Death Penalty

Gregg V. Georgia 1976

1) Bifurcated Trial 2) Formal Consideration of aggravating and mitigating circumstances 3) Automatic Appeal

Furman v. Georgia (1972)

1) Not used with sufficient frequency to serve any real deterrent purpose 2) Used statistical evidence to show it was disproportionately used against someone who was poor and/or minority 3) It's kind of random on who gets it and who doesn't 4) Capital Punishment is not consistent with the evolving standards of a moral society

In order to have a deterrent effect, you need three things:

1) Swift 2) Severe 3) Certain

History of the death penalty: modern era (1976-Present)

35 states, plus the federal government, still have the death penalty

Classify homicide by levels of aggregation

6 levels

Cochran and Chamlin Essay

Argue that we have been treating homicide as if they are the same, but with respect to deterrence we are not sure that it is accurate. • Proposeddifferenttypesofhomicidearemoreorlesstohavean effect on deterrence. • Crimes of Passion • Felony-Murder

Execution of the Mentally Challenged

During the Modern Era, since 1977, we have executed 34 people with the evidence of mental retardation. Penry v. Lynawgh Atkins v. Virginia 1989 2002 • Supreme Court said that 16 state legislature has already stopped the death penalty of mentally retarded • Supreme Court did not define what we would call mental retardation • Theyleftituptothestatestodecide • There is not prefect consistency between states

Process of Lethal Injection:

First Shot - meant to render the condemned unconsciously Second shot - paralytic Third Shot - Stops the heart

Execution of the Mentally ill

Ford v. Wainwright

In one study, they examined every single deterrence study they could find.

Found that the results reflected the choices of statistical model more than any other picture of reality • Has to do more with the statistical method than what the data really says

two landmark cases that shape Capital Punishment we know today

Furman v. Georgia (1972) and Gregg V. Georgia 1976

Caesar Beccaria

He is a utilitarian because he believes in the greatest good for the greatest number

Deterrence

Preventing crime through the threat/fear of punishment • Murder rates are higher in death penalty states than non- death penalty states • We are measuring a non-event so it is hard to pin down one reason

Principle of Equality

Punishment should be equal to the offense

How does society or the government have the right to punish?

Retribution

Execution of juveniles

Roper V. Simmons

Brutalization Effect

Says that the death penalty may deter, but it also brutalizes individuals that could cause an increase in violence because of desensitization

Innocence Issue

Starting in 1990, there has been a noticeable decline to sentencing of capital punishment and the number of executions have declined • 2/3 of all death sentences are overturned • 135 exonerations in the Modern Era from death row • Florida has had 22 • There is a decreasing support for capital punishment

Jeffery Reiman

The principle of equality is not workable and not necessary and proposed proportional retributivism

Framers of the Constitution intended that the punishment of death is to be used

This is known as Framers Intent or Fixed Interpretation of the Constitution • If we adopt this type of interpretation, how it is written is how it will be applied today • Regardless of the time or historical context

Marshall Hypothesis

Thurgood Marshall had the idea that the more people know about capital punishment, the less likely they would be to support it

Social Contract

We all enter into this social contract where we willingly give up some of liberties, freedoms, and individual will, but in exchange we get protection from the state by granting them authority to restore social order. • Kant says "the man in the natural state are essentially hedonistic, barbaric, pleasure seeking

Lethal Injection

We transitioned because it supposedly more humane and less violent than electrocution • It is also more cost effective!

Van den Haag

When someone commits a crime they injure victims, injure surrounding community, and threaten social contract

Challenges of the death penalty on the basis of:

constitutionality method process

Beccaria Constitution: Chapter 3 Consequences of the Foregoing Principles

• "If every individual be bound to society, society is equally bound to him, by contract which from its nature equally"

Beccaria Constitution: Introduction

• "If we look into history we should find that laws which are conventions of men in a state of freedom, but mostly have been..." • "Happy are those few nations who have not waited..."

Beccaria Constitution: Chapter 1, Of the Origin of Punishments

• "Laws are the conditions which men united themselves"

Beccaria Constitution: Chapter 2, Of the Rights to Punish

• "No man ever gave up liberty for good of public" • "All punishments which exceed the necessity of preserving this bond are in their nature unjust"

Beccaria Constitution: Chapter 6, Of proportion between Crimes and Punishments

• "There ought to be a fixed proportion between crimes and punishments" • "A scale of crimes should be formed"

Beccaria Constitution: Chapter 28, Of the Punishment of Death

• "What right of men to cut the throats of fellow creatures" • "It is not the intenseness of the pain that has the greatest effect on the mind...than a man deprived of his liberty" • "The punishment of death is pernicious to society from the example of barbarity"

History of the Death Penalty: Early Period (1608 - 1929)

• 1608 as the first recorded execution • The North and South executed people differently • 2 themes that characterized the Early Period: • Limiting of offenses for which death can apply • Increase in discretion we exercise in handing out Capital Punishment

Method (8th Amendment):

• Baze (2008) • Francis (1947) • Kemler (1890) • Wilkerson (1878)

Arguments for the Death Penalty

• Deterence • Morally Correct • Proportional to the Crime • Reflects Public Opinion • Unlikely Chance of Error

Methods of Execution in Early Period

• Executions were huge public spectacles • Hanging was the preferred method of executions • Executions did not always go as planned • "Reform to Preserve" • 1886: Gerry Commission was formed • 1888: The Electrical Execution Act by New York • 1890: William Kemmler/In re Kemmler

Beccaria says there are 3 fundamental things we need to understand about human behavior:

• Free Will • We are Rational • We are Manipulable

Process (14th Amendment):

• McGautha (1971) • Furman (1972)

Arguments Against the Death Penalty

• Possibility of Error • Weak Public Support • Little Deterrent Effect • Race, Gender, and Other Bias • Causes More Crime than it Deters • Cruel and Inhuman • Most Developed Countries Have Abandoned It • It Is Expensive • Morally Wrong

Maryland Capital Punishment Study: found that ...

• Race of the defendant on its own does not matter • Race of the victim matters a lot • Combination of the defendant's race and victim's race matters the most

Most people who support state 3 reasons why:

• Retribution • Deterrence • Incapacitation

Retribution vs. Revenge

• Retribution is the act of the state on behalf of society • Revenge is an act of the person • Retribution is bound by a principle of equality

maryland capital punishment study

• Saw that 67% of Maryland's death row inmates were Black • 92% of them had killed a White victim • Looked at every single case from 1978 to 1999 • Found 4 decision points: • Decision of prosecutor to seek the death penalty • Decision to retain the death notice • Decision to advance to penalty trial • Actual Sentencing • Started with over 6,000 cases and identified 1,300 that could have been treated by prosecutors as death penalty cases • Of these cases, prosecutors actually decides to pursue the death penalty in 353 cases (1) • The death notice stuck in 213 cases (2) • 180 advanced to penalty phase (3) • 75 cases resulted in death sentencing (4) • 13 are still on death row

Capital Punishment

• The death penalty is one of the most controversial issues in criminal justice. • There are numerous equally cogent arguments for and against it.

What case characteristics move them through all of the decisions?

• The study thought of 123 variables to try and help explain why the case moved from one point to another. • Controlled for everyone of those variables

Constitutionality:

• Weems v. U.S. (1910) • Trop v. Dulles (1958) • Ring v. Arizona (2002) [6th Amendment] • Hurst v. Florida (2016) [6th Amendment]

Walter Berns

• When someone violates the social contract, they're taking an unfair moral advantage • Morality of Anger

History of the Death Penalty: Pre-Modern Era (1930-1967)

•1930 primarily because of the census • "Death by Execution" •1967 because beginning of the informal moratorium