On July 2, 1976, almost two hundred years since the United States of America passed the Declaration of Independence, the Supreme Court legalized capital punishment (Appendix 1). Capital punishment executed for the crime of theft. Since then there have been an estimated 18,000 to 20,000 people lawfully executed(Espy pp.194). In the eighteenth century, England would punish by death for crimes such as pick pocketing and petty theft. After the 1650’s colonist could be put to death for denying the true god or cursing their parents advocates.


Capital punishment has clashed for a long time in the forum of public opinion in state legislatures and most recently in courts. In 1972, the case of Furman vs. Georgia (Appendix 1) reached the supreme court. The court decided that punishment by death did indeed violate the Eighth Amendment and the prohibition against “cruel and unusual punishment.” Because of this decision death sentences all over the country were set aside. Since then capital punishment has become an increasingly controversial issue.
In arguments against the death penalty in the United States, several themes have remained constant. Abolitionists have always claimed that capital punishment is not an effective deterrent, or at least, nobetter than long term imprisonment. Furthermore they argue that it imposed unreasonable risks in the possibility of executing the wrong person; that a willingness to use it tends to brutalize society; that it has never been administered in a morally unobjectable manner; and finally that it is used mainly against relatively defenseless members of minority groups. During the past generation, opposition to the death penalty has been put into the context of a struggle to wipe out racism.
Among the foremost writers who have criticized the death penalty is Charles L. Black, Jr., Sterling Professor of Law at Yale Law School. In his book, Capital Punishment: The Inevitability of Caprice and Mistake, he deals with many of the problems surrounding capital punishment. In regards to race he asks the question, “Why are more than half the people on death row black in a country with about eleven percent blacks (78) ? According to a study brought by Black, in cases of a black killing a white, .214 are sentenced to death, while in a case of a white killing a black, .000 are sentenced to death (Appendix 2). In virtually all the studies, even a black who has killed another black had a better chance of escaping the death penalty than the white who killed another white. It appears that killing a black is much less ‘death-worthy’, as Black puts it, than killing a white.
Throughout the years studies have shown that Americans favor the death penalty by a small margin (Gallup Poll 63). The reasons are many, though they can be grouped into general categories. The death penalty is a proven deterrent to violent crime. Statistics show that the crime rate is reduced in all states that hold the death penalty (Bedau 125-30). Others argue that it is morally just to execute a proven murderer. When confronted with the numerous false indictments and possible deaths due to falsified testimony, the advocates of the death penalty reply that it is no different than any other non-capital
punishment in which so called offenders often serve unjust time in prison. Finally, pro-capital punishment
supporters maintain that ridding the country of violent criminals is both necessary, and for the benefit of the public.
One such advocate is Ernest Van Den Haag, who, in his article In Defense of the Death Penalty: A Legal-Practical-Moral Analysis, (cited by Bedau 137-41) presents his reasons for the death penalty. His main thesis, however, is not why we should have the death penalty, but rather why the abolitionists’ reasons are faulty. In reply to the abolitionists’ argument that “innocent people may be falsely accused of murder and sentenced to death” he states that ” Justice requires punishing the guilty – as many of the guilty as possible – even if only some can be punished, and sparing the innocent – as many of the innocent
as possible, even if not all are spared.” Furthermore he concludes, “To refuse to punish any crime with death, then, is to avow that the negative weight of a crime can never exceed the positive value of the life of the person who committed it. I find that proposition implausible.” His arguments often appear to be lacking in specific points, yet his aim is relatively simple; to advocate that which America already agrees
with. It seems from the various texts that the abolitionists’ arguments are the more founded ones, which may be due in part to the fact that the death penalty currently is in effect, and they must argue against it.
The death penalty question is one that reaches almost everyone. Just recently this topic came up in New York State. Prior to this year New York State was one of the thirteen states which did not carry the death penalty. Though our legislature passed it, it was continually vetoed by Governor Cuomo. This year, with the election of a new governor, came the death penalty. Whether Governor Pataki was elected in part due to his stance regarding capital punishment, or whether the penalty in any way affected his election is not calculable. We do know, however, that New York wanted the death penalty. According to an NBC poll 62% of New Yorkers polled said they were in favor, 33% against, and 5% +2% didn’t know. The reasons for, and against capital punishment were much the same as they were in 1976. Some feel that the death penalty is a deterrent against crimes. They cite statistics which show that the crime rate is reduced in all
states that hold the death penalty. Others argue that capital punishment violates the eighth amendment which forbids cruel and unusual punishment. They believe the death penalty is absurd and is in un-Christian practice. Further more, they feel society should not encourage sentiments of vengeance and cater to morbid interest in ritual execution.


On a personal level every one contemplates the pro’s and con’s (no pun intended) of the death penalty. My own feelings are torn two ways. On one hand I’d like to see violent criminals executed, and removed from our society. On the other hand, what about an innocent person getting killed? Can we, as mere human’s sentence another human being to death? In the end my feelings go with my religion. In a famous case in the Talmud, which surprisingly enough is cited in Black’s book, the death penalty is discussed.

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Jewish law is full of the death penalty. Yet as time went on the court in ancient Jerusalem, without changing the Law, devised procedural safeguards so refined, so difficult of satisfying, that the penalty of death could only very rarely be exacted. So approved was this process that it is said in the Talmud that when one Rabbi called “destructive” a court that imposed the death sentence once in seven years, another
said, ” Once in seventy years”, and two others said that, had they been on the great Court, no death sentence would ever have been carried out. It is my belief that in constructing these procedural safeguards to limit executions the Rabbi’s were making a point. In essence they were saying, “Though the justice of God may indeed ordain that some should die, the justice of man is altogether and always insufficient for saying who these may be.” I believe in the concepWords
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Thesis : In principle a case can be made on moral grounds both supporting
and opposing capital punishment.


Two different cases can be made. One is based on justice and the nature of a
moral community. This leads to a defense of capital punishment. The second
is based on love and the nature of an ideal spiritual community. This leads to
a rejection of capital punishment.


JUSTICE AND THE NATURE OF MORAL COMMUNITY
A central principal of a just society is that every person has an equal right to
“life, liberity, and happiness.” Within that, an arguement for capital
punishment forms along the following lines: some acts are so evil and so
destructive of a community that they void the right of the perpetrator to life.
A community founded on moral principals has specific requirements. The
right to belong to a community is not unconditional. The privilege of living
and pursuing the good life in society is not certain. The essential reason on
which community is built requires each citizen to honor the rightful claims of
others. The precious live in a moral community must be so highly honored
that those who do not honor the life of others void their own right to
membership. Those who violate the personhood of others, especially if this is
done persistently as a habit must pay the ultimate price. This must be done
for the sake of the community which was violated. We can debate whether
some non-lethal alternative is a suitable substitute for the death penalty. But
the standard of judgment is whether the punishment fits the crime and if it
honors the nature of the moral community.

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LOVE AND AN IDEAL SPIRITUAL COMMUNITY
Christian live, is unconditional. It does not depend on the worthiness or value
of those to whom it is directed. It is persistent in seeking the good of others
regardless of whether they return the favor or even deserve to be treated well
on the basis of their own wrongdoing. An ideal community would be made
up pf free and equal citizens devoted to a balance between individual needs
and the advancement of common good. Communal life would be based on
mutual love in which equality of giving and receiving was the social practise.
Everyone would contribute to the best of ability.

What would a community based on this kind of love do with thode who
committed brutal acts of terror, violence, and murder? Put negatively, it
would not live by the philosophy of “an eye for an eye,a tooth for a tooth, and
a life for a life.” It would act to safeguard the members of the community
from further destruction. Those whe had shown no respect for life ould be
restrained, permanently if necessary, so that they could not endanger othe
members of the community. An ideal community would show mercy even to
those who had shown no mercy. It would return good for evil. Some kind of
service to the community might be required as a way of partially making
amends.

In brief, is the argument for and against capital punishment, one founded on
justice and the nature of moral community, the other resting on love and the
nature of an ideal spiritual community. If we stand back from this description
and make an attempt at evaluation, one point is crucial. The love ethic
requires a high degree of moral achievement and maturity. It is more suitable
for small, closely-knit communities in which members know each other
personally and in some depth. Forgiveness is best in a setting in which
people can participate in each aother’s lives.

In short, for the moment the Christian witness to society is this: first
demonstrate that capital punishment can be administered in a just and
efficient manner. Then we will debate with you as to whether capital
punishment is in priciple necessary, fitting and right or whether a humane
society will find non-lethal alternatives to protect citizens from persistently
violent criminals. Until then the church should say “no” to this extreme
measure.


CAPITAL PUNISHMENT
Maria Hall English 112
03/14/97Mr. Stevens
Category: Law

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