The Pro’s and Con’s to banning the death penalty in the United States
History
In the Unites States of America the debate concerning the death penalty is a battle that has been raging since its inception. In the book, Death Penalty: an American History, Stuart Banner talks about the history of the pro’s and con’s of the death penalty in America. In the late 1780’s, after the American Revolution, many of the founding fathers began to question the institution of the death penalty.
Benjamin Franklin begins to rethink the stance on death penalty saying, “If I am not myself so barbarous, so bloody-minded and revengeful as to kill a fellow creature stealing from me fourteen shillings, How can I approve of a law that does it?” These thoughts were greatly influenced by Ceasare Baccaria’s essay on crime and punishment. His essay included strong opposition to the death penalty and to whether death is a deterrent to crime. Beccaria states, “What right may I ask, have men to cut the throats of their fellow-creatures? Did anyone give to others the right to take a life?”
His second argument stated that death was a lesser deterrent to crimes than imprisonment. Death was a momentary violent act. But the longer pain endured the more it would remind the offender of the crime, making a lasting impact and therefore deterring criminal activity. This spurred a long debate in the nation on how, when and where death penalty cases would be carried out.
Historically, the death penalty was imposed in what some now would consider “cruel and unusual punishment”. Public hangings were gruesome and applied to offenses such as robbery, arson, theft, counterfeiting, rape and sodomy, adultery, bestiality, most if not all crimes were capital offenses. During the civil war some northern states abolished the death penalty altogether, while some restricted it to murder cases.
During this time capital offenses moved from open audiences to prison yards. Most southern states kept the institution of the death penalty. Some changes were made, but for slaves, breaking the law meant ending their life. For the south, the death penalty was an institution that preserved their way of life.
The Constitution
The 8th amendment of the constitution states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
PRO: The way in which death occurs under the states death penalty law does not conflict with the nation’s 8th amendment clause of our constitution. Our society has moved to humane methods of carrying out the death penalty. “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ [quoting the opinion of the Court from Farmer v. Brennan, 511 U. S. 825, 842, 846 (1994)] that qualifies as cruel and unusual.
CON: “Death is an unusually severe punishment, unusual in its pain, in its finality, and in its enormity… The fatal constitutional infirmity in the punishment of death is that it treats ‘members of the human race as non humans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.’ [Quoting himself from Furmanv. Georgia, 408 U.S. 238, 257 (1972)] Others have argued that the death penalty violates the 8th and 14th amendments because it is simply immoral and barbaric to allow people to be killed by the state even if they have committed violent crimes.
Concerning Morality
CON: The moral question surrounding the death penalty in America has less to do with whether those convicted of violent crime deserve to die but with whether state and federal governments deserve or have the right to kill those whom it has imprisoned. Bryan Stevenson, JD from New York University of Law says, “the legacy of racial apartheid, racial bias, and ethnic discrimination is unavoidably evident in the administration of capital punishment in America. Death sentences are imposed in a criminal justice system that treats you better if you are rich and guilty than if you are poor and innocent. This is an immoral condition that makes rejecting the death penalty on moral grounds not only defensible but necessary for those who refuse to accept unequal or unjust administration of punishment.”
PRO: Bruce Fein JD in June 17, 2008 American Bar Association site says, “abolitionists may contend that the death penalty is inherently immoral because governments should never take human life, no matter what the provocation. But that is an article of faith, not of fact. The death penalty honors human dignity by treating the defendant as a free moral actor able to control his own destiny for good or for ill; it does not treat him as an animal with no moral sense.”
Deterrence
PRO: Life in prison could lead to the possibility of parole, death is final. In the cases where a life is taken, then it is argued that the old Leviticus law “eye for an eye”, a life for a life should be instituted. Ernest Van Den Haag PhD law professor from Fordham University said, “common sense, lately bolstered by statistics, tells us that the death penalty will deter murder… People fear nothing more than death. Therefore, nothing will deter a criminal more than the fear of death… life in prison is less feared.”
Con: Life in prison with little freedom and poor quality of life is a better punishment and deterrent to criminals than death row. The ACLU states that “there is no credible evidence that the death penalty deters crime more effectively than long terms of imprisonment. States that have death penalty laws do not have lower crime rates or murder rates than states without such laws. And states that have abolished capital punishment show no significant changes in either crime or murder rates. The death penalty has no deterrent effect. Claims that each execution deters a certain number of murders have been thoroughly discredited by social science research.”
There is an argument that says death penalty cases cannot be 100% right and therefore an irrevocable mistake can be made, while others say with current DNA evidence, there is no margin of error.
We know that as of 2011 there are 35 states that have the death penalty and 15 who do not. Current culture and climate would suggest a swing of the pendulum to “pro death penalty“. Only the tides will tell where it will swing next. One thing we can be sure, this debate will continue and the pendulum will move again.