 states have engaged in executions.
Historically, the death sentence has faced abject opposition and support from some individuals. However, the historical accounts indicate the inhumane nature of the sentence and the possible loopholes for wastage of human life based on trivial matters if the law allows for the penalty. Some leaders to control the people as indicated in the history of the death penalty below also used it. Hence, emphasizing the need to abolish the death penalty since what happened in history may happen or may be happening to date in the contemporary society. Moreover, the brutality of the sentence is against the laws prohibiting torture of anyone including the capital offenders.
History of the death penalty
The first instituted laws of the capital punishment dated back in the 18th Century B.C in the code of King Hammurabi of Babylon. Twenty-five crimes codified the capital punishment. It was a crucial part of the 14th Century B.C’s Hittite Code, the 7th Century B.C Draconian Code of Athens that made the capital punishment as the only punishment for all crimes and the 15th Century B.C Roman law of the 12 Tablets. The death sentences were carried out by burning alive, beating someone to death, impalement, crucifixion, and drowning an individual. In the 10th Century, hanging became the usual method of execution in Britain (Bakken, 20). However, later William the Conqueror strongly opposed the execution of individuals and reserved it for times of war alone. However, the trend lasted for a short time since with the reign of Henry VIII there were over 72, 000 people executed. At the time of Henry VIII, the methods he used for execution were even more brutal since he used boiling, burning at the stake, beheading, hanging, and drawing and quartering. The death sentences were given to individuals that committed crimes such as marrying a Jew, treason and failing to confess to a crime committed. Over 222 crimes in Britain were punishable with death including minor crimes such as stealing and cutting down a tree. However, due to the extent of the crime, many juries began pushing for reform leaving it for the major offenses (Bakken, 22). It marked the early opposition to the capital punishment.
The death penalty in America was because of the influence of Britain and not the making of the country, which indicates that the practice is a colonial consequence, and not founded on American values. The colonial practice began when the European settlers invaded America; they brought the practice of the Capital punishment. The first record of the death penalty in the United States territory was of Captain George Kendall in Virginia, in the colony of Jamestown in 1608. He was executed as soon as he was found guilty for being a Spain’s spy (Stuart, 52). In 1612, the governor of Virginia Sir Thomas Dale enacted the law that instituted the death penalty for offenses that were minor such as stealing grapes, trading with Indians and killing chickens. The legislation on the death penalty, however, varied from colony to colony. Massachusetts Bay Colony carried out the first execution in 1630 although the capital Laws were instituted until several years later. New York Colony established the Duke’s Laws of 1665 that allowed for the death sentence for offenses such as striking a parent or denying the true God (Stuart, 54).
The fight for the abolition of capital punishment began as early as the Colonial period. The abolitionists of the death penalty found their support from the writings of Montesquieu, Voltaire, and Bentham among other writers from Britain as well. An essay from Cesare Beccaria's in 1767 is what brought massive inspiration for the abolitionist movement of the capital punishment around the world. In the essay, Beccaria asserted that there was no good reason to take the life of an individual in a legal way. The piece gave those that actively opposed the death penalty an active voice and inspired them further (Hartnett, 120). One of the notable results of the uproar that came about was the abolition of the death penalty in Austria and Tuscany. The works of Beccaria also influenced the American intellectuals. Thomas Jefferson’s introduction of a bill to revise the Virginia death penalty marked the first extraordinary step against the death sentence in the United States. According to the draft law he presented, capital punishment should be for crimes such as murder and treason alone. However, it failed during the voting, losing by just a single vote (Stuart, 89).
The death penalty is inefficient, and there are indications that it increases criminal conduct and hence leads to loss of human life without meeting its objective of deterrence due to the horrifying thought of dying if caught breaking certain laws. Dr. Benjamin Rush Declaration of Independence and the founder of the Pennsylvania Prison Society opposed the premise that the death penalty was a deterrence to committing a crime. According to him, death penalty increased the criminal conduct of individuals. He was one of the earliest believers of what came to be called the ‘brutalization effect’ (Hartnett, 120). With time, he gained the support of Benjamin Franklin and an Attorney General of Philadelphia known as William Bradford, who later became the United States attorney general. Bradford asserted that the death penalty ought to be retained but agreed with Rush that it was not a deterrent to certain crimes. He led Pennsylvania to become the first State that considered the degree of murder based on culpability. By the year 1794, Pennsylvania repealed the capital punishment for all the offenses apart from first-degree murder (Hartnett, 132).
The penitentiaries that American taxpayers pay so much to maintain were started as a replacement for the death penalty. In fact, within the prisons there are sections such as solitary confinement that is more of a deterring punishment than having someone on the death row. In the early part of the 19th Century, many states joined Pennsylvania in reducing the number of crimes that warranted the death sentence and started building penitentiaries. Pennsylvania was the first state to move the execution away from the public eye and began doing them in the correctional facilities in 1834, In 1846, Michigan abolished the death penalty for all crimes part from treason.
American states led by Rhode Island and the Wisconsin States became the first states to abolish the death penalty entirely later in the 19th Century (Death Penalty Information Center). The American bold lawmakers took a bold step that inspired other regions in the world to abolish the death penalty. Countries like Venezuela, Portugal, Brazil, Costa Rica, Ecuador, and Netherlands followed suit by abolishing capital punishment by the end of the 19th Century. Therefore, the United States having led the world in abolishing the inhumane punishment should act as a model state by abolishing it entirely especially now that it is a major leader on the global front.
The death sentence also has some slavery connotation of which slavery was abolished in the USA. The laws were strictly used to retain the firm on slaves during the slavery era. However, it faced public opposition and in 1838 to appeal to the public, some of the states passed laws against mandatory death sentences but instead instituted some discretionary death penalty statutes leaving exceptions of some crimes in a few jurisdictions. By 1963, all the States in the US had abolished mandatory capital punishment and instituted discretionary statutes. The Civil war shifted the focus of the American public to the antislavery movement, and it is this that gave the window for the advancement of the death penalty. At the end of the war, several developments had emerged. For example, the electric chair was introduced as a method of execution in New York in 1888 and was used in 1890 to execute William Kemmler and soon other states adopted the electric chair (Death Penalty Information Center).
The death penalty was also a used as the tool for advancing political and economic ideologies as indicated during the First World War. Its biases in respect for human life contradicts the freedoms and rights of the people and hence should not be present in the advanced society in the modern society. Between 1907 and 1917, there were six states that had completely outlawed the death sentence, and three others had limited it to the rare crimes of treason and first-degree murder of a law enforcement officer. However, the reform faced a challenge following the entry of the United States into the First World War and the frenzy of the American public that resulted from the panic caused by the threat of revolution. It was in the wake of the Russian Revolution, and there was an intense class conflict as the socialists mounted a serious challenge for the capitalist system (Death Penalty Information Center). It led to the reinstatement of the death penalty by five states of the six that had abolished it. In 1924, attempts to make the execution more humane resulted in the use of cyanide gas by Nevada. Gee, Jon was the first victim executed using lethal gas. Because of writings by criminologists in support of the death sentence arguing that it was a necessary social measure led to an insurgency of the use of death penalty between the 1920s and the 1940s. Most Americans were suffering from Prohibition and the Great Depression, and it resulted in more executions in the 1930s surpassing any other decade in American history with n average of 167 executions being carried out per year (Death Penalty Information Center). By the 1950s, the death penalty began losing its popularity and many allied nations either abolished or limited the use of the death sentence. The number of execution in the United States also reduced dramatically, and even more people began opposing its use. A Gallup poll indicated that by 1966 the support of the death penalty was at 42% that was marginally low (Bohm, 1999).
Constitutionality of the death penalty
Constitutionally, the death penalty is subject to a series of debate and uncertainty and, therefore, lacks the full backing of the law to term it as constitutional or otherwise. Its irreversibility makes it unethical since the law may sway on its abolishment, but then those that suffered its brutality can never be redeemed. Before 1960, the Fifth, Eighth, and Fourteenth Amendments were interpreted as allowing the death penalty. However, there were altering developments that termed the death sentence as crude and non-permissible by the Eighth Amendment. In 1958, in a case of Trop v. Dulles (356 U.S. 86) case by the Supreme Court, the Court stated that the Eighth Amendment contained a standard that allowed it to evolve indecency in line with the maturing of the society. In as much as the case was not a death penalty case, it offered a legal backing to the abolitionists who used the court’s logic to argue that the US as a nation had progressed indecency beyond the point of tolerating such acts as the death penalty (Bohm, 157). In the 1960s, the Supreme Court also began indulging more in the issue of death penalty. In a case of S. v. Jackson (390 U.S. 570) in 1968, the court heard a case of a statute that required that the death sentence could only be imposed on the recommendation of a Jury. According to the court, such a statute was unconstitutional since it encouraged the defendants to waive their fundamental right to a jury to avoid the death sentence at all costs (Bedau, 120).
It is an arbitrary law and hence needs to be abolished. In a landmark case of landmark case Furman v. Georgia (408 U.S. 238), the arbitrariness issue of the death penalty was presented before the Supreme Court in 1972. Furman argued that the capital cases led to the arbitrary and erratic sentencing of individuals. The Furman case brought the challenge under the Eighth Amendment. Then decision of the Court set the standard that a punishment would be “cruel and unusual” as a result of its severity as compared to the crime committed, if it was found to be arbitrary, offended the sense of justice of the society or if it was more efficient than a less severe penalty (Bessler, 102). The court, therefore, stated that in Georgia’s death penalty statute that gave the Jury complete discretion for sentencing left room for arbitrary sentencing. Therefore, the scheme of the punishment under such a statute was cruel and unusual leading to a violation of the Eighth Amendment. It marked the suspension of the death penalty in the United States leading to and commuting 629 death row inmates. It was because; the statutes on death penalty held by 40 states were no longer valid at the time (Bessler, 102).
Controversy and Debate on death penalty
Capital punishment has been a controversial issue not just to the United States but also at the international stage. It is the controversy pf the death penalty that require for its replacement by other forms of punishment as allowed for in the law such as life imprisonment. Furthermore, the aim of the punishment is to avoid the criminal from harming those in society and so cannot harm anyone while in prison. In the United States, it has been subject to debate, and there are organizations such as American Civil Liberties Union (ACLU) dedicated to advocating for the abolition of the death sentence (Bedau, 120). At the international front, there are organizations such as Amnesty International devoted to fighting then capital punishment at the global front. It is an issue challenged regarding its constitutionality in line with the United States; Eighth Amendment but the court held that it was constitutional in 1976. There are sections for and against the practice and countries around the world have with time abolished the practice altogether completely others are still practicing it with severity.
The majority of civilized societies has abolished the punishment and. Therefore, its continued enforcement in America is a backward practice. The US is one of the five industrialized democracies that us yet to abolish the death penalty. The others are Japan, Singapore, and Taiwan that have engaged in executions in the recent past. South Korea has a moratorium effect. By 2011, the United States was the only country that had executions in the western hemisphere and the G8 countries (Garland, 49).
The excuse by supporters of the death penalty that some of the capital crimes such as murder have a high recidivism rate is invalid (Death Penalty Information Center). The supporters argue that a person who commits murder is bound to commit it again even if they go through the correctional facilities citing the various cases of serial killers even after they have served long periods in prisons. However, the law allows other measures to stop such an individual from committing such crimes through sentencing to life imprisonment. The courts can ensure that those with a violent history or proven not to have changed should be incarcerated without the possibility of parole to ensure that they are kept off the streets and protect the public.
Supporting the capital punishment, some individuals argue that the it is a form of restitution and is therefore morally justified for those that commit aggravating elements of crime such a multiple homicide, child murderers, mass killing, terrorism, massacre, genocide, killing law enforcers and children murderers. The argument is strongly supported by Professor Robert Becker from New York Law School, who argues that the punishment ought to be as painful as the crime that the individual committed (Death Penalty Information Center). However, the abolitionists of the capital punishment argue that retribution of this form is no different from a case of revenge and hence cannot be condoned (Garland, 49). Life in prison without parole is usually enough justice for any form of crime. Moreover, by the state engaging in killing a person just because they killed as well makes it seem like jungle justice where there is revenge. Additionally, it would mean that if the state murders those that murder then they should also engage in the same acts to those that commit other crimes such as rape. Would it mean that those who rape should be punished with sexual assault?
The death penalty is the worst form of violation of the human rights. It is because; the right to life for every individual is the most important right that they hold. Capital punishment, therefore, violates the fundamental right and inflicts psychological torture. The human rights activists strongly oppose the death penalty calling it cruel, degrading and inhuman form of punishment. The Amnesty International considers it as a constant denial of human rights. In contrast, those in support of the capital, punishment cite the classic doctrine of natural rights (Death Penalty Information Center). As was expanded by Locke and Blackstone, it is important that ban individual can forfeit the right to life. John Stuart Mill argued that the deterrence of a person from inflicting suffering on others was possible through causing similar pain to them. According to him, it is the whole purpose of the justice system just as a person is fined or jailed for a wrong, they may also be executed for more aggravated crimes.
The death penalty is an irreversible case in case a mistake is made. Once a person is executed, even with the emergence of evidence that they were guilty, then it would be too late, and that would not be justice to them. In fact, in the United States, there are several cases of individuals that have been recalled from the death row following surfacing evidence of their innocence (Death Penalty Information Center). It means that several others are wrongfully sentenced and murdered before they can prove their innocence that beats the whole logic of the serving justice. Those who support the death penalty may be fast to note that the number of wrong sentences is negligible as compared to the right ones
There are indications of discrimination in the implementation of the death penalty statutes. Prof. K. Beckett, Univ. of Washington stated that jurors in Washington were three times more likely to recommend the death sentence for a black defendant than for a white defendant in a similar case. Moreover, there are studies in California indicating that those who kill a white person were three times more likely to get the death sentence if they are black and four times likely if they are Latino (Death Penalty Information Center).
In conclusion, the death penalty has been an issue that has sparked massive controversy over the years. The issue has faced extensive reforms since it started and has always faced debate with some people opposing it and others supporting it strongly. It also brings out huge controversies and misunderstandings with other statutes of the law and hence has been subjected to interpretations in the course of time. In the United States, the Eighth Amendment has protected the fundamental rights to life for individuals and hence having the death penalty a contradiction to the death penalty. Because of the inhumane nature of its methods and the process, many countries around the world have completely abolished the death penalty. However, the United States remain divided on the issue with some states supporting capital punishment while others are opposing it strongly. Therefore, it is a matter has a long history of controversy and continues to spark division on its eligibility. However, the arbitrariness of the laws governing the capital punishment penalty is still evident. There are indications of discrimination based on race and has, therefore, been subject to biases by the jury. The discrimination and lack of sound systems for ascertaining who should be sentenced to death as well as the controversies on the legality of the death penalty make no justice at all. Therefore, the death penalty should be abolished at all costs in every democratic and civilized society.