2 Questions due 7/7/2017
2/23/2017
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The Death Penalty and
Capital Punishment
Chapter 9
Learning Objectives
After reading this chapter, you w ill be able to:10.1 Evaluate the ethical issues involved in the death penalty.10.2 Explain the different theories of punishment that could be used to support or oppose the death penalty, and articulate your own position. 10.3 Analyze Sister Helen Prejean’s Aristotelian argument against the death penalty.
Early History
European (especially English) settlers influenced our nation’s use of the death penaltyFirst recorded execution: Captain George Kendall Jamestown, Virginia, 1608First w oman executed: Jane Champion, 1632Crimes punishable by death: stealing grapes, striking your Mother or Father 2/23/2017
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Colonial Times
Cesare Beccaria's 1767 essay: On Crimes and Punishment Thomas Jefferson’s proposed billDr. Benjamin Rush, founder of the Pennsylvania Prison Society, challenged the use of the death penaltybrutalization effect: having a death penalty actually increased criminal conduct 1794: Pennsylvania abolishes the death penalty for all offenses except first degree murder
19thCentury
1846: Michigan abolishes death penalty for all crimes except treasonMost states retained death penalty rightsSome states expanded crimes punishable by death (especially crimes committed by slaves)I ntroduction of discretionary death penalty statues1888: New York builds the first electric chair
Early 20 thCentury
1924: cyanide gas as a more humane form of execution 1920 -40s: resurgence in death penalty after a short -lived lull Criminologists wrote that the death penalty was a necessary social measureProhibition and the Great DepressionMore executions in the 1930s than in any other decade in American history 2/23/2017
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Mid -Late 20 thCentury
1950s: public opinion turns against capital punishment1940s: 1,289 executions 1950s: 715 executions1967 -1977: voluntary moratorium January 17, 1977: moratorium ends w ith execution of Gary Gilmore by firing squadAlso in 1977: Oklahoma became the first state to adopt lethal injection as a means of execution
Constitutionality
Prior to the 1960s: Fifth, Eighth, and Fourteenth Amendments w ere interpreted as allowing the death penaltyEarly 1960s: suggested that the death penalty w as "cruel and unusual" punishment
Other Laws
1994 -President Clinton signs the Violent Crime Control and Law Enforcement Act expanding the federal death penalty 1998: Northw estern U niversity National Conference on Wrongful Convictions and the Death Penalty 2/23/2017
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Death Penalty
59 prisoners w ere executed in the U SA in 2004, bringing the year end total to 944 executed since the use of the death penalty w as resumed in 1977. Over 3,400 prisoners w ere under sentence of death as of January 1, 2005. 38 of the 50 U S states provide for the death penalty in law . The death penalty is also provided under U S federal military and civilian law . The use of the death penalty in the U nited States has been on the decline for more than 2 decades.At present, only 27 countries w orld -wide still employ capital punishment.
Theories of Punishment
Punishment is the deliberate limitation or revocation of rights and liberties by the government, and, as such, it must be justified. There are 4 contemporary theories for the justification of punishment by the state.
Theories of Punishment
RETRI BU TIVE THEORYDirectProportional FORFEI TU RE THEORYDETERRENCE THEORYREFORM/ REHAB THEORY 2/23/2017
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RETRIBUTIVE THEORY - Lex Talionis (an eye for an eye)
Direct Retributivism -says that a person committing a crime ought to be punished for the crime by having the same crime inflicted upon them; literally, an eye for an eye.
State sanctioned what?
Yet this is not practical. I f a murder kills your father, are w e to kill his father, is a rapist to be raped? I t simply is not practical to employ this type of Retributivism.
Proportional Retributivism
Claims that a person should be punished in a w ay proportional to the crime they committed. Punishment should be equal to the crime committed.We are going to inflict pain and suffering to an equal degree upon them. The rapist is not going to be raped, but he is going to suffer in a equal degree. 2/23/2017
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Forfeiture Theory
This theory states that although w e have certain positive rights w ithin society, w hen w e violate law s and violate the rights of others, then w e forfeit our ow n rights. As such, w e must be punished for these violations, and the state has the right, obligation and duty to see that w e are punished.
Deterrence Theory
This theory claims that punishing criminals deters others from committing the same crimes. Punishment is justified only if it has a deterrent effect. I f punishment did not deter future crimes; then, there w ould be no reason to punish people.
Reform Theory
This theory claims that the goal of punishment is to reform criminals. I f the punishment does not have such an effect then it is not justified. 2/23/2017
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Mixed Theories
I t is possible to mix elements of the different theories and claim that together they justify punishment.The argument of unfairness is as clear as it is challenging: There are no rich people in death row , and the vast majority of executed criminals are black or Hispanic. Another major complicating element in recent decades has been the advent of DNA evidence. I t turns out that as many as 5% of the criminals executed have been proven to be innocent and that percentage still applies to today’s death -row inmates.
Sister Helen Prejean, “Would Jesus pull the Switch? Uhm , no…
Sister Helen Prejean —a Catholic nun perhaps best know n for the book, play, opera, and film Dead Man Walking —forgoes the Catholic Church’s usual antideath penalty position from a Divine Command or Natural Law argument, opting instead for a pow erful Aristotelian argument in her article “Would Jesus pull the sw itch?” I n other w ords, Sister Helen know s how to back this argument up w ith biblical references; the answ er to “What w ould Jesus do?” is not likely to be “Torture and kill the guy.” A virtuous person w ould not do that.
Kant… Hang them high!
“Even if a civil society w ere to be dissolved by the consent of all its members (e.g., if a people inhabiting an island decided to separate and disperse throughout the w orld), the last murderer remaining in prison w ould first have to be executed, so that each has done to him w hat his deeds deserve and blood guilt does not cling to the people for not having insisted upon this punishment; for otherw ise the people can be regarded as collaborators in his public violation of justice .” ~I mmanuel Kant, The Metaphysics of Morals (1797) 2/23/2017
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The American Civil Liberties Union ( ACLU)
“The death penalty in America is a broken process from start to finish. Death sentences are predicted not by the heinousness of the crime but by the poor quality of the defense law yers, the race of the accused or the victim, and the county and state in w hich the crime occurred. From 1976 to 2015, 1,392 executions occurred in the U nited States, and 995 of them took place in the South. Time and time again, w e have proven that the criminal justice system fails to protect the innocent and persons w ith serious mental disabilities and illnesses from execution. Even the administration of executions is utterly flaw ed: Every method of execution comes w ith an intolerably high risk of extreme pain and torture.”
