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The subject of death penalty unnerves us as we recall the tragic Colorado shooting. In this movie theater shooting, the criminal, James Holmes, killed many people without impunity. He killed twelve innocent, moviegoers and wounded more than 50 (Ferguson, p. 1). Mr. Holmes may be psychologically ill or a social deviant but this does not justify the killings and the social trauma it caused the nation. The more we try to understand why people kill innocent people, the more we begin to justify a severe punishment. Is the death penalty the answer to such violent incidents?
Strong public support for death penalty (or usually referred to as capital punishment) is said to be the main reason why the death penalty remains to be used as a capital form of correction in the U.S. criminal justice system (Erickson, p. 1). The policy of a capital punishment is said to be intended as a “necessary social measure” (Bohm, p. 32). Modeling the system from Great Britain’s criminal justice system, the United States also adopted it and later on legalized. It underwent some reforms and measures by each of the implementing U.S. state. However, in solid, historic and statistical analysis, the ultimate question which capital punishment has not yet resolved is how it deters crimes and saves more lives. The bigger question lies in how the said law positively affects the greater society and its many institutions.
Some scholars and criminologists point to a positive response while critics argue otherwise. There are other issues attached to the application of death penalty, such as the unfair and unjust procedures applied, racial discrimination and differential treatment of prisoners, wrongful convictions, financial resources used for this procedure, etc. (Erickson, p. 1). There is a way to make the death penalty works most effectively but this is very time consuming. It is also complicated and eventually more expensive to the tax payers as compared to life imprisonment or reclusion perpetua (without the possibility of being paroled) (p. 1). Also, the imposition of the death penalty collectively does not totally make society safer from the threat of violent crimes. To illustrate, even with the burdensome, arduous and expensive safeguards mandated by the U.S. Supreme Court (i.e. the review of all the cases upon which death penalty was administered); the death penalty is still unfairly implemented (ACLU Website, p. 1). This means that innocent people are not being safeguarded against this policy. Aside from the expensive safeguard, the high cost of the death penalty is also adding an undue strain on states which are already reducing their budgets for basic services like police and fire protection.
For the past few years, anti-death penalty proponents have gained momentum through the Illinois moratorium that disputed lethal injection in more than six states. The moratorium even led to the abolition of death penalty in New Jersey. (Associated Press, p. 1). The faults of the U.S. Criminal Justice System have been exonerated and it has weighed against death penalty. Aside from this, th moral opposition to the practice of capital punishment has also become global. The European countries lead the crusade against death penalty and more industrialized and civilized nations are banning it as well (p. 1).
However, the seriousness of crimes happening in the U.S. in the last few years has been reflected over by various criminologists and scholars. In a series of academic studies over the last six years, their research analyses still point to the old notion that the capital punishment deters murder and other criminal acts. They calculate that there are between three to 18 lives that would be saved by the death execution of each convicted killer (p. 1). This goes back to the forty plus years old debate on death penalty. The latest arguments replay a 1970s debate that had an impact far beyond academic circles. In his 1975 report, the economist Isaac Ehrlich reinforced that death penalty deterred future crimes. This even led to the Supreme Court’s reversal of death penalty suspension. (p. 1) The reports scandalized anti-death penalty proponents and they rigidly questioned the study’s data and its implications.
At present, the New Jersey's commission on the death penalty ruled out that the deterrence to crime idea is "inconclusive." However, the heated academic debate continues. An Economics professor at the University of Colorado at Denver believes that “the conclusion holds that there is a deterrent effect. (p. 1).
Statistical studies support the theory that “if the cost is too high, then the behavior is changed. For instance, if it takes one’s life to kill someone, then, criminals will most like change their behavior and veer away from killing others. However, the opposition goes on. A Time Magazine Online article entitled “Death Penalty Walking” discussed the ambivalence of the U.S. nation on the death penalty, particularly on lethal injection (Von Drehle, p. 1). It shows that the evolution of the death penalty (from the sponge needing electric chair to the more sphisticated lethal bed) still makes no absolute sense why it is being administered, in the first place. The moral, legal and social debacle on death penalty continues.
This paper attempts to evaluate the death penalty in the more generalized perspective. It shall explore the outcry on death penalty based on two specific criminological theories. The rationalist theory of deterrence and the general strain theory are the main focus of the exploration of this paper. In principle, the theory of deterrence is founded on the classical theory where crime is seen as a choice which is weighed between its costs and benefits. By rationalization, the criminal weighs the cost of committing a crime against not committing it. It suggests that crime will be more likely to be deterred if the cost of doing means the loss of one’s life (i.e. death penalty) (Lilly, Cullen & Ball, p. 23). Meanwhile, the general strain theory explains that when people cannot achieve their success goals (financial success, good reputation, among others), they experience pressure or strain. In special conditions, they are likely to respond to this pressure through crime. Hence, a frustrated individual who cannot financial success may resort to robbing a bank in order to satisfy his goals (Williams & McShane, p. 28).
This paper will also use secondary sources to further illustrate the logical and theoretical percepts of why death penalty must be totally abandoned as a criminal deterrent. Specifically, the paper will try to argue against death penalty. It shall also touch on what other grounds by which criminals are penalized or reformed as they try to go back to society.
Death Penalty: Contexts and Arguments against It
Traditionally, the concepts of punishment and incarceration are both intended for the purposes of punishment, incapacitation, deterrence and rehabilitation (Bohm, p. 12). In the U.S. and other liberal societies, death penalty is aimed to achieve the greatest deterrence. The threat of life sentence or the substantial prison terms is also intended to stop future and present criminals (Gendreau, Goggin, & Cullen, p. 2). Von Drehle (p. 1) explains that the existence of the death penalty is a reflection of the society’s revulsion to violent crime and in the conviction of personal or criminal accountability. This is expounded to various issues such as the qualifications of heinous crimes, the role of an effective lawyer, the qualities of the criminal, among others.
However, there is also an anomaly when it comes to the decrease in the social regulations and the increasing support for the abolition of the death penalty. Since the murder epidemic of the 1890’s to the 1990’s, the support against it has increased up to 80% (Von Drehle, p. 1). In contrast, only one state, New Jersey, has abolished death penalty after the Supreme Court reinstated it in 1976 (p. 1). However, as many as 14 other states are now on its way to abolishing it as well.
The application of the death penalty is also beset by various problems in the general criminal justice system. For instance, in the U.S., the state legislature establishes the structure of the criminal system, including the factors like if the sentence is ruled by a judge or a jury, the assignments of defense counsels to poor and indigents, the aggravating factors and other mitigation issues involved, among others. The definition of heinous crimes is also highly debated. Proponents of the death penalty criticize the criminal justice processes more than the flaws of the theory of deterrence (Oppenheim, p. 1).
The loopholes in the criminal justice system in the U.S. makes it hard for the theory’s effective application to be determined. Another important conisderation is the racial and ethnic discriminations which influence the U.S. justice system. Tremendous amount of statistical data shows racial biases in the processing of death penalty cases (p. 1). According to Justice Douglas, death penalty is not effective if it discriminates against one defendant by virtue of his race, ethinic identity, religion, social status, wealth, among others (p. 1).
According to Wright (p. 3), while the criminal justice system generally gives some deterring effects, a major issue for legal and policy development is whether a more severe sanction or less rigid apprehension will be more effective and beneficial to more people. Deterrence theory argues that the amount of penalty must be equal to the minimum required to the intended level of public deterrence. Hence, it is not the punishment for the crime per se that is the pivotal point in the deterrent theory’s application to the criminal justice response. In principle, it is the amount of punishment is needed to alarm the public not to commit the said crime. In addition, most retributive justice interpretations, according to the deterrent theory, hold that the amount of penalty must be proportional to the amount of harm it has caused to society (Newman, p. 53).
However, in recent times, cruel and unusual punishments are becoming less popular. These have been outlawed in many legal systems based on moral and ethical standards. Various sources have exposed the cruelty of death penalty through various anomalous incidents where the offender sentenced to lethal injection have to undergo various stages of physical and mental pain before their lives are taken. Similarly, other incidents of human errors are illustrated which depicted the poor prisoners actually escaping the electrocution only to be horrified again by a repeated death sentencing. In another case, a synthetic sponge caused a tragic burning of the criminal’s body and causing excruciating way of dying (Von Drehle, p. 1). These are major contentions for the abolition of the death penalty, even when the deterrent theory states that it is the most effective means of preventing crimes.
The methods of lethal injection and the hazardous means by which it is being administered are simply gruesome. Death by the electric chairs also evidenced some hazards. Generally, the idea of deterrence is not properly accounted for. Differing views and varying research methods have led to the opaqueness of the effectiveness of deterrence. In addition, the other elements present in the criminal justice system such as the courts and the court processes, the socio economic status and the racial issues involved in each case also contribute to the biases in the studies of deterrence. There have been no definitive studies in the legal and criminological system which can clearly define the extent by which the theory of deterrents and its instruments have been very effective (p. 1). The evolving global, more humane and civilized societies around the world also promote the abolition of death penalty.
It is also not clear whether the death penalty is successful in solving the criminality in the country. Its deterrent effect is also not concretely qualified by any definitive study. In terms of administering justice, it is very worrisome that the prosecutions of innocent prisoners by death penalty commonly happen. The miscarriage of justice cannot be reversed and this is one of the most striking effects of the death penalty. These miscarriages are increasingly being evidenced by the reports that certain individuals have been wrongfully convicted after spending many years on death row.
The Death Penalty Information Center (p. 1) reported that there were 96 people who have been freed from the death row since 1973 because it was proven that they had been wrongfully convicted. Some research also suggested that at least 25 innocent people were executed during the twentieth century (Austin, et. al., p. 2). A recent study of 5,760 capital cases all over the U.S. from 1973 to 1995 concluded “epidemic” error rates in the death sentences ruled during this time frame. The most common among these errors were the inefficiency of the defense lawyers and the suppression of evidences by criminal justice authorities (p. 2). The U.S. courts also found serious, reversible error in nearly seven out of ten of the thousands of capital sentences that were fully reviewed from the said time frame.
After state courts thrashed out about 47% of death sentences due to serious flaws, a later federal court analysis found “serious error” or mistakes which undermined the reliability of the outcome in the 40% of the remaining sentences (p. 2). Of the 2,370 death sentences thrashed out due to serious error, 90% were overturned by the state judges (p. 2). Interestingly, many of these judges were the very judges who originally imposed the death sentence. Lastly, the average time from the imposition of the death penalty to execution or reversal of the sentence is 9 to 10 years (p. 2).
According to the General Strain Theory, there are various strains which make individuals commit crimes (Bohm, p. 20). This theory advocates correction as the main procedure since it espouses that individuals have the capacity to channel their negative behaviors into positive ones. This theory propses probation, parole, rehabilitation training, counseling, restorative justice, and drug- and alcohol-therapy programs to help the criminals get out of their strains (p. 21).
The general strain theory also supports correctional practices such as rehabilitation. It also proposes job-training, psychological counseling and education programs as empowering criminals with learning and employment skills they need to become positive forces in society (Keane, p. 294). Restorative justice is also proposed by the general strain theory in the sense that it is focused on bringing out the best out of the criminal offenders through social and psychological repairs (p. 294). This will ensure that their negative strains are dramatically reduced and they are totally rehabilitated inside the prison system.
The death penalty has been enforced as a penalty for severe crimes since the beginning of recorded history. However, the system of applying the death penalty in the U.S. has become complicated. More so, it was not determined if the application of this capital punishment deters major crimes, which apparently continued with the same statistical rates. The empirical data has failed to support the deterrent effect of the enforcement of death penalties to the total number of crimes across the country. Under the weakest limitations, there is significant ambiguity and it cannot be ruled out that the death penalty law significantly increases or decreases the crime incidences.
Presently, more and more states are favoring the abolition of the death penalty. Critics argue that the death penalty does not prevent crimes and it has not served any utilitarian purpose. They also argue that a discriminatory and unfair criminal justice system can never implement the death penalty. They also believe that the state must not be involved in executions since it signified the use of violence in society. This will just have a “brutalization effect” on the public. It will either desensitize the people with respect to killing or lead potential killers to identify with those executed and perhaps model out their deeds (Austin, p. 3).
The General Strain Theory opposes death penalty by proposing that individuals can be taught to cope by themselves through various types of programs. By employing cognitive, behavioral and emotion/affective approaches, they can be trained how to handle various life situations without resorting to negative behaviors (Hoffmann & Miller, p. 84).
This sets out a potential for the theory’s prevention programs so as to prevent crimes, especially the heinous ones which are penalized by death sentences. This entails specific programs focused on the criminals and how their negative strains and tendencies can e channeled for positive behaviors and reactions instead of delinquent and criminal actions. In principle, the general strain theory’s element of crime prevention is already being carried out through the various rehabilitation programs being implemented in the different criminal justice systems worldwide. The legal studies and strong statistics must reinforce the strengthening of these programs in the U.S. justice system so that death penalty is completely abolished for more productive and positive penal systems.
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