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Public support for capital punishment has eroded across the nation, for the most part because Americans are ambivalent. Many think that capital punishment is acceptable, but they are concerned about innocent people being executed. As the political debate of the past two decades centered on wrongful convictions and death row exonerations, to a greater extent more Americans evaluated the death penalty in terms of being potentially unfair. Nevertheless, consider arguments about cruel and unusual punishment to heart.
Capital Punishment 5
Capital Punishment: Just, Applied Fairly, Barbaric?
Debra Johnson
PH
I
103 Informal Logic
Instructor: Philip Bence
April 15, 2013
Capital Punishment: Just and Fair?
Public support for capital punishment has eroded across the nation, for the most part because Americans are ambivalent. Many think that capital punishment is acceptable, but they are concerned about innocent people being executed. As the political debate of the past two decades centered on wrongful convictions and death row exonerations, to a greater extent more Americans evaluated the death penalty in terms of being potentially unfair. Nevertheless, consider arguments about cruel and unusual punishment to heart.
I
Capital Punishment Has Split the Country in Two
One of the more controversial issues in America is the death penalty. According to Gallup News, American support for the death penalty plateaued to the low 60s in recent years, after several years in which support was losing ground. Sixty-three percent now favor the death penalty as the punishment for murder, comparable to 61 percent in 2011, and 64 percent in 2010. “Some Americans tend to believe the death penalty is applied fairly in this country, though a substantial number believes it is not. Nearly half of Americans say the death penalty is not imposed often enough.” (Jones, 2002).
Support for the death penalty is slightly higher this year than in earlier years. The poll reflects that a little over half of Americans believe the death penalty is applied fairly in this country, while 40% say it is applied unfairly. The new Gallup data reveal many differences by subgroup in regard to the fairness of the death penalty. While 58 percent of whites believe it is applied fairly, the majority of non-whites, 54 percent, believe it is not. Similarly, 63 percent of conservatives say the death penalty is applied fairly while 56 percent of liberals say it is applied unfairly. A majority of those with post-graduate educations say the death penalty is applied unfairly, but a majority of every other educational group believes it is used in a fair manner. And while a majority of each age group believes the death penalty is applied fairly, those between the ages of 18 and 29 are much more likely to express this view. (Jones, 2002).
Whether the death penalty should be banned nearly splits the country in two. In a 2006 Poll, support of the death penalty was 65 percent and the respondents were split nearly even on whether to have life without parole or the death penalty; with 47 percent preferring the death penalty and 48 percent preferring life without parole. (Jones, 2002).
II
An Eye for an Eye
The numbers have not changed much, nor have the courts. Those changes made by the U.S. Supreme Courts however, have force the state courts to gussie up and behave like courts, cleaned up the juries a little, but foremost, the criminal justice system is in sync to the extent one could ever hope that they would be. This is not an argument for or against capital punishment, nor is it an endorsement of judges and juries. This is just the facts.
The
Eighth Amendment
shapes certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. Because of the
Fourteenth Amendment
‘s
Due Process Clause
, the Eighth Amendment applies against the states, as well as the federal government. Eighth Amendment analysis requires that courts consider the evolving standards of decency to determine if a particular punishment constitutes a cruel or unusual punishment. When considering evolving standards of decency, courts both look for objective factors to show a change in community standards and also make independent evaluations about whether the statute in question is reasonable.
A. U.S. Supreme Court’s Proportionality Requirement
A penalty must be proportional to the crime otherwise the punishment violates the Eighth Amendment’s prohibition against cruel and unusual punishments. The Court looks to three factors: (1) a consideration of the offense’s gravity and the stringency of the penalty, (2) a consideration of how the jurisdiction punishes its other criminals, and (3) a consideration of how other jurisdictions punish the same crime.
In the landmark case of
Coker
v. Georgia
, the Court ruled that a state cannot apply the death penalty or the crime of raping an adult woman because it violates the proportionality requirement. The Court came to this conclusion by considering objective indicia of the nation’s attitude toward the death penalty in rape cases. At the time only a few states allowed for executions of convicted rapists.
Twenty-one years later, in
Kennedy v. Louisiana
(2008), the Court extended its ruling in Coker, holding that the penalty is categorically unavailable for cases of child rape in which the victim lives. Because only six states in the country permitted execution as a penalty for child rape, the Court found the national consensus to hold its use in these cases as disproportionate.
Principle of Individualized Sentencing
To impose a death sentence, the jury must be guided by the particular circumstances of the criminal, and the court must have conducted an individualized sentencing process. In the 2002
Ring v. Arizona
decision, the Supreme Court ruled that a jury, rather than a judge, must find an aggravating factor to exist for cases in which those factors underlie a judge’s choice to impose the death penalty rather than a lesser punishment. 536 U.S. 584. An aggravating factor is any fact or circumstance that increases the culpability for a criminal act.
The Supreme Court further refined the requirement of “a finding of aggravating factors” in
Brown v. Sanders
. 546 U.S. 212 (2006). For cases in which an appellate court rules a sentencing factor invalid, the Court ruled that the sentence imposed becomes unconstitutional unless the jury found some other aggravating factor that encompasses the same facts and circumstances as the invalid factor.
Another 2006 cases,
Kansas v. Marsh
, offered yet another clarification to the principle of individualized sentencing jurisprudence. After Marsh, states may impose the death penalty for situations in which the jury finds the aggravating and mitigating factors to equally balance, without violating the principle of individualized sentencing.
(Other possible topics: juror ignorance, morals, etc. – those that I can argue within the context of my paper.)
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