DEATH PENALTY ARGUMENTS:

This Paper in Memoriam of Sean Burgado

My Precious Nephew - Murdered  

June 7, 1969 to May 21, 1997

 

 DEATH PENALTY ARGUMENTS:

Deterrent  or  Revenge

(Pros and Cons)  

INTRODUCTION

 

          What is Capital punishment?  Capital punishment is the death penalty.  It is used today

and was used in ancient times to punish a variety of offenses. Even the bible advocates death for

murder and other crimes like kidnapping and witchcraft.  

            When the word death penalty is used,  it makes yelling and screaming from both sides of

extremist.  One side may say deterrence, while the other side may say,  but you  may execute an

innocent man. 

            Today, one of the most debated issues in the Criminal Justice System  is the issue of

capital punishment or the death penalty.    Capital punishment was legal until 1972, when the

Supreme Court declared it unconstitutional in Furman v. Georgia stating that it violated the Eight

and Fourteen Amendments citing cruel and unusual punishment.  However, in 1976, the

Supreme Court reversed itself with Gregg v. Georgia and reinstated the death penalty but not all

states  have the death penalty. 

Thirteen states do not have the death penalty:  Alaska, District of Colombia, Hawaii, Iowa, Main,

Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and

Wisconsin.  

AGAINST THE DEATH PENALTY (CONS )

Death Penalty Fails to Rehabilitate

            What would it accomplish to put someone on death row?  The victim is already dead-you

cannot bring him back.  When the opponents feel “fear of death” will prevent one from

committing murder, it is not true because most murders are done on the “heat of passion” when a

person cannot think rationally.  Therefore, how can one even have time to think of  fear in the

heat of passion (Internet)?

ACLU and Murderers Penniless

            The American Civil Liberty Union (ACLU) is working for a moratorium on executions

and to put an end to state-sanctioned murder in the United States.  They claim it is very

disturbing to anyone who values human life.

            In the article of the ACLU Evolution Watch,  the American Bar Association said the

quality of the legal representation is substantial.  Ninety-nine percent of criminal defendants end

up penniless by the time their case is up for appeal.  They claim they are treated unfairly.  Most

murderers who do not have any money, receive the death penalty.  Those who live in counties

pro-death penalty are more likely to receive the death penalty.  (Internet).

Death Penalty Failed as a Deterrent

Some criminologist claim they have statistically proven that when an execution is

publicized, more murders occur in the day and weeks that follow.  A good example is in the

Linberg kidnapping.  A number of  states adopted the death penalty for crime like this, but

figures showed kidnapping increased.  Publicity may encourage crime instead of preventing it

(McClellan, G., 1961).

            Death is one penalty which makes error irreversible and the chance of error is

inescapable  when based on human judgment .  On the contrary, sometimes defendants insist on

execution.  They feel it is an act of kindness to them.  The argument here is -  Is life

imprisonment a crueler fate?”    Is there evidence supporting the usefulness of the death penalty

securing the life of the citizens (McClellan, G. 1961)?

Does the death penalty give increased protection against being murdered?  This argument

for continuation of the death penalty is most likely a deterrent, but  it has failed as a deterrent. 

There is no clear evidence  because empirical studies  done in the 50’s by Professor Thorsten

Sellin, (sociologist)  did not  give support  to deterrence (McClellan, G., 1961).

Does not Discourage Crime

            It is noted that we need extreme penalty as a deterrent to crime.  This could be a strong

argument if it could be proved that the death penalty discourages murderers and kidnappers. 

There is strong evidence that the death penalty does not discourage crime at all (McClellan, G.,

1961).

Grant McClellan (1961) claims:

                        In 1958 the10 states that had the fewest murders –fewer

than two a year per 100,000 population -were New Hampshire

Iowa, Minnesota, Massachusetts, Connecticut, Wisconsin,

Rhode Island, Utah, North Dakota and Washington.  Four of

                       these 10 states had abolished the death penalty.

 

The 10 states, which had the most murderers from eight to

 fourteen killings per100,000 population were Nevada,

Alabama, Georgia, Arkansas, and Virginia - all of them

enforce the death penalty.  The fact is that fear of the

death penalty has never served to reduce the crime rate (p. 40).

Conviction of the Innocent Occurs

            The states that have the death penalty should be free of murder, but  those states have the

most murders, and the states that abolished the death penalty has less.  Conviction of the

innocent does occur and death makes a miscarriage of justice irrevocable.  Two states Maine and

Rhode Island abolished the death penalty because of public shame and remorse after they

discovered they executed  some innocent men.

 

Fear of Death Does not Reduce Crime. 

 

            The fear of the death penalty has never reduced crime.  Through most of history

executions were public and brutal.  Some criminals were even crushed to death slowly under

heavy weight.  Crime was more common at that time than it is now.  Evidence shows execution

does not act as a deterrent to capital punishment.

Motives for Death Penalty - Revenge

            According to Grant McClellan (1961), the motives for the death penalty may be for

revenge.  Legal vengeance solidifies social solidarity against law breakers and is the alternative

to the private revenge of those who feel harmed. 

FOR THE DEATH PENALTY (PROS)

Threat of Death Penalty Rate of Homicide Decreases

Frank Carrington (1978) states- is there any way one can tell whether the death penalty

deters murders from killing?  There is no way one can tell whether the death penalty deters

murderers from killing.  The argument goes on that proponents of capital punishments should not

have to bear the burden of proving deterrence by a  reasonable doubt.  Nor should the abolitionist

have to prove deterrence by a reasonable doubt -neither side would be able to anyway. 

            Frank Carrington (1978) claims common sense supports the inference that if, the threat of

the death penalty decreases, the rate of murders increases than it may be true.  But  if the threat

had increased, the homicide rate may decrease.   

            Justice Stewart held in the Supreme Court in Gregg v. Georgia:

Although some of the studies suggest that the death

penalty may not function as a significantly greater

                       deterrent than lesser penalties, there is no convincing

empirical evidence supporting or refuting this view.

                      

We may nevertheless assume safely there are murders,

            such as those who act in passion, for whom the threat of

           death has little or no deterrent effect.  But for many others,

           the death penalty undoubtedly,  is a significant deterrent.

 

There are carefully contemplated murders, such as murder

           for hire, where the possible penalty of death may well enter

           the cold calculus that precedes the decision to act

          ( as cited in Carrington, 1978. p. 87).

 

J.      Edgar Hoover, late director of  Federal Bureau of Investigations, asks the

following questions:  “Have you ever thought about how many criminals escape

punishment, and yet, the victims never have a chance to do that?  Are crime victims in the United

States today the forgotten people of our time?  Do they receive full measure of justice (as cited in

Isenberg, 1977, p. 129)?  

A criminal on death row has a chance to prepare his death, make a will,  and make his

last statements, etc.  while some  victims can never do it.  There are many other crimes where

people  are injured by stabbing, rape, theft, etc.   To some degree at least, the victims right to

freedom and pursuit of happiness is violated.

            When the assailant is apprehended and charged, he has the power of the judicial process

who protects his constitutional rights.  What about the victim?  The assailant may have

compassion from investigating officers, families and friends.  Furthermore, the criminal may

have organized campaigns of propaganda to build sympathy for him as if he is the one who has

been sinned against.  These false claims are publicized, for no reason, hence, protecting the

criminal (Isenberg, I., 1977).

            The former  Theodore L. Sendak, Attorney General of Indiana delivered a speech to Law enforcement officials in Northern Indiana on  May 12, 1971 (as cited in Isenberg, 1977):            

                        “Our system of criminal law is to minimize human

                         suffering by works or order primarily to forestall

                         violence or aggression. In the question of the death

                         penalty, we must ask ourselves which action will

                         serve the true humanitarian purpose of criminal law.

 We should weigh the death of the convicted murders

  against the loss of life of his victims and the possibility

  of potential victims to murder (p. 129)

In arguments of the death penalty, there are two lives to think about.  Too much emphasis

is placed on the convicted murderer, the one being executed, and the victim is all forgotten. 

Crime Rate Increases

Millions are being killed and will be killed because our justice system is not working. 

Millions have already been killed and will be killed every year.  According to Time Magazine,

there are 2,000,000 people beaten in the United States.  Some are knifed, shot, or assaulted

(Internet).   

Crime growth has been going up in the past because of  too much  leniency going hand in

hand with the increased rate of  people being victimized.  There are many loop holes devised for

offenders, and because of that  crime rate has increased drastically.  Between l960 to 1968 crime

rate increased 11 times.  More and more people are being  murdered, raped, assaulted,

kidnapped, and robbed, etc. (Isenberg, I., 1997).

Free Will

            When you commit a felony, it is  a matter of free will.  No one is compelled to commit

armed robbery, murder, or rape.  The average citizen does not have a mind or intentions  to

become a killer or being falsely accused of murder.  What he is worried about is being a victim.

Deterrent in 27 States

Opponents argue that there is no deterrent effect by using the death penalty.  According

to Baily, who did a study from l967 to l968, the death penalty was a deterrent

in 27 states.  When there was a moratorium on Capital Punishment in the United States, the study

showed murder rates increased by 100%.  The study also reviewed 14 nations who abolished the

death penalty.   It (the study) claimed murder increased by 7% from five years before the

abolition period to the five years after the abolition (Internet).

 Studies were made by Professor Isaac Erlich  between the period of 1933 and 1969.  He

concluded  “An additional execution per year may have resulted in  fewer murders  (Bedau,

1982, p. 323)”. 

The number of years on the average spent in death row is 10 years.  It is known, with all

the appeals, the death penalty is not swift!  In fact, most murderers feel they most likely will

never be put to death.  If the death penalty was swift and inevitable, there certainly would be a

decrease in homicide rates.  (Internet).

Death Feared

Most people have a natural fear of death- its a trait man have to think about what will

happen before we act.  If we don’t think about it consciously, we will think about it

unconsciously.  Think- if every murderer who killed someone died instantly, the homicide rate

would be very low because no one likes to die.  We cannot do this, but if the Justice system can

make it more swift and severe, we could change the laws to make capital punishment faster and

make appeals a shorter process.  The death penalty is important because it could save the lives of

thousands of potential victims who are at stake (Bedau, H., 1982).

In a foot note Bedau (1982) cites, “Actually being dead is no different from not being

born, a (non) experience we all had before being born.  But death is not realized.  The process of

dying which is a different matter is usually confused with it.  In turn, dying is feared because

death is expected, even though death is feared because it is confused with dying (p. 338)”.

Death is an experience that cannot be experienced and ends all experience.  Because it is

unknown as it is certain, death is universally feared.  “The life of a man should be sacred to each

other (Bedau, H., 1982, p. 330)”.

Innocent Executed - no Proof

Opponents claim lots of innocent man are wrongly executed.  There has never been any

proof of an innocent man being executed!!  A study  by Bedau-Radlet claimed there were 22

cases where the defendant have been wrongly executed.  However, this study is very

controversial.  Studies like Markman and Cassell find that the methodology was flawed in l2

cases.  There was no substantial evidence of guilt, and no evidence of innocence.  Moreover, our

judicial system takes extra precautions to be sure the innocent and their rights are protected. 

Most likely an innocent person would not be executed (Internet).

Death Penalty Saves Lives

            The question is whether or not execution of an innocent person is strong enough to

abolish the death penalty.  Remember, the death penalty saves lives.  Repeat murders are

eliminated and foreseeable murders are deterred.  You must consider the victim as well as the

defendant.

Hugo Bedau (1982) claims: 

The execution of the innocent believed guilty is a

miscarriage of justice that must be opposed whenever

detected.  But such miscarriage of justice do not

warrant abolition at the death penalty.  Unless the

 moral drawbacks of an activity practice, which include

 the possible death of innocent lives that might be saved

 by it, the activity is warranted.  Most human activities like

 medicine, manufacturing, automobile, and air traffic, sports,

 not to mention wars and revolutions, cause death of

 innocent bystanders.  Nevertheless, advantages outweigh

 the disadvantages, human activities including the penal

system with all its punishments are morally justified ( p. 323).

 

 

            Wesley Lowe states, “As for the penal system, accidentally executing an innocent person,

I must point out that in this imperfect world, citizens are required to take certain risks in

exchange for safety.”  He says we risk dying in an accident when we drive a car, and it is

acceptable.  Therefore, risking that someone might be wrongfully executed is worth  saving

thousand’s of innocent people who may be the next victim of murder (Internet).

Death Penalty - Right to Live

            Opponents say the State is like a murder himself.  The argument here is, if execution is

murder, than killing someone in war is murder.  Our country should stop fighting wars.  On the

contrary, is it  necessary to protect the rights of a group of people.  Hence, the death penalty is

vital to protect a person’s right to live!  Is arresting someone same as kidnapping someone?  In

the same, executing someone is not murder, it is punishment by society for a deserving criminal.

Bible Quotes

            Huggo A. Bedau (1982) states one popular objection to Capital punishment is that it

gratifies the desire for revenge regarding as unworthy. The bible quotes the Lord declaring

“Vengeance is mine” (Romans 12:19).  He thus legitimized vengeance and reserved it to

Himself.  However, the Bible also enjoins, “The murderer shall surely be put

to death” (Numbers 35:16-18), recognizing that the death penalty can be warranted whatever the

motive.  Religious tradition certainly suggest no less (p. 330).

            All religions believe having life is sacred.  If we deprive someone else life, he only

suffers minor inconvenience;  hence, we cheapen human life—this is where we are at  today.

Death Penalty Deterrent Effect

            If we do not know whether the death penalty will deter others, we will be confronted with

two uncertainties .  If we have the death penalty and achieve no deterrent effect, than, the life of

convicted murderers has been expended in vain (from a deterrent point of view)—here is a net

loss.  If we have the death sentence, and deter future murderers, we spared the lives of future

victims-(the prospective murderers gain, too; they are spared punishment because they were

deterred).  In this case, the death penalty is a gain, unless the convicted murderer is valued more

highly than that of the unknown victim, or victims (Carrington, F., l978). 

Capital Punishment is not excessive, unnecessary punishment, for those who knowingly

and intentionally commits  murder in  premeditation,  to take lives of others.  Even though 

capital punishment is not used so often, it still is  a threat to the criminal.           

Justice

            Justice requires punishing the guilty even if only some can be punished and sparing the

innocent, even if all are not spared.  Morally, justice must always be preferred to equality. 

Justice cannot ever permit sparing some guilty person, or punishing some innocent ones, for the

sake of equality—because others have been spared or punished.  In practice, penalties could

never be applied if we insisted that they can be inflicted on only a guilty person unless we are

able to make sure that they are equally applied to all other guilty persons.  Anyone familiar with

the law enforcement knows that punishments can be inflicted only on an unavoidable “shudder”

selection of the guilty  (Bedau, H., 1977).

Irwin Isenberg (1977) said,  when you kill a man with premeditation, you do something

different than stealing from him.   “I favor the death penalty as a matter of justice and human

dignity even apart from deterrence.  The penalty must be appropriate to the seriousness of the

crime (p. 135).

Life is Sacred

In an interview with Professor van den Haag, a psychoanalyst and adjunct professor at

New York University,  was questioned,    “Why  do you favor the death penalty?”  His answer

was that the Federal prison had a man sentenced to Life who, since he has been in prison

committed three more murders on three separate occasions .They were prison guards and

inmates.  There’s no more punishment he can receive, therefore, in many cases, the death penalty

is the only penalty that can deter.  He went on   saying “I hold life sacred, and because I hold it

sacred, I feel that anyone who takes some one’s life should know that thereby he forsakes his

own and does not just suffer an inconvenience about being put into prison for sometime (as cited

in Isenberg, 1977, p. 135)

An Eye for an Eye

Some people argue that the capital punishment tends to brutalize and disregards society. 

Do you agree?  Some people say the that penalty is legalized murder because it is like “an eye

for an eye”.  The difference between punishment and the crime is that one is legalized and the

other is not!  People are more brutalized by what they see on T.V. daily.  People are not

brutalized by punishments  they are brutalized by our failure to serious punish,  the  brutal acts.

Could the same effect be achieved by putting the criminal in prison for life?  “Life in

prison” means in six months the parole board can release the man to 12 years in some states. 

“But even if it were real life imprisonment, it’s deterrent effect will never be as great as that of

the death penalty.  The death penalty is the only actually irrevocable penalty.  Because of that, it

is the one that people fear the most (Isenberg, I., 1977).

            The framers of the constitution clearly believed that Capital punishment was an

acceptable mess of protecting society form “wicked dissolute men” Thomas Jefferson liked to

talk about it (Carrington, F., 1978).

CONCLUSION

            My research on  issues on the death penalty  is one of the most debatable in the criminal

justice system.  Today, there are many pros and cons to this death penalty issues.  However, if

people weigh the arguments properly,  and have empathy for the victims, they will be more

inclined to favor capital punishment.  As a matter of fact, most people in the U.S. today are in

favor of it.  But we need more states to enforce the death penalty. 

            As you may have read in the arguments, the death penalty help to curtail future

murderers, thus, we can save more lives.  The chances of murdering an innocent man  is very

minute. 

My Opinion

            In my opinion, I am in favor of the death penalty, because we can save innocent lives. 

Life to me is scared as Professor Haag stated.    My innocent nephew, Sean Burgado,  who was

brutally murdered  by a shot gun to the chest, did not have a choice to make a last statement or 

make a will before he died.    The people on death row can watch T.V. and enjoy their lives for

another 20 years before they are executed.  They can prepare their death by making  a will and a

last statement.   Sean’s  murder is still unsolved, and the killer is enjoying his life somewhere. 

The murderer(s)  will probably  murder another person some day. 

            I heard on the news last month, February 2000, where a 62 year-old grandmother, Betty 

Beets, was pleading for her life because she was on death row and was going to be executed.  At

first, I felt very sorry for her, but after doing research on her, I learned she had five husbands. 

She had already killed the fourth one, and served a prison sentence for murder, and she got out of

prison early.  She murdered the  fifth husband-she shot him, and buried him in her back yard. 

Betty Beets was imprisoned a second time, and now was pleading for her life?  It has been

proven these killers do it again and again.  The rate of recidivism is high for people who commit

murder and crimes.  I feel murderers should be executed the first time  because chances are they

will come out of prison and kill another innocent person again.  We need stricter laws and swift

death penalty.  

            I belong to a group called Parents of Murdered Children (POMC).  One of the woman

came forward and told me how her husband shot and killed her five year-old daughter which she

witnessed on her birthday.   He attempted to kill the two-year old son, too, but fortunately, the

gun he was using didn’t go off a second time, because it was too old and the son’s life was

sparred.   Her husband’s  intention was to kill the two children, and himself on her (the wife’s)

birthday.  He said, if  I can’t have my children you won’t either.  Everything to her is still a 

nightmare. 

            He (the husband) was sentenced to death, but committed suicide in prison.  She recently

learned that prior to the killing he had contracted someone $5,000 to burn their house while she

and the kids were inside. 

            She said she would have gone to see her husband being executed if he lived because she

didn’t want him out again.  She said, “To me, I think for the most part, I didn’t care what

happened to him.  I just didn’t want him to be out again after what he did.  I  told the District

Attorney that I was afraid that he would get out and try to finish what he started” (Email,

personal communication- March 31, 2000).

            There are too many stories like these where people deserve the death penalty for killing

other people.  If they are released from  prison, they will kill other innocent lives again. 

            I believe life is sacred, therefore, one who takes a life should have his own life taken

away, too.  The Lord said in Exodus “Thou shalt not kill!”.  It is one of the Ten Commandments.

 The laws today are too lenient.  If there is no death penalty in your  state, and a criminal

kills someone, it is because  he felt  he could  get out in 10 years or less from prison. There is no

fear of death for him.   They see other murderers in the state get away with murder,  so they, too, 

can get away with it.   They don’t have to fear the death penalty.   In fact, I read where a husband

intentionally moved to a non death penalty state, so he could murder his wife and get away with

it.  Many murders are premeditated.   People in the “heat of passion” should make it a  point to

evade the argument or the environment.  Remember it could be one of your loved ones.  Can you

imagine what it would be like to have your loved one murdered?  There are no words that can

explain the loss of your loved one to murder.  Call your state legislature representatives  today to

enforce the death penalty in your state!

 Lori Ornellas                                                                                      

 

 

Abstract

            The purpose of this paper is to look at both sides of the arguments of the death penalty-

the pros and cons, and how our criminal justice system makes legislatures, courts, and the U.S.

Supreme Court chose to resolve issues.  Interesting issues are brought up like the fear of the

death penalty, bible quotes, how life is sacred, and the execution of the innocent. You will note

too much emphasis is placed on the convicted murderer and not on the victim.  The murderers

get out of prison early and murder again.  There are evidence to both sides of the argument in

whether the death penalty is a deterrent or not.  In question of the death penalty, I ask you  to

weigh both sides of the argument carefully and make your decision based on the action that will

serve the best humanitarian purpose of criminal law. 

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