Introduction
There are numerous debates about the death penalty in the United States. America continues to allow states to decide whether to apply the death penalty or not. There are 32 states in America that have the death penalty as opposed to 18 states that have abolished the practice.
The United States of America continues to act as the leader of the free world. American exceptionalism is premised on the fact that America is a uniquely free nation based on democratic ideals and personal liberties. America has led the process of exporting liberal democracies around the world and many nations around the world come under international pressure to abolish the death penalty as a means of instituting their democracy. In spite of leading the way, America still has many states that have the death penalty.
Furthermore, America continues to criticize nations like the Philippines, Saudi Arabia, Iran and others for invoking the death penalty. Due to this, America is seen as a nation with double-standards. This accusation is premised on the fact that America allows the death penalty in its borders but is quick to condemn any nation that applies the death penalty in ways America considers to be inappropriate.
The purpose of this argumentative essay is to present a position that America’s death penalty system is inevitable and American states have an inalienable right to use the death penalty in extreme cases. In order to attain this end, the following objectives will be explored:
A critical review of the issue of the death penalty in the context of the US Constitution;
A review of US death penalty laws in the context of international law;
Arguments for and against death penalty in the United States;
A synthesis of the objective factors that require the death penalty to remain.
The Death Penalty in the US Constitution
The United States’ supreme legal document is the Constitution. The Constitution lays the foundation for every action and legitimizes acts or otherwise. The Constitution is based on a number of provisions that provides the parameters for the functioning of the government and its agencies. The US Constitution defines the institutions of government and how they can and cannot operate.
The Constitutional authority granted to the office occupied by the official in question;
The Bill of Rights of citizens that would be affected by the act in question.
This legal system that provides written guidelines and limits on government officials and provides a framework of rights for citizens is the basis of liberal democracy. And this is known as the “American Democracy” which has been exported to many different countries around the world.
The death penalty by its nature, is something executed by government authorities against ordinary Americans. This is guided by the Bill of Rights and the US Constitution which guides the conduct of officials especially in serious situations like the execution of an American citizen. This has implications for the courts and the authorities that carry out the execution.
The US Constitution creates a federal system whereby the federal government has its criminal legal structure and the states have their own criminal legal structure. Thus, there is a parallel system of laws that regulate the death penalty. Although the federal government can make a rules, the Tenth Amendment of the US Constitution states that:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”
For many years, the US Constitution allows states to make their own laws. The death penalty was part of federal law and at the time of the founding of the United States, the death penalty was the standard punishment for serious crimes. So there was nothing in the federal constitution that limited it. However, with the changes in the world and pressure on the United States to change things, the federal government is limited from instituting a limit to the death penalty because the Tenth Amendment forbids direct interference. Until sufficient reason is given by the US Supreme Court and duly authorized by both houses of the legislature and assented by the president, the federal constitution does not forbid the death penalty in the different states of America.
Therefore, the standard law in America is that – states must make their own laws on whether to uphold the death penalty or abolish it. Thus, 32 states have the death penalty for serious crimes. And 18 states have abolished the death penalty. In spite of this, there are some aspects of the US Constitution that are invoked in the name of showing that the US Constitution is in itself is against the death penalty.
First of all, people claim that the Eight Amendment of the Bill of Rights forbid cruel and unusual punishment. As such, the death penalty is the cruelest of all punishments and must be banned in the United States.
Secondly, abolitionists argue that the Fourteenth Amendment guarantees “equal protection under the law”. As such, the law must protect people who are accused of committing serious crimes and this means they should not be killed.
Thirdly, abolitionists state that death is an irreversible process. And since the Sixth Amendment of the US constitution guarantees a fair trial to all under “due process of law”, it is better to assume that everyone is innocent. And everyone’s case is ongoing and must be investigated until everything is certain that the individual in question has been given a perfectly fair and clean trial.
In spite of this, some people condemn the arguments of the abolitionists. First of all, some present a moral argument that if a person has killed another person, that individual must also be killed. They claim that no murder is committed in a humane manner. To them, every murderer who takes the lives of Americans must also be killed as a fair and equal treatment of that murderer. Thus, a murderer must be subjected to the same fate he subjected other people to.
The main moral argument is that the death penalty must not be excused for a convicted person has committed a heinous act of violence with malice aforethought. As such, that individual forfeits his right to a humane transition from this world. That individual must be killed by a standard process – whether it is by the electric chair or some other method. Supporters of the death penalty argue that there are now painless and fairly easier methods to execute people. So the argument that the death penalty is cruel and unusual is invalid.
Secondly, there is the view that the law must protect every individual in America. As such, if a murderer chooses to disregard the sanctity of human life, that individual must be killed. This is just a punishment for people who are insensitive to others.
Furthermore, due process of law is straightforward. There will always be doubts and loopholes in criminal justice process. No criminal justice procedure can be perfect. As such, supporters of the death penalty argue that the death penalty must be carried out if all avenues of appeal are exhausted.
US Death Penalty and International Law
Internationally, America is isolated in the process of carrying out the death penalty. Almost all advanced nations with liberal democracies have abolished the death penalty except Japan, USA and parts of the former Soviet Union.
Article 6 of the International Covenant on Civil and Political Rights (ICCPR) guarantees a right to life for everyone. This means that criminals who have committed violent crimes have the right to be protected from the death penalty. The ICCPR is a human rights treaty that has been signed by the United States. However, it does not limit America’s rights to the death penalty. It states that America must show some commitment to protecting the rights of all of its citizens.
The Organization of American States (OAS) Protocol A-53 Protocol to the American Convention on Human Rights to Abolish Death Penalty states that the state parties are not to apply the death penalty in their territory (Article 1). The United States is a leading member of the OAS but has not fully ratified the protocol.
The Protocol itself does not abolish the death penalty but states ratify it as a commitment to end the death penalty. Therefore, it is something the United States is in the process of doing and America has shown in many ways that they are ready to reduce the application of the death penalty .
In the year 2014, the United Nations voted to adopt global moratorium on the death penalty with an eye toward abolition. Therefore, the idea of death penalty is something that a country like the United States must seek to reduce.
Thus, America is not in direct contravention with any international law that requires America to abolish the death penalty. All laws against the death penalty in the international order is persuasive but not directly compelling. Therefore, America will still have to decide on whether to abolish it. This means that by extension, in serious situations where the death penalty is deserved, America can apply it.
America and the Condemnation of States that apply Capital Punishment
The United States is known to be vocal against nations that undertake the death penalty. America was recently in the news condemning the president of the Philippines for his killing of drug dealers. America is known to observe reservations with the death penalty in China, Iran and Saudi Arabia.
Some people claim the United States is a hypocrite of a nation. That is because America has the death penalty but insist that other nations must not carry out the death penalty. However, this position seem to be exaggerated.
The United States’ position on condemning these foreign governments has to do with the process of judging these people convicted of serious crimes. This is because there are numerous issues in different legal systems around the world that make the death penalty wrong where applied. This is applicable to the case of nations where the legal system does not try people properly and appropriately.
International law requires due process and proper trials before the death penalty is applied. For instance, Article 4(2) American Convention on Human Rights states that the death penalty can be applied only to “the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime;”.
This is a provision that America helped to draft and it is applicable to America’s value system. Therefore, the United States moves around the world to ensure that the death penalty must not be abused. It should be reserved for the most serious crimes like violent murder and treason.
America also requires a competent court to hear the facts of the case. This should be done in an empirical and scientific manner to ensure that justice is served in a true and verifiable manner.
Furthermore, minorities and preconceptions must not be used as basis for condemning people to death. There should be an established and consistent legal system that acts as yardstick for the evaluation of cases in order to draw conclusions in a way that is fair and just.
In a country like Philippines, the execution of suspected drug dealers by the current administration was done in an extrajudicial manner. Armed security authorities only needed to establish that a person was involved in the drug trade and the execution followed. This is an extrajudicial killing and has very little to do with the death penalty which is to be applied after a thorough and careful investigation by an independent body.
Arab and Islamic nations have their own unique way of judging things. These are based on traditions that America does not always agree with. For instance, the crimes that Saudi Arabia or Iran might consider to be “serious” might not be considered as such in America or any western democracy. These are crimes like blasphemy and homosexuality which are perfectly normal acts in the United States that are not destined to be punished in anyway or form.
In that case, America is free to condemn and criticize these nations. This means that America is not hypocritical. America, like any country in the family of nations has the right to speak up for its beliefs and values to be established and observed all around the world. As such, there is no clear issue with America’s opposition of wrongful execution. And this is not affected by the fact that America has death penalty within some of its states.
Reasons why America is against Abolishing the Death Penalty
America’s legal system is based on two things – freedom and accountability. Some conservative commentators identify that America’s society is exposed to violence in unprecedented levels. Americans are exposed to television shows that are violent and parents are not allowed to spank children. As such, there is no moral basis to stop people from doing things until it is too late. Due to this, there is a lot of violence and this leads to dangerous levels of violence which leads to death and if this is not limited with the death penalty, it would continue and people will abuse the freedoms that are available to people in unprecedented levels.
Numerous murderers studied in modern research works were said to be persons with some kind of brain damage. However, that should not be good enough to prevent them from facing consequences of their actions. This means that people must be made to feel the effect of whatever they do at any point in time.
Furthermore, some Americans believe that the death penalty is a deterrent. This is because people would kill other human beings with impunity if nothing is done to limit the way and manner in people are treated after they kill others. Thus, the solution to preventing more death in America is to kill those who commit murder.
Race, Political Perceptions and the Death Penalty in America
There are popular views against the use of the death penalty. This is because some people believe that the death penalty is not premised on a proper legal foundation. This is because there are many cases where the evidence gathered about murder cases have been extremely erratic and contained major problems.
The statistics of patterns of execution show that people of color are more likely to be executed in America than White Americans. Statistics show that since 1976, about 34.5% of people executed in the United States are African-American although African-Americans although they are just about 13.2% of the total population. Although White Americans are about 63% of the US population, 55.6% were tried and executed for crimes since 1976. This shows there is a higher likelihood that African-Americans are going to be executed for crimes than people of other races.
People of different races have different perceptions and attitudes towards the death penalty. A study indicated that White students are more likely to support the death penalty than black students. Whites more likely to feel anger when a deserving offender (usually a violent murderer) is not sentenced to death. Many White Americans believe society has to take revenge for murder. Thus, it is important for the death penalty to be instituted in order to promote law and order.
On the other hand, African-Americans and other minorities have the view that the death penalty is problematic because America’s criminal justice system has problems with racism. Minorities are more likely to be put to death than White Americans. This indicates that there is something non-scientific about the application of the death penalty as such, it has to be abolished.
It is no wonder that in interracial murder cases, the statistics seem to confirm the impact of these perceptions. Since 1976, in 31 cases ended up in the death penalty where the victim was African-American and the murderer was White. In the same period, 297 African-Americans received the death penalty for killing White Americans. This shows a pattern of views and perceptions about race and the death penalty. Since juries are appointed randomly, it is likely White Americans with views supporting the death penalty would be called upon to pass judgments on murder cases. And this shows a flaw in the patterns of what people believe based on their races.
Many African-Americans are more likely to believe that the death penalty leads to more violence (brutalization effect), and they feel capital punishment demonstrates cruelty by society, and expressed feelings of sadness when a person was executed. African-Americans against the death penalty argue against death penalty on two grounds. First, they state that more Blacks are unfairly executed and secondly, a lot of innocent people are executed because of the death penalty.
Objective Legal Perceptions on the Death Penalty
In spite of the arguments for and against the death penalty, there are objective reasons why the death penalty must remain. In Furman v Georgia (1972) showed extensive divergences and differences in the death penalty. In the case, a man who saw a burglar in his house and shot and killed the burglar. However, due to contradictions in his evidence and submissions, he was found guilty and sentenced to death.
The case was sent to the Supreme Court where the evidence was heard and it was found that it would be unfair to execute Furman. Thus, the Supreme Court stated that the death penalty in this case would be “cruel and unusual punishment”.
Thus, the elements of the Eight Amendment became the basis for America to move towards abolishing the death penalty after Furman v Georgia. Several states began amending their death penalty laws. However, as America started moving towards abolishing the death penalty, Gregg v Georgia came up in 1976. In the facts of the case, Gregg was offered a lift by an innocent American and he shot him and another person in an attempt to rob them.
Basically, looking at the facts of the conduct of Gregg, it was too serious to justify that the death penalty will be a cruel and unusual punishment. This is because the murder was gruesome and it was necessary to execute him.
Therefore, today, the death penalty exists as a litigation. Where it is proven beyond reasonable doubts that a person committed a crime deserving of the death penalty, that individual is to be executed. This is because for practical purposes and on an objective ground, the death penalty remains an important part of the American legal system and it has to be invoked when the circumstances demand it.
Conclusion
There are several reasons to uphold the death penalty in the US and not abolish it. This is due to the need for law and order, the need to execute people as deterrent and the requirements to have pay people equally for their actions against others. Race and ethnicity plays a role in the statistics of death penalty. Minorities are more likely to be executed than White Americans. This shows there is some inconsistency in the American justice system and as such, the death penalty has to applied carefully. Due to the need to maintain the death penalty in some form in the United States, it continues to exist in the legal system although it is widely disputed. This means that the death penalty is applied when all reasonable defenses and limits including questions on the due process, arguments against the inhumane nature of the execution and the impact on society are exhausted. Thus, in most cases, the death penalty is appealed all the way up to the US Supreme Court before it is finally granted.
References
Baker, D., Lambert, E., & Jenkins, M. (2005). Racial Differences in Death Penalty Support and Opposition: A Preliminary Study of White and Black College Students. . Journal of Black Studies, 35(4), 201-224.
Bedau, H. (1997). The Death Penalty in America: Current Controversies. New York: Oxford University Press.
Buergenthal, T. (1985). The Advisory Practice Of The Interamerican Human Rights Court. American Journal of International Law 79 (1), 1-62.
Constitutional Rights Framework. (1999). The Death Penalty and Human Rights: Is the U.S Out of Step? Retrieved from http://www.crf-usa.org/bill-of-rights-in-action/bria-15-2-b-the-death-penalty-and-human-rights-is-the-u-s-out-of-step
Death Penalty Information Center. (2014, December 18). United Nations Passes Death Penalty Moratorium Resolution With Record Support. Retrieved from http://www.deathpenaltyinfo.org/node/5993
Garland, D., McGowen, R., & Maranze, M. (2016). America's Death Penalty: Between Past and Present . New York: New York University Press.
Haines, H. (1996). Against Capital Punishment: The Anti-Death Penalty Movement in America, 1972 - 1994. New York: Oxford University Press.
Juaristi, F. R. (2015, June 8). U.S. Exceptionalism and the Strenghtening Process of the Inter-American Human Rights System. Retrieved from WCL: https://www.wcl.american.edu/hrbrief/20/2juaristi.pdf
Murray, C. (2013). American Exceptionalism: An Experiment in History . Washington, DC: American Enterprise Institute for Public Policy Research.
Nice, D. (1992). The States and the Death Penalty. . The Western Political Quarterly, 45(4), 1037-1048.
Peffley, M., & Hurwitz, J. (2007). Persuasion and Resistance: Race and the Death Penalty in America. American Journal of Political Science, 51(4), 996-1012.
Solveson, S. (2010). Perceptions of the Death Penalty: The Effects of Race and Type of Execution . Journal of Undergraduate Research XIII , 1-6.
