Final Exam

The Death Penalty

In 1977, the death penalty was reinstated in the United States of America. Currently, 38 of 50 states have some legal provision for the death penalty, and 3700 prisoners in the USA are under sentence of death as of January 2003. 820 people were executed in the USA from 1977 through 2002. 102 death row prisoners have been released since 1977, due to DNA proof of innocence or procedural errors that cast doubt on their convictions.

From 1977 until January 2000, 12 prisoners were executed in Illinois; during the same period, 13 death row prisoners were exonerated. In January 2000, the then Governor of Illinois, George Ryan, declared a moratorium on executions because of these statistics. Ryan had been a supporter of the death penalty in Illinois, but underwent a change of heart. In January 2003, as his last act as Governor, he pardoned four death row prisoners and commuted all of the remaining death sentences (167) in Illinois.
This action spurred death penalty detractors in California to request a moratorium on the death penalty, pending re-examinations of, and possibly reforms in, investigative procedures, discovery policies, and abuses of power by police, district attorneys, and judges.

In response to these requests, the California District Attorney Association, Attorney General’s Office, and the Criminal Justice Legal Foundation released a research study report in March 2003. This report argues against many of the assertions made by protestors of the death penalty. Some of the statements included in the report, summarized, are:

o California’s death penalty law targets only the worst murderers and district attorneys rarely seek the death penalty for qualifying cases (there is a list of 21 special circumstances).

o California law provides extraordinary safeguards in death penalty trials (capital defendants are guaranteed, at no personal expense, experienced defense attorneys at the trial court and appellate levels).

o Unlike other states, “innocent” defendants have not narrowly escaped execution in California (inmates whose death sentences have been reversed were exonerated on procedural or other grounds, not actual innocence).

o State and federal courts rigorously review every death penalty case in California (the judge has the authority to reverse the sentence if he/she feels the jury’s decision was improper. Every case is automatically appealed to the California Supreme Court, and capital defendants are allowed to challenge their conviction at every level of state and federal courts; it takes more than 15 years in California before an execution is carried out).

Some common arguments in favor of the death penalty include:

It is justice – murderers in capital cases deserve death (an eye for an eye).

Concern for the victims’ families, and respect for the victims, requires that the harshest punishment possible be enforced.

It is a deterrent to crime.

There is no recidivism – once dead, murderers can commit no more crimes.

It is unfair to expect taxpayers to financially support convicted murderers incarcerated for life without possibility of parole.

Opponents of the death penalty, including groups such as Amnesty International,

argue that:

Capital punishment does not deter crime.

The USA is unable to prevent accidental execution of innocent people - studies have shown that in the twentieth century, at least 400 innocent people were convicted of capital crimes they did not commit. Of those 400, 23 were executed.

Race plays a role in the vast majority of executions - in 1990, the General
Accounting Office reported that in 82% of the studies reviewed, race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e. Those who murdered whites were more likely to be sentenced to death than those who murdered blacks.

The death penalty is applied at random - politics, quality of legal counsel, and the jurisdiction where a crime is committed are more often the determining factors in a death penalty case than the facts of the crime itself.

Executions are carried out at a staggering cost to taxpayers – it costs more to execute a person than to keep him or her in prison for life. A 1993 California study argues that each death penalty case costs at least $1.25 million more than a regular murder case and a sentence of life without possibility of parole.

Ethical Issues

1. Is it right to sentence a human being to death as punishment for murder?

Moral Standards in Conflict: #1, 2, 3, 4, 5.

2. Is it right to sentence convicted murderers to life imprisonment, knowing that this

sentence may be commuted at some point to fewer years?

Moral Standards in Conflict: #1, 2.

3. Is it right to hand down irreversible sentences in a system that is arguably imperfect?

Moral Standards in Conflict: #2, 3, 4.

4. Is it right to determine some murder cases capital, and others non-capital?

Moral Standards in Conflict: #1, 2, 3, 4.

5. Is it right to consider economics, when deciding whether or not a prisoner should be

put to death?

Moral Standards in Conflict: #1, 3, 4, 5.

Moral Standards in Conflict

1. It is right to respect life.

2. It is right to protect the innocent.

3. It is right to impose consequences for cruel behavior.

4. It is right to treat people fairly.

5. It is right to respect the personal property and assets of others.

I have listed the basic universal moral standards of respect for life, protection of the innocent, punishment of the guilty, and fair treatment; these are standards present in most, if not all, societies. The right to personal property and disposal of assets, while not universal, is certainly widespread. I believe these moral standards are correct, based on world history, my religious beliefs, and my indoctrination into the constitutional structure of my native country. Standard #5 is probably culturally biased, but as this case is centered on the death penalty in the context of the U.S.A., I believe it to be relevant and true.

Morally Responsible Parties

*Judge

*Convicted capital criminal

*Jury

*District Attorney

*Defense Attorney

*Victims’ family

*Lawmakers

*Citizens of the U.S.

Chosen Ethical Issue and Morally Responsible Party

I choose the ethical issue, “Is it right to sentence a human being to death as punishment for murder?” The morally responsible party chosen is the judge. However, it is important to note that this is not a legal question, but an ethical one. There is no legal doubt that the judge has the authority to decide whether or not to sentence the defendant to death; this is the judge’s moral dilemma, which may or may not influence the legal decision that must be made.

Assumed Facts (both general and specific)

The defendant accused has been convicted of capital murder (murder with special circumstances) in a California court of law, and the jury has sentenced him to death.
Not all people who are convicted are guilty of the crime of which they have been convicted.
Capital crimes have been statistically shown to be racially biased.
Most victims’ families support the death penalty
All convicted capital criminals are entitled to appellate and state supreme court defense at no charge.
The crimes of which the defendant has been accused are inarguably heinous.
The murder victims and their families have suffered immeasurable pain.
Many defendants accused of capital crimes are medically, if not legally, insane.
It is possible for a judge to sentence a capital criminal alternatively to life imprisonment without possibility of parole.
There is pressure from police agencies and the district attorney’s office to sentence the defendant to death.
The specific trial in question had two psychiatrists (one provided by the state, the other by the defense); one of the psychiatrists found the defendant to be medically insane (paranoid schizophrenia), the other did not. Both stated that the defendant was legally sane (able to understand the charges and stand trial).

Alternatives Available

*Sentence the defendant to death.

*Sentence the defendant to life imprisonment without possibility of parole, claiming that

the jury’s decision was improper.

Utilitarian Approach

Costs and Benefits:

Alt. 1 - Death Alt. 2 - Life

Factors	Costs	Benefits	Costs	Benefits
Each factor is given one star for each cost or benefit for which it is a feature. If the factor does not apply, there is a blank space so that the stars are in order.	1.Irreversible 2.Defendant may be innocent 3.Costly process 4.Cruel 5.Hypocritical (killing for killing)	1.No recidivism 2.May deter other criminals 3.May bring some comfort to victims’ families 4.May be deserved 5.Will pacify DA and police	1.May be unjustly lenient 2.Will anger DA and police 3.May hurt victims’ families 4.May weaken society’s laws 5.May encourage people to think that the rights of criminals are more important than those of the victims.	1. Reversible if innocent 2.Protects society without undue cruelty 3.Less costly than capital process. 4.Reduces the impact of judicial errors 5.Provides possibility of inmate productivity
Intensity	*****	_*_	_**	****_
Duration	*__	****_	__***	_
Certainty	_**	__*	___	*****
Propinquity	_**__	**_	_**__	_**__
Fecundity	*****	*__	*****	*****
Purity	*****	***__	___	*****
Extent	*****	***__	__***	*****
Final Tallies:	29	24	21	30
Final Benefits:	Net benefit:	-5	Net benefit:	9

Utilitarian Approach Conclusion:

According to the Utilitarian Approach, Alternative 2 is the most ethical choice because it produces the most happiness for the most people. Determining the costs of each factor was very difficult, and may be different in different places or circumstances. However, based on the facts assumed, I believe that the factors were considered fairly. I attempted to consider the costs and benefits to society as a whole.

Justice Approach

For the Justice approach, I will consider the potentially affected parties to be:

*Defendant

*Victims’ families

*Judge

Affected

Parties

Alt. 1

Death sentence

Alt. 2

Life w/o parole

Defendant

+ +

- -

Victims’

Families

+ -

Judge

+ -

Justice Approach Conclusion:

As neither alternative affords equal benefits and burdens to all parties, the least advantaged party must be considered. The very difficult problem here is to decide on the least advantaged party - the defendant or the victims’ families? One is facing death; the other has had to face the death of a loved one. One is fighting for his own life; the other is grieving his or her own loss. Upon much thought and consideration, I have come to the conclusion that the defendant is the most vulnerable party, mostly based on the possibility of innocence. The victims’ families are already dealing with the reality of an imperfect world; but in sentencing, we have the opportunity to consider protection from an imperfect system. Therefore, Alternative 2 is the most ethical because it favors the (arguably) least advantaged party.

Rights Approach

For the Rights Approach, considering all of the parties directly involved, I will apply the following hierarchy of rights and duties:

1. The right to life

2. The duty to respect life

3. The right to fair treatment

4. The duty to treat people fairly

5. The right to be safe

6. The duty to protect the innocent

7. The right to receive justice

8. The duty to impose justice

Explanation of Rights and Duties Hierarchy

I have layered rights and duties in the order above based on a presumption that the most basic right is the most important; without life, there can be no further rights or duties. Beyond this, I believe that fair treatment is of high importance, because it ensures that the right to life and other important rights are not protected in an unbalanced way, but applied to all people equally. Next is the right to safety, and the corresponding duty of our judge to protect people. This vied with fairness for the number two spot, but I placed it after fairness because an unfair society is inherently unsafe for at least some of its citizens, while an unsafe society may be fair in the distribution of danger. The right to justice (and here I am referring to just reward and consequence) and the duty to impose justice are last; all of these rights and duties are very important, but again, without the first group (life, fairness, and safety), there can be no presumption of need for justice. Justice itself is conferred using the first three groups of rights & duties.

The alternative that best reflects this hierarchy is:

Alternative 2; it protects the defendant’s right to life, and provides the possibility of reversal if fair treatment has not been received by the defendant; it keeps society safe in the case of the defendant’s guilt, and imposes just consequences for the defendant’s behavior. Although some may argue that Alternative 1 is just, since it confers equal punishment on the defendant and his victims, there is again the question of possible innocence, in which case justice would be obstructed.

Virtue Approach:

Reflected Virtues:

Alternative 1:

Compassion (for victims), Justice (for victims), Courage

Alternative 2:

Compassion (for defendant), Justice (for defendant), Courage, Mercy,

Conservancy

Based on the virtues reflected, Alternative 2 is the most ethical, because it balances the interests of both the defendant and the victims’ families; it provides the most opportunity for goodness in that it protects the only life now possible to protect.

Conclusion – In My Opinion:

It is my opinion that the death penalty is, in fact, unethical. I believe that no human being has the right to premeditatively end the life of another. I believe that it is hypocritical to kill a person because that person has killed. The permanent nature of the death penalty has also been a major issue for me; I know (as do we all, I believe) that there are innocent people in prison, and that some of them are probably on death row. New techniques in DNA evidence analysis has freed 138 of these people; who is to say that newer techniques as yet unimagined will not result in more exonerations? Is there a hormone, or an environmental factor, or a possibility of evidence tampering? Any answer of “perhaps” is compelling to me to settle for a less permanent punishment than death.

I was raised a Christian. I still believe in the tenets of Christ. “An eye for an eye” was abolished in the New Testament; mercy was the order given. “Let he who is sinless cast the first stone.” Obviously, society must be protected from violent criminals. This is a given. However, I believe it is our moral duty to treat all human beings with as much compassion as possible without infringing on the rights of others. This does not include, to my mind, execution. I realize that many Christians do, in fact, support the death penalty, but for the life of me I can’t find a New Testament basis for it. Christ certainly made allowances for prison; one of his declarations was that “I was in prison, and you visited me.” But a serious moral question exists as to the nature of the justice system and prisons; are they to exist to punish the guilty, or protect the innocent? Focus on punishment appears to be discouraged by the New Testament – “Judge not, lest ye be judged.” The best argument I have personally read that pertains to the ideal Christian jail is in a book entitled “John the Unafraid.” This book was published anonymously in 1910 by the A.C. McClurg Co., an offshoot of the Church of the Brotherhood, a small Christian sect of the Moravian church. In it, the author states:

“Ye are not there to hold the scales of justice as one who is the seller of salt, but the scales you hold must weigh men’s souls and mothers’ tears. If you find a brother too sick to be cured by you, and dangerous to others, put him not away in a dark cell in hatred. If he must, for public safety, be held behind the bars, let it be where he may have kindness from his fellow man; let it be so that he may sometimes see the trees and flowers; let him sometimes hear the voices of little children, and it may be that the sight of a star in heaven or the smiling face of infancy, may light anew the spark of God within him, which you men of wisdom and learning could not find.”

This is, I acknowledge, not the most popular view in the world today; but I do wonder sometimes what would be the worst that could happen, were we to make jails safe and productive, perhaps even self-sustaining through enterprise. I am not suggesting leniency, but rather a vastly different purpose to the penal system. I believe that our standards need to be higher in regard to prisons, prison staff, and indeed prisoners.

The problem I have always had is the question of victims’ rights, and the rights of victims’ families. Who would dream of arguing against the death penalty to the spouse, children, or parents of a murder victim? Not me. My cousin’s husband was murdered in his home, and all I could think to say was “I’m sorry.” This was always the point at which I could not go beyond; the point that kept me undecided, confused, and unhappy with my own fence-sitting. Through this exercise, I attempted to see both sides fairly; the fact that my conclusions were inevitably against the death penalty disturbed me a great deal, and compelled me to rework the problems over and over again, to make sure that I was not indulging my bias. But no matter how dispassionate I tried to be, it kept coming out the same. I was finally forced to conclude that, unpleasant and unpopular as it may be, I have to acknowledge that fact that, unless I have a serious case of tunnel vision, the death penalty is unethical when applying most approaches. At the end, while researching the background information on this issue, I quailed when I read that John Stuart Mill favored the death penalty! I reworked my problems again, again getting the same conclusions. I then looked at Mill’s argument, which stated that:

“Does fining a criminal show want of respect for property, or imprisoning him, for personal freedom? Just as unreasonable it is to think that to take the life of a man who has taken that of another is to show want of regard for human life. We show, on the contrary…our regard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself and that while no other crime that he can commit deprives him of his right to live, this shall.”

I realize that I am in no way the equal of John Stuart Mill in the realm of philosophical thought, or indeed, thought itself; but it does seem to me that there is a flaw in his argument. While it is true that fines and imprisonment are imposed in some criminal cases, this is not really comparable to the taking of life. We have moral limits. In some countries, it is accepted that the just punishment for a thief is to cut off his hands; in our country, this is seen as barbaric. Why? Because it is the obligation of the state to be morally stronger than the criminal. If a man throws acid in the face of his daughter, he is imprisoned; but we do not disfigure him. Is equal punishment to be the order of the day? Then cheating spouses will be cheated upon, thieves will have their property taken away, wife beaters will be beaten, and the assets of all IRS employees will be frozen (just kidding). But the point of the matter is that we as a society have an obligation to set an example of civilized behavior for the best and the worst of our citizens. Also, the argument that we show our regard for life by adopting a rule that life is forfeited by he who takes life seems specious to me. In what way does this rule show that we have a regard for life? Justice, perhaps; equal punishment, maybe; but regard for life? We are unable to bring back the dead. Shouldn’t we then be very, very careful when dealing out death? Any regard for life that is expressed by the taking of it is inherently flawed in that it is assigning value to specific lives. We show regard for victims by bringing their murderers to justice; we protect society by incarcerating violent criminals; but to show regard for life as a sacred force requires us to show this regard unreservedly. Otherwise, we beg the question, “Who is worthy?” This does not show regard for life, but rather regard for judgment.

I think that the issue of capital punishment is very, very difficult; I in no way condone murder, or underestimate the grief and horror experienced by murder victims and their families. The final word, while it may be expressed by a minority of victims’ families, is nonetheless my final argument against the death penalty; I was somewhat relieved upon finding it on the internet. This is a quote by Marie Deans, who is the founder of Murder Victims’ Families for Reconciliation:

“From experience, we know that revenge is not the answer. The answer lies in reducing violence, not causing more death. The answer lies in supporting those who grieve for their lost loved ones, not creating more grieving families. It is time we break the cycle of violence. To those who say society must take a life for a life, we say: “not in our name.”