Thursday, August 16, 2012

The Legal Issues in Imposing Capital Punishment

For a more comprehensive discussion of the legal process involved and the legal issues related to capital punishment visit Andrew Friedman's blog. 

In his blog, he discussed about the history of death penalty in the United States and the number of states imposing death penalty.  He also discussed the legal proceedings involved when a person is sentenced to death.  More importantly, he also discussed the sensitive issue of the possibility that innocent individuals have been executed and what happens to a person who is released from prison after being wrongfully executed.

It is very comprehensive discussion and any student who is writing an essay on capital punishment should see it first.

Follow the link below for his essay. 

The Morality of Capital Punishment

Discuss capital punishment and the moral dilemma it presents

An ancient proverb provides that “an eye for an eye, a tooth for a tooth”,  while the Code of Hammurabi in the 18th century B.C. likewise says that “if a man put out the eye of another man, his eye shall be put out, if he break another man’s bone, his bone shall be broken. These moral principles are the foundation of capital punishment. For centuries, the laws of many states adhere to and enforce capital punishment as a deterrent against heinous crimes. In essence, capital punishment is usually being observed to preserve peace and order and to prevent anarchy in the society. However, the enforcement of capital punishment raises some religious, moral and ethical issues since it involves the killing of convicted criminals and depriving them of their natural right which is the right to life. 

The principle of morality states that the taking of one’s life is wrong in all aspects notwithstanding the seriousness of the crimes and wrongdoings of such person. On the other hand, capital punishment is enforced to provide justice to the victims of the crimes.  In reality, both views are based on valid and solid grounds but one issue that calls for further evaluation is which of these two opposite views will produce greater benefit to the society in general.

As deterrent against crime, studies show that capital punishment significantly decreases the crime rate in most states which strictly enforce the law on capital punishment. Based on the study, prior to the enactment of Anti-terrorism and Effective Death Penalty Act in 1996, the murder rate in California was 9.1 persons out of every 100, 000 people (Helen Chen). In the year 2008, the murder rate had declined to 5.8 persons out of every 100, 000 people (Helen Chen). Likewise, in 1996, the murder rate in Alabama was 10.4 persons out of every 100,000 people (Helen Chen).  The murder rate had significantly decreased dropped to 5.4 in 2004 (Helen Chen).
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The decrease in murder rate as a result of strict enforcement of capital punishment has not only been experienced in the US but in other countries as well. Countries like China and Singapore which have the highest execution rate in the world are presently experiencing low crime rates.

Recent studies also show that capital punishment improves the prison system since it consequently reduces congestion in prison cells. However, the aforementioned issue may raise moral question like, why does the state need to kill persons convicted of heinous crime in order to solve the issue on inefficient prison system? But it bears stressing that the effect of capital punishment in the decongestion of prison cells is mere incidental to the primary purpose of death penalty which is to enforce justice and to deter criminals from committing heinous crimes.

Most states that observe capital punishment have noble intention of enforcing it which is to preserve the order and protect the welfare of the society. Thus, it is worthy to note that the life of one criminal who was proven guilty of a heinous crime beyond reasonable doubt is worth the sacrificing for the benefit, safety and security of the entire society. The imposition of capital punishment may be immoral but the preservation of order and welfare of each individual shall be the primary consideration and shall prevail over all moral issues.


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Essay on Execution of Troy Davis

            Are you looking for a persuasive essay on capital punishment or death penalty? Are you searching for an essay on the execution of Troy Davis? Do you want to add information in your essay to make it more impressive?

            A few months ago, Troy Davis who was convicted of killing MacPhail was executed.  Before that he filed a final appeal with the state of Georgia and 7 of the 9 witnesses against him had recanted their testimonies.  The United States Supreme Court also denied his application to stay the execution.

         As a backgrounder, Davis was pistol-whipping a homeless man after asking him for a beer when MacPhail who was working as a security guard rushed over to help him.  It was alleged that Davis had a smirk on his face when he shot MacPhail in a Burger King parking lot.

            The execution of an individual, such as what happened to Troy Davis, is always contentious issue.  It is a contentious issue because it involves the interplay of several virtues which are being observed in the United States Constitution and the American society.
            On one hand, the victims and the relatives of the victims are asking for closure.  The courts also want the doctrine of the finality of all judgments to be enforced.  This means that all litigations have to end somewhere.  When the issues have been resolved and all legal measures have been taken including an appeal, then only recourse is to implement the decision of the trial courts.

            On the other hand, the defendant who asks for a stay in his execution is also seeking to exhaust all legal remedies that the constitution has provided him.  In the news article entitled “Troy Davis and constitutional virtues”, Marc Osler, a professor of law and a federal prosecutor, said that those who are seeking a stay in the execution are banking on the virtues of due process and clemency.

            Under the doctrine of due process, all individuals who are accused of a crime are entitled to exhaust all legal remedies to defend himself.  This is a protection that is guaranteed to make sure that the person to be executed is indeed guilty of the crime charged.  The defendant who is also seeking for a stay in the execution is only asking for mercy.  When there is doubt on the guilt of the inmate who is about to be executed is it only right for the courts to grant the stay in execution so his case can be reviewed?

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Argumentative Essay Against Capital Punishment

If there are people who are in favor of capital punishment, there are also those who want it to be abolished.  According to the Abolitionists, capital punishment is nothing but an act of violence.  There is nothing more inhumane than tolerating the killing of another human being.  It is indeed very paradoxical that the state will allow the execution of a human person as a solution to crime and violence.  It is said that: “legalized homicide as punishment is generally inconsistent with the values it is presumed to protect, and in a broader context is demeaning of the dignity of human life. “  (Capital Punishment: British Columbia Civil Liberties Association, p.1)

Violence will never be the right solution to the rising criminality.  It bears stressing that when the society tolerates execution as a solution to criminality, in effect, we are leaving an imprint on the minds of the youth that the proper approach to violence is to impose violence.  Violence begets violence.  It is sad that when this happens we are legitimizing violence in our society.  Thus, the Abolitionists argue that capital punishment should be abolished because it degrades the value of human life. 

Capital punishment is also perceived to be beneficial for the society because it deters the criminal from committing another crime and it prevents the other criminals from committing the same crime.  It must however be emphasized that until now there has been no scientific literature that will prove that there is a causal connection or a cause and effect relationship between capital punishment and the commission of a crime. 

Further, there is empirical research that will prove that a great majority of crimes being committed in our contemporary society are either crimes of passion or crimes that are not premeditated or planned.  Logic will tell us that if a crime is committed in a fit of rage and anger then the thought of being executed for a would-be criminal offender will not serve any deterrent purpose because at the time of the commission of the crime he is no longer capable of making rational calculations about the benefits and disadvantages of his actions. 

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The third objection against capital punishment is that it is always possible that an inmate who is on death row may turn out to be innocent.  There are flaws in every criminal justice system.  We adopt the adversarial system wherein the prosecution and defense have sufficient freedom to control the manner and process of presenting evidence.  In this system, the judge acts merely as a passive arbiter who ensures that everything is in order and decides on the issues presented to him.  In this system, the prosecution lawyers in their haste to “win” their case, more often than not, are obsessed not with finding the truth but with the conviction of the accused.   The public prosecutors, on the other hand, are already burdened with the number of cases they are currently handling that they can no longer adequately defend the cause of the accused. 

The result is that we have a justice system wherein only those who can afford the best lawyers can be adequately represented or defended in court.  In this justice system the accused is at the mercy of the public prosecutor.  Thus it is not surprising that most people who are languishing in jail are those living below the poverty line who have no means to pay for a competent lawyer to defend themselves in a court of law.  On the other hand, those who are financially capable can hire skilled lawyers who can assist and defend them.  Thus, Christina Swarns (2004) states that:

“The primary reason for this economic disparity is that the poor are systematically denied access to well-trained and adequately funded lawyers. Capital defense is now a highly specialized field requiring practitioners to successfully negotiate minefield upon mine field of exacting and arcane death-penalty law. Any misstep along the way can literally mean death for the client” (Christina Swarns p 3)

Death penalty is a process that is irreversible.  Once it is imposed it can no longer be taken back by the state.  In the past, there have always been cases where a convict was perceived by the public to have been arbitrarily imposed the capital punishment.  (Bryan Vila, & Cynthia Morris, p.169)  It bears stressing that when a person is sentenced to death, he can no longer be benefited by any amendments in laws.  Likewise, he can no longer be benefited by the possibility that new evidence will be discovered that will exonerate him.  It bears stressing that no less than scientific evidence has in the past been used to reverse past convictions.   A study conducted by Bruce Robinson (2002) states that at least 350 people between 1900 and 1985 in America might have been innocent of the crime for which they were convicted, and could have been sentenced to death.” (Bruce Robinson, p.2)

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Argumentative Essay In Favor of Capital Punishment

Capital punishment or death penalty is the penalty of death for a person convicted of a serious crime.  It is derived from the Latin word ‘capitalis’ which means ‘of the head.’ The penalty is so-called since centuries ago beheading was the most frequent form of punishment for serious crime.  Among the current methods of implementing capital punishment are firing squad, hanging, electrocution, gas chamber and lethal injection. 

Capital Punishment is still being imposed in some states.  Because we adhere to the federalism as a form of government, our Constitution gives sufficient freedom to the individual states to make to their own laws and to determine the proper imposable penalty for their violations.  Thus, some states allow capital punishment and still impose it depending on the nature of the crime committed. 

A review of the laws of the different states will reveal that 38 of these states still impose capital punishment.  On the other hand, 12 States and the District of Columbia have abolished the capital punishment.  (“US Supreme Court Rules on Death Penalty Sentencing” p.1)

It bears stressing that as early as 1976, no less than the highest court of this land, the United States Supreme Court has ruled that the imposition of capital punishment does not violate the constitution.  (Franklin E. Zimring, p. 143)  It is not a cruel and inhuman punishment as discussed in the case of Gregg v Georgia (428 US 153).  Any question therefore on the constitutionality of the capital punishment is already well-settled. 

The only change in the past years among the states which impose it is the movement towards a less painful and more humane executions.  Firing Squad, Hanging and Guillotine which were practiced before were gradually replaced by electrocution and gas chamber.  Now, most states use the method of lethal injection which is perceived as the quickest, least painful and most humane than the other methods of executions. 
Arguments in Favor of Capital Punishment
There are two opposing forces on the issue of capital punishment: a) the abolitionists or those who argue in favor of the rejection of capital punishment; b) the retentionists or those who argue in favor of the propriety of capital punishment.    

The Retentionists rely on two main theories as justification for the imposition of capital punishment: The Retributivism Theory and the Utilitarianism Theory.  According to the theory of Retributivism, the imposition of capital punishment for certain crimes is allowed because the convicted prisoner deserves it.  This is also known as the doctrine of ‘just desert’ which is founded on the “eye for an eye, tooth for a tooth” philosophy.  When a person causes damage to another, an imbalance between the two parties is created and the imposition of capital punishment against the wrongdoer removes the unfair advantage and restores the balance. 

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The advocates of the Retributivism Theory argue that no less than God himself in the Old Testament institutionalized the legitimized the imposition of capital punishment against a criminal offender.  Consider also this biblical passage in the Book of Exodus which confirms that punishment is not immoral: “If men who are fighting hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman's husband demands and the court allows. But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.”  (Exodus 21:22-25.)  This only confirms that there is a biblical foundation for the imposition of capital punishment. 

The advocates of capital punishment argue that their position on this issue is founded on the Utilitarian Theory.  They believe that we will have a better and peaceful society if capital punishment is imposed.  According to them, based on the principle of utility, we must first determine the consequences of carrying out the punishment.  If punishment will most likely produce benefit to the greater number of people then there is no reason for not imposing it.

In simpler terms, the idea is that if we are to weigh the positive effects of punishment as against its negative effects and the positive effects outweighs the negative ones then it has to be imposed.  This theory somewhat looks forward and considers the consequences of imprisonment to the society.  

Capital punishment is considered beneficial for the society because it deters and hinders the commission of more crimes by other persons.  The idea is that if the state imposes a stricter policy against crime it is a manner of showing to the future offenders the kind of punishment they will receive if they violate a certain law.  It is also a declaration on the part of the government that it is engaged in a war against crime and against the violators of the law.  Once the people who are contemplating on committing crimes see that the commission of a crime has serious consequences for him then this will have a positive effect of deterring criminality.  Although it may not altogether stop the crime of murder it will however reduce it.

The Utilitarians argue that the society will be benefited from the execution of convicted murderers of the convicted prisoner because executing a convicted offender will incapacitate him from further committing a crime.  When a person commits a crime, he is regarded as a danger to the society.  Thus he needs to be separated from the society in order to prevent him from committing another crime.  Capital punishment is imposed to protect other members of the society. 

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Argumentative Essay on Lethal Injection


Hanging was one of the earliest methods of execution used in the United States.  As a punishment for violation of certain crimes, hanging was considered very effective because of its simplicity and social impact.  It was simple because it only required a tree and a rope to be implemented.  It was effective because it allows the rest of the community to witness the offender’s execution and consequently sends a strong message to the community about the severe punishment of crime. 

As technology developed, changes were also made in the implementation of capital punishment.  In the 1890s, there was a radical change in the manner executions were made as the state of New York utilized electrocution in implementing the death penalty. (Richard C. Dieter 2)   The shift from hanging to electrocution can be interpreted as a shift in the attitude towards capital punishment.  While in hanging every member of the community is made a participant in the execution by acting as a witness, electrocution emphasized on privacy.  Moreover, since electrocution takes place inside a private room, the incidences of unruliness on the public are avoided.  The shift can also be interpreted as the first concrete step towards the search for a more humane, quick, less painful means of executing criminal offenders.

There are however certain imperfections in the use of electrocution.  One of the most common problems encountered in electrocution are burning of the portions of the inmate’s body; eyeballs sometimes pop out and rest on his cheeks; flesh swells and skin stretches; sometimes the procedure fails to cause instant death and there is a need to administer repeated shocks.   (“Methods of Execution”)

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Lethal Injection
Because of the inefficiency of the electrocution to effect a more humane way of execution, gas chamber was used as an alternative and the use of cyanide gas was introduced in Nevada in 1924.   Lethal injection is just a continuation of the state searching for the most humane method of punishing a criminal offender. 

In search for the most humane, less painful and quickest means to execute criminal offender, the United States was the first country to perform executions by lethal injection in 1982 although Oklahoma as early as 1977 had passed legislation allowing lethal injection.  China subsequently followed and became the second state to adopt lethal injection in 19977. 

In the United States, Charles Brooks was the first convicted criminal to have been executed through legal injection on December 2, 1982.  It is said that 38 states are currently adopting this method of execution. (“Descriptions of Execution Methods”) As of July 1, 2006, 861 of 1,029 (81%) executions performed since 1976 have been by lethal injection, including 375 of the last 378 executions.  (“Methods of Execution”)

It is presently considered as the most humane and least painful means of execution.  This method makes use of a combination of three drugs: a) sodium thiopental or sodium pentothal which is a barbiturate that renders the prisoner unconscious, b) pancuronium bromide which is a muscle relaxant that paralyzes the diaphragm and lungs and c) potassium chloride which causes cardiac arrest.   In this method, the convicted individual is first escorted into the gas chamber and is strapped into a gurney with ankle and wrist restraints.  He is then connected to a cardiac monitor which is connected to a printer.  Two needles are then inserted into the person’s veins, usually in his arms.  The needle is connected to long tubes which contain harmless saline solution that is started immediately. Then, he is injected with sodium thiopental.  Then, pancuronium bromide is injected to the convicted person.  Finally, the flow of potassium chloride stops the heart.  Death results from anesthetic overdose and respiratory and cardiac arrest while the condemned person is unconscious.

Eighth Amendment Argument against Lethal Injection
Despite the evolution in the manner convicted criminal offenders are being executed and the use of modern medical methods of execution, there are still those who oppose lethal injection and argue that it can cause unnecessary pain and suffering.  Specifically, lawyers for the accused in Kentucky challenged the use of three-drug combination arguing that lethal injections violate the Eighth Amendment prohibition against cruel and unusual punishment.  In view of these oppositions, executions in the United States have been stopped pending the resolution by the Supreme Court on this case. 

The opponents of lethal injection who are anesthesiologists and end-of-life doctors argue that if a person is not properly anesthetized the paralyzing drug which is the second drug injected will prevent the inmate from being able to indicate any pain or distress. (Eric Weiner 1)  The third drug will make matters worse for the inmate as he will only feel as if he is slowly being suffocated.  This experience will be excruciatingly painful for him and he will most likely feel burning sensation in his veins.

Baze v. Rees
The argument that lethal injections violate the Eighth Amendment has already been settled by the Supreme Court in the case of Baze v. Rees, 217 S. W. 3d 207 (2008).  In ruling that lethal injections do not violate the prohibition on cruel and unusual punishments, the Supreme Court made the following declarations, to wit: 1) The case of Gregg v. Georgia, 428 U.S. 153 (1976) has declared that capital punishment is constitutional.  This only means that the constitution accepts the fact that pain cannot be absolutely avoided in capital punishments.  No matter how humane the method is, it must follow that there will always be pain associated with capital punishment.  Thus, it can be inferred that in order to comply with Eighth Amendment it does not demand the avoidance of all risk of pain in executions; 2) Although it may be true that there is a significant risk that the procedures in lethal injections may not be properly followed, and that the execution may result in pain, either because of accident or as an inescapable consequence of death, it does not follow that the punishment violates the Eighth Amendment prohibition on cruel and unusual punishment; 3) While it may be true that there are other safer and less painful alternative to lethal injection, as claimed by the opponents of lethal injection, it also does not follow that lethal injections violate the Eighth Amendment.  To allow opponents of capital punishment to establish that a violation of Eighth Amendment had taken place merely by virtue of presenting other alternatives, which they claim to be less painful and more humane, would in effect convert the courts to board of inquiry which shall be responsible for determining the best practices for executing criminal offenders; 4) lethal injections do not violate the Eighth Amendment because the same is accepted the 36 states that consider lethal injection as the preferred method of execution.  The same states utilize the three-drug combination in their executions.  It must be stressed that none of the states presently use the one-drug alternative being proposed by the opponents of lethal injection; 5) the risk of the improper administration of the drug involved does not also suffice to render lethal injections as violating of the Eighth Amendment as all the states that adopt lethal injections provide for safeguards to ensure that an adequate dose of drugs is administered to the convicted offender.  One of the safeguards is that the members of the team who will administer the three-drug combination are required to have at least one year of professional experience.  Also, they must be licensed medical professionals and must participate in at least 10 practice sessions per year.  An additional safeguard is the presence of the warden and deputy warden in the execution chamber who are tasked to closely monitor and watch for problems in the execution. 

The Supreme Court has eloquently spoken on the issue of Eighth Amendment violation of the use of lethal injection as a method of execution.  Lethal Injections do not violate the Eighth Amendment.  Gregg v. Georgia allows and recognizes that constitutionality of death penalty.  The three drugs administered to the offender which serve different functions in the body ensure that the offender will experience a quick and painless death.  The persons administering the lethal injection are all medically qualified and with sufficient expertise and training.  The warden also closely monitors the administration of the lethal injection.  While it may have imperfections, as of the moment it is the quickest, less painful and humane methods of execution. 

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