Capital Punishment and Violence

By Grant, Robert | The Humanist, January-February 2004 | Go to article overview

Capital Punishment and Violence


Grant, Robert, The Humanist


To understand the debate over capital punishment, it is necessary to identify the purpose of the criminal justice system. To a majority of Americans it is, essentially, to retaliate and punish those who commit crimes, especially brutal and vicious murders, thus balancing the scales of justice. To others its goal is to reduce violence overall. The question of capital punishment, then, pits two great demands of society against each other: the demand for retribution for violating the most basic duty of the social contract--the duty not to murder another--and the need to eliminate, or at least minimize, society's culture of violence.

In the United States, capital punishment was adopted from British common law. Then, from the time of the American Revolution through the Civil War, degrees of murder were developed, dividing the crime into first degree premeditated murder, to which the death penalty applied, and a second degree crime of impulse or passion. This was a compromise between those (mostly Quakers) who wanted to abolish the death penalty entirely and those who wished to keep the law essentially unchanged. From the Civil War until the 1960s many states first abolished and then reinstated capital punishment.

But by the 1960s the role of the federal appellate courts had greatly expanded as they applied the federal Bill of Rights to state criminal proceedings in capital cases, especially the prohibition against cruel and unusual punishment and the requirements for due process and equal protection of the law. This coincided with an increased public demand for an end to capital punishment. As a result, capital punishment laws were repealed in several states and no executions were carried out anywhere in the country from 1968 to 1976.

These changes led in June 1972 to the U.S. Supreme Court decision in Furman v. Georgia. The Court ruled that the way in which capital punishment statutes were administered was unconstitutional. After reviewing the statistics from the 1920s through the 1960s, the majority concluded: "The death sentence is disproportionately imposed and carried out on the poor, the Negro, and the members of unpopular groups." The conviction and execution of blacks were particularly disparate when the murder victim was white and especially when a white woman was raped. Justice William J. Brennan observed, "When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied." The Court also found that excessive punishments are prohibited and concluded that, since life imprisonment is as effective a deterrent as execution, capital punishment was excessive. Justice Thurgood Marshall added, "I cannot believe that at this stage in our history, the American people would ever knowingly support purposeless vengeance."

In response to the decision in Furman, the state of Georgia amended its law to provide for capital punishment of certain crimes in a way designed to eliminate excessive penalties as well as discrimination and arbitrariness in deciding who will die. The amended law was then used to convict and sentence to die Troy Gregg for the 1973 murder of two men during his theft of their car. The case, Gregg v. Georgia, was appealed to the U.S. Supreme Court, which determined in 1976 that the defendants had been accorded due process of law and that the death penalty in this case didn't constitute cruel and unusual punishment. The Court thus reinstated capital punishment on the ground that the practice wasn't unconstitutional per se.

This decision was reached on the following two bases. First, the Fifth Amendment to the U.S. Constitution expressly recognizes and, to that extent, authorizes the death penalty when it states, "No person shall ... be deprived of life ... without due process of law." This is because, by implication, a person may indeed be deprived of life with due process of law.

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