THE DEATH
PENALTY: History and Background
Life, liberty and the
pursuit of happiness-- truncating John Locke, Thomas Jefferson, author of the
Declaration of Independence, declared each of these for all Americans. “Life”
captains the list, as it should. What is the most basic right of all humans,
not just American, if not life? All have a right, a natural right, to live.
Does the state
disguised under the title of law have the privilege to remove that liberty from
man? The laws of men are nothing compared with the laws of nature. Nature says
that man has a right to live; can the state say otherwise? Does a government,
bound to the governed through a social contact, have that liberty? The answer
is no unless, as a term of the social contract, the people relinquish their
right to live, transferring that liberty to the government. The American social
contract, or the federal constitution, does not have such a clause. Therefore,
Americans, all of them, retain this right, or so they should.
Capital punishment
is the legal application of the death penalty; lynching is its illegal usage.
Hammurabi mentioned it in his famous code; the Old Testament approved its use
as punishments in more than thirty crimes; the Greek Draconian Code sanctioned
it for every offense. History is an extensive lexicon of the use, and the
subsequent abolition, of capital punishment.
During the eleventh
century CE (Common Era) while Canute and William the Conqueror ruled Great
Britain, the English had no death penalty. Not until the end of the fifteenth
century did England compile a list of crimes that rendered death. Included in
this index were treason, rape, murder, burglary, larceny and arson. By year
1800, the list totaled more than 200 offenses. Even with this monstrous number,
few were actually killed since most were commuted as a result of royal pardons.
Following the lead
of their British colonizers, the American colonists sanctioned death as
punishment for a variety of crimes (“Capital Punishment”). The call to limit
the use of the capital penalty has been chronicled in recent years. 1970’s United
States Supreme Court decisions rendered the death penalty in America
unconstitutional if it is mandatory, such as all murderers must be executed;
used when grossly inappropriate, for example, lethal injection for jay walking;
or if the crime for which the person is convicted did not threaten or take
another human life, therefore the death penalty could not be used for fraud or
similar crimes.
With the 1972
judgment in Furman v. Georgia, the Supreme Court struck down almost all state
capital punishment statues. In response, thirty-eight states redrafted their
statutes to meet the standards of the court. Some of these revised laws were
upheld by the bench in the 1976 case Gregg v. Georgia.
1980’s and 1990’s
court rulings made capital punishment easier. In 1986, the bench ruled that
adversaries of the death penalty could be impeded from serving as jurors. Also,
out of this era came decisions allowing accomplices of those who committed
capital crimes to be sentenced to death. In 1989, the court decided those who
were at least sixteen years old when their crime was committed or mentally
handicap were suitable to be executed. Later the court ruled limiting the
appeals the condemned could file in federal court. In 1994 the Federal Death
Penalty Act was passed, approving capital punishment in more than 60 offenses.
Two years later, the Anti-Terrorism and Effective Death Penalty Act was passed.
This further limited constitutional claims in capital cases (Death Penalty).
In spite of some
constitutional limitations, those who advocate the use of capital punishment in
the United States seem to control the judicial system. Proponents of the death
penalty employ the “eye for an eye” Old Testament justice. They claim capital
punishment as a deterrent. They say of juveniles that if they were old enough
to kill, they are old enough to die. Assertions of the fairness of the system
are also professed. Claims are also made of the higher cost of housing a
prisoner for life as compared with the cost of executing him or her.
From a Biblical
perspective, from murder to fornication, death should be imposed for over
thirty different crimes. Do supporters of the death penalty want the government
to begin to shoot those who have sex outside of a marriage? Some invoke the
Bible and the Biblical history of execution as justification to continue the
practice (Chadwell; Leaster).
Those who quote
Exodus and Leviticus must have forgotten about the whole New Testament where
Christ teaches a philosophy of love and forgiveness (remember the Golden
Rule?). Christ taught of a justice where man forgives man, where man does not
require retribution of the offender’s life. True, Christians believe that
Christ did not invalidate the Old Testament, but those who feel He would flip
the switch or insert the needle are gravely mistaken. They completely
misinterpret the purpose of Christ coming to earth. “Do unto others as you
would have them do unto you,” not “kill those who kill you.”
Some view the death
penalty as an addition to the intimacy of their religious beliefs. In an
interview with George magazine, Bianca Jagger said, “The death penalty
makes you face up to your religious beliefs. I have never questioned whether or
not I believe in God, but being in proximity to [an execution] makes you
re-evaluate your religious convictions. Seeing someone executed, working on the
death penalty, has brought me closer to God” (Collins 96).
Others claim that to
execute someone who has murdered or raped will persuade others considering the
same act to abstain. This is not true. According to a 1995 poll by Peter D.
Hart Research Associates, only 29% of 386 randomly selected United States
police chiefs believed imposing the death penalty more cost-effective. Those
states that use capital punishment do not have lower crime rates or murder
rates than similar states without the punishment. No variations can be found in
states’ crime rates that either have and then abolish the death penalty or had
abolished and now reestablished it (Death Penalty).
According to the
National Coalition to Abolish the Death Penalty, the five countries without the
death penalty with the highest homicide rates average 21.6 murders per every
100,000 people. Interestingly, the five countries with the death penalty with
the highest homicide rates average 41.6 murders every 100,000 people. That is
almost twice the number of deaths in the capital punishment countries than in
death penalty free countries.
In the United States
the average murder rates per 100,000 people is about 8%, while it is 5.1% in
abolitionist states. Adversely, some statistics show that an increase in state
ordained murders equivocally raises the number of violent crimes among the
public. In New York between 1907 and 1964 there were 692 executions. Over this
57-year period, one or more executions in a given month added, on average, two
homicides to the total killings in the next month. Likewise, between 1952 and
1967 in California, one execution a month was averaged. From 1968 until 1991
there were no executions. During the latter period, the crime rate was half of
the earlier (NCADP Fact Sheet #5).
In 1989, the United
States Supreme Court declared that those sixteen years of age and older when
his or her crime was committed could legally be executed. Currently, there are
51 death row inmates who were juveniles when they committed their crimes. 75%
of them were 17; 25% were 16. In Texas there are 20 of these 51; nine are held
in Alabama. Sean Sellers was 16 when he committed his crime. At the time he was
also suffering from psychiatric disorders. Based on a technicality, the United
States Court of Appeals did not halt his execution. In February 1999, the state
of Oklahoma executed Sean Sellers. He was killed for an act he committed while
suffering from a mental disorder (“Juveniles”). This is justice? This is the
evidence of a government championing the civil rights of the governed?
Since 1990 only six
countries have killed citizens for crimes that they committed as children.
These are Nigeria, Pakistan, Saudi Arabia, Yemen, Iran and the United States.
In fact, the United States has put to death more than the other five combined.
Americans should hold their heads high, for they are number one yet again. Even
though the Supreme Court has established that 16 years is old enough to execute,
it has not been clear concerning children below that age. Fifteen states and
the federal government have set the minimum age of execution at 18, five at 17
and eight at 16. Ten states have no minimum. In fact, in 1996, Mississippi
prosecutors called for the death penalty for children as young as 13 years old.
Even more recently a Texas legislator declared his plan to propose a reduction
of the state’s minimum age to eleven (NCADP Fact Sheet #3). With Texas’ horrid
death penalty record for the past few years and with a new sanctioning to
murder eleven year olds, there probably will be enough corpses of children to
fill a couple of the classrooms where they otherwise might have been.
Everything’s bigger in Texas, except apparently their hearts.
Similarly,
historically the children that have been murdered by the state have been of
color. Current death row trends show that two-thirds of the children condemned
are nonwhite. During this century three out of every four children convicted to
death have been African American. Of the nine girls executed in the United
States, eight were black, and one was Native American. In fact, the federal
government has executed Native American children for crimes committed when they
were ten. The youngest child executed since World War II in the United States
was George Stinney, an African American boy who was so small that, while he was
being electrocuted in South Carolina, the death mask slipped off of his face
(NCADP Fact Sheet #3).
If one is an African
American murder defendant in Florida, he or she is 4.8 more times likely to be
sentenced to death for killing a white person than a fellow African American.
In Philadelphia, the odds of being sentenced to death are 3.9 times greater if
the defendant is African American, no matter the race of the victim (The Death
Penalty). In Georgia if one’s victim is white, one is four times more likely to
be sentenced to death than if the victim is African American (“Race”). The
federal government since 1988 has requested the death penalty in 92 cases; 61%
of the defendants were African American, 12% Hispanic, 5% Asian and 22% white
(“Race”). One should remember that African Americans make up only about 12% of
the United States population. Likewise, they make up 35% of the total
population of death row (Death Penalty).
Case in point: Gary
Graham was sentenced to death for the 1981 murder of Bobby Lambert. Out of
eight witnesses, one claimed to see Graham through a windshield from 30 feet
away for less than a minute. Two of the witnesses told the police that Graham
was not the shooter, and the police examiner testified that the pistol
confiscated on Graham was not the one used to kill Lambert. The attorney for
Graham did not even cross-examine the witnesses. Speaking his final words
before being executed, Graham said, “I am part of the genocide in America. This
is what happens to black men, murder sanctioned by the state. They are killing
me this evening; they are assassinating me” (qtd. in Collins 96).
Although maybe the
most obvious form of death row discrimination, race is not the only
discriminating factor when it comes to state-sanctioned killing. Less than 2%
of those awaiting execution are women. Women are not as likely to be sentenced
to death than men are, even for the same crime. In February 1998, Texas
executed Karla Faye Tucker. Claiming rebirth in the Christian faith, Tucker
gained the support for clemency from Pat Robertson, one of the jurors, the
brother of the victim and Pope John Paul II (“Women”). Although the point of
prison is to rehabilitate, apparently Texas Governor George W. Bush did not see
it that way.
Race and gender are
not the only ways in which a defendant faces unfair conditions. A capital case
takes from 700 to 1,000 hours. Most death row inmates are defended at trial by
public defenders. These officers are underpaid and overworked, often having
more than one case to work, one of which may be a capital case. In some states
like Texas, there is not even a state-wide public defender’s office. Those
attorneys assigned to take the cases are obviously less than zealous about
their appointment. In fact, 43% of those executed during George W. Bush’s
gubernatorial terms in Texas were represented by lawyers who later were either
disbarred, fined, suspended or otherwise censured (Casriel 30).
If a defendant
facing the death penalty can afford a seasoned lawyer, he or she is almost
guaranteed that his or her life will be spared. Is this justice? Should some be
able to financially manipulate their way off death row? How many multimillionaires
are there on death row currently? Very few if any at all; no doubt it is many
times less than are there who were defended by court appointed attorneys (Death
Penalty). “Almost every executed person was poor, represented by a lawyer who
was court appointed-- not hired by the defendant. The result is that defendants
are outmatched at every stage: the trial, the sentencing process, the appeals
process and, finally, the inmate’s last resort, the petition to the governor
for mercy” (Casriel 30). Although written concerning the Texas legal system and
the death penalty, the words corroborate the circumstances for the entire
country.
The location where
one commits a crime also offers irregularities in the uniformity of punishment.
If one commits a murder in Texas, he is far more likely to be sentenced to
death and executed than one committing the exact same crime in Kansas, who has
only two people on death row, or Connecticut, who has only five. In Texas, a
person could receive death or probation for the same murder. In a non-death
penalty case, the jury may impel a fine and probation. Of course the option of
indicting for a capital case or not is in the discretion of the district
attorneys. Interestingly enough, of the district attorneys in United States
counties that implement capital punishment, 98% are white; only 1% is African
American. New York state has only one African American district attorney.
Also, some
prosecutors, especially those running for reelection, are more ardent about the
death penalty (Death Penalty). According to a study completed by Duke
University, a capital case costs on average $2,160,000 more than a case where
the defendant was given life without parole. In California and Florida the cost
is six times greater, in New York and Texas three times. The amount spent is
attributed not only to the great expenditures from the defense (if the
defendant does not have a court appointed attorney) but also to the large
spending on the prosecutorial side. Being a capital case, the prosecutor
desires a conviction. They will usually spend more time, and therefore money,
on jury selection, expert witnesses, preparation, etc. Also, the cost for
maintaining a prisoner on death row is considerably more expensive than one in
the general population at a maximum-security prison.
The “frivolous”
appeals of which so many people complain are not so at all. The right to appeal
is the guaranteed due process for all Americans under not just the national
constitution but also the state’s. If not for those appeals, many more innocent
people would be executed (Are You Tired of Spending Money to Keep Killers Alive
on Death Row???). More important than any other argument against the use of
capital punishment is the question of what happens when someone is wrongfully
convicted, denied of his or her appeals, and then executed? How can a civilized
society like America that professes to protect the rights of the governed deal
with a chance like that?
No system is
perfect, and there are mistakes made in the American judicial system all the
time. Sometimes it occurs when an obvious murderer alludes punishment or
someone gets off with a probationary slap on the wrists, but those pale in
comparison to someone innocent being murdered at the hands of the state. At
least 400 innocent people have been convicted of capital crimes. 139 of these
were sentenced to death; 25 of them were executed. 25 innocent Americans were
murdered by the state, the entity that was supposed to protect their life, not
take it away.
The fact is that one
innocent person is discovered and released for every six executions performed.
During 1993 alone, seven people condemned to death were released upon evidence
of their innocence. Does an America justice system adhering to its social
contract with the governed really want to take that chance with the other 3,500
men and women sentenced to die?
John Locke, the
philosopher much of the American federal thought is based on, believed that a
civilized government’s sole responsibility was to protect its citizens’ life,
liberty, property and possessions. Any other actions are unlawful and the
people have a right and an obligation to break away from the oppressive and
tyrannical government. John Locke would endorse treason and secession against a
government violating the social contract so blatantly by the implementation of
capital punishment.
The federal
government has sanctioned the use of capital punishment as constitutional, or
within the bounds of the American social contract. The Supreme Court has
checked the removal of the right to life against the Eighth Amendment to the
contract and validated it. The American founders did not structure the contract
as one that sanctions the murder of its criminals. For this reason the Eighth
Amendment was ratified in the first place: to protect Americans against
wrongful force by the state. Similarly, the Fourteenth Amendment, although not
ratified until 1868, further strengthened the rights of the individual against
the liberties of the government. This addition to the American social contract,
ensures equal protection and implementation under and of the law (Weinberg).
Epitomizing the intent of the founders, the Fourteenth Amendment further
protects the people’s rights. It blindly and invariantly preserves justice for
all Americans. Like the Eighth Amendment, the Fourteenth does not differentiate
between groups of Americans. Checked against these two clauses of the American
social contract, capital punishment has been deemed within the contract.
Although approved by
the laws of man, the superior laws of nature deem capital punishment immoral
and outside the original scope of the social contract. As written in Rolling
Stones: . . . on the evening of March 1st, when Odell Barnes was to be
executed, there was a last-minute emergency. Barnes’ guilt in the murder of
Helen Bass in 1989 had been questioned after his appeals lawyer discovered that
blood evidence used to convict him may have been planted. Just as Barnes was
about to be strapped down, the prison warden received a phone call from someone
in Barnes’ hometown of Wichita Falls. One of two men, including Barnes’ old
friend Johnny Ray Humphries, was rumored to be confessing to the crime.
Humphries says that at that moment, while Barnes was lying on the gurney,
Humphries received a call from the prosecutor in the case, Barry Macha. “Hold
on just a minute, Johnny Ray,” Macha told him. Then Macha came back on the
line: “Forget all about it, We just killed him.” (Casriel 64) Was that what the
architects of the American social contract had in mind?
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