SENTENCING TO DEATH - THE INHERENT PROBLEM (FROM NEW DIRECTIONS IN SENTENCING, P 157-193, 1980, BY BRIAN A GROSMAN - SEE NCJ-71049)

• NCJ Number: 69403
• Author(s): E A FATTAH
• Date Published: 1980
• Length: 37 pages
• Sale Source: Butterworth
• Language: English
• Country: Canada

Annotation

SENTENCING PROBLEMS UNIQUE TO CAPITAL CASES IN CANADA ARE DISCUSSED, AS WELL AS THE EVIDENTIARY PROBLEMS RAISED BY THE LEGAL PROVISION FOR THE DEATH PENALTY AS A POSSIBLE MANDATORY SANCTION FOR THE CRIME.

Abstract

THE FIRST ARGUMENT ADVANCED FROM EMPIRICAL RESEARCH FINDINGS IS THAT THE SEVERITY OF THE DEATH PENALTY EXERCISES AN INHIBITORY EFFECT ON JURIES AND JUDGES IN CAPITAL CASES BY PREVENTING CONVICTIONS AND THEREBY RESULTING IN IMPUNITY FOR THE OFFENDER. MOREOVER, THE POSSIBILITY OF THE DEATH SENTENCE IS BELIEVED TO CREATE THE FOLLOWING PROBLEMS IN THE ADMINISTERING OF JUSTICE: THE HIGHER STANDARD OF PROOF REQUIRED IN CAPITAL CASES, THE POSSIBILITY OF CONVICTING AN INNOCENT PERSON, AND THE SERIOUS DIFFICULTIES ENCOUNTERED IN SELECTING A JURY FOR A CAPITAL CASE. DISCREPANCIES BETWEEN THE DEATH PENALTY AND THE PRINCIPLE OF EQUAL JUSTICE INCLUDE THE ARBITRARY AND DISCRIMINATORY NATURE OF THE DEATH PENALTY IN THE ABSENCE OF STANDARDS FOR THE SELECTION OF WHO IS ACTUALLY PUT TO DEATH, AND THE ARBITRARINESS OF LEGAL CLASSIFICATIONS OF MURDER--THE EXCLUSION OF SOME TYPES OF MURDER FROM CAPITAL PUNISHMENT--AND THE SEX AND RACE DISCRIMINATION THAT HAS PREDOMINATED IN CAPITAL PUNISHMENT. ANOTHER DRAWBACK TO CAPITAL PUNISHMENT IS THE POTENTIAL FOR ERROR REGARDING THE INSANITY DEFENSE IN CAPITAL CASES. THIS IS ATTRIBUTED TO THE EXTREME DIFFICULTY OF REACHING AN ADEQUATE DEFINITION OF SUCH A COMPLEX AND RELATIVE NOTION AS INSANITY DEFENSE IN CAPITAL CASES. THIS IS ATTRIBUTED TO THE EXTREME DIFFICULTY OF REACHING AN ADEQUATE DEFINITION OF SUCH A COMPLEX AND RELATIVE NOTION AS INSANITY, THE LIMITATIONS OF PSYCHIATRY AND THE FRAILTY OF THE PSYCHIATRIC DIAGNOSIS OF INSANITY, AND THE DIFFICULTY OF LINKING THE DEFENDANTS' MENTAL DISEASE OR DEFECT TO THEIR ALLEGED OFFENSE. CAPITAL PUNISHMENT DOES NOT DETER HOMICIDES, IS NOT NEEDED AS AN ABSOLUTE INCAPACITATING TOOL AGAINST MURDERERS, CHEAPENS HUMAN LIFE, AND IS AN UNSUITABLE MEANS OF PUNISHMENT THAT HAS BEEN REJECTED THROUGHOUT HISTORY BY PHILOSOPHERS AND LEGAL SCHOLARS. A TABLE AND 108 NOTES ARE PROVIDED.