First Class

Jay Ginsburg

September 24, 1997

Paper #2

Controversial Problems of Capital Punishment

Capital punishment is a declining institution as the twentieth century nears its end. At one time capital punishment was a common worldwide practice, but now it is only used for serious violation of laws in 100 of the world's 180 nations (Haines 3 ). It can be traced back to the earliest forms of civilization. The origins of the movement away from capital punishment are difficult to date precisely. The abolition movement can be heard as early as the religious sermons of the Quakers in the 1640's (Masur 4). In the seventeenth century, the Anglo-American world began to rely less on public executions and more in favor of private punishments. The possible decline in popularity of the capital punsihment system is directly related to the many contro versial issues it entails such as: the questions of deterrence, morals and ethics, constitutionality, and economics.

The usual justification for capital punsihment is that it deters crime. It is by no means obvious whether capital punishment deters crime more than life imprisonment. However, a legend says that in Victorian, England, at the site of public hangin gs of pickpocketers, other pickpocketers frequently practiced their trade among the crowd. Although the threat of execution was taking place right in front of their eyes, the deterrence in its strongest form was ineffective (Streib 3). On the other hand , in 1970 and 1971 the Los Angeles Police Department surveyed persons whom they arrested for a violent crime, but did not use their weapon, did not carry a weapon, or carried an inoperative weapon. Of the ninety-nine criminals who responded to the questi on about why they had not killed or put themselves in a situation to kill, these were the following results: 50% were deterred by the threat of capital punishment; of the remaining 50%, 8% were unaffected by the death penalty because of a lack of enforce ment; 10% were undeterred by the death penalty and would kill even if it was regularly enforced; and the remaining 32% were not concerned with the death penalty because they would never carry a weapon in fear of hurting themselves or someone else (Streib 2).

Analyzing the above study closer, one might find that the threat of capital punishment greatly reduces the murder rate. But if that was the case, sociologists could show the effect of capital punishment by statistics, which they cannot do. Schola rs have compared murder rates of the states which frequently practice capital punishment against those states that rarely enforce capital punsihment with inconclusive results.

Investigators have also compared different periods in states which had capital punishment at some times of their history and not at others, but have found no difference in favor of the times and places with capital punishment. Studies have also looked at the number of murders in a particular city just before and just after an execution, expecting to see a major decrease in murders following an execution. The statistics in this study showed a minimal difference (Streib 3). Scientists simply do now kn ow whether the threat of capital punishment exerts any deterrence over society. Social scientists believe that the lack of true evidence is because most crimes are "crimes of passion," which are undeterrable. However, most offenders sentenced to death ordinarily are guilty of premeditated murder, felony murder, or multiple murders. There are no convicts on death row guilty of a "crime of passion" (Streib 15).

Though the deterrence of capital punishment is an important issue, most citizens do not place much emphasis on it. In response to the following public opinion poll question: "You have said that you are in favor of capital punishment because you believe it deters crime. If it were someday proven that capital punishment doesn't deter, would you still be in favor of it?" In response, 90% of those in favor of capital punishment say they would remain loyal to the system anyway. On the con trary, 90% of those against capital punishment said they would retain their viewpoint even if it were determined capital punishment deterred crime (Streib 5). If capital punishment cannot be proven to either increase or decrease the murder rate, it may b e determined that innocent lives will be lost if the wrong decision is made in either direction.

Today in this county, death penalty proponents are willing to admit that the possibility of executing an innocent person can never be eliminated. However, they also claim that the "moral advantages" of capital punishment outweigh the &qu ot;moral drawbacks"; thus, the risk is worth taking. Many social scientists, who support the death penalty, believe that the safeguards of the capital punishment system make the process ethical. These safeguards include: the use of capital punishm ent is limited to only the most serious offenses against society; the defendant must always be notified beforehand that the state is seeking the death penalty; post verdicts hearings must be held to determine that the death penalty is the just punishment; the jury must decide unanimously of the accuser's guilt; the state's highest courts automatically review all capital cases; and, the defendant may also seek a new trial on the basis of newly discovered evidence that he or she was not guilty (Streib 163).

Capital Punishment opponents agree that there are three main problems that make the capital punishment system unethical: the chance of an innocent person being executed, inconsistency throughout the United Staes, and the situation where the crime does not fit the death penalty, yet it is still instituted. The first problem with the capital punishment system is the chance of an error in the system, which will cause a completely innocent person to be executed, as Greg Adams from Florida was in 1974 . Since 1762, when it was first discovered that Jean Calas was wrongly executed in Toulouse, France, opponents of the death penalty have advocated that the kiilling of innocents is a compelling reason to abolish the death penalty. In the United States f rom 1970 to 1985, there have been at least seventeen executions of innocent people (Streib 156). This raises a highly debated ethical controversy over capital punishment. Another major flaw in the capital punsihment system is its inconsistency throughou t the United States. This was clearly demonstrated in 1968 when John Spenkelink was executed for second-degree murder. Spenkelink was a drifter who murdered another man who sexually assaulted him. Ironically, Spenkilink received the death penalty in Fl orida, but in California most district attorneys would have been happy to settle a plea in a second-degree murder case (Streib 10). The third and final weakness in the system is when a person is executed whose crime does not fit the permanent punishment. This is the most commonly exploited flaw (Streib 11). The imperfection of a process that determines whether a man lives or dies leaves a lot of speculation about the ethics involved with the capital punishment system.

The ethical debate, the public's opinion whether capital punishment is moral and humane, has a direct relationship with the constitutional controversy, which is the judicial system's interpretation of the United States Constitution. The problems a ssociated with capital punishment are among the more serious problems in our justice system. The Supreme Court has consistently made it clear that death is a constitutionally valid punishment for serious crime offenders. Yet capital punishment remains a controversial issue. No one questions that our founding fathers supported capital punishment. They include in the Fifth Amendment that, "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indic tment of a Grand Jury...nor be deprived of life, liberty, or property without the due process of law." Also, the Crimes Act of 1970 instituted the death penalty for a number of offenses (Bowers 22). The Fourteenth Amendment, like the Fifth Amendmen t, also prohibits the government from restricting "life, liberty, or property without the due process of law." These two Amendments clearly state that the government has the power to take life, but only after the "due process of law." The controversy seems to lie in the wording of "cruel and unusual punishment" in the Eighth Amendment. Judges and politicians are not certain what the constitutional framers meant by "cruel and unusual punishment." Capital punishme nt advocates interpret the clause in relation to keeping local peace officers from torturing prisoners, a practice allowed in England (Gibbons 24). Conversely, capital punishment abolitionists believe that the clause was directly aimed at the death penal ts. Prior to 1972, the Supreme court rejected all "cruel and unusual punishment" challenges. Chief Justice Warren believed, "the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it ca nnot be said to violate the constitutional concept of cruelty." However, in 1972, the Supreme Court invalidated Georgia's death penalty statute as being imposed "freakishly" in the landmark case of Furman vs. Georgia (Castberg 594) . In the capital case in Georgia, Gregg vs. Georgia, the capital punishment system was altered then applied. Ever since the Gregg decision, the Court has stressed that under the Georgia statute, the death penalty can never be interpreted as "capriciously and arbitrarily" (Castberg 595).

In addition to deterrence, ethics, and constitutionality, economics is also a highly debated aspect of the capital punishment system. After a decision where the convict is incarcerated to several 20 to 35 year terms as opposed to the death penalty , the burden then falls to the taxpayers to pay for the criminal's lengthy stay in prison (ACLU 4). On average, it costs the place of incarceration $18,000 per year per inmate. This budget adds up to over $600,000 for one prisoner's 35-year sentence com pared to a little over $5,000 if the death sentence were carried out within ten days of the ruling (ACLU 5). Critics of capital punishment do not always agree with the argument that execution is cheaper than life because, in some cases, life imprisonment is cheaper than executing the convict. For instance, jury selection in capital cases tends to be more expensive because it's a very long and thorough method. Secondly, defendants not only havve better representation, but also more representation than n oncapital crime cases. Moreover, the prosecutorial staff becomes greater to balance the defense. Another major reason for the greater expense is that in capital cases the present law requires two trials to assess the death penalty: one trial to determi ne the defendant's guilt and a second to prove that the death penalty is the proper punishment. Another contributing factor to th ehigh cosdt is that while the convict is awaiting his fate he must be imprisoned on death row, which is at least twice as ex pensive as regular prison. In addition, reversal rates in appellate courts are much higher in capital cases as compared to noncapital cases. This means another judicial process that costs more taxpayers' money. Many social scientists believe that the d eath penalty could always be cheaper than life imprisonment, if capital cases were not so complicated.

Social scientists believe there are two key changes, which would make the system much more effective. One way to improve the capital punishment system would be to completely eliminate juries in all capital cases. This would greatly reduce the inc onsistency of the capital punishment system throughout the United States. First, juries are more inclined to fall into the emotional and technical traps strategically set by the attorneys, whereas experienced judges tend to give more consistent rulings. Secondly, judges are more immune to racial discrimination than a multi-person jury (Streib 232). The second improvement to the system is preliminary screening of capital cases. The function of preliminary screening in capital cases test both the factua l support for the state's death penalty request and the validity of the legal theory which the state prosecution plans to follow. Preliminary screening will prevent the state from trying an accused before a jury without showing a reasonable possibility o f guilt. The preliminary screening will serve three main purpses: it entitles the defense what the state must prove, it explains the content of the aggravating circumstances to the jury, and demonstrates the findings of evidence necessary to sustain a p ossible death sentence (Streib 201). The advantages of screening out cases that do not legally justify a death penalty proceeding will benefit not only the accused, but also the public's pocket book.

Deterrence-related, ethical, constitutional, and economical controversies are responsible for the decline in instituting the capital punishment system. Although the standards of decency continue to rise in society, presently the future of capital punishment in the United States looks secure. However, at one time the future of slavery, male domination in the workforce, and other changed conditions also looked just as secure. As long as the capital punishment system remains such a ontroversial iss ue, it may one-day collapse just like the other "invincible" institutions.

Bowers, William. Legal Homocide. Boston: Northeastern University Press, 1984.

Castberg, Didrick and Victor Rosenblum. Cases on Constitutional Law. Illinois: The Dorsey

Press, 1973.

Death Sentencing. ACLE Pamphlet #15. Pennsylvania: Nelson Thomas Publishers, 1994.

Gibbons, Don. Society, Crime, and Criminal Behavior. New Jersey: Prentice Hall Inc., 1987.

Goshgarian, Gary and Kathleen Krueger. Crossfire and Argument. New York: Addision Wesley

Longman, 1997.

Haines, Herbert. Against Capital Punishment. New York: Oxford University Press, 1996.

Masur, Louis. Rites of Execution. New York: Oxford University Press, 1989.

Streib, Victor. A Capital Punishment Anthology. Cleveland: Anderson Publishing Co., 1993.

"Anger and Ambivilance." Newsweek. 7 Aug. 1995: pg. 126.

Bidinotto, Robert. Criminal Justice. New York: Irvington and Hudson Company, 1994.

Bowers, William. Legal Homicide. Boston: Northeastern University Press, 1984.

Castberg, Didrick and Victor Rosenblum. Cases on Constitutional Law. Illinois: The Dorsey

Press, 1973.

Death Sentencing. ACLU Pamphlet #15. Pennsylvania: Nelson Thomas Publisher, 1994.

Eskeridge, Chris. Criminal Justice. California: Roxbury Publishing Company, 1996.

Foucault, Michel. Discipline and Punishment. New York: Pantheon Books, 1977.

Friedman, Lawrence. Crime and Punishment in American History. New York: Basic Books Inc., 1993.

Gibbons, Don. Society, Crime, and Criminal Behavior. Englewood Cliffs: Prentice Hall Inc.

1987.

Goshgarian, Gary and Kathleen Krueger. Crossfire an Argument. New York: Addison Wesley

Longman, 1997.

Haines, Herbert. Against Capital Punishment. New York: Oxford University Press, 1996.

Hawkins, Gordon., and Franklin Zimring. Capital Punishment and the American Genda. New

York: Cambridge University Press, 1986.

McClellan, Grant. Capital Punishment. New York: H.W. Wilson Company, 1961.

Meltsner, Michael. Cruel and Unusual. New York: Random House Publishing, 1973.

Middendorf, Wolf. Capital Punsihment: For and Against. New York: Hart Publishing Company, 1971.

Streib, Victor. A Capital Punishment Anthology. Cleveland: Anderson Publishing Co., 1993.

Thompson, Anthony. Capital Punsihment and the Supreme Court. New York: Doubleday, 1983.

Jay Ginsburg

Paper #3

The case of William Horton offers a fitting introduction to the subject of America's need for capital punishment. Horton was a violent habitual criminal, sentenced in 1988 to a Massachusetts prison "to life with no possibility of parole&q uot; for savagely slaying an innocent teenage boy. However, like many other alleged "life convicts," after only ten years in prison he was transferred to a minimum-security facility. There he became eligible for daily work release, as well as unescorted weekend furloughs from prison. Following the example of other "life without parole" kilers over the years, Horton decided not to return from work. Instead, months later, he viciously tortured and raped a Maryland couple for twelve h ours (Bidinotto 5). As this case illustrates, capital punishment is essential to maintain social order in the United States. It is necessary to keep society safe, deter crime, preserve ethical values, uphold the Constitution, and ease the taxpayer's bur den.

A country and culture as advanced as the United States keeps sentencing repeat violent crime offenders to "life imprisonment without parole," when it would be so much more efficient and better for society if the criminals were executed. The "life imprisonment without parole" conviction is frequently sentenced, but rarely enforced. This is caused by the extensive list of backlogs in the United States' penal system. These backlogs create a dangerous situation for society, becau se the convicts often slip through the judicial system after a very short prison term. Newsweek reports that in the United States there are over 1,000 correctional facilities housing over 75,000 death-row inmates. Of theese inmates, more than hal f have lived past their given execution date (Anger 25). This is the result of the numerous appeals that death-row inmates are permitted to submit. For every inmate that dies, there are five new ones to replace him or her. Cleaning up the hopelessly lo ng backlogs, the government would have to execute a convict everyday through the year 2021. Florida's triple killer, Gary Alvord, is celebrating his 22nd year on deathrow, still hoping, and still appealing. Until May 10, 1995, Montana's Duncan McKenzie had avoided the lethal needle for twenty years. Surprisingly, he fell just one vote short from freedom (Anger 25). In the instance of Terell Watkins, he was given twelve appeals, which kept him alive an extra 17 years. Watkins' execution date was set f or May 8, 1970, but wasn't executed until November 21, 1987. During this time he filed 12 appeals and even got two parole hearings. Had the Parole Committee felt differently about his stay in prison and granted him parole, a convicted murderer of four c hildren and three women would have been set free. If only half as many appeals had been allowed, he would have been executed in 1976 and would have had no opportunity for parole (Thompson 58-60).

In the United Staes, over 69% of all murderers are single case casualties; of these, the death penalty is only prescribed in 11% of the cases that came to trial. Of the remaining 89% the convicted murderer is eligible for parole after eight and ha lf years. The average sentence for manslaughter is 20 to 35 years in a maximum security prison with at least one third of the sentence served before the criminal is eligible for parole (Thompson 121). These statistics are quite frightening. Capital pun ishment opposition contends that the convicts have rights and should not be executed. But, what about my right to walk down the street without fear of being shot and killed by a convicted murderer that society should have gotten rid of five or ten years ago?

The usual justification for capital punishment is that it deters crime. Edward I. Koch, the former mayor of New York City, is a strong believer that capital punishment deters crime. In his essay, "The Death Penalty is Justie," published in The New Republic in 1985, Koch cites the horrifying story of Rosa Velez. Velez happened to be home when Luis Vera invaded her home in Brooklyn. It was then that Vera slaughtered the woman. "Yea, I shot her," Vera admitted. "S he knew me, and I knew I wouldn't go to the chair" (Goshgarian 339). If Vera had felt differently about the possibility of execution, maybe Rosa Velez would still be alive. These horrifying situations are occuring everyday throughout the United Sta tes.

In 1970 and 1971, the Los Angeles Police Department surveyed persons whom they arrested for a violent crime, but did not use their weapon, did not carry a weapon, or carried an inoperative weapon. Of the ninety-nine criminals who responded to the question about why they had not killed or put themselves in a situation to kill, these were the following results: 50% were deterred by the threat of capital punishment, of the remaining 50%, 8% were unaffected by the death penalty because of a lack of e nforcement; 10% were undeterred by the death penalty and would kill even it it was regularly enforced; and the remaining 32% were not concerned with the death penalty because they would never carry a weapon in fear of hurting themselves or someone else (S treib 2). Although this is a clear example of how capital punishment deters crime, many statistics are often manipulated or inaccurate. But even if only a minimal amount of crime can be deterred, at least it is a step in the right direction.

In today's society, death penalty proponents are willing to admit that the possibility of executing an innocent person can never be eliminated. However, they also state that the "moral advantages" of capital punishment outweigh the " ;moral drawbacks"; thus, the risk is worth taking. Many social scientists, who support the death penalty, believe that the safeguards of the capital punishment system make the process ethical. These safeguards include: the use of capital punishmen t is limited to only the most serious offenses against society; the defendant must always be notified beforehand that the state is seeking the death penalty; post verdict hearings must be held to determine that the death penalty is the just punishment; th e jury must decide unanimously of the accuser's guilt; the state's highest courts automatically review all capital cases; and, the defendant may also seek a new trial on the basis of newly discovered evidence that he or she was not guilty (Streib 163). T he safeguards of the capital punishment system create a fair and just punishment to serious crime offenders. To the opponents of capital punishment who claim the process to be unethical, remember that there are approximately 20,000 homicides in the Unite d States each year and only 3,000 of those murderers are sentenced to death (Bidinotto 22). That is not ethical.

The ethical debate, the public's opinion whether capital punishment is moral and humane, has a direct relationship with the constitutional controversy, which is the judicial system's interpretation of the United States Constitution. The Supreme Co urt has consistently established that the death penalty is a constitutionally valid punishment for serious crime offenders. Yet, capital punishment remains a controversial issue. No one questions that our founding fathers supported capital punishment. They included in the Fifth Amendment that, "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...nor be deprived life, liberty, or proerty without the due process of law ." Also, the Crimes Act of 1970 instituted the death penalty for a number of offenses (Bowers 22). The Fourteenth Amendment, like the Fifth Amendment, also prohibits the government from restricting "life, liberty, or property without the due p rocess of law." These two Amendments clearly state that the government has the power to take a life aft er the "due process of law."

The only controversy seems to lie in the wording of "cruel and unusual punishment" in the Eighth Amendment. But, this was only inserted to prevent local peace officers from torturing prisoners, a practice allowed in England (Gibbons 24). Prior to 1972, the Supreme Court rejected all "cruel and unusual punishment" challenges. How can society consider capital punishment "unusual," when it has been instituted ever since recorded history? Chief Justice Warren believed, "the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concvept of cruelty." However, in 1972, the Supreme Court invalidated Georgia's death penalty statute as being imposed "freakishly" in the landmark case of Furman vs. Georgia (Castberg 594). In the preceding capital case in Georgia, Gregg vs. Georgia, the capital punishment system was altered then reapplied. Ever since the Gregg decision, the Court has stressed that under the Georgia statute, the death penalty can never be interpreted as "capriciously or arbitrarily" (Castberg 595). If the judicial system does not continue to uphold the Constit ution on American's right to capital punishment, what will be the next right we lose?

Another reason society needs to institute capital punishment is to ease the economic burden of the taxpayers. After a decision where the convict is incarcerated for several 20 to 35 year terms as opposed to the death penalty, the burden then falls to the taxpayer to pay for the criminal's lengthy stay in prison (ACLU 4). On average, it costs the place of incarceration $18,000 per year per inmate. This budget adds up to over $600,000 for one prisoner's 35-year sentence compared to a little over $ 5,000 if the death sentence were carried out within ten days of the ruling (ACLU 5). Critics of capital punishment do not always agree with the argument that execution is cheaper than life because, in some cases, life imprisonment is cheaper than executi ng the convict. Many social scientists believe that execution could always be cheaper than life imprisonment, if capital cases were not so complicated. The money spent to institute captial punishment can be viewed as a safety investment because the kill ers will never be given the chance to kill again. Also, American's extra tax money can be distributed for more useful projects.

Social scientists believe there are three key changes that would make the system much more effective. The first change would be to consistently enforce capital punishment. This would instill fear into the people and ultimately deter criminal acts . The second way to improve the capital punishment system would be to completely eliminate juries in all capital cases. This would greatly reduce the inconsistency of the capital punishment system throughout the United States in two ways. First, juries are more inclined to fall into the emotional and technical traps strategically set by the attorneys, whereas experienced judges tend to give more consisten rulings. Secondly, judges are more immune to racial discrimination than a multi--person jury (Str eib 232). The third amendment to the system is preliminary screening of all capital cases. Preliminary screening in capital cases tests both the factual support for the state's death penalty request and the validity of the legal theory which the state p rosecution plans to follow. Preliminary screening will prevent the state from trying an accused before a jury without showing a reasonable possibility of guilt. The preliminary screening will serve three main objectives: it entitles the defense to what the state must prove, it explains the content of the aggravating circumstances to the jury, and it demonstrates the findings of the evidence necessary to sustain a possible death sentence. The advantages of screening out cases that do not legally justif y a death penalty proceeding will benefit not only the accused, but also the public's pocket book.

Since 1976, less than a dozen persons have been executed in the United States (Gibbons 475). In order ofr society to remain stable, these numbers need to rise dramatically. Society will not survive unless we keep citizens safe by deterring crime. Not only must we keep citizens safe, but we must also preserve an economy that is affordable for Americans to live. In addition, it is our duty to uphold the written document that has governed us since 1787, the United States Constitution. Capital Pun ishment plays an intricate part in all of these aspects. If we do not start instituting capital punishment regularly, the consequences will be detrimental to society.

Bowers, William. Legal Homocide. Boston: Northeastern University Press, 1984.

Castberg, Didrick and Victor Rosenblum. Cases on Constitutional Law. Illinois: The Dorsey

Press, 1973.

Death Sentencing. ACLU Pamphlet #15. Pennsylvania: Nelson Thomas Publishers, 1994.

Gibbons, Don. Society, Crime, and Criminal Behavior. New Jersey: Prentice Hall Inc., 1987.

Goshgarian, Gary and Kathleen Krueger. Crossfire and Argument. New York: Addison Wesley

Longman, 1997.

Haines, Herbert. Against Capital Punishment, New York: Oxford University Press, 1996.

Masur, Louis. Rites of Execution. New York: Oxford University Press, 1989.

Streib, Victor. A Capital Punishment Anthology. Cleveland: Anderson Publishing Co., 1993.

"Anger and Ambivalence." Newsweek. 7 Aug. 1995: pg. 126.

Bidinotto, Robert. Criminal Justice. New York: Irvington and Hudson Company, 1994.

Bowers, William. Legal Homicide. Boston: Northeastern University Press, 1984.

Castberg, Didrick and Victor Rosenblum. Cases on Constitutional Law. Illinois: The Dorsey

Press, 1973,

Death Sentencing. ACLU Pamphlet $15. Pennsylvania: Nelson Thomas Publishers, 1994.

Eskeridge, Chris. Criminal Justice. California: Roxbury Publishing Comapny, 1996.

Foucault, Michel. Discipline and Punishment. New York: Pantheon Books, 1977.

Friedman, Lawrence. Crime and Punishment in American History. New York: Basic Books Inc., 1993.

Gibbons, Don. Society, Crime, and Criminal Behavior. Englewood Cliffs: Prentice Hall Inc.,

1987.

Goshgarian, Gary and Kathleen Krueger. Crossfire and Argument. New York: Addison Wesley

Longman, 1997.

Haines, Herbert. Against Capital Punishment. New York: Oxford University Press, 1996.

Hawkins, Gordon., and Franklin Zimring. Capital Punishment and the American Genda. New

York: Cambridge University Press, 1986.

McClellan, Grant. Capital Punsihment. New York: H.W. Wilson Company, 1961.

Meltsner, Michael. Cruel and Unusual. New York: Random House Publishing, 1973.

Middendorf, Wolf. Capital Punishment: For and Against. New York: Hart Publishing

Company, 1971.

Streib, Victor. A Capital Punishment Anthology. Cleveland: Anderson Publishing Co., 1993.

Thompson, Anthony. Capital Punishment and the Supreme Court. New York: Doubleday, 1983.

Jay Ginsburg

Paper #4

The case of William Horton offers a fitting introduction to the subject of America's need for capital punishment. Horton was a violent habitual criminal, sentenced in 1988 to a Massachusetts prison "to life with no possibility of parole&q uot; for savagely slaying an innocent teenage boy. However, like many other alleged "life convicts," after only ten years in prison he was transferred to a minimum-security facility. There he became eligible for daily work release, as well as unescorted weekend furloughs from prison. Following the example of other "life without parole" killers over the years, Horton decided not to return from work. Instead, months later, he viciously tortured and raped a Maryland couple for twelve hours (Bidinotto 5). As this case illustrates, capital punishment is essential to maintain social order in the United States. It is necessary to keep society safe, deter crime, preserve ethical values, uphold the Constitution, and ease the taxpayer's bu rden.

A country and culture as advanced as the United States keeps sentencing repeat violent crime offenders to "life imprisonment without parole," when it would be so much more efficient and better for society if the criminals were executed. The "life imprisonment without parole" conviction is frequently sentenced, but rarely enforced. This is caused by the extensive list of backlogs in the United States' penal system. These backlogs create a dangerous situation for society, becau se the convicts often slip through the judicial system after a very short prison term. In Georgia, the average wait on death row has expanded to 10 years (Streib 60). Newsweek reports that in the United States there are over 1,000 correctional fa cilities housing over 75,000 death-row inmates. Of these inmates, more than half have lived past their given execution date (Anger 25). This is the result of the numerous appeals that death-row inmates are permitted to submit. For every inmate that die s, there are five new ones to replace him or her. Cleaning up the hopelessly long backlogs, the government would have to execute a convict everyday through the year 2021 (Anger 25). The appeals process has grown to become a dangerous problem in the pena l system. Florida's triple killer, Gary Alvord, is celebrating his 22nd year on deathrow, still hoping, and still appealing. Until May 10, 1995, Montana's Duncan McKenzie had avoided the lethal needle for twenty years. Surprisingly, he fell just one vo te short from freedom (Anger 25). In the instance of Terell Watkins, he was given twelve appeals, which kept him alive an extra 17 years. Watkins' execution date was set for May 8, 1970, but wasn't executed until November 21, 1987. During this time he filed 12 appeals and even got two parole hearings. Had the Parole Committee felt differently about his stay in prison and granted him parole, a convicted murder of four children and three women would have been set free. If only half as many appeals had been allowed, he would have been executed in 1976 and would have had no opportunity for parole (Thompson 58-60). Also, due to the ridiculous amount of appeals submitted, capital punishment cannot be enforced even when innocence is not an issue (Streib 63 ).

In the United States, over 69% of all murders are single case casualties; of these, the death penalty is only prescribed in 11% of the cases that came to trial. Of the remaining 89% the convicted murderer is eligible for parole after eight and hal f years. The average sentence for manslaughter is 20 to 35 years in a maximum security prison with at least one third of the sentence served before the criminal is eligible for parole (Thompson 121). These statistics are quite frightening. Captial puni shment opposition contends that the convicts have rights and should not be executed. But, what about my right to walk down the street without fear of being shot and killed by a convicted murderer that society should have gotten rid of five or ten years a go?

The usual justification for capital punishment is that it deters crime. Edward I. Koch, the former mayor of New York City, is a strong believer that capital punishment deters crime. In his essay, "The Death Penalty is Justice," publishe d in The New Republic in 1985, Koch cites the horrifying story of Rosa Velez. Velez happened to be home when Luis Vera invaded her home in Brooklyn. It was then that Vera slaughtered the woman. "Yea, I shot her," Vera admitted. " ;She knew me, and I knew I wouldn't go to the chair" (Goshgarian 339). If Vera had felt differently about the possibility of execution, maybe Rosa Velez would still be alive. These horrifying situations are occurring everyday throughout the United States.

However, critics of capital punishment claim that it is impossible to determine whether capital punishment deters crime. They base their opinion on a legendary English tale. The legend declares that in Victorian, england, at the site of public ha ngings of pickpocketers, other pickpocketers frequently practiced their trade among the crowd. Although the threat of execution was taking place right in front of their eyes, the deterrence in its strongest form was ineffective (Streib 3). But, as a chi ld I have been told many legends that I now know are imaginative, therefore I base my opinion on factual evidence. Social scientists who oppose capital punishment claim that they have evidence supporting that capital punishment does not deter crime. The scientists have compared murder rates of the states that frequently practice capital punishment against those states that rarely enforce capital punishment with inconclusive results. Investigators have also compared different periods in states which had capital punishment at some times of their history and not at others, but have found no difference in favor of the times and places with capital punishment. Studies have also looked at the number of murders in a particular city just before and just after an execution, expecting to see a major decrease in murders following an execution. The statistics in this study showed a minimal difference (Streib 3). What these scientists forgot to consider in their research is that most crimes are "crimes of p assion," which are undeterrable. Most offenders sentenced to death ordinarily are guilty of premeditated murder, felony murder, or multiple murders. There are no convicts on death row guilty of a "crime of passion" (Streib 15).

In 1970 and 1971, the Los Angeles Police Department surveyed persons whom they arrested for a violent crime, but did not use their weapon, did not carry a weapon, or carried an inoperative weapon. Of the ninety-nine criminals who responded to the question about why they had not killed or put themselves in a situation to kill, these were the following results: 50% were deterred by the threat of capital punishment, of the remaining 50%, 8% were unaffected by the death penalty because of a lack of e nforcement; 10% were undeterred by the death penalty and would kill even if it was regularly enforced; and the remaining 32% were not concerned with the death penalty because they would never carry a weapon in fear of hurting themselves or someone else (S treib 2). Although this is a clear example of how capital punishment deters crime, many statistics are often manipulated or inacurate. But even if only a minimal amount of crime can be deterred, at least it is a step in the right direction.

In today's society, death penalty proponents are willing to admit that the possibility of executing an innocent person can never be eliminated. They also believe that there is a wide range of inconsistency throughout the United States. But, these two flaws have realistic remedies. the first problem with the capital punishment system is the chance of an error in the system, which will cause a completely innocent person to be executed, as Gregg Adams from Florida was in 1974. Since 1762, when it was first discovered that Jean Calas was wrongly executed in Toulouse, France, opponents of the death penalty have advocated that the killing of innocents is a compelling reason to abolish the death penalty. But, since 1762 the United State's judicial sy stem has become far more complex and detailed, greatly reducing the possibility of an innocent execution. In the past twenty-five years, there has not been one example of an erroneous execution (Streib 162). Moreover, the rate of error over the past 87 years has been less than one third of one percent (Streib 163). The likely explanation for the decrease in errors in capital cases during the past quarter century is the greater care taken by the courts to assure the correct solution in all capital cases (Streib 164). The risk of innocent executions is heavily outweighed by the protection that capital punishment provides.

The second flaw in the capital punishment system is the inconsistency throughout the United States. This was clearly demonstrated in 1968 when John Spenkelink was executed for second-degree murder. Spenkelink was a drifter who murdered another ma n who sexually assaulted him. Ironically, Spenkelink received the death penalty in Florida, but in California most district attorneys would have been happy to settle a plea in a second-degree murder case (Streib 11). However, replacing juries with judge s in all capital cases could eliminate the inconsistency of the system almost completely. Critics also claim that capital punishment is racially discriminatory. A final criticism, which opponents fee makes the system unethical, is the racial tendency to electrocute minorities. Opponents believe that African Americans and Hispanics are more susceptible to being executed than Caucasians. However, since 1976, Texas has executed 100 people. Of these 100 people, 48 were white, 36 were black, and 16 were H ispanic (We're No. 1 68). These statistics prove that the discrimination argument against capital punishment is misused and outdated. For capital punishment to be instituted fairly to every criminal, black or shite, it must be mandatory for all capital cases. If the death penalty was mandatory, race would not be an issue and the courts could focus on the criminal act, not the criminal.

Capital punishment supporters state that the "moral advantages" of capital punishment outweigh the "moral drawbacks"; thus, the risks are worth taking. Many social scientists, who support the death penalty, believe that the saf eguards of the capital punishment system make the process ethical. These safeguards include: the use of capital punishment is limited to only the most serious offenses against society; the defendant must always be notified beforehand that the state is s eeking the death penalty; post verdict hearings must be held to determine that the death penalty is the just punishment; the jury must decide unanimously of the accuser's guilt; the state's highest courts automatically review all capital cases; and, the d efendant may also seek a new trial on the basis of newly discovered evidence that he or she was not guilty (Streib 163). The safeguards of the capital punishment system create a fair and just punishment to serious crime offenders. To the opponents of ca pital punishment who claim the process to be unethical, remember that there are approximately 20,000 homicides in the United States each year and only 3,000 of those murderers are sentenced to death (Nidinotto 22). That is not ethical.

The ethical debate, the public's opinion whether capital punishment is moral and humane, has a direct relationship with the constitutional controversy, which is the judicial system's interpretation of the United States Constitution. The Supreme Co urt has consistently established that the death penalty is a constitutionally valid punsihment for serious crime offenders. Yet, capital punishment remains a controversial issue. No one questions that our founding fathers supported capital punishment. They included in the Fifth Amendment that, "no person shall be held to answer for a capitalk, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...nor be deprived life, liberty, or property without due process of law.& quot; Also, the Crimes Act of 1970 instituted the death penalty for a number of offenses (Bowers 22). The Fourteenth Amendment, like the Fifth Amendment, also prohibits the government from restricting "life, liberty, or property without the due pro cess of law." These two Amendments clearly state that the government has the power to take a life after the "due process of law."

The only controversy seems to lie in the wording of "cruel and unusual punishment" in the Eighth Amendment. But, this was only inserted to prevent local peace officers from torturing prisoners, a practice allowed in England (Gibbons 24). Prior to 1972, the Supreme Court rejected all "cruel and unusual punishment" challenges. How can society consider capital punishment "unusual," when it has been instituted ever since recorded history? Chief Justice Warren believed, "the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty." However, in 1972, the Supreme Court invalidated Georgia's death p enalty statute as being imposed "freakishly" in the landmark case of Furman vs. Georgia (Castberg 594). In the preceding capital case in Georgia, Gregg vs. Georgia, the capital punishment system was altered then reapplied. Ever since the Gregg decision, the Court has stressed that under the Georgia statute, the death penalty can never be interpreted as "capriciously or arbitrarily" (Castberg 595). If the judicial system does not continue to uphold the Constitu tion on American's right to capital punishment, what will be the next right we lose?

Another reason society needs to institute capital punishment is to ease the economic burden of the taxpayers. Because those sentenced to death tend to consistently appeal the verdict, executions are costly. But, contrary to widely shared assumpti ons, life prisoners also spend much of their time preparing habeas corpus appeals like those convicts sentenced to death (Streib 15). After a decision where the convict is incarcerated for several 20 to 35 year terms as opposed to the death penalty, the burden then falls to the taxpayer to pay for the criminal's lengthy stay in prison (ACLU 4). On average, it costs the place of incarceration $18,000 per year per inmate. This budget adds up to over $600,000 for one prisoner's 35-year sentence compared t o a little over $5,000 if the death sentence were carried out within ten days of the ruling (ACLU 5). Critics of capital punishment do not always agree with the argument that execution is cheaper than life because, in some cases, life imprisonment is che aper than executing the convict. Many social scientists believe that execution could always be cheaper than life imprisonment, if capital cases were not so complicated. But even if some executions are more costly than life imprisonment, it should not be abandoned for economic reasons if the punishment is just. If the death penalty is unjust, it should not be exercised because it is cheap and life imprisonment is costly (Streib 15). The money spent to institute capital punishment can be viewed as a saf ety investment because the killers will never be given the chance to kill again. Also, American's extra tax money can be distributed for more useful projects.

Social scientists believe there are three key changes that would make the system much more effective. The first change would be to consistently enforce capital punishment. This would instill fear into the people and ultimately deter criminal acts . The second way to improve the capital punishment system would be to completel eliminate juries in all capital cases. This would greatly reduce the inconsistency of the capital punishment system throughout the United States in two ways. First, juries are more inclined to fall into the emotional and technical traps strategically set by the attorneys, whereas experienced judges tend to give more consistent rulings. Secondly, judges are more immune to racial discrimination than a multi-person jury (Stre ib 232). The third amendment to the system is preliminary screening of all capital cases. Preliminary screening in capital cases tests both the factual support for the state's death penalty request and the validity of the legal theory which the state pr osecution plans to follow. Preliminary screening will prevent the state from trying an accused before a jury without showing a reasonable possibility of guilt. The preliminary screening will serve three main objectives: it entitles the defense to what the state must prove, it explains the content of the aggravating circumstances to the jury, and it demonstrates the findings of the evidence necessary to sustain a possible death sentence. The advantages of screening out cases that do not legally justify a death penalty proceeding will benefit not only the accused, but also the public's pocket book.

Everyday, Americans enjoy the luxuries of using cars, airplanes, and other instruments that improve the quality of society. We accept the risks and casualties that are caused by these luxuries in order to reap the social benefits that the devices provide. The same concept applies for the death penalty, only on a much smaller scale. As long as we constantly endanger millions of innocent lives for personal conviences, then surely lesser risks to defend public safety should be encouraged. Any inst itution that contains benefits to society is also attached to risks. The death penalty happens to be the least dangerous of these institutions, but yet is still considered the most controversial. I do not believe there is one simply answer to the murder rate problem, but nor do I think that the problem is inevitable.

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