Capitalis is Latin for “regarding the head.”  Capital punishment (death penalty) is the execution of a citizen for punishment for crime. “Lop off his head!”

The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual punishment.  However, capital punishment was long a penalty under English common law.  Since 1900, the U.S. Supreme Court issued 39 opinions on the death penalty; 13 of those opinions since 2002.  The Supreme Court says that the death penalty serves two purposes — retribution and deterrence.  And given its long history in law, the founders of our country could not have intended to prohibit the death penalty in the  Eight Amendment, and in fact, “certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.”

There is no evidence to support the idea that the death penalty deters crime.  For example, the South of the U.S. has the highest murder rate and the highest execution rates; while the Northeast has the lowest murder rates and the lowest execution rates.  There are lots of other statistical examples, but criminal statisticians all generally agree there is no deterrence.  So it is about payback.

The historical legal problems with the death penalty in the United States are not whether it should be used, but how it is used.  For example, a Black person is far more likely to be sentenced to death than a White person.

Justice is supposed to be blind — not to the facts, but to identity of the citizen being prosecuted by the state.  A single citizen is no match for the government, with its highly trained attorneys, police, experts, and financial resources.   Recognizing that the use of the death penalty in the United States was not blind at all, and in fact racist and anti-poor, the Supreme Court put a practical halt to all executions in 1972 in a decision called Furman v Georgia.

In Furman, Justice Stewart noted: “These death sentences are cruel and unusual in the same way that being struck by lightening is cruel and unusual.”  The Court ruled that, unless a state could show that its death penalty process was not administered in a capricious or discriminatory manner, it could not kill the citizens it sentenced to death.

Over the next four years,  35 states and the federal government re-wrote their death penalty laws to make them more fair.  Then, in Gregg v Georgia, the Supreme Court held that the new laws were adequate for the states to resume killing its citizens sentenced to death.  Generally, as long as 1) the law provided for objective criteria for imposing the death sentence, and 2) the judge or jury is allowed to take into account the character and record of the defendant, then imposition of the death penalty satisfied the U.S Constitution.

Unfortunately, minorities and the poor still get the axe (or injection) more than Whites and the rich.  For example, Alabama allows for a judge to overrule a jury recommendation of a life sentence and for the judge to simply order an execution.  Since 2000, of the 3 states that allow a judge to trump a jury recommendation of life in prison, there were 27 cases where the judge ordered execution instead of life in prison as recommended by the jury — and 26 of those cases were in Alabama; most were Black.  Judges in Alabama are elected.

Since 1973, 143 citizens sentenced to death in the U.S. have been exonerated.  Since 1976 there have been 1355 executions  in the U.S.   That is about a 10% error rate.  Many of these exoneration cases are because of honestly confused witnesses, crooked cops, or unethical prosecutors.  Since the government has so much power, it has long been a guiding principle that it is better that 10 guilty men go free than 1 innocent man be wrongfully punished.  With the death penalty, once dead, you are dead, innocent or not.  People complain that we do not execute the convicted fast enough.  For the innocent, slow is good.


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