Ethics

In recent times, various crimes have shocked the citizenry that have again raised calls for the imposition of the death penalty as a deterrent to the instigation of other crimes of a similar nature. But the opponents vigorously defend the position that the imposition and the execution of another to halt crimes from being committed is not the answer to the problem, rather it will create a new one, violating of the rights of the accused to life, and that state sponsored executions is tantamount to murder, which is no different from the crime committed. The paper seeks to find the answers to the ethics of the death penalty as a proper mode of  punishment for criminal offenders.

In the United States today, approximately 2000 men, women and youth are awaiting their day that the gallows. And the time that they spend waiting for their turn is rapidly growing short, as an increasing number of local legislatures churn out more and more statutes that impose capital punishment on those that choose to violate the laws of the land. Many Americans have gotten so used to the fact that there are executions being conducted that it hardly merited significant media coverage. In fact, there is a swelling opinion from the American citizenry that supports the administration of capital punishment for crimes committed that offend the publics sense of  propriety. But there is a sector in the United States, human rights supporters as well as civil law advocates that support the abolition of the administration of capital punishment, that the action of the state to execute criminals under state and Federal laws is immoral. But the question is, is the death penalty as a form of punishment immoral (Claire Andre and Manuel Velsquez 2008).

More than any other nation, Great Britain had the most influence on the conduct of implementing the death penalty in the United States. The initial execution ever conducted in the United States was done in Jamestown in 1608. In that case, the convict, Captain George Kendall, was found guilty of espionage for being a covert operative of Spain. In colonial times, the laws concerning the administration of capital punishment differed in Colonial America.  But European scholars, such as Montesquieu and the French philosopher Voltaire, began to discuss the death penalty as an institution (Jacqueline Hermann 2008).

By the year 1612, Sir Thomas Dale enforced the Divine, Moral and Marital statutes, which laid out the provision of the death penalty on such petty offenses such filching grapes, killing chickens and trade relationships with the Native American s in the area. Massachusetts conducted its first execution in 1630, while in New York, the colony enforced the  Dukes Laws in 1665, by which the act of hitting ones parents or the denial of God were considered as crimes worthy of the death penalty (Andre and Velsquez 2008).  At this point several initiatives were done to reform the institution, using the arguments of Voltaire, Montesquieu and later on Jeremy Bentham. Thomas Jefferson began by introducing legislation that would make the imposition of capital punishment only for the crimes of murder and treason the Jefferson bill lost out by one vote (Hermann 2008).

By the time of the American civil war, government officials yielded the authority on the conduct of executions from the local level of government to the state, with Vermont, in 1864, revoking the authority of the local government units to legally sanction hangings, only allowing those that have the legal cover of the state. In the end, most of the states followed suit, with the goal of the move to act on the issue of judges that use the imposition of the death penalty too eagerly, thus earning the moniker of hanging judges (William McFeely 2001).

Rationale for and against the death penalty

A life for a life
Society argues that the imposition of the death penalty serves as an obligation of the society, on moral grounds, that the imposition of the sentence will serve to protect the safety and welfare of the law-abiding citizens of the society. They argue that only by setting the example of enforcing the highest possible punishment on offenders can killers and other criminals are halted in their criminal conduct. Another reason that the supporters of the death penalty is that the imposition of such will bring about the greatest good, that of good over evil, and that capital punishment is an effective deterrent to the commission of violent crime. But direct, irrefutable evidence to support this claim, it is said that those that are affected by the severity of the sentence are those that do not commit heinous crimes. This is because that common sense will dictate that if they commit an cat that will warrant the death penalty, it will automatically stop them from committing the act itself (Andre and Velsquez2008).

The radical argument of those against the imposition of the death penalty is that the sentence is nothing more than an instrument of the powerful and the established to control the society beneath them, something akin to having control over the lives and the actions of those under their station. In this regards, the act of imposing the death penalty is that of a final arbitrary act of control, for what else can be construed as absolute control than that of life of the other (Austin Sarat 2001).

As early as the period of the Second World War, the imposition of the death penalty was common in the United States, will all but two states in the Union having at least one law in their legal books imposing the death penalty. Some of the statutes called for a compulsory imposition of capital punishment, while a majority of them had the choice to impose life imprisonment or death on a convicted felon. Opposition to the death penalty was mainly scattered and lacked proper information, espoused by the American League to Abolish Capital Punishment. So it seemed that the death penalty had firmly ensconced itself in the annals of American law (Hugo Adam Bedau 1987).

Arguments against the death penalty
By the middle parts of the 1900s, there arose several challenges as to the legal soundness of the imposition of capital punishment. Prior to this time, the arguments on the issue of the death penalty revolved on the Fifth, Eighth, and Fourteenth amendments of the American fundamental law. But in the early 60s, there arose an argument that the death penalty could be constituted as cruel and inhuman punishment, in violation of the Eighth amendment. In the decision of the United States Supreme Court in Trop vs,. Dulles (356 U.S 86), the Court ruled that the Eighth has a feature of an evolving or changing bar of the societys standard of decency, signaling the maturation of a society. Though the case in Trop did not involve the death penalty, abolitionists used the line of opinion of the Court that states had reached a point of maturity that the society should be purged from the toleration of capital punishment (Death Penalty Information Center 2009).

In the case facts, Albert Trop was sentenced to hard labor, forfeiture of his pay and a dishonorable discharge after escaping from an United States military penal facility, later surrendered and taken back to the facility. Trop applied for a passport in 1952, but was denied subject to the provisions of the 1940 Nationality Act, that deprived members of the Armed Forces found guilty of desertion of their citizenship. Trop challenged this ruling in the courts, and after failing to get favorable rulings from the District Court and the Second Circuit Court of Appeals, elevated his case to the United States Supreme Court. In the decision of the High Bench, the provision of the penal clause in the law, that of losing the citizenship of the person, would amount to the absolute destruction of the persons status in the society (Hermann 2008).

The evolving standards phraseology drew its inception from the words on the words used by Chief Justice Earl Warren who said

The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society... (Hermann 2008).

But it must said that not all of the executions in the United States were in the form of state sanctioned executions. In the southern parts of the United States, in the time of racial segregation, mobs of anti-African Americans would resort to mob killings to control the African American populations in their locales. These lynchings would be watched by onlookers as the white murderers would kill African Americans accused, sometimes falsely, of crimes. When the lynchings ground to a halt, the number of legally sanctioned executions began to increase. In the 1960s, more than 1,600 were executed (McFeely 2001).

But the earlier argument that the tool of capital punishment was used by the powerful to control the lowly could be spun in another way. The tool of capital punishment could be seen as the instrument of the controlled as a means of leveling the field, giving a voice for equality (Sarat 2001). It is noted that a large part of the people executed in the United States before the onset of the civil rights movement were African American, but after the Vietnam War, there were few executions in the United States, and in the period from 1967-1972, there were not state sponsored executions in the United States (McFeely, 2001). This fact was accentuated by the case of Furman vs. Georgia (408 U.S. 238), a consolidation of the cases of Furman vs. Georgia, Jackson vs. Georgia and Branch vs. Texas (Death Penalty, 2009).

In the case of Furman, as in the case of McGautha vs. California (consolidated with Crampton vs. Ohio 402 U.S. 183), the argument of the cases is that the sentencing of offenders to the gallows were the result of biased and whimsical decision making on the part of the judiciary. The case of Furman was instigated under the Eighth amendment, unlike McGautha that was litigated under the auspices of the Fourteenth amendment.  
The Cost of Implementing the Death Penalty
The argument against the death penalty is not limited to the realm of morality and litigation. There is also a expense attached to the imposition of capital punishment. California, one of the states that still impose the death penalty, is currently the home of the largest population of inmates on Death Row, yet the state has nor conducted an execution in the last half decade. The cost of housing all these inmates 130 million dollars a year. Apart from the cost of lodgings for the inmates, the costs of prosecuting them is also putting a strain on the financial coffers of the state (Bill Mears, 2009).

In the report of the Death Penalty Information Center, the report states that many of the states are wasting millions of dollars in operating an inefficient penal system, the money wasted otherwise used to fund other anti crime and law enforcement spending items. In the opinion of Richard Dieter, Executive Director of the Center,  there are still 35 states in the Union that still has the death penalty in its books, but there are less and less numbers of executions being carried out.  In a survey taken among 500 chiefs of police, it was found that 99 of the respondents saw the imposition of the death penalty as the least of the solutions they deemed as appropriate to the reduction of heinous crimes, with the remaining 1 percent saw the imposition of capital punishment as the solution additional law enforcement personnel topped the choices (Mears, 2009).

The optimal argument for the abolition of the death penalty is a commitment to an substantive conduct of due process, to respect freedom, autonomy, and privacy and the limitation of these in the pursuit of a critical social goal. In the words of one of the foremost voices of abolition, Hugo Adam Bedau, the most critical social goal is that of the protection of innocent lives and the reduction of criminality. If the assumption of Bedau is correct, then the absolutist case against the imposition of capital punishment is not absolutist, but on necessity and the determination that such exists (Sarat 2001).

In ending, the issue of the ethics of the death penalty is not the act itself, but on the application of the law. In the Furman case, Justice William Brennan argued that the act was cruel and inhuman. But the fellow justices in the Brennan Court said that the act of imposing capital punishment would conform to the constitutional mandate if the law is applied to all, regardless of the circumstances of the person. Here lies the debate. The law is seen as a racial tool that only minorities are the victims of the law. But the law is not only to be applied to minorities, but to all who break the law and warrant the imposition of such for their criminal behavior (McFeely 2001).