founding of our country, the death penalty has had its place in American society. In its original form, death was the mandatory punishment for
a number of crimes, including murder. As time passed, a small minority of people began to disagree with the death penalty. Although most
Americans still supported it, sometimes these people would end up on juries for capital cases, and as a result, legislators began to notice that
juries were less likely to convict when the death penalty was the automatic punishment. This development lead to a weakening and changing of
death penalty laws. Instead of mandatory death sentence, juries would decide what sentence to give. In addition, many crimes that had been
punishable by death were taken off the list of capital crimes. Pretty soon, the death penalty became an optional punishment for first degree
murder.
In 1971, in McGautha v. California and Crampton v. Ohio, the Supreme Court ruled that states need not specify in statutes the factors to be
considered by the jury in issuing the death penalty. This case also held that while bifurcated trials (trials with two stages) are preferred, they are
not required.(26) Ironically, only one year later this ruling was overturned. In 1972, in Furman v. Georgia, the Supreme Court ruled the death
penalty unconstitutional in the way that it was being implemented. The eighth and fourteenth amendments were cited, especially regarding the
due process and equal protection clauses.(27) The death penalty was declared unconstitutional because it was not being issued fairly or evenly.
The Supreme Court had ruled that the death penalty was cruel and unusual punishment in the way that it was being carried out. In order to
reinstate the death penalty, the states had to have uniform standards and guidelines for the jury to use in determining the death penalty. After
Furman v. Georgia, a few states set up mandatory death penalty statutes for certain crimes. However, in Woodson v. North Carolina, these laws
were overturned. Florida, Georgia, Texas, and twenty-two other states wrote new laws reinstating the death penalty with specific aggravating
and mitigating circumstances.(28) Aggravating circumstances were reasons why the defendant should receive the death penalty. Mitigating
circumstances were reasons why the defendant should not receive the death penalty. Lockett v. Ohio ruled that states may not limit the kinds of
mitigating circumstances that juries can consider.(29)
The benefits of the death penalty will never be wholly realized unless it is carried out in a regular, consistent manner. Thus, on the
consideration of these points, there are several problems with the death penalty as it is presently being implemented. The first problem with the
death penalty is that second degree murder isn’t being punished adequately. Second degree murder is murder. It means that a criminal
unlawfully, intentionally killed another person without reason, excuse, or provocation. Yet, right now, second degree murder is a crime
punishable by fifteen years in prison. If there are significant mitigating circumstances, the murderer could be sentenced to even less time, not to
mention the fact that most criminals don’t serve their full sentence anyway. A criminal justice system that allows convicted murderers out of
prison after a few years does not stop repeat offenders and does not deter potential murderers from committing the same crime. Murder is
classified into two degrees, yet it is essentially the same crime. The only difference between first and second degree murder is that under first
degree murder, the prosecution must prove premeditation and deliberation. Murder for first and second degree is “unlawfully killing another
human being with malice.” If a murderer intends to kill someone, then kills him, it is hard for one to understand how premeditation and
deliberation makes the crime any worse. If a murderer did not premeditate and deliberate on his murder, is the victim any less dead? Is the one
who murdered him any less guilty?
A second problem is that first degree murder is hard to prove. Premeditation and deliberation must be proven in order for a murder to be
classified as first degree murder. This may seem simple, but lets take a look at what the prosecution has to prove in order to convict the
defendant of first degree murder. First of all, premeditation means that “the act was thought out beforehand for some length of time.”
“Deliberation means an intent to kill carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an
unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.” Both
elements are hard to prove because they involve the mind of the criminal, they have complex definitions, and they can usually only be proven
by circumstantial evidence. However, this is only the beginning of the complex legal maze that prosecutors must get through to get a
conviction. Some other things prosecutors must consider in proving murder in the first degree are that “defendant’s emotion must not have
disturbed his faculties or reason,” whether or not the killing occurred during the course of a quarrel or scuffle, previous hostile feelings and
prior assaults, nature and number of wounds, unseemly conduct toward and concealment of the body, vicious and brutal slaying, whether or
not the defendant consumed alcohol beforehand, and many other limiting factors. Due to the complicated process, a trial for first degree murder
lasts approximately six weeks.
First degree murder trials are long and expensive and the appeals process is long and expensive. According to the Attorney General’s Office, a
capital case (a trial for first degree murder) usually takes about six weeks and constitutes between 3,000 and 5,000 pages of court record.(30) The
trial itself is costly, but the court record has to be considered on every appeal made by attorneys on both sides, as well as by the appeals court
and the judges involved. Because so many pages are involved, the appeals process takes several times the length that an appeal for second
degree murder would. This is a major reason that murderers spend between 10 years on death row before being executed. (31) (32)
Under the Homicide Reform Act (see appendix A), first degree murder and second degree murder will be considered the same
crime and will be punished by death or life imprisonment. Murder will be defined as unlawful killing of a human being with
malice, express or implied.(33) In effect, this means that first and second degree murder will be combined under the title of
murder and will have the standard legal definition of murder.
Even with those convicted of first degree murder, the death penalty is not a common occurrence. The reason is that right now
the death penalty statutes make life imprisonment the rule for first degree murder cases. The death penalty is the exception to
the rule. The Capital Punishment Reform Act (written in appendix B) will make the death penalty the standard punishment for
murder. The purpose of the Capital Punishment Reform Act is to reform the capital punishments statutes to make the death
penalty the standard punishment for murder. Although life imprisonment shall be an option for the jury to choose for anyone
convicted of murder, the grounds for life imprisonment are much more limited than before. This bill asserts that murder deserves
the death penalty. Under this bill, if a person is convicted of murder, the jury must show that there is one or more substantial
enough mitigating circumstances to call for the lesser sentence of life imprisonment. Otherwise, the murderer would get a
sentence of death.
Under our current death penalty statutes, life imprisonment is the standard punishment. In order to give a sentence of death, the
jury has to prove that there are one or more sufficient aggravating circumstances that the jury finds beyond a reasonable doubt,
and that there were not any mitigating circumstances that outweighed the aggravating circumstance. If the jury finds both of
these conditions to be true, it can issue the death penalty. The Capital Punishment Reform Act reverses the trend. The death
penalty is the standard punishment. In order to give a sentence of life imprisonment, the jury must prove that there are one or
more sufficient mitigating circumstances that the jury found beyond a reasonable doubt, and that the aggravating circumstance is
insufficient to outweigh any mitigating circumstances. If the jury finds these conditions to be true, it can issue a sentence of life
imprisonment rather than the death penalty.
Under our current death penalty statues, all twelve jurors have to concur on the punishment. If a single jury member disagrees
with the other eleven, the murderer is automatically issued a sentence of life imprisonment. We live in a world of many different
ideologies, thoughts, and philosophies. If one person out of a group of twelve can stop the death penalty from happening, the
death penalty will never be the standard punishment for murder. Under Section (b), my bill provides that only nine of the twelve
jurors must issue the punishment.(34) If nine jurors (three-fourths) agree that the person deserves to die, he deserves to die. In
addition, if nine of the jurors cannot agree on a sentence, the judge shall decide the sentence as he deems fit. However, in most
cases nine of the twelve jurors would be able to come to a decision themselves.
Under the current death penalty statutes, a sentence of death is subject to automatic review by the state Supreme Court, while
a sentence of life imprisonment is not subject to automatic review. When the Supreme Court reviews the case, it must consider
whether or not the death penalty was too harsh in addition to any other areas assigned to it on appeal. This is yet another law
that hinders the death penalty. The jury has already decided that the aggravating circumstance has outweighed any mitigating
circumstances. The only thing the Supreme Court should be doing is checking to see if any mistakes or errors have been made
in trying the case. It is not necessary to automatically review the sentence of death. The defendant should have the right to
appeal and the Supreme Court should review the matters assigned to it on appeal. Under the Capital Punishment Reform Act,
the defendant has the right to appeal to the state Supreme Court, and the state Supreme Court shall review any matters
assigned to it on appeal.
Under the current death penalty statutes, there is a limited number of aggravating circumstances that must be considered in
order to give a sentence of death. The jury has to show that at least one of them is true in order to issue a sentence of death.
This fact, in and of itself, makes life imprisonment the standard punishment. If the death penalty is to be the standard punishment
for first degree murder, than murdering should be the only aggravating circumstance necessary. Under the Capital Punishment
Reform Act, murdering another human being is the aggravating circumstance. Thus, there will always be an aggravating
circumstance because everyone convicted of murder has murdered another human being. All of the other aggravating
circumstances are not needed and are taken out.
Under the current death penalty statutes, mitigating circumstances are numerous and wide-ranging. In addition, “Any other
circumstances arising from the evidence which the jury deems to have mitigating value,” is itself a mitigating circumstance. If the
death penalty is to be the standard punishment for first degree murder, the range of mitigating circumstances must be limited.
Many of the mitigating circumstances are removed. (1) “The defendant has no significant history of prior criminal activity.” What
this says is that it is okay to murder someone in the first degree if you have not done anything wrong in the past. This ruins the
whole deterrence effect of the death penalty. It has to be removed.
(2), (3), and (4) are kept for obvious reasons. (5) Premeditated murder is wrong and needs to be punished whether or not
someone else pressured you do it. Someone pressured to murder will have greater reason not to murder if the death penalty is
the standard sentence. (5) has to be removed. (6) If the mitigating circumstance in number 6 is really true and substantial
enough to be taken into consideration, it will already be covered by (2). (6) has to be removed because it opens a lot of
loopholes. (7) Age is important! Keep in mind
Bibliography
Whenever the word “death penalty” comes up, extremists from both sides start yelling out their arguments. One side says
deterrence, the other side says there’s a potential of executing an innocent man; one says justice, retribution, and punishment;
the other side says execution is murder. However, all the arguments aside, the best way and the only way to truly make a
rational. Decision about capital punishment is to examine the purpose of our criminal justice system. Once the purpose of the
criminal justice system is established, one must find out the purpose of capital punishment. This paper will show that the
purpose of capital punishment is consistent with and embodies the purpose of the criminal justice system. Then, this paper will
determine whether or not the present form of the death penalty is fulfilling its purpose, and what could be changed to make the
death penalty more efficient and effective.
The first question that must be faced is, “What is the purpose of the criminal justice system and does the death penalty help to
fulfill that purpose?” In The Law, Federic Bastiat says that humans have inalienable rights that existed outside of and before
government. These rights are life, liberty, and property. He contends that the only legitimate purpose of government is to
protect these rights. When one person inflicts on another’s rights or takes advantage of another person, he is plundering. Bastiat
asks,
“When, then, does plunder stop? It stops when it becomes more painful and more dangerous than labor. It is evident, then that
the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of work. All
the measures of the law should protect property and punish plunder.”(1)
People will plunder, take advantage of others, and commit crimes as long as it is in their best interest to do so. The purpose our entire criminal
justice system is to protect the rights of life, liberty, and property for all its citizens. To do this, the criminal justice system needs to make
“plunder more painful and more dangerous than labor.” In other words, the punishment for crime must be harsh enough to deter potential
criminals. Under this mindset, the death penalty makes perfect sense. Here is a punishment that truly makes the criminal pay for his crime, stops
the criminal from committing future crimes, and deters other criminals from committing the same crime. The purpose of the death penalty is to
protect the right of Americans to live.
If the purpose of the death penalty is to protect the lives of Americans, then the people that it is supposed to protect should be the focal point.
In considering the death penalty and its merits and faults one cannot lose sight of the victims. These corpses are the people who have been, are
being, and will be killed because our justice system is not working perfectly. In considering the death penalty these innocent individuals must
never be forgotten. Millions of innocent men and women have already been slain, and thousands are killed every year. According to Time, in
the United States more than 2,000,000 people are beaten, knifed, shot or otherwise assaulted each year, 23,000 fatally.(2) In any discussion of the
death penalty, one must remember that there are two sets of lives to be considered. Far too much emphasis is usually placed on the convicted
murderer who is being executed, and the victim who has been killed is all but forgotten. Joseph Stalin once stated, “One death is a tragedy, but
a million deaths are statistics.”(3)
Once a murderer is caught and convicted, justice seems to demand that he at least be prevented from murdering someone else. After all, if the
law is set up to protect our right to live, it seems as though it should be able to keep convicted murderers from murdering again. Amazingly, our
criminal justice system is not even achieving this goal. The average prison sentence for murder is less than six years.(4) Six percent of the young
adults paroled since 1978 who were convicted of murder were arrested for murder again within six years of their release.(5) This means that six
percent of all murderers were caught, convicted, sent to prison, released, and they murdered again. At least six percent of all murders could