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| | | -- By JenniferBurke - 12 Feb 2008 | |
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< | The Us and the Them | | | America in a World Context | |
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< | Benjamin Franklin said, “better that one hundred guilty men go free than one innocent person should suffer.”
- Benjamin Franklin didn't "say" it if "say" means originate. franklin had it from Blackstone, who had it from Sergeant Hawkins who had it, probably, from Adam's off ox.
Feliks Dzerzhinsky, founder of the Soviet Secret police commanded “better to execute ten innocent men than to leave one guilty man alive.| Source.
- Volokh has no source for this, as you may have noticed, and although he knows you're wrong about Franklin he can't be bothered to get the Blackstone reference right, as I found when I checked him. Don't you bother to check your own sources? Awarding Volokh any credibility is stupid in the first place, but even if he had lots of credibility you shouldn't cite what you haven't seen.
Franklin’s words epitomize the criminal justice system that America believes itself to have, one that is just and democratic. Statements like Dzerzhinsky’s are used as examples of “other” governments, which stand for injustice and oppression. Thurman Arnold says that social creeds, like justice and democracy, mean nothing outside of the institutions which they are attached to | Works Cited. America’s use of the death penalty exemplifies this. While statement’s like Franklin’s purport the United States to be fair and democratic, the facts show that capital punishment resounds in injustice. In a nation that often separates “us,” systems upholding similar values, from “them,” systems to be feared or conquered, America’s utilization of capital punishment puts the US in the latter category. | >
> | Thurman Arnold says that social creeds, like justice and democracy, mean nothing outside of the institutions which they are attached to | Works Cited. America’s use of the death penalty exemplifies this because while the United States uses the death penalty, its international allies reject it. The United States is the only western country to use capital punishment, and according to Amnesty International, America had the sixth highest execution rate in 2006 behind countries America identifies as enemies: Iran and Iraq | Source. While America asserts itself as a just and free democracy, its use of capital punishment actually separates it from its allies, who find capital punishment to be contradictory to the values America claims to uphold. | | | | |
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< | The United States is the only western country to use capital punishment, and according to Amnesty International, America had the sixth highest execution rate in 2006 behind countries America identifies as enemies: Iran and Iraq | Source. Recently, the United States announced its decision to seek death for 9/11 detainees. Knowing that this decision will be questioned by countries the United States considers part of the “us,” the government sent a memo to its embassies comparing the 9/11 trials to Nuremberg as justification. While America asserts itself as a just and free democracy, its use of capital punishment actually separates it from its allies, who find capital punishment to be contradictory to the values America claims to uphold. | | | | |
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> | Valuing Life | | | | |
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< | The Mythical Value of Life | >
> | In countless abortion cases, the Supreme Court has expressed a state interest in life and regulated abortion, even banning certain methods of abortion, in an effort to further that interest. However, the death penalty works in direct opposition to this belief, and the fact that the people being executed are criminals does not justify the contradiction. First, it should not be at the court’s discretion to determine whose life should be ended by the death penalty. If law is about prediction, as Holmes believes, the arbitrary enforcement of the death penalty makes it obvious that courts should not be determining the value of life. | Works Cited. Geography, gender, and most importantly, race, also affect its employment. The biggest indicator of a capital punishment sentence is not the crime; it is the race of the victim. Even though whites and blacks are murdered at almost equal rates, murderers of white victims are 80% more likely to be sentenced to death | Source. | | | | |
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< | Contradictions become obvious when contrasting Franklin’s words with the practice of the death penalty, which reflects Dzerzhinsky’s views. During the same period of time that 12 people were executed in Illinois, 13 people were exonerated and freed from death row. After the fact, Governor Ryan put Franklin’s words temporarily into action and commuted 156 inmate sentences| Source. This trend was not followed countrywide. Since 1973, 127 people in 26 states have been released from death row after being exonerated | Source. One wonders how many innocent people were put to death. If Americans focused on the numbers and adhered to the values of justice which condemn the killing of innocent people, the idealistic notion of the criminal justice system would be destroyed. However, Americans seem willing to accept the unjust idea that killing innocent people is a necessary concession if the country is to remain at a status quo. | >
> | Further, even if criminals lives are of less value, so as to justify the death penalty, the death penalty is not narrowly tailored enough to not infringe on the lives of the innocent. During the same period of time that 12 people were executed in Illinois, 13 people were exonerated and freed from death row. After the fact, Governor Ryan put Franklin’s words temporarily into action and commuted 156 inmate sentences| Source. This trend was not followed countrywide. Since 1973, 127 people in 26 states have been released from death row after being exonerated | Source. The social creeds regarding the value of life and innocence are purely rhetorical, not based in social statistics, which prove that innocent life is being lost in the process of capital punishment. | | | | |
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< | But how can status quo be more important than justice or human life? The contradiction of American values is clear in looking at some politicians, who want to ban abortion and stem cell research but support the death penalty. The former is justified by “protecting” human life. In the latter, that value seems to be abolished by criminal activity. Even if criminal activity does negate the value of life, the statistics regarding innocent people on death row would almost mandate these politicians be against the death penalty. Medical advancement and criminal punishment are both social goals, and yet innocent life is only valued in one. The value of life and innocence are purely rhetorical, not based in social statistics which prove that innocent life is being lost in the process of capital punishment. | | | | |
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> | The Eighth Amendment: | | | | |
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> | Perhaps the biggest contradiction in social creeds is the United States’ use of the death penalty and the United States’ notion of fair and proportional punishment, exemplified by the Eighth Amendment’s prohibition against cruel and unusual punishment. America has used various methods of execution throughout its history: hanging, electrocution, firing squad, and most recently, a three drug cocktail. In a recent opinion Chief Justice Roberts said, in a case where the Supreme Court ruled that the three-drug cocktail is not cruel and unusual if administered correctly, that the death penalty would only be cruel and unusual if it creates a substantial and wanton risk of pain, torture or lingering death. However, several of the methods used throughout history have directly contradicted this prohibition, and of course, if the three-drug cocktail is not administered correctly, it can cause sever pain and might be cruel and unusual. Doctors are not allowed to administer the injections because of the Hippocratic oath, to never do harm, so it is likely that the injection will be administered incorrectly occasionally, if not often. However, the court is willing to overlook this, and maybe the American people as well, because the lives of criminals are not considered at the same level as the lives of “innocent” people. | | | | |
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< | Justifications and their Downfalls | >
> | Beyond the fact that certain methods are cruel and unusual in and of themselves, how can a court determine if the death penalty is proportional? It is arbitrary to rank one murder as a capital punishment, and another, in a different state, committed the same way, as not deserving of the death penalty. Further, what crimes are deserving of the death penalty? Usually murder was the only capital crime, but the Supreme Court is now considering death for child rapists. There can hardly be a good way for a court to determine if murder or raping a child is a more severe crime, or which criminal is actually more deserving of the death penalty. If the courts imposes death for some crimes, there is an argument that it was not a proportional punishment, specifically if the crime did not involve murder. However, one would be hard-pressed to say that raping a child is not as bad as murder. | | | | |
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< | Deterrence | >
> | Acceptance | | | | |
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< | If capital punishment places America outside of the “us,” contradicts justice and the protection of life and innocence, why is it legal? It is often justified by social value, but this has little basis in fact, which Felix Cohen advocates. As in Cohen’s examples about the courts determining corporations’ location without looking at social values or facts, explaining the use of capital punishment does not involve these factors either | Works Cited. If it did, the United States would focus on deterrence, which the death penalty does not achieve. States without capital punishment have historically lower rates of murder. Terrorists, whose behavior suggests they do not fear death, are undeterred by the death penalty. Studies show that homicidal gang members are also undeterred because they are more likely to be killed by another gang member than to be executed | Source. Given this, capital punishment’s social value must lie elsewhere. | >
> | Despite all of this, many Americans are unwilling to reject the death penalty. However, the reason for this does not lie in its social value. There is no deterrence or predictive value from the death penalty. Perhaps the justification is retributive justice, but victims do not necessarily get retributive justice. Recently, a judge ordered a murderer to life without parole instead of death, explaining that capital punishment often leads to long-term appeals and forces victims to relive the experience without closure| Source. | | | | |
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< | Retributive Justice | >
> | However, maybe the “social value” is the satisfaction the American people get that somebody as “sick” and “depraved” as a murderer was given the same punishment he gave his victims. At lunch recently, someone explained that she was horrified by the three-drug cocktail ruling, but then when she read what the criminal had done, she no longer cared because she was not “liberal” enough. Just as in criminal law, thoughts are different than actions, so being happy that someone was killed is seen as different that killing someone. However, what Americans fail to realize is that but the system all Americans are a part of upholds the death penalty, judges order death, and someone administers the drugs. Therefore, in actuality, Americans are killing people, some of them not even guilty of the crime for which they were convicted. | | | | |
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< | Perhaps, then, the justification is retributive justice. “An eye for an eye” justice is denounced for individuals in the United States, because people are told that the criminal system will seek retribution in a democratic way. However, capital punishment sanctions this kind of retribution, because it is basically “eye for an eye” justice with a middleman, the democratic government. Victims are not always getting retribution from the death penalty either. Recently, a judge ordered a murderer to life without parole instead of death, explaining that capital punishment often leads to long-term appeals and forces victims to relive the experience without closure| Source. Like deterrence, ethical values of retributive justice are not justifications. Instead, capital punishment is rhetorically justified through words like deterrence and retribution, while, in practice, it achieves neither. | | | | |
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< | Predictive Value | | | | |
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< | Finally, if law is about prediction, as Holmes believes, capital punishment fails on these grounds as well | Works Cited. The death penalty is invoked arbitrarily dependent on the facts, the court, and the prosecutors. Geography, gender, and most importantly, race, also affect its employment. The biggest indicator of a capital punishment sentence is not the crime; it is the race of the victim. Even though whites and blacks are murdered at almost equal rates, murderers of white victims are 80% more likely to be sentenced to death | Source. Capital punishment’s unpredictability contributes to its lack of social value and contradiction to purported American ideas, such as justice. It is cases like Doyle Skillern’s that make this evident. Skillern, who was not at the scene of the crime, was executed as an accomplice to murder. The killer was given life without parole | Source. When it comes to capital punishment, this is the American way. | | |
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