AMERICAN JUSTICE in AMERICA (?) $... . (by F.J. Litardo, http://www.miamicity.com/miami/literadeath.html) In 1976 the U.S. Supreme Court ruled that the death penalty is not unconstitutional. Although some of the law imposing the administration and regulation of capital punishment might be in violation of the constitutional prohibition against "cruel and unusual punishment," or other provisions of the Bill of Rights, the death penalty "per se" is not against the federal law. Six month later, in January 1977, the first execution under the new death penalty laws took place in the United States (Bedam 7), ending the moratorium of capital punishment that began in 1967. Since that first execution sixteen years ago, 220 death sentences had been carried out in a dozen states ("Justice..." 24). Today the death penalty looks reasonably secure to most observers. In fact, the popular vote according to all polls favor the death penalty by more than 60 %. The primary argument by all those in support of capital punishment is retribution (Radelet 12). In addition, when a Gallup poll asked death penalty supporters to explain the reason for their position, most of them said that the death sentence was an effective deterrent of crime, it was more economic than life sentences, it was a moral obligation to the victim's families and it was necessary to bring justice to society (Bedam 9). When the same poll asked those who were against the death penalty their reasons to be opposed to capital punishment, they stated that it was wrong to take a life, wrongful convictions may occur, it did not deter crime, it was unfairly applied, rehabilitation was possible and punishment should be left to God (Bedam 9). Similar to the popular view over capital punishment, scholars, philosophers, politics and criminologists in favor or against death penalty seem to have strong, specifics arguments to defend their ideas in one of the most controversial social argumants in America. Among the points of argument in the endless debate of death penalty, deterrence is a strong factor of disagreement between retentionists and abolitionists. All those in favor of capital punishment believe that there is no doubt that punishment, including capital punishment, prevent some crime by intimidating offenders . A study made in the 1940's by criminologist Isaac Enrich, showed that by the deterrent effect of executions, seven to nine innocent lives were saved each year (Goldberg 76). Retentionists affirm that with capital punishment some men probably halt from murdering because they fear that if they commit murder, they will be killed. Today, a Gallup poll reports that out of the 66 % of the population that supported death sentence in 1986, 20 % were in favor of it because of the deterrent effects on violent crimes (Bedam 8). In theory, deterrence should establish credible threats of punishment, but the lack of evidence does not prove the effectiveness of deterrence in potential killers. Whereas many politicians argue that death sentence is an effective deterrent, virtually no criminologist agrees (Radelet 6). According to social scientists, a methodology has yet to be discovered to prove that the death sentence works as an effective crime deterrent. Abolitionists argue that some studies even indicate that the rate of homicide actually increases after executions. In Louisiana, for example, during the summer of 1987, eight people were executed. In that same period the murder rate in New Orleans rose 16.9 %, the highest in years (Masour 23). Statistics also indicate that states that don't use death sentence as a punishment have lower crime rates that those that execute convicts ( ). Abolitionists believe that capital punishment is useless> and barbaric . They assure that life sentence without parole will serve the deterrent purpose at least as well. Most of us against capital punishment think the death sentence does not deter violent crimes, and it accomplishes nothing more than a lawfully, premeditated homicide by the goverment. The Eighth Amendment of the U.S. Constitution "prohibits cruel and unusual punishments." This raises question from retentionists and abolitionist on how to interpret the law and how it should be applied. Scholars in favor of capital punishment interpret "cruel" as disproportionate and irrational, and "unusual" as rare or infrequent. Therefore, they believe there is nothing in the constitution that bars capital punishment as a "cruel and unusual punishment." They also remind us that after a moratorium of ten years, the Supreme Court ruled again in 1976 that the capital punishment "per se" was not in violation of the eight amendment. Nevertheless, most retentionists think that death should be inflicted as painless possible. Among the methods of execution used to exterminate criminals since 1977, out of the 220 inmates executed 106 were killed by electrocution, 103 by lethal injection, 9 by gas chamber, 1 by firing squad and 1 by hanging ("Justice..." 24). Most retentionists also believe that convicts should be allowed to choose the method of execution, thus avoiding allegations on capital punishment violating the constitution. On the contrary, abolitionists think that capital punishment not only violates the Eight Amendment of the U. S. Constitution but it also works against the Fourteenth Amendment which ensures Americans equality for all. Scholars against the death penalty believe that the Supreme Court , which in fact established capital punishment as unconstitutional from 1967 to 1976, should constantly interpret the supreme law of the constitution in light of social and economic changes (Death Row 52 ). In fact, the right to life and the right not to be subjected to cruel, inhuman, or degrading treatment or punishment are enshrined in the Universal Declaration of the Human Rights and other international human rights declarations ("Critics..." 25). Most of those against the death penalty like myself think that "capital punishment is a relic of the earliest days of the American history when slavery, branding and other corporal punishments were common place" (Dicks 3). Like those other barbaric practices, capital punishment has no place in a civilized society. While debating capital punishment, retentionists and abolitionists also reach a disagreement on the basis of morality, ethics and religion. On one hand, most of those in favor of the death penalty argue that punishment, including capital punishment, is a "categorical imperative and need not to be justified in any moral, ethic or religious code" (Goldberg 149). In fact, some retentionists remind their opposer that under moral codes, capital punishment was an obligation from the judicial system to society. Studies and statistics show that some murderers have killed after convicted and imprisoned for murder and that is a risk our country should avoid. "Many murderers, while waiting on death row as if they were imprisoned for life, still kill in prison" (Masour 87). Retentionists argue most violent criminals do not change or cannot be rehabilitated. Some offenders may be able to improve but others can not; and if human lives are to be risked, the risk should fall more heavily on the guilty than on the innocent. If convicted, retentionists believe that murderers loose their right to live because rights are only social rules (Goldberg 121). In addition, most of those in favor of capital punishment affirm that the Bible and religious tradition have supported the death penalty for the last two thousand years (Masour 57). Philosophers also express their view in which, "although capital punishment could not be approved, its abolition is an impossible political goal for America" (Hulpern 82). Abolitionists do not agree. All those against the death penalty believe that however bad the crime, deliberately executing a defenseless convict is worse. Abolitionists argue that the United States can not kill a person because he or she murdered an innocent person. They believe that this society can not mirror the brutality of the crime committed by the convicted person. They see capital punishment as judicial murder. They think it is a brutal act that does not enhance respect for human life; it cheapens and degrades it ("Critics..." 25). "Legal executions violate an inalienable human right, even of murderers, to live, and is therefore inhumane" ("Critics..." 25). Today, popular votes show that 40 % of those against capital punishment believe that is wrong to take a life for whatever reason and 15 % believe that punishment should be left to God (Bedam 80). In the eyes of abolitionists, "the criminal justice system should aim for atonement and restitution, and should prohibit anyone to kill, even civil servants acting as agents of the state" ( ). The whole enterprise of criminology must be based on the optimistic assumption that all of us, even the most vicious, can be improved. All abolitionists agree that murderers should get the maximum sentence, that is, life sentence with no parole; because"if we kill murderers, rapists should be raped and burglars should be burgarized" (Goldberg 27). Furthermore, abolitionists also believe that "the state is a teacher and when it kills, it teaches vengeance and hatred" (Wright 17). To engage in constitutional premeditated homicides is tragic, dreadful and unnatural not only for this society but for all civilizations of the human race. Moreover, abolitionist argue that death sentences breed violence. The reason that America is one of the most violent countries in the world could be in part, according to some criminologists, associated to more than two hundred years of lawfull death sentences (Masour 60). In addition, scholars against death sentences assure that all doctrines of religion, ethics and morality are clear that "human beings must not harm one another, nor should they do to others what they would not have others do to them" ("Give mercy..." 18). In my opinion, murderers should be "put away" for life. In the endless arguments over capital punishment, questions on the agony suffered from the families of both the victims and the convict raise from both sides. Although not proved in the Gallup surveys, all those in favor of capital punishment argue that execution of an offender gives comfort and support for the families of the homicide victims (Goldberg 91). Retentionists believe that unexpected death is specially cruel for the survived. Loss is sudden for these families and other victim's loved ones; they must cope with a tremendous shock as well as grief. Months and even years after the event, families of homicide victims may continue to suffer. In his book Rites of Execution, Louis Masour states the case of a daughter whose parents were brutally killed. "She cries every day. She doesn't sleep through a single night and thinks a part of her died too. She reports she doesn't find much joy in anything" (Masour 144 ). Retentionists affirm death by homicide seems to be one death a family can never forget. On the other hand, Margaret Vandiver compares the misery of the victim's families and the misery of the equally innocent families of the death row inmates (Masour 142). Unlike retentionists, abolitionists believe it is not necessary to kill someone as punishment because when the person is dead, you are not punishg him; you are punishing only the people who love him. Like the families of dying persons with terminal diseases, families of condemned prisoners experience grief and loss in anticipation of eventual death. "They feel as helpless bystanders in a slow dying process that they know can be stopped" (Masour 142). They must also cope with the knowledge that "their relatives' death is highly desired since homicide is nearly universally condemned" (Masour 142). As the great philosopher H. L. Hart wrote: "to take any life is to impose suffering not only on the criminal but also on many others. That is an evil to be justified only if some good end is achieved thereby that could not be achieved by any other mean" (Bedam 3). The economic cost of life or death sentence to society is another strong debating argument between retentionists and abolitionists. Today executions cost more than two million of dollars, several times more than the eight hundred thousand dollars average cost of incarcerating an offender for life (Goldberg 12). Erroneously, 11 % of the population in favor of capital punishment believe that is too costly to keep inmates imprisoned for life (Bedam 8). According to retentionists, one of the the reasons of the expensive costs of inmates on death row is caused by the Executive and especially the Judicial branches of the government as the case is being appealed. "The nature of the death penalty distorts the entire criminal justice system" (Goldberg 73). The high costs of death sentence is not inherited in the penalty itself but is imposed by judges who tend to sabotage capital punishment (Bedam 31). Retentionists assure that costs could be reduced by the proper application of the law. Some retentionists also argue that it is not cheaper to keep a criminal confined for all or most of his life than to execute him. The convicted will appeal just as much, causing as many costs as the convict under death sentence. He will spend his life in prison conceiving of ever new "habeas corpus" (Goldberg 73). But, according to abolitionists, the economic factor of capital punishment today and in the near future is clear: each execution costs from two to three millions, several times more than life imprisonment (Goldberg 72). All those against death penalty claim that with the millions we spend executing our prisoners, the government could use that money more effectively , trying to solve violence and offering more concrete assistance for the victim's families. Abolitionists further recall that, excluding South Africa, United States of America is the only nation in the Western Hemisphere that not only lawfully permits death sentences but it also insist on these long, painful, profitless delays (Goldberg 73). Like myself, all those against capital punishment believe that life sentences without parole would avoid these unnecessary costs and inhumane delays. Retentionists and abolitionists also argue over the convict's economic status and legal defense. Scholars in favor of death sentenceclaim that, regardless of the economic status of the convicted, all inmates in death row will have public defense appointed to them. In the eyes of justice, the economic factor becomes irrelevant. But abolitionist strongly disagree. They affirm that people have been sentenced to death not because they have been found uncontrollably violent but because they were hopelessly poor. Abolitionists state that you won't find a wealthy person on death row (Dicks 27). "They are the losers in an arbitrary lottery; they are humans who face death because of the faulty wording of a legal appeal or the capriciously bad stomach of a judge or a juror" (Death Row 3). Abolitionists also allege that as the number of condemned prisoners in United States grows, so does the problem of finding competent attorneys to handle death penalty cases when the execution date draws near. " Handling capital cases in this collateral phase is unusual because only a few number of lawyers do it" (Dicks 27). As a consequence, abolitionists state that a decent, just defense is reserved to a small but privileged minority of death row inmates while the majority are represented by court appointed attorneys, many of whom have never handle a capital case before. In my opinion, like any other person against legal executions, legal defense and economic status of convicts creates one of the most unjust, unfair aspects of the death penalty. Also while debating the "pros" and "cons" of capital punishment; justice over race, age, insanity and jurisdiction in death sentence seems to create endless points of arguments. Retentionists agree that pre - moratorium racial bias were evident. Studies show that 89 %, 405 out of 455, of the prisoners executed for rape since 1930 were black men whose victims were white (Bedam 8). Today, however, scholars in favor of the death penalty argue that blacks in America commit a disproportionate share of the violent crimes and, therefore, they will be overrepresented in prisons and condemned rows (Goldberg 122). Retentionists also allegate that the Supreme Court has ruled that states can lawfully execute the mentally retarded and juveniles, regardless of their age or mental condition ("Dead..." 21). At last, retentionists argue that state and local methods of punishment should be applied to all people equally according to the laws of the place were the crime was committed, regardless of where the criminal is from. On the contrary, abolitionists believe that the injustice of death sentencing based on race, age, mental retardation and jurisdiction is still evident today. For instance, since 1976 there were at least six executions of mentally retarded inmates, and all six happened in the southern states (Hulpern 82). It raises questions about constitutional rights when capital punishment is applied to the mentally ill. Similary, abolitionists question the justice and fairness of capital punishment applied to minors under eighteen years of age. Under the law, juveniles can be executed. In fact, we have fourteen states that have juveniles on death row at the present. Only three of them have been executed at the age of seventeen since the death penalty has been reinstated; one in South Carolina and two in Texas ("Justice..." 17). On the basis of race, abolitionists affirm that today death sentence still discriminates against minorities. A study made in 1988 by criminologist Joel Ricci shows that since capital punishment was reinstated in 1976, if you were a black man convicted of murdering a white man, you were four times as likely to receive the death penalty as a white man convicted of murdering a black (Goldberg 117). Some abolitionists even accuse the Southern populations prejudism as a factor of injustice while sentencing minorities to death. At an execution in in Florida, for example, demonstrators, men and women, sported signs saying "Fry'em," "Burn Briley Burn" and " Kill the Negro." Some waived confederate flags and uttered all manner of racial apithels. One white women carried a sign reading "How does it feel to be burned in a chair? Burn - Damn you - Koon!" (Death Row 20). Abolitionists also claim that as Americans, not citizens from individual states, we can say capital punishment is not applied equally in this country. Jurisdiction is a factor of unfair, unjust application of the death penalty. A study of criminal homicide cases in Georgia, for example, found that just 15 % of Georgia's one hundred and fifty nine counties were responsible for 35 % of the death sentences imposed in the state after 1976. It also found that capital punishment was six times more likely to be imposed in the most rural region of Georgia than in the north (Bedam 12). In addition, abolitionists present a report by the U. S. Department of Justice on capital punishment which indicates that nearly 63 % of those under the sentence of death in 1984 were held by states in the South (Goldberg 85). In short, all those against capital punishment question the validity of justice when applying the death penalty to a person who is black, poor, uneducated, outspoken, slightly retarded, excentric. They affirm that person will have a higher chance of being executed than those convicted of even worse crimes (Goldberg 85). Even though I know there is injustice in our judicial system, I believe that no human being should be unjustly and unfairly killed by the punishment of the law. Perhaps the sad story of Jimmy Wingo, a black man executed in the Louisiana, expresses the injustice of the constitutional death sentence in the South. He was arrested under questionable circumstances. He was persecuted by an attorney from a small district seeking to build his image and career by securing convictions. He received a court appointed defense attorney who was a close friend of the district attorney. He received a shoddy defense that was more appropriately termed non - defense. There were intimidated witnessed. He received a conviction based on purely circumstantial and inferential considerations. He had unfair appellate - level reviews. He had a futile clemency hearing before a morbid panel of profesional deniers, rejected by a gutless governor. He was unjustly killed by representatives and interpretors of the law within a total vacuum of hard evidence that he had ever in his life been present in the home of the murdered victim (Dicks 41). The case of Jimmy Wingo presents the universally most argumentative factor of the death penalty: the execution of the innocent. Retentionists agree that it is inevitable. As Ernest van den Haas, one of our country's most accomplished death penalty proponents, puts it "However rare, such a miscarriages of justice are likely to occur" (Goldberg 63). Retentionist believe that the benefits of the death penalty outweight this definetly liability. But abolitionists retaliate. The risk of killing an innocent person is an intolerable risk to take. Death penalty can not be expunged if is discovered that an innocent man has been executed. In the Bedan - Rapelet report on "Miscarriages of Justice on Potentially Capital Cases," it was reported that at least 350 people had been wrongfully sentenced to death, 23 of which were actually killed by the state before they were found to have been innocent (Radelet 17). As an example of this inevitable injustice of the death sentence, abolitionists present the case of England which, after finding the innocence of an executed convict, abolished the capital punishment indefinitly (Goldberg 46). By the obvious alternative of life imprisonment, all those against capital punishment like myself believe that a court error can be corrected with a pardon but a pardon after death is not valued to anyone (Goldberg 46). In my opinion, life sentence is just; capital punishment is revenge. It is an ancient, barbaric method of punishment that has no place in a modern society. Capital punishment solves nothing. It does not work as a deterrent, it discriminates against racial minorities and those without money or power, it hurts innocent people, it is a cruel and unusual punmishment, it breeds violence, it is more expensive to tax payers, and it is against the morals and laws that this same societyhave been teaching my family and me. The death penalty provides human sacrifice for a sick society. The death penalty is the cry of politicians who buy votes with fear. The death penalty has no place in a civilized world. The death penalty has no place in the United States of America. The death penalty must go. Fernando Javier Litardo - 4/94 _________________________________________________________________