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COLLAPSE OF THE CASE AGAINST CAPITAL PUNISHMENT

NCJ Number
57199
Journal
National Review Volume: 30 Issue: 13 Dated: (MARCH 31, 1978) Pages: 395-397 402-407
Author(s)
E VAN DEN HAAG
Date Published
1978
Length
9 pages
Annotation
THE CONSTITUTIONALITY, USEFULNESS, AND MORAL JUSTIFICATION OF CAPITAL PUNISHMENT ARE DISCUSSED HIGHLIGHTING THE ASPECTS OF 'CRUEL AND UNUSUAL' PUNISHMENT AND DETERRENCE TO CRIME.
Abstract
THE EIGHTH AMENDMENT PROHIBITS CRUEL AND UNUSUAL PUNISHMENT, LEADING OPPONENTS OF THE DEATH PENALTY TO ARGUE THAT CAPITAL PUNISHMENT IS UNCONSTITUTIONAL. HOWEVER, CAREFUL CONSIDERATION OF THE CURRENT MEANING OF THESE TERMS DOES NOT SUPPORT THIS POSITION. 'CRUEL' MAY BE UNDERSTOOD TO MEAN EXCESSIVE; PENALTIES HAVE ALWAYS BEEN REGARDED AS CONSTITUTIONAL IF THEY ARE PLAUSIBLY INTENDED TO BE EFFECTIVE AND IF THEY ARE NOT GROSSLY EXCESSIVE (I.E.,UNJUST.) JUSTICE REQUIRES THAT THE PUNISHMENT BE PROPORTIONED TO THE GRAVITY OF THE CRIME. THUS, CONSTITUTIONAL JUSTICE AUTHORIZES, EVEN REQUIRES, A HIGHER PENALTY FOR A GREATER CRIME, NOT STOPPING SHORT OF THE DEATH PENALTY. 'UNUSUAL' IS GENERALLY INTERPRETED TO MEAN EITHER RANDOMLY CAPRICIOUS AND THEREFORE UNCONSTITUTIONAL OR CAPRICIOUS IN A BIASED, DISCRIMINATORY WAY. HUMAN CAPRICIOUSNESS SHOULD BE MINIMIZED, BUT DISCRETIONARY JUDGEMENTS CANNOT BE AVOIDED ALTOGETHER. BECAUSE IT WAS ALWAYS UNAVOIDABLE, DISCRETION NO MORE SPEAKS AGAINST THE CONSTITUTIONALITY OF THE CRIMINAL JUSTICE SYSTEM OR ANY OF ITS PENALTIES NOW THAN IT DID WHEN THE CONSTITUTION WAS WRITTEN. PRELIMINARY MORAL ISSUES FOCUS ON THE STANCE THAT SOME GUILTY PERSONS OR GROUPS WHO ARE MORE FAVORED ESCAPE THE DEATH PENALTY. HOWEVER, IN MORAL TERMS JUSTICE MUST ALWAYS BE PREFERABLE TO EQUALITY. THE ISSUE HERE IS NOT WHETHER THOSE SENTENCED ARE GUILTY; 'DUE PROCESS OF LAW' IS MEANT TO DO JUSTICE, TO PUNISH AS MANY OF THE GUILTY AS POSSIBLE, AND NOT TO REFUSE TO PUNISH BECAUSE SOME WILL ESCAPE THAT PUNISHMENT. THE GUILTY DO NOT BECOME INNOCENT OR LESS DESERVING OF PUNISHMENT BECAUSE OTHERS HAVE ESCAPED IT. ALTHOUGH THE QUESTION OF DETERRENCE REMAINS CONTROVERSIAL, A RECENT STATISTICAL STUDY SHOWS THAT CAPITAL PUNISHMENT HAS AT LEAST MARGINALLY DETERRENT EFFECTS. ACCORDING TO THE STUDY, AN ADDITIONAL EXECUTION PER YEAR MAY RESULT IN SEVEN OR EIGHT FEWER MURDERS. SIMILARLY, LACK OF CONCLUSIVE PROOF OF CAPITAL PUNISHMENT AS A DETERRENT IS NOT SUFFICIENT CAUSE TO ABOLISH IT. PUNISHMENTS MUST PROCLAIM AND ENFORCE SOCIAL VALUES ACCORDING TO THE IMPORTANCE GIVEN THEM. TO REFUSE TO PUNISH ANY CRIME WITH DEATH IS TO SUGGEST THAT THE NEGATIVE VALUE OF A CRIME CAN NEVER EXCEED THE POSITIVE VALUE OF THE LIFE OF THE PERSON WHO COMMITTED IT. FOOTNOTES ARE INCLUDED. (LWM)