Law&Justice Class Senior YearMr. CarlisleLaw and Justice18 March 1995

Capital Punishment

The theory "a life for a life" is "as old as civilization itself" (McCiellan 9). Thedevelopment of civilizations established what we call justice today. Capital punishment, theexecution of a criminal convicted of a crime, or the legal taking of the life of a criminal,can be divided into three categories: first, crimes against the person; second, crimes againstproperty; and third, crimes which endanger the security of the nation (Horwitz 13). Capitalpunishment is still in use in the United States today, but has been abolished by many countries(II 536). The countries that still have the death penalty on their books, rarely employ it .

The earliest writings on the subject dates as far back as 2000 B. C., but it is clearthat capital punishment more or less has existed since the birth of mankind (Szumski 25).Throughout history, it has been exercised in almost all civilizations as a retribution forsevere crimes, but sometimes also for the thrill and excitement. The Romans put slaves andprisoners in the Coliseum as lion food while spectators enjoyed the sight (Horwitz 13).

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In the early colonial states, the death penalty was applied for a vast number of crimes,just like in England, the ruler of the states in this era (II 536). In England, in the 18thcentury, there were approximately 220 offenses punishable by death. Some of them would today beconsidered as misdemeanors and petty crimes (i. e. shooting of a rabbit, the theft of a pockethandkerchief, and to cut down a cherry tree) (Horwitz 13). The majority of these were crimesdealing with property. However, transportation became an alternative to execution in the 17thcentury. A lot of these criminals were shipped to the U.S. (28).

In the early days of our Constitution, the only segments that showed that the deathpenalty existed were two amendments in the Bill of Rights (Landau 11). These amendments deal withprotection and rights of the accused. The fifth amendment prohibits the state from depriving an

individual of life without due process of law. The eight amendment prohibits "cruel and unusual"punishment. The Supreme Court has still not determined what this phrase means. In one case inthe 1890s, the question was if capital punishment violated the eight amendment. The court reliedon the matter that "a definition of cruel and unusual punishment must reflect the evolvingstandards of decency that mark the progress of a maturing

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society" (14). Surveys from this era show that a majority of the people favored the deathpenalty.

In the Middle Ages, capital punishment was also applied to animals (Horwitz 24). Ananimal, guilty of having killed a human being, would be executed, sometimes after a trial with alawyer representing the animal. In one case, in Dijon, France, a horse kicked his master to death.In court, a witness testified that the man had provoked the horse. In spite of this, the creaturewas sentenced to death. Trials with animals was considered to be absolutely fair.

"Enlightment thinkers", or social reformers, such as Montesquieu, Voltaire, and CaesarBeccaria fought to bring an end to the use of capital punishment (II 536). The Caesar Beccaria,an Italian criminologist in the 1700s, influenced society and "stimulated penal reform" toabolish the practice of this irrevocable penalty (Szumski 22). As an alternative, he recommendsretribution, that is making up for losses. In his essay An Essay On Crimes and Punishments,approved by philosopher Voltaire, he admits that capital punishment is justified in only onecase; Beccaria argues that "when [a criminal], though deprived of liberty, he has such power andconnections as may endanger the security of the nation", he should be

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executed (Szumski 24). This relates to justify capital punishment in cases of spying, whichstill is a controversial issue today.

Religious opposers argue that the death penalty "contradicts the teachings of love andmercy" (Szumski 86). At the same time a religious supporter, Haven Bradford Gow, claims that theBible justifies "an eye for an eye and a tooth for a tooth" as stated in the Catholic Bible inthe Fifth commandment:

"Another kind of slaying belongs to the civil authorities to whom is entrusted the powerof life and death, by the legal and judicious exercise of which they punish the guilty and protectthe innocent" (Bradford).

The Bible is constantly used as a defense for capital punishment and many references canbe found to such a penalty. Another religious supporter judge that "religious teachings provethat the death penalty upholds the dignity of human life as ordered by scripture" (Szumski 79).

There are two famous cases in American history, dealing with capital punishment, thathas evoked much controversy. They are Sacco and Vanzetti v. U.S. and the case of the Rosenbergs.

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During the 1920s, fears of communism led to the dislike of immigrants. The Italianimmigrants Sacco and Vanzetti were victims of this "Red Scare" (Davidson 336). They wereaccused of having killed two guards. Since they were both anarchists, it has been speculatedif they had a fair trial and if the death sentence was justified. None of the four witnessescould for sure tell if Sacco and Vanzetti were the men they had seen.

Another case, that degrades the U.S., is the case of the Rosenbergs. Since they weremembers of the Communist Party, which was considered "un-American", especially in the 1950s,with the fear of the Soviet Union, which had just developed their own nuclear weapons. TheRosenbergs were accused of having planned and participated in a Russian spy-ring, giving outtop secret information to the Soviets. The Rosenbergs denied, but were sentenced to death.Today their punishment is considered to have been unjust and cruel. The case outraged manyAmericans and even Europeans; it became a world-wide affair. Arthur Garfield Hays, Generalfor the Civil Liberties Union, exclaimed: "The death penalty for the Rosenbergs was notjustified...." Mr Hays did not argue for the innocence of the Rosenbergs but claims that "thishorrible killing by the state is not merited" (Szumski 143).

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Throughout history, there has been several different methods of execution. The old brutal

methods, such as drowning, stoning, and burning, were common (XIV 1098). In the Middle Ages,amputations of body parts, which often led to death, were popular (XV 283). The public executionsdrew large crowds. In the 1900s, attempts were made to make executions more humane, theelectrocution and the gas chamber were invented. Earlier attempts in the 1700s, in France,replaced the old execution methods with the Guillotine (Horwitz 28). It soon became famous andtoy stores even started selling toy Guillotines that came with a little cage filled with livemice or sparrows. This toy became a bestseller.

The reformers in Europe reached their goal eventually; the death penalty has beenabolished in many European nations such as the Scandinavian, West Germany, the Netherlands,Austria, Italy, Portugal and Switzerland.

The U.S.A. is one of the few countries that have retained the death penalty. LawyerClarence Darrow, famous for his criminal cases, believes this is an effect of the high homiciderate, which is higher in the United States compared to most countries in the world (Horwitz 52).Darrow believes that the high homicide rate is caused by the fact that the population is crowdedinto cities whose "slums are

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natural breeding places of crime" (52). Another reason for the high homicide rate of the U.S.is that people have gathered from all over the world; racial differences are known to"intensify problems" (52). As solution, Clarence Darrow suggest that the government focus onthe causes of crimes because "criminals will breed faster than hangman can spring his trap" (52).Certainly, there is quite a few people on death row.

Opposers, today and in the past, repeatedly declares that the death penalty is unappliedunequally; most criminals on death row are poor. Thus, they cannot afford good lawyers. TheSupreme Court agreed with this argument and forced the states to rewrite their laws on capitalpunishment on the basis of what crimes are punishable by death and if minimum age requirementsare to be set. Many state legislatures have set a minimum age at which such punishment is legal.In other states there is no age limits because the general public opinion opposed it.

Currently, there are 34 capital crimes, that is crimes deserving the death penalty, underfederal law (i. e. treason, espionage, the assassination of the President, etc.)

while there aresome 30 under state laws (i. e. aiding a suicide in Arkansas) (Horwitz 25). In some states thejury determine if the death penalty will

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be imposed, and in other the jury recommends the judge who is not bound follow to the jury'sadvice. In some states, the death penalty is required (14).

Fewer offenses are punishable by death than formerly; the courts increasingly chosealternative punishments, and many death sentences are not carried out (XIV 1098). Opposers andreteutionists, those in favor of the death penalty, cannot be characterized by any aspect suchas wealth, religion, or political views. More and more Americans seem to view the death penaltyas just retribution. Abolitionists' attempts to overturn the death penalty has been denied bythe Supreme Court. Instead, the court argues that "In part, capital punishment is an expressionof society's moral outrage at particularly offensive conduct" (Landau 22). The issue ofabolishing the death penalty has caused much controversy.

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Works Consulted

Benton, William, and Helen Hemingway Benton, Publisher. Encyclopedia Britannica.-volumes II, X, XIV, XV. Chicago: 1974.

Bradford, Haven. "Should religious Support Capital Punishment?" Human Events. 2 March, 1985.

Davidson, James West. et al. American Journey -The Quest for Liberty Since 1865. New Jersey: Prentice Hall, 1992.

Horwitz, Elinor Lander. Capital Punishment, U.S.A. Philadelphia: J.B. Lippincott

Company, 1973.Landau, Elaine. Teens and the Death Penalty. New Jersey: Enslow Publishers, Inc.,

1992.McCiellan, Grant S., ed. Capital Punishment. New York: The H. W. Wilson

Company, 1970.Szumski, Bonnie, et al. The Death Penalty: Opposing Viewpoints. St. Paul:

Greenhaven Press, 1986.Tuchnet, Mark. The Death Penalty. New York: Facts On File, Inc., 1994.