Law in Contemporary Society

NOTE: As I couldn't put in the subscript footnotes on Wiki, I inserted the footnote numbers as (1), (2), etc.

The Ultimate Sentence: Discounting Capital Punishment in the United States

-- By JenniferBurke - 12 Feb 2008

The Us and the Them

America in a World Context

Benjamin Franklin said, “better that one hundred guilty men go free than one innocent person should suffer.” Feliks Dzerzhinsky, founder of the Soviet Secret police commanded “better to execute ten innocent men than to leave one guilty man alive.(1)” Franklin’s words epitomize the criminal justice system that America believes it has, just and democratic. Statements like Dzerzhinsky’s are used as examples of “other” governments, which stand for injustice and oppression. Thurman Arnold says that social creeds, like justice and democracy, mean nothing outside of the institutions which they are attached to(2). America’s use of the death penalty exemplifies this. While statement’s like Franklin’s purport the United States to be fair and democratic, the facts show that capital punishment resounds in injustice. In a nation that often separates “us,” systems upholding similar values, from “them,” systems to be feared or conquered, America’s utilization of capital punishment puts the US in the latter category.

The United States is the only western country to use capital punishment, and according to Amnesty International, America had the sixth highest execution rate in 2006 behind countries America identifies as enemies: Iran and Iraq(3). Recently, the United States announced its decision to seek death for 9/11 detainees. Knowing that this decision will be questioned by countries the United States considers part of the “us,” the government sent a memo to its embassies comparing the 9/11 trials to Nuremberg as justification. While America asserts itself as a just and free democracy, its use of capital punishment actually separates it from its allies, who find capital punishment to be contradictory to the values America claims to uphold.

The Mythical Value of Life

Contradictions become obvious when contrasting Franklin’s words with the practice of the death penalty, which reflects Dzerzhinsky’s views. During the same period of time that 12 people were executed in Illinois, 13 people were exonerated and freed from death row. After the fact, Governor Ryan put Franklin’s words temporarily into action and commuted 156 inmate sentences(4). This trend was not followed countrywide. Since 1973, 127 people in 26 states have been released from death row after being exonerated(5). One wonders how many innocent people were put to death. If Americans focused on the numbers and adhered to the values of justice which condemn the killing of innocent people, the idealistic notion of the criminal justice system would be destroyed. However, Americans seem willing to accept the unjust idea that killing innocent people is a necessary concession if the country is to remain at a status quo.

But how can status quo be more important than justice or human life? The contradiction of American values is clear in looking at some politicians, who want to ban abortion and stem cell research but support the death penalty. The former is justified by “protecting” human life. In the latter, that value seems to be abolished by criminal activity. Even if criminal activity does negate the value of life, the statistics regarding innocent people on death row would almost mandate these politicians be against the death penalty. Medical advancement and criminal punishment are both social goals, and yet innocent life is only valued in one. The value of life and innocence are purely rhetorical, not based in social statistics which prove that innocent life is being lost in the process of capital punishment.

Justifications and their Downfalls


If capital punishment places America outside of the “us,” contradicts justice and the protection of life and innocence, why is it legal? It is often justified by social value, but this has little basis in fact, which Felix Cohen advocates. As in Cohen’s examples about the courts determining corporations’ location without looking at social values or facts, explaining the use of capital punishment does not involve these factors either(6). If it did, the United States would focus on deterrence, which the death penalty does not achieve. States without capital punishment have historically lower rates of murder. Terrorists, whose behavior suggests they do not fear death, are undeterred by the death penalty. Studies show that homicidal gang members are also undeterred because they are more likely to be killed by another gang member than to be executed(7). Given this, capital punishment’s social value must lie elsewhere.

Retributive Justice

Perhaps, then, the justification is retributive justice. “An eye for an eye” justice is denounced for individuals in the United States, because people are told that the criminal system will seek retribution in a democratic way. However, capital punishment sanctions this kind of retribution, because it is basically “eye for an eye” justice with a middleman, the democratic government. Victims are not always getting retribution from the death penalty either. Recently, a judge ordered a murderer to life without parole instead of death, explaining that capital punishment often leads to long-term appeals and forces victims to relive the experience without closure(8). Like deterrence, ethical values of retributive justice are not justifications. Instead, capital punishment is rhetorically justified through words like deterrence and retribution, while, in practice, it achieves neither.

Predictive Value

Finally, if law is about prediction, as Holmes believes, capital punishment fails on these grounds as well. The death penalty is invoked arbitrarily dependent on the facts, the court, and the prosecutors. Geography, gender, and most importantly, race, also affect its employment. The biggest indicator of a capital punishment sentence is not the crime; it is the race of the victim. Even though whites and blacks are murdered at almost equal rates, murderers of white victims are 80% more likely to be sentenced to death(9). Capital punishment’s unpredictability contributes to its lack of social value and contradiction to purported American ideas, such as justice. It is cases like Doyle Skillern’s that make this evident. Skillern, who was not at the scene of the crime, was executed as an accomplice to murder. The killer was given life without parole(10). When it comes to capital punishment, this is the American way.

Works Cited

(1) Volokh, Alexander. “n Guilty Men.” 146 University of Pennsylvania Law Review 173 (1997). (2) Arnold, T. Folklore of Capitalism. 1937. Pg. 23. (3) (4) “Illinois Suspends Death Penalty.” January 31, 2000. (5) Death Penalty Information Center. (6) Cohen, Felix. Transcendental Nonsense and the Functional Approach. 35 Colum. L. Rev. 809 (1935). Pg. 810 (7) (8) “Inmate Given Life Without Parole in 2006 Slaying of Roxbury Guard.” January 29, 2008. Washington Post. (9) (9) “United States of America: Death by Discrimination – The Continuing Role of Race in Capital Cases.” Amnesty International. (10) Killers' Fates Diverged; Accomplice Is Executed; Triggerman Faces Parole," Washington Post, January 16, 1985.

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" on the next line:

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, JenniferBurke

Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list


Webs Webs

r2 - 14 Feb 2008 - 16:33:49 - JenniferBurke
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM