Introduction
Death penalty remains a controversial subject even though it is admissible and acceptable under the law. According to Amnesty International, death penalty was legal in 57 countries in 2016 as many nations outlawed it due to the controversies surrounding the issue. Death penalty is a form of justice that perpetuates violence; it is also applied for grave crimes such as murder during kidnapping, genocide, murder for hire, treason, and espionage. The issue has evolved over the years; it has gone from being public and dehumanizing to a more humane approach. The purpose of this synthesis essay is to explore the concept of the death penalty in detail. This literature review explores the law that permits death penalty, limitations and controversies surrounding it.
Literature Review
Death penalty has been in existence for centuries. Capital punishment was introduced in the new world when Captain George Kendall was executed in Georgetown, Virginia in 1608 (Philips & Simon, 2014). Over the years, capital punishment has evolved in the US; the federal mandate limits capital punishment to aggravated murders and the worst kind of crime committed by mentally competent individuals. Capital punishment is permissible under the law in the US and 56 other nations, but it is permissible with reservations. Human rights activists against capital punishment have been making strides. There is a reluctance to use capital punishment because the justice system has room for challenging the decision. Nonetheless, the calls to ban death penalty have been overruled by the Supreme Court on numerous occasions. The literature review breaks down the topic into three parts. The first part explores law that permits death penalty, followed by the landmark cases on death penalty, controversies and the future of death penalty.
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Death Penalty as Permissible by the Law
Defenders of the death penalty in the US use the 5th amendment to justify why the government has a right to use capital punishment. The relevant text states that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” The text acknowledges the existence of ‘capital’ punishment, and it does not explicitly forbid the use of capital punishment. The 5th amendment leaves room to challenge the use of capital punishment, but it makes it a “permissible legislative choice” (Falco & Freiburger, 2011). In the Glossip v. Gross case in 2015, Justice Antonin Scalia used the 5th amendment argument to make his ruling saying that, “it is impossible to hold unconstitutional that which the constitution explicitly contemplates” (Kim, 2016). Justice Scalia approved the death penalty like most Supreme Court judges that continue to maintain that capital punishment is constitutional.
The constitutionality and permissibility of death punishment are established in the US history and tradition. According to Blackman & McLughlin (2014) death penalty in the US was strongly influenced by European practices as the first person to be executed in the US was Captain George Kendall. The governor of Virginia in the 1600s was Sir Thomas Dale and used capital punishment for minor offenses such as stealing grapes. Death penalties were used during the colonial times until Virginia, Pennsylvania, and Philadelphia repealed the death penalty for premeditated murder and treason. In the 19th century, Pennsylvania became the first state to move death penalty from the public to private settings; many states followed suit while others abolished it. The form of punishment was used on slaves in the southern states even for minor crimes. Zivot (2012) notes that New York was the first state to use an electric chair for execution in 1888. After the use of the electric chair came the use of lethal gas in the early 20th century. The public sentiment was against capital punishment in the mid-20th century, and the number of people being executed declined to an all-time low of 191 in 1966 (Blackman & McLaughlin). The Supreme Court placed a moratorium on capital punishment in all states in 1972, but it was reversed in 1976 in the case of Gregg v. Georgia. As much as the constitution does not give a clear answer on whether the death penalty is legal or not, it is apparent that the Constitution’s Framers believed that death penalty should be within the bounds of the legal state action. The 5th amendment is only against abusing the death penalty. Gregg v. Georgia used the argument that the Framers accepted death penalty to reinstate it in 1976 (Bessler, 2012).
While death penalty in the US is permissible according to the law, laws on death penalty vary from state to state. 19 states have outlawed death penalty because they consider it inhumane approach marred by controversies. Other states have the legal right to use death penalty in case of extremely violent crimes. Philips & Simon (2014) explore the use of death penalty in Texas. Texas continues to use capital punishment more than other states in the US, for example, in 2013, Texas accounted for 508 of the 1,359 executions since Gregg vs. Georgia of 1976.
Arguments against Death Penalty and Landmark Cases
Opponents of the capital punishment view it as a violation of the fundamental constitutional rights. The opponents do not understand how the government used its power to legalize capital punishment, yet it is only mentioned in the Constitution. In the book, Cruel & Unusual: The American Death Penalty and the Founders' Eighth Amendment , Bessler explores different legal and moral arguments against capital punishment. According to Bessler (2012), the era of using death penalty is over, and the government should outlaw death penalty without any delay. Like most critics of death penalty, the author does not believe that the government is justified to use the mention of ‘capital’ in 5th amendment as an excuse to legalize it.
Kim (2016) supports Bessler's argument against death penalty using the 14th amendment which guarantees equal protection. The 14th amendment guarantees equal protection under the law. When challenging death penalty using the 14th amendment, issues of racial discrimination and arbitrary implementation were brought up as seen in the landmark case of Furman v. Georgia in 1972. The potential of racial discrimination led to the nationwide suspension of the death penalty in 1972 until procedural reforms were carried out.
Kim (2016) explores the monumental decision on Furman v. Georgia that made the Supreme Court evaluate its stand on death penalty for the first time. The five-four ruling of the case was motivated by the uneven application of capital punishment in Georgia. There were severe procedural irregularities which went against how death sentences were administered in the past. Before the Furman decision, death penalty was imposed on criminals for three ways, after being convicted of an eligible crime including different variations of murder such as rape, armed robbery, and kidnapping (McCord & Bennett, 2014). The second way was in a unitary trial where a separate opportunity to consider evidence is not given, and the jury simultaneously issues a decision of guilt. Lastly, the jury could use capital punishment in situations where the court failed to provide substantial guidance on whether the defendant deserved incarceration for life or death. The judges found out that Georgia and Texas were biased and unfair, not all convicted murders or rapists were given the death sentence and this led to the Furman v. Georgia decision to suspend death sentence. Later on, Georgia amended the sentencing approach leaving behind the unitary trial for criminals eligible for death sentencing. McGautha v. California upheld the decision of Furman v. Georgia. McGautha v. California started that provisions and procedures should guide the jury's decision to impose death penalty.
Unnever & Cullen (2007) state that the issue of systemic racial bias was also brought up in the McCleskey v. Kemp case. The defendant used the statistical analysis which showed that African Americans were disproportionately given death sentences in comparison to white criminals. While McClesky’s appeal was denied because racist procedures did not apply to his case specifically, it showed that racial bias plays a role. Because of the systemic errors and bias within the system, opponents of death sentence argue that sentencing one for life without the possibility of parole is the humane way (Lerner, 2013). According to Lerner (2013), capital punishment is irreversible, and it can lead to the death of innocent individuals who were wrongly convicted.
Another landmark case that brought back death penalty is Gregg v. Georgia. In Gregg v. Georgia, the Court reversed the decision made in Furman v. Georgia when a majority of seven to two declared capital punishment constitutional. Gregg v. Georgia reinstated capital punishment for murder, kidnapping for ransom where the victim is harmed, robbery with arms, rape, incitement to rebellion and hijacking of aircraft. The 1976 decision once again demonstrated the constitutionality of capital punishment by declaring that it was not, per se, unconstitutional according to the Eight and Fourteenth Amendments (Kim, 2016).
Controversies and the Future of Death Penalty
According to Johnson et al. (2014), the history of death penalty in the US has been marred with controversy. Death penalty continues to be one of the most controversial issues in the criminal justice system as seen in the landmark cases. Another controversy stems from the Coker v. Georgia (1977) decision which stated that the state could not use capital punishment solely for rape. The Coker v. Georgia ruling concluded that capital punishment was not a proportionate punishment for rape, and this was not received well by the public.
Another controversy is the means of death penalty. The adoption of lethal injection was seen as the humane way of death penalty, yet many are against it. For example, the incident in 2014 when Dennis McGuire was executed using a combination of different drugs because the lethal injection was not available. The execution took 24 minutes, and McGuire appeared to be gasping for air for about 10 to 13 minutes. Tennessee legalized the use of electric chair when lethal injection drugs are unavailable (Girling, 2016). The history of botched executions shows that there is no sure way of executing people without turning it into a gruesome spectacle. Despite the claims made in the last two centuries that death penalty has been made humane, the overwhelming evidence shows that no technology can make death any less painful.
Falco & Freiburger (2011) argue that capital punishment will continue to exist in the US because it is permissible under the law and the continued public support. The public support for death penalty has been declining, but it is yet to reach an all-time law as in the 1960s that eventually led to the suspension of state-sanctioned executions in 1972. Supporters of capital punishment claim that it is an efficient way of deterring crime while others believe that some atrocities only warrant death sentence because it does not make sense to show mercy in certain situations. Given the history of capital punishment, it will exist for quite a while. The Supreme Court has notoriously upheld its decision that capital punishment is constitutional, and more than half of the US population supports capital punishment for certain crimes. The US has refused to change its stand on capital punishment even with the increasing pressure from local and international human rights organizations. Nonetheless, the trend of suspending or declaring capital punishment illegal has been adopted by many states, and if the trend continues, there is a possibility that capital punishment could be banned in the US in future.
Conclusion
The literature review has analyzed the legal provisions for and against death penalty. The constitution gives room for death penalty, but it warns against abusing it. Death penalty as a form of justice has existed for centuries in all societies, and it will continue to exist despite the controversy. The US Supreme Court has declared death penalty constitutional on many occasions claiming that the Constitutional Framers saw the need for death penalty. Various court rulings have made changes to death sentencing over the years. Furman v. Georgia suspended death penalty for four years, and when it was reinstated stricter procedures were adopted. The controversial issue continues to divide the society by moral, ethical, political and economic reasons, and until a majority opposes death penalty, it will continue to exist.
References
Bessler, John D. (2012). Cruel & Unusual: The American Death Penalty and the Founders' Eighth Amendment . Boston: Northeastern University Press.
Blackman, P. H., & McLaughlin, V. (2014). The Dog that Stopped Barking: Mass Legal Executions in 21st Century America. Laws , 3 (1), 153-162.
Falco, D. L., & Freiburger, T. L. (2011). Public opinion and the death penalty: A qualitative approach. The Qualitative Report , 16 (3), 830.
Girling, E. (2016). Sites of Crossing and Death in Punishment: The Parallel Lives, Trade ‐ offs and Equivalencies of the Death Penalty and Life without Parole in the US. The Howard Journal of Crime and Justice , 55 (3), 345-361.
Johnson, R. (2014). Reflections on the death penalty: human rights, human dignity, and dehumanization in the death house. Seattle J. Soc. Just. , 13 , 583.
Kim, J. Y. H. (2016). Cruel and Unusual Punishment, the Death Penalty, and the Influence of Foreign Law on US Constitutional Jurisprudence (Doctoral dissertation).
Lerner, C. S. (2013). Life without parole as a conflicted punishment. Wake Forest L. Rev. , 48 , 1101.
McCord, D., & Bennett, M. W. (2014). The Proposed Capital Penalty Phase Rules of Evidence. Cardozo L. Rev. , 36 , 417.
Phillips, S., & Simon, A. (2014). Is the Modern American Death Penalty a Fatal Lottery? Texas as a Conservative Test. Laws , 3 (1), 85-105.
Unnever, J. D., & Cullen, F. T. (2007). The racial divide in support for the death penalty: Does white racism matter? Social Forces , 85 (3), 1281-1301.
Zivot, J. B. (2012). The absence of cruelty is not the presence of humanness: physicians and the death penalty in the United States. Philosophy, Ethics, and Humanities in Medicine , 7 (1), 13.
