In order to distinguish between retribution and revenge the words must be defined. It is also pertinent to know what Capital Punishment is and how these two words factor. The American Heritage Dictionary of the English Language defines Capital Punishment as “the penalty of death for the commission of a crime.” The offenses which determine a capital case and the associated penalty are defined by each state. In California, “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (CA. Penal Code 187 a) “Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life.” (CA. Penal Code 190 a) Although many uphold that life in prison is equal justice; Capital Punishment is the harshest that can be handed down by a court of law— the Death Penalty. In California the circumstances which can warrant a death sentence are: “multiple murder, felony murder, torture, lying in wait, or killing a peace officer.” (A Victim’s Guide to the Capital Case Process pg.4). We now know what Capital Punishment is and the crimes for which the ultimate penalty may be paid, but is the death penalty retribution or revenge?
Retribution is something that is given as repayment —a recompense, such as a life for a life. Revenge is forcing suffering on another person for a perceived wrong. The suffering may be equal to or greater than the “original sin”. In his essay “Why the Death penalty is Morally Permissible”, Louis P.Pojman clarifies the difference between retribution and revenge: “Retribution establishes an internal limit to the amount of punishment based on the severity of the crime, whereas revenge sets no logical limits to the amount of retaliation.” To define the a word is one thing, to define the purpose and action of the death penalty is a thin line that has garnered much controversy. On one side of the issue are those whose compassion for life, all life, even the life of the most evil compels them to consider the death penalty an outrage. These are the opposition, the people who protest at executions, speaking out that it is inhumane and painful, that the Bible forbids it, and that it does not deter crime. On the other side of the issue is justice which must be upheld to remain a civilized people. Society demands that there be punishment or consequences for those responsible for crimes. Proponents demand victim’s rights. Further complicating this issue are new science, such as DNA analysis, and the appeals process.
If God created all men equal, then we can conclude that one life is equally as important as another. So how do we as a civilized social system justify letting one who took a life retain his own? Do we leave punishment up to God? And if so, how do we punish or bring justice to those with no religious beliefs? Death penalty opponents protest that the Bible forbids murder, they quote the Ten Commandments: “Thou shalt not commit murder”. They liken the death penalty to murder. They want to convey that two wrongs do not make a right. However, it also states in the Bible: “5And from each man, too, I will demand an accounting for the life of his fellow man. 6Who so sheddeth man’s blood, by man shall his blood be shed.” (Holy Bible, Genesis 9:5-6) This is the counter argument of proponents of the death penalty. That justice for murder will be carried out by man, and specifically that murder shall be punishable by death. It further states in the Bible: “23If any harm follows, then you shall give life for life, 24eye for eye, tooth for tooth, hand for hand, foot for foot, 25burn for burn, wound for wound, stripe for stripe.” (Holy Bible, Exodus 21:23-25) The Law of Retaliation (lex talionis) which states: “that a punishment inflicted should correspond in degree and kind to the offense of the wrongdoer” , was intended to be a limitation on punishment according to Bible scholars, it was not intended as a means of revenge. While the religious toil with their interpretations from the Bible, their arguments are altogether moot, as religion is relative. It has no basis in a justice system for a society made up of people who have many different beliefs.
If we take religion out of the equation, we must then address that Capital Punishment is inhumane, cruel and unusual, and painful to the criminal who must be executed. Is it a violation of their human rights? The history of the death penalty has indeed shown that it was once quite inhumane. In fact, the Eighth Amendment of the United States Constitution forbids certain punishments entirely, namely: drawing and quartering, burning alive, and disembowelment. Today, however, science has provided a solution to the protest: lethal injection. Lethal injection is essentially euthanasia. Created by Jay Chapman, a medical examiner, it is not without its problems but by far is the most humane of the death penalty methods. “Lethal injection refers to the practice of injecting a person with a fatal dose of drugs for the express purpose of killing the subject. The main application for this procedure is capital punishment, but the term may also be applied in a broad sense to euthanasia, and suicide… The intravenous injection is usually a sequence of drugs given in a set sequence, designed to first induce unconsciousness followed by death through paralysis of respiratory muscles and/or by cardiac arrest through depolarization of cardiac muscle cells.”
As quoted in The New England Journal of Medicine, George J. Annas claims the cocktail of drugs administered can occasionally result in a phenomena known as anesthesia awareness, “Specifically, the petition alleged that even a slight error in dosage could leave prisoners conscious but paralyzed while dying, a witness to their own slow, painful, and lingering asphyxiation.”(1512-8) There is a persistent argument that the Food and Drug Administration (FDA) should be responsible for certifying execution drugs much in the way they certify euthanasia drugs for veterinary purposes. To date the FDA has chosen not to which simply creates more controversy. (Annas) Does Lethal Injection violate the Eight Amendment of the Constitution prohibiting “cruel and unusual” punishment? “Supporters of the death penalty speculate that the designers of the lethal injection protocols intentionally used the same drugs as used in every day surgery to avoid controversy. The only modification is that a massive coma-inducing dose of barbiturates is given. In addition, similar protocols have been used in countries that support euthanasia or physician-assisted suicide.”(Wikipedia)
The Eighth Amendment forbids punishments that are “excessive” when compared to the crime or the competence of the criminal. Groups such as Amnesty International have gotten involved in a number of human rights cases for just such purpose. “Excessive” being the key word, how can death by lethal injection be considered cruel and unusual in capital cases? Even so, is an easy painless death justified? Inhumane, Painful, Cruel and Unusual are words associated with the death penalty; a punishment for which the one who must suffer was sentenced to as a result of his own actions. Ted Bundy, Gary Ridgeway a.k.a “The Green River Killer”, Jeffrey Dahmer, and Dennis Rader a.k.a. “The BTK Killer” (which was an acronym for bind, torture, kill); the names are well known, so too their crimes. These are extreme cases where DNA evidence may or may not have played a role, the sentences were execution by electric chair, 48 life sentences plus 480 years, 15 life sentences, and 10 life sentences, respectively. Some sentences were handed down in states with no death penalty. Consecutive life sentences are a waste of time. A criminal has but one life to give regardless of the many he may have taken.
Now, what of these names: Amber Hagerman age 9, Jessica Lunsford age 9, Adam Walsh age 6, Sharon Tate age 26 and eight and a half months pregnant at the time of her murder. These are names of victims. Their deaths were Inhumane, Painful, Cruel and Unusual. Their deaths led to important legislation like the Amber Alert system, Jessica’s Law, the Adam Walsh Child Protection and Safety Act, and victim impact statements. As opponents argue for the human rights of the condemned, death penalty proponents argue for the rights of the victims and their families to receive justice for the inhumane, painful, cruel and unusual crimes committed against them. A civilized society needs to have a justice system that not only gives retribution to victims, but also deters similar crimes without violating human rights of the accused. But how do we do this?
Through conducting investigations and gathering evidence to make a solid case, through trial of the accused which provides a fair chance to prove their innocence and with an outcome determined by a jury of their peers. Science has come a long way in helping with the process on both sides. The advent of science has not only given us a method of death, but also a way to absolve the innocent and convict the guilty. DNA evidence is a process. Evidentiary biological samples can be collected from a crime scene. This reference sample is then analyzed to create a DNA profile for a suspect. The DNA profile is then compared against samples taken from suspects to determine whether there is a genetic match. (Wikipedia) Its use in recent years has led to the conviction of numerous criminals but it has also exonerated 120 people since 1973. These exonerations and the revelation that innocent men may have been executed create a firestorm in the opposition.
Groups like the Innocence Project, Amnesty International, and the National Coalition to Abolish the Death Penalty work to free the wrongly convicted and strongly oppose the death penalty. Exonerations from death row are the fuel used by the opposition to demand the use of capital punishment be abolished and life sentences imposed in its place. It is quite possible that before DNA evidence was developed, innocent men may have been executed. Some groups want to use DNA to prove this:
“Posthumous DNA testing in death penalty cases, if allowed, could
provide highly relevant information in a national death penalty debate,
which is increasingly focused on the risk of executing the innocent. The
striking number of exonerations that have occurred prior to execution-absent
proof that an innocent person has been executed-have dramatically
transformed the death penalty debate.” (Moyes)
Death Penalty pundits are adamant that absolute proof of a wrongful execution would transform the death penalty debate. However, in the years before the use of DNA evidence, investigators relied on the testimony of eye witnesses and circumstantial evidence that could be gathered from crime scenes. They did the best they could with what they had at the time. Yet, these could be mishandled and coerced— manipulated. So the question lingers, have innocent men been executed? The honest answer must be: Yes, it is a possibility. But hindsight is 20/20. What can be done today to prevent further injustice? The answer is not to simply impose life sentences instead of death, but to give cases within there is reasonable doubt access to the appeals process that is in place to prevent miscarriages of justice. The 120 exonerations is proof positive that the appeals process works, but this too can be both a blessing and a curse.
In California all capital cases receive an “automatic”, non-waivable, direct appeal to the state’s Supreme Court. This is in essence a review of the entire case, evidence, testimony, and sentence. It is a sort of checks and balances system to ensure that justice was fairly executed. The appeals system can be a lifeline for a truly innocent person; however, it can be a tool of exploitation for the guilty. The appeals process essentially creates a system where the sentence of death is in fact a sentence of life as the convicted can and do use the appeals process to their advantage thereby dragging out the execution of their sentence by continually introducing new evidence or making unlimited habeas corpus appeals. This not only robs the victims of justice but also puts a drain on the system resources. Capital cases are more expensive than life sentences because the convicted can carry on appeals for many years. The state of California currently houses 675 inmates who are condemned to death and 23,274 who are serving life sentences. The average yearly cost of $35,587 per inmate, funded by taxpayers, pays all of the inmates' housing costs which significantly increase as prisoner’s age. The average time served on California’s death row is 17 years. Now consider that inmates are “entitled” to free room and board, free healthcare, and all the comforts of home such as television, radio, magazines and other privileges for good behavior. Is a sentence of life justice?
To date, 14 inmates have been executed in California, convicted of murdering 44 people in all. 16 of the murder victims were 18 years old and younger. Because the appeals process can be manipulated and drawn out most death row inmates die of natural causes, their executions never carried out. Death row inmates are able to delay their executions for years by filing repeated and frivolous habeas corpus petitions. “In cases where the defendant has been sentenced to death, a writ of habeas corpus often leads to life imprisonment. Between 1976 and 1991, approximately 47% of the habeas petitions filed by death row inmates were granted… Why is this process so byzantine? Perhaps because the writ of habeas corpus offers such fundamental protection: it is our legal remedy against unconstitutional and unlawful imprisonment. It is the most basic way the judiciary can protect our life and liberty against governmental tyranny.” But just as it can save the innocent it can save the guilty.
Obviously capital punishment will not deter crime if it is rarely enforced and allowed, by the system itself, to be manipulated into a “life sentence” by the guilty. Kent Cattani, the chief capital litigation counsel in the Arizona attorney general's office, said in an interview with the Los Angeles Times: "If you are going to have the death penalty at all, it shouldn't take 20 to 25 years…Either get rid of it altogether, or try to have a good system in state courts and then accelerate it through the federal courts." . Deterrence is a matter of showing the public that there are consequences for heinous acts. “…harsh punishment publicly administered can function as an effective deterrent. The pain inflicted by cutting off one thief's hand is far outweighed by the pain avoided if a hundred potential thieves are deterred by the gory example.” (Kaveny) Even so, abolitionists would favor life over death for the convicted, even if deterrence could be proven, regardless of the victims rights. (van den Haag)
Capital Punishment is a penalty that is flawed only by the execution of justice. The only question that should be asked is does the person to be executed deserve the punishment? The enhancements of science have made not only a more humane method of execution but a method for discharging “reasonable doubt”. The appeals process has hampered the execution of justice creating a system that does not deter capital crimes. The criminals have learned that the system can be manipulated in their favor, raising the cost to taxpayers, delaying justice for victims and proving that there is no real punishment for their crimes. A death sentence is a sentence of life, and when there is no fear of death there is no deterrence. When courts will not enforce their own laws civilized society is in jeopardy.
“When society fails to punish criminals in a way thought to
Be proportionate to the gravity of the crime, the danger arises
That the public would take the law into its own hands, resulting
In vigilante justice, lynch mobs, and private acts of retribution.” (Pojman)
This has been seen numerous times throughout history a disgruntled society takes the law into their own hands extracting a harsher justice —revenge killing. Perhaps Justice Anthony M. Kennedy said it best when addressing the court case Calderon v. Thompson, “At some point the state must be allowed to exercise its sovereign power to punish offenders.” (Savage) Maybe the reinstatement of the Patriot Act will help solve the appeals problems. The government passed the new provisions giving the Attorney General power to speed up the process for certain cases.
Capital Punishment may be the harshest penalty, it is irreversible. Once the sentence has been carried out there is no going back. The finality of Capital Punishment is the reason it is so unnerving to some. However, it is the punishment that is called for by the Bible and the Law, when society’s worst criminals carry out acts so heinous they forfeit their rights. Their right to be free and their right to live. It is not revenge, which would be a far worse death. Capital Punishment is retribution, payment relative to the crime, a life for a life.
Cited Works:
Books
Cassel, Hugo Bedau and Paul G. Debating the Death Penalty: Should America have Capital Punishment? New York: Oxford University, 2004.
Johnson, Rudolph J. Gerber and John M. The Top Ten Death Penalty Myths. Westport: Praeger, 2007.
Journals
George J Annas. (2008). Toxic Tinkering -- Lethal-Injection Execution and the Constitution. The New England Journal of Medicine, 359(14), 1512-8. Retrieved March 26, 2009, from Research Library Core database. (Document ID: 1566884011).
Cathleen Kaveny. "Justice or Vengeance: IS THE DEATH PENALTY CRUEL & UNUSUAL?" Commonweal 135.3 (2008): 9. Humanities Module. ProQuest. MiraCosta Coll. Lib., Oceanside, CA. 22 Mar. 2009
Anne-Marie Moyes. . "Assessing the risk of executing the innocent: A case for allowing access to physical evidence for posthumous DNA testing.” Vanderbilt Law Review 55.3 (2002): 953-999. ABI/INFORM Global. ProQuest. MiraCosta Coll. Lib., Oceanside, CA. 31 Mar. 2009
David G Savage. . "9th Circuit rebuked again.” ABA Journal 84.(1998): 40-41. ABI/INFORM Global. ProQuest. MiraCosta Coll. Lib., Oceanside, CA. 31 Mar. 2009
Government:
Office of the Attorney General, California Department of Justice. "Resources: A Victim's Guide to the Capital Case Process." California Attorney General's Office Web site. 12 March 2009
California Penal Code, http://www.leginfo.ca.gov/calaw.html, http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=11688623047+0+0+0&WAISaction=retrieve California Department of Corrections, http://www.cdcr.ca.gov/Divisions_Boards/Adult_Operations/Facts_and_Figures.html
Web
Death Penalty Information Center. "Facts About the Death Penalty." 13 February 2009. Death Penalty Information Center. 7 March 2009
Haag, Ernest van den. "The Ultimate Punishment: A Defense." Harvard Law Review Association (1986).18 March 2009 < http://www.jstor.org/pss/1341082>
The Holy Bible. n.d. http://www.biblegateway.com/passage/?search=
National Coalition to Abolish the Death Penalty, et.al. "Innocent and Executed." National Coalition to Abolish the Death Penalty. 7 March 2009
Wikipedia.org, Multiple Authors. Lethal Injection. Last Modified 21 March 2009. 22 March 2009
Walpin, Ned. "The New Speed Up in Habeas Corpus Appeals" PBS.org 30 March 2009
Reference
"capital punishment." The American Heritage® Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004. 26 Mar. 2009.
"lex talionis." Dictionary.com Unabridged (v 1.1). Random House, Inc. 26 Mar. 2009.
Periodicals:
Schmitt, Richard B. “Rule could 'fast-track' executions - Atty. Gen. Gonzales would gain power to cut the time available for appeals in California and other states.” Los Angeles Times 14 August 2007< http://articles.latimes.com/2007/aug/14/nation/na-penalty14>
Associated Press. “Aging inmates clogging nation's prisons” USA Today 30 September 2007
