Capital punishment or the Death Penalty, as it is commonly known, is one of the most controversial topics around the world and in the United States of America, it’s no different. Apart from the military and federal government, 31 states currently have legislation which maintain capital punishment. According to MacDougall and Williams (2018), there has been a significant decline in the use of capital punishment, with executions in 2017 seven times less than they were in 1999. With the increased frequency of mass shootings around the country, it is clear that criminals are throwing caution to the wind as they know their crimes will give them 15 minutes of fame and free meals in federal institutions. There are many opponents to the death penalty, with many citing its ineffectiveness in deterring violent crimes, however studies are inconsistent. This essay will aim to show how consistency in capital punishment legislation amongst the states and territories may improve the effectiveness of capital punishment as a way to mitigate violent crime around the country. This essay will first look at the arguments against and for the death penalty, the flaws in legislation and the recommendations of how the current legislation can be improved to ensure consistency amongst all the states and territories.
The opponents of the death penalty argue that there is no proof that the death penalty acts as a deterrent. In fact, various studies and polls involving criminologists suggest that even they do not believe that the death penalty deters or lowers the rate of violent crimes. Secondly, in some cases a death penalty case might cost the state more than housing an inmate for life. This is due to the length and complexities of the case and the stakes it involves. It requires more resources than most other cases. Adinkrah and Clemens (2018) note that many inmates facing the death penalty spend decades on death row, and this is an extra expense. The death penalty also seems to perpetuate the violence that it aims to deter. It justifies violence as a means to an end in certain situations. It says to people: killing is wrong therefore let us kill those who do. Donnelly 2018 also points out that while there is a decline in death sentences, there is a certain racial disparity in who gets the death penalty by using North Carolina as an example. 54 percent of death row inmates are black, while black people only make up 22 percent of the state’s population (p. 393). This seems to suggest that there is some racial disproportion. The biggest concern about the death penalty is its finality. It is swift and does not offer the offender a chance to be rehabilitated and have remorse for their actions. The justice system is not immune to mistakes. In normal cases, when the accused is found to be guilty, they serve time in prison. Sometimes certain convicted individuals are later found to be innocent. At any stage, their sentences can be reversed. Death cannot be reversed. However, proponents for the death penalty would argue that anyone who commits a capital offence is justly punished when they lose their right to live.
The most notable crimes which are eligible to be classified as capital offences include violent murder, rape of a minor, treason and large-scale drug trafficking. These are egregious offences that warrant retributive justice. The jail terms which are served by those who commit capital offences seldom match the crime, hence why these crimes are still a societal scourge. Imprisonment does not ensure that the offender will stop committing those crimes and there is also the risk that they could escape and continue their crime spree. Many opponents of the death penalty state that rehabilitation is a more effective tool than retributive justice however they fail to state what qualifies an offender as rehabilitated with remorse being their biggest indicator. We see this in the case of David Edward Maust, who after being released on parole after having served approximately 10 years for manslaughter, went out to kill three more teenage boys. The verdict at his parole hearing was most likely that he was rehabilitated and showed remorse. Capital punishment ensures that society has one less criminal to deal with and it deters others from committing the same violent crimes.
To understand the flaws of current capital punishment legislation and why it has fallen out of favor with lawmakers, the process to which it is handed down needs to be amended. The current process involves attorneys making submissions to local prosecutors so they can decide whether the crime is eligible for capital punishment. The decisions made by these local prosecutors are not subject to any review process. Another flaw would be the inconsistencies in what qualifies a capital eligible offense. Since there are disparities amongst states, there needs to be a federal committee that handles and decides on cases that are eligible for capital punishment. Fortunately, there is a federal death penalty scheme that has been in place. MacDougall and Williams (2018) state that the federal death penalty scheme should address all the current disparities that plague the current capital punishment legislation in states that maintain the death penalty. The procedure of deciding on cases that are capital offences is more intensive than the one currently used by states. Cases are submitted to the Department of Justice; they are reviewed by a committee and the Attorney General makes the final decision (p. 1649). Another recommendation would be the removal of Mental instability as basis for acquittal, this is due to the fact that the methods of determining mental instability are inconclusive and unreliable and Sandys et al (2017) notes that the influence of mental instability as a mitigating factor in capital offence cases is inconsistent.
More work has to be done on the federal death penalty scheme to ensure that it redresses all the visible disparities that have led to the unreliability of the current capital punishment legislation. Further research and reforms are needed to ensure that all Americans are truly equal before the law.
Adinkrah, Mensah and William M. Clemens. “To Reinstate or Not to Reinstate? An Exploratory Study of Student Perspectives on the Death Penalty in Michigan.” International Journal of Offender Therapy and Comparative Criminology (2018): 229-252. Document.
Death Penalty Information Centre. Crimes Punishable by Death. n.d. 13 August 2019.
Donnelly, Ellen A. “Can Legislature Redress Racial Discrimination in Capital Punishment? Evaluation Racial Justice Acts in Response to McCleskey.” The Journal of Criminal Law (2018): 388-401. Document.
MacDougall, Mark J. and Karen D. Williams. “The Federal Death Penalty Scheme is not a Model for State Reform of Capital Punishment Laws.” American University Law Review (2018): 1647-1671. Document.
Sandys, Marla, Heather Pruss and Sara M. Walsh. “Capital Jurors, mental illness and the unreliability principle: Can Capital Jurors comprehend and account for evidence of mental illness?” Behavioral Sciences and the Law (2018): 470-489. Document.
