NCJ Number
151327
Journal
Rutgers Law Review Volume: 44 Issue: 4 Dated: (Summer 1992) Pages: 985-1019
Date Published
1992
Length
35 pages
Annotation
This note organizes and discusses the relevant issues that policymakers should both adequately address before legislating death penalties and routinely consider when maintaining them.
Abstract
The author adopts the desert framework developed by Professor Andrew von Hirsch. He advocates that criminal defendants receive punishment proportional to the magnitude of their current and past crimes. Part II summarizes desert theory and Professor von Hirsch's analysis. Part III examines the relevant issues in determining whether the death penalty is justifiable. Part IV discusses the ordinal proportionality problems that have appeared in various applications of the death penalty. This examination shows how difficult it is to justify and properly implement the death penalty. The author concludes that tenable arguments can be made against the death penalty at all three thresholds of cardinal-magnitude inquiry. First, the horrors of execution and the value of human life support classifying the death penalty as inherently excessive. Second, even if execution is not deemed inherently excessive, it must be shown to be the appropriate anchoring point. The better alternative may be life imprisonment, because it provides a more reasonable alternative and apparently accomplishes the same objectives. Third, even if the death penalty is not perceived as inappropriate in theory, the flaws inherent in the criminal justice system heighten the offensiveness of execution, thereby making it a less appropriate upper-bound anchoring point. The current procedures and norms involved in death penalty cases also pose serious problems under desert theory. Desert theory dictates that the death penalty should apply, if at all, only to offenses that involve maximum harm committed by offenders with maximum culpability. Current laws, however, do no accomplish this objective. Those who embrace desert theory cannot readily accept the death penalty. The death penalty is apparently more expendable than human life. If the death penalty is to remain, however, desert theory suggests that it be limited, both in form to the least painful alternative, and in substance to the most heinous murders. 169 notes