DEATH PENALTY - SOCIAL POLICY AND SOCIAL JUSTICE

• NCJ Number: 62558
• Journal: Arizona State Law Journal Volume: 1977 Issue: 4 Dated: (1977-1978) Pages: 767-802
• Author(s): H A BEDAU
• Date Published: 1977
• Length: 35 pages
• Corporate Author: Arizona State University
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: THIS ARTICLE IS BASED ON A SPEECH PRESENTED AT ARIZONA STATE UNIVERSITY COLLEGE OF LAW, AS PART OF A SYMPOSIUM ON THE PUNISHMENT OF DEATH, OCTOBER 15, 1977

Annotation

THIS ESSAY ARGUES FOR THE ABOLITION OF THE DEATH PENALTY ON CONSTITUTIONAL, ETHICAL, AND PHILOSOPHICAL GROUNDS. IT IS FOLLOWED BY A REJOINDER CRITIQUING THESE ARGUMENTS.

Abstract

THE ARGUMENT FOR THE ABOLITION OF CAPITAL PUNISHMENT STATES THAT EVEN THOUGH THE PRINCIPLES OF SOCIAL JUSTICE DO NOT DIRECTLY FORBID EITHER THE MANDATORY OR THE DISCRETIONARY DEATH SENTENCE, NEITHER DO THEY NOT REQUIRE IT. HOWEVER, THE BALANCE OF MORAL CONSIDERATIONS RUNS AGAINST THE PRACTICE AND DISTINCTLY FAVORS ABOLITION. ALTHOUGH THE MERITS OF MANDATORY CAPITAL PUNISHMENT SUPPOSEDLY INCLUDE RETRIBUTION, EQUALITY OF JUSTICE, AND MAXIMIZED SOCIAL DEFENSE THROUGH THE DETERRENT EFFECT, UPON EXAMINATION, THESE POINTS CONSTITUTE ARGUMENTS FOR A SYSTEM OF PUNISHMENT GRADED ACCORDING TO SEVERITY. THIS SYSTEM NEED NOT INCLUDE THE DEATH PENALTY. MANDATORY EXECUTION AS A SOCIALLY JUST RETRIBUTION FOR MURDER IS DEFEATED BY THE FACT THAT IT NEGATES ANY REHABILITATIVE POSSIBILITY, BRUTALIZES THE PUBLIC, AND CANNOT CONSTITUTE TRUE RETRIBUTION FOR CRIMES OF PARTICULAR VIOLENCE, MULTIPLE MURDER, TREASON, ESPIONAGE, AND OTHERS. MOREOVER, MANDATORY CAPITAL PUNISHMENT WOULD ABOLISH THE DISTINCTION BETWEEN DEGREES OF MURDER, REDUCE APPELLATE POWER, AND REMOVE COMMUTING POWER FROM THE CHIEF EXECUTIVE, THUS DISTORTING THE ENTIRE CRIMINAL JUSTICE PROCEDURE. ON THE OTHER HAND, DISCRETIONARY CAPITAL PUNISHMENT, THE FORM PRESENTLY IN EFFECT IN THE UNITED STATES, IS CHARACTERISTIC OF THE CRIMINAL JUSTICE SYSTEM FROM PROSECUTORIAL DISCRETION IN INDICTMENTS TO EXECUTIVE CLEMENCY. HOWEVER, IT FAILS TO MAXIMIZE RETRIBUTION AND FALLS FAR BELOW STANDARDS OF EQUAL PUNITIVE JUSTICE. DISCRETIONARY PRACTICES ARE FREQUENTLY INFLUENCED BY POLITICAL RATHER THAN MORAL CONSIDERATIONS. ONLY BY ABOLISHING THE DEATH PENALTY ALTOGETHER, WILL IT BE POSSIBLE TO DO AWAY WITH THE MORE EXTREME ABUSES AND INJUSTICES OCCURRING IN THE COURSE OF LAWFUL PUNISHMENT. THE IRREVOCABLE AND IRREPARABLE NATURE OF CAPITAL PUNISHMENT IS THE STRONGEST ARGUMENT AGAINST IT. AMONG THE POINTS QUESTIONED IN THE CRITIQUE ACCOMPANYING THIS ARTICLE IS THE DETERRENCE EFFECT AND THE CONCEPTS OF JUSTICE, AND REHABILITATION. FOOTNOTES ARE INCLUDED. (MRK)