Capital Punishment Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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The state’s levy and administration of the penalty of death for criminal actions or conviction is called capital punishment. Capital punishment follows from regular legal procedures under due process of law, elements which distinguish it from extrajudicial executions. Capital punishment is generally on the decline around the globe, either because of a state’s abolition or growing tendency to constrict its use.

Capital Punishment Around The World

The United States remains committed to the death penalty in the face of increasing criticism in the international arena and long after most other democratic nations have abandoned it. It is now a commonplace to note that the United States is alone among Western industrialized nations in executing its citizens. Today, Europe proclaims itself to be “death penalty free” and has succeeded in talking, and sometimes coercing, almost the whole of Easter n Europe into abolitionism. Abolitionists in Europe like to point out that the death penalty is unacceptable in a “civilized society.” In addition, the Council of Europe in 1999 expressed its “fir m conviction that capital punishment, therefore, has no place in civilized, democratic societies governed by the rule of law” (Council of Europe and Wohlwend). Further, in Soering v. United Kingdom (1989), European Court of Human Rights justice de Meyer put it simply when he said that capital punishment “is not consistent with the present state of European civilization.” Some believe that the civilizing process leads inexorably to rejection of legalized state killing. Europe, in this view, is a step ahead of the United States, which, along with the rest of the world, sooner or later will catch up.

From a global perspective, however, the United States does not seem that exceptional. While 111 nations have formally abolished or stopped using the death penalty, little more than one-fourth of the world’s population lives in countries that have completely abolished it. Many supporters of capital punishment hesitate to cite states like the Democratic Republic of Congo, Iran, Saudi Arabia, China, or North Korea as examples of countries where the capital punishment is still applied. However, there is at least one more industrialized democracy, Japan, and several either democratic, or economically prosperous, countries such as India, South Korea, Taiwan, and Singapore, in which capital punishment still is part of the penal code. In the territory of Russia and the former Soviet States in central Asia, Turkmenistan alone has abolished the death penalty completely, although Russia, Kazakhstan, and Kyrgyzstan have moratoria in place. Africa presents a mixed picture, with eight fully and thirteen de facto abolitionist states, and twenty-six states that retain the death penalty. Most Asian nations retain the death penalty and no country in the Middle East—except the de facto abolitionist Israel—has decided to abandon judicially authorized state killing.

Capital Punishment And American Politics

In the first decade of the twenty-first century, capital punishment continues to have an important place in U.S. politics and practice. Despite the recent reawakening of abolitionist activity, a majority of Americans in opinion polls say they favor capital punishment for persons convicted of murder. Yet capital punishment is perhaps less of a national phenomenon than it is a reflection of the distinctive history and politics of the American states in the so-called death belt, states such as Texas, Virginia, Oklahoma, Missouri, and Florida that together account for approximately two-thirds of all executions in the United States. Indeed, executions have become so commonplace that in some states, such as Texas and Virginia, it is difficult for abolitionist groups to mount a visible presence for every execution.

Motivations such as vengeance, retribution, and the simple justice of an eye-for-an-eye sort provide the basis for much of this popular support. This may reflect “a growing sense that capital punishment no longer needs to be defended in terms of its social utility. . . .The current invocation of vengeance reflects . . . a sense of entitlement to the death penalty as a satisfying personal experience for victims and a satisfying gesture for the rest of the community” (Simon, 1997, 13).Yet, as legal historian Stuart Banner rightly observes in Austin Sarat’s book, When the State Kills: Capital Punishment and the American Condition,

Capital punishment . . . presents several puzzles. It gets more attention than any other issue of criminal justice, yet it is a minuscule part of our criminal justice system. It is very popular despite well-known shortcomings—it does not deter crime, it is inflicted in a systematically biased manner, it is sometimes imposed on the innocent, and it is quite expensive to administer. . . . It is often justified in simple retributive terms, as the worst punishment for the worst crime, but it is not hard to conceive of worse punishments, such as torture. . . . While capital punishment is intended to deter others, we inflict it in private, and allow prospective criminals to learn very little about it. (12)

It is not clear whether and when the United States will abolish capital punishment. This is, in part, a function of some distinctive aspects of the U.S. political system. Thus, Franklin Zimring, Gordon Hawkins, and Sam Kamin argue in their 2001 publication Punishment and Democracy that the more democratic penal policy making is, the more prone it is to be driven by punitivism, and the irrational and emotional motives often attributed to death penalty supporters. Their empirical case is the so-called “three strikes and you’re out” legislation in California, but their hypothesis can be extended to capital punishment. To be sure, one has to be careful not to confuse “democracy” with “public participation in penal policy making. ”Throughout history, most authoritarian states, including socialist states, have used the death penalty liberally. This is not surprising since penal policy is a domain especially suitable for symbolic politics. Being “tough on crime” can be popular in any regime type.

Zimring, Hawkins, and Kamin also refer to popular participation in the penal policy-making process. The comparison between the United States and Europe, in this regard, is instructive. Observers have pointed out that American institutions are more “porous” and open to popular demands than European political structures. American institutions also expose many officials, particularly judges, to direct electoral competition which are, in Europe, staffed by career bureaucrats or disciplined party politicians. Additionally, American states allow penal policy to be made through referenda, such as the Californian three-strikes initiative, which would be unthinkable in most of Europe. As Joshua Micah Marshall puts it, “Basically, Europe doesn’t have the death penalty because its political systems are less democratic, or at least more insulated from populist impulses, than the U.S. government” (12–15).

In spite of America’s criminal justice populism, the last several years have seen a dramatic decline in both the number of people being sentenced to death and the number of executions administered in the United States. According to the Death Penalty Information Center, there were 276 death sentences handed down and 98 executions across the country in 1999; by 2005, the number of death sentences had declined to 125, and the number of executions shrunk to 60.These changes are, to some extent, a function of growing national concern about the possibility of executing the innocent. DNA-prompted exonerations have galvanized public attention and raised new doubts about the way the death penalty is administered.

Still, capital punishment remains a key part of American political life. It is caught up in, and sustained by, a series of contradictions in U.S. social and political attitudes. The power of the victims’ rights movement in the United States arises, in part, from increasing distrust of governmental and legal institutions, yet it is to those very institutions that the families of victims must turn as they seek to ensure an adequate response to capital crimes. This same contradiction sometimes is revealed when jurors decide to impose the death penalty. Some jurors do so because they doubt that a life sentence will actually mean life, yet they can express this doubt by imposing a death sentence because they believe that appellate courts will ensure that state killing is used with great scrupulousness.

Traditional Approaches To Studying Capital Punishment

Much of the available research on the death penalty centers on the United States, which permits the federal government and state governments to use death as a punishment for homicide. Research traditionally focuses on three topics: (1) whether the death penalty deters, (2) whether it is compatible with contemporary standards of decency, and (3) whether it has been administered in a racially neutral or in a discriminatory manner.

Deterrence

Until relatively recently, the settled wisdom was that the death penalty did not produce a greater deterrent effect than life imprisonment. However, recent research has reignited the debate about deterrence. Hashem Dezhbakhsh and his colleagues suggest that each execution prevents approximately eighteen murders, while similar research by H. N. Macon and R. K. Gittings and Joanna Shepherd purports to show similar deterrent effects. In response, John Donohue and Justin Wolfers compare execution rates with homicide rates and contrasted U.S. trends to Canadian trends and conclude that there is considerable doubt about whether the death penalty has any deterrence effect at all.

Deterrence studies traditionally have used many different methodologies. Some examine murder rates before and after well-publicized executions; others compare murder rates in adjoining states, one with capital punishment, and the other without. In the 1970s, the economist Isaac Ehrlich conducted controversial research on the deterrent effect of capital punishment. It shows statistically significant deterrent effects and uses sophisticated statistical techniques to control for confounding variables. If Ehrlich is correct, execution did indeed save lives. He claims in his 1975 article “The Deterrent Effect of Capital Punishment,” “On the average the trade-off between the execution of an offender and the potential victims it might have saved was on the order of magnitude of 1 to 8 for the period 1933–67 in the United States” (398). Ehrlich’s research has been the object of sustained and rather persuasive criticism, such as that by Lawrence Klein and Richard Lempert, most of which focuses on the particular statistical techniques used. Today’s controversy has reignited the effort to determine if the death penalty has distinct and discernible deterrent effects.

Retribution

The most powerful alternative justification suggests that even if the death penalty does not deter, one may justify it on retributive grounds or as a way of expressing a society’s legitimate moral condemnation of heinous criminality. Researchers such as Neil Vidmar and Phoebe Ellsworth have conducted research on public opinion to determine whether this retributive attitude, and the death penalty that it supports, are compatible with contemporary standards of decency.

In deciding whether the American public supports the death penalty, social scientists have repeatedly documented strong support for capital punishment, which highly correlates with retributive attitudes. This suggests that it is a particular view of justice, rather than the death penalty’s utility, that explains its persistence in the United States. However, research also demonstrates the malleability of this public embrace of capital punishment and its retributive justification.

In 1976, Austin Sarat and Neil Vidmar followed a hypothesis first advanced by Justice Marshall in Furman v. Georgia (1972) that found the more people know about the death penalty, how it works, and the evidence on deterrence, the less they support it. In 1993, William Bowers discovered that public support for capital punishment decreased dramatically when he presented survey respondents with alternative forms of punishment and asked them to choose which they preferred. Bowers found that people tend to accept the death penalty because they believe that currently available alternatives are insufficiently harsh. However, when people were asked whether they preferred the death penalty or life without parole combined with a restitution requirement, the expressed support for the death penalty fell considerably.

Fair Process And Nondiscrimination

The final traditional interest of scholars studying capital punishment is in the compatibility of capital punishment with democratic values. These researchers ask whether the state administers capital punishment fairly and, more particularly, in a racially nondiscriminatory manner. Efforts to answer this question often focus on the race of the offender. Scholars documented in rape and homicide cases, for example, that between 1930 and 1967 almost 50 percent of those executed for murder were black. However, this early research was unable to disentangle the impact of race from other supposedly legitimate factors on capital sentencing. Merely showing that the death penalty was more likely to be imposed on black defendants could not, in itself, establish that that difference was the result of racial discrimination.

In the mid-1980s, David Baldus and his colleagues undertook research designed to remedy this defect. Using sophisticated multiple regression techniques and a large data set, they aimed to isolate the effect of race on capital sentencing. First, they found no evidence of discrimination against black defendants because of their race in the period after Furman v. Georgia (1972). Second, they found strong effects for the victim’s race. Taking over two hundred variables into account, Baldus and colleagues concluded that someone who killed a white victim was 4.3 times more likely to receive the death penalty than if the victim was black. Even after the sustained efforts by the Supreme Court to prevent arbitrariness or racial discrimination in capital sentencing, juries seemed to still value the lives of white Americans more highly than the lives of African Americans and were, as a result, more likely to sentence some killers to die on the basis of illegitimate racial considerations.

The Baldus study was the highpoint of policy-relevant, empirically rigorous social science research on capital punishment; it spoke directly to issues that the U.S. Supreme Court had put at the heart of its death penalty jurisprudence and the study used the best social science methods. However, it did not persuade the Court. While the Court accepted the validity of the Baldus study, it concluded in McCleskey v. Kemp (1987) that such statistical evidence could not prove discrimination in any individual case. This rejection stunned those who believed that social science could help shape policy in the area of capital sentencing.

Emerging Research Trends

Following McCleskey v. Kemp (1987), the U.S. Supreme Court became more conservative, unreservedly embracing the death penalty and rejecting what in earlier years seemed to be persuasive challenges rooted in social science research. Frank Munger, in a 1993 issue of Law and Society Review, asserts that after twenty years of research intent on influencing the Court’s death penalty rulings, the McKleskey decision “has forced scholars to chart new courses. . . . Scholars have responded with research that is more deeply critical, more theoretically informed, and more broadly concerned about the culture and politics of the death penalty” (6).

Some of this new research focuses on analyzing the processing of capital cases, with special attention to how and why actors in the death penalty process behave as they do. Among the most important of these actors are jurors—ordinary citizens who must decide not only questions of guilt or innocence but also whether those found guilty of murder should be sentenced to life in prison or execution. Juror research, such as that done by Theodore Eisenberg and Martin Wells, Craig Haney and Mona Lynch, along with William Bowers and Benjamin Steiner, examined how jurors process the information provided to them, how they understand their responsibilities in capital cases, how they function in an atmosphere surrounded by the portrayal of violence, and how they balance their folk knowledge with the legal requirements of capital cases. In addition, Austin Sarat conducted research on lawyers and the lawyering process in capital cases, with special attention on the use of stories as persuasive devices and other narrative strategies. He also examined capital trials as events in which law attempts to put violence into discourse, and to differentiate state violence from the extralegal violence that it opposes.

David Garland’s 1991 argument about the cultural impact of punishment has influenced other scholars. “Punishment,” Garland contends, “helps shape the overarching culture and contribute to the generation and regeneration of its terms” (193). Punishment, he additionally notes, is a set of signifying practices with pedagogical effect that “teaches, clarifies, dramatizes, and authoritatively enacts some of the most basic moral-political categories and distinctions which help shape our symbolic universe” (195). Punishment teaches people how to think about categories like intention, responsibility, and injury, and it models the socially appropriate ways of responding to injury. What is true of punishment in general is particularly true for the death penalty. Scholars such as Émile Durkheim and George Herbert Mead, among others, contend that it is through practices of punishment that cultural boundaries are drawn, and solidarity is created through acts of marking difference between self and other, through disidentification as much as imagined connection.

The cultural politics of state killing has played a key role in shoring up distinctions of status and distinguishing particular ways of life from others. As a result, it is not surprising today the death penalty in the United States marks an important fault line in contemporary culture wars. Execution itself, the moment of state killing, is still today in the United States and some other nations an occasion for rich symbolization, for the production of public images of evil or of an unruly freedom whose only containment is in a state-imposed death.

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