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Published: Fri, 02 Feb 2018
Capital Punishment | Free Criminal Law Essay
Does capital punishment have a deterrent effect on crime? Analyse this question with reference to either the UK or the USA.
It has been suggested that “It costs several million dollars to induce a painless death…it costs approximately $35,000 a year to house…criminals in prisons” . However, punishment by death is 100% effective in respect of the murderer who faces execution. The question posed in this essay, though, is whether capital punishment has a deterrent effect on crime per se. Moreover, whilst that specific criminal cannot re-offend, a continuous process ensues to prevent crimes that are considered by Federal law, in the USA, to be subject to the mandatory penalty of death. An alternative to capital punishment would be life imprisonment which many consider to be a greater punishment. The death penalty was reinstated in a number of states in the USA by the Supreme Court in 1976 with the intention of the punishment being made to fit the crime . As a result, the subject of capital punishment has been a subject of significant debate, not least in terms of preventing the death of an innocent individual through wrongful conviction.
This essay focuses on the discussion of capital punishment in relation to the USA. Two main concepts of criminological study are briefly introduced, vis-à-vis classicism realised through natural justice and the corresponding positivist notions. Control theory, along with various other theories, is alluded to, after which this essay attempts to reconcile these various aspects with the contrasting views of the effect of capital punishment on crime.
It has been suggested that a system of protocols need to be introduced into the court system to inhibit potential wrongful prosecutions. One of the concerns raised is the differing treatment that can be issued according to which State the crime has been perpetrated in, revealed in the disparity of methods used to fulfil the requirement for execution. Since December 31st 1995 the predominant method of administering the actual penalty is by lethal injection, with 32 states favouring this method, whilst in a further 11 states the preferred method is by electrocution. According to the US Department of Justice 7 other states utilise lethal gas, 4 states authorise hanging, and 3 states use a firing squad.
Certain breaches of federal laws will automatically result in the death sentence: this list is not definitive, but includes the destruction of an aircraft, using a motorised vehicle which results in a death, a drive-by shooting involving drugs which results in murder and kidnapping in which murder is the outcome. Also included is where murder results as the result of smuggling aliens . It has been suggested that any intentional homicide could ultimately result in the death penalty being conferred.
Controversially, Durkheim believed that a certain amount of crime failed to harm society and was “normal and valuable in a healthy society” , with the ideas of right and wrong being reaffirmed through the existence of crime and punishment . This reflects a natural result of shared morality without which “rules would lack meaning” , promoting the concept of the “durability of social life inevitably assuming a definite form…”. Durkheim noted a greater degree of dependency within simple societies which he referred to as ‘mechanical solidarity’, dependent upon a ‘collective conscience’ of common beliefs being held within that society which “exerted a strong influence on behaviour” .
Of particular relevance in this essay is the concept of ‘organic solidarity’, a dependence which appeared to exist in more differentiated societies and which correlated with the strength of punishments and the nature of law in operation , as recognised by the Supreme Court. Organic solidarity diminished when shared beliefs declined . Evidence of this has been recognised by some commentators who are advocators of the death penalty – the ethos of which they consider to be both ethical and just, believing that it does deter crime, although statistics would probably suggest otherwise.
The concept of individuals being morally liable, with justice being seen in terms of proportionate punishment must be seen to prevail . Williams, however, does suggest that the true reason for supporting capital punishment is to send a message that murder is intolerable . Professor Hart, however, considers that society’s development might be held back by law perpetuating moral rules , the corollary of the natural law theory which considers that only laws conforming to a higher form of law, encompassing morality, can be genuinely called law. St Thomas Aquinas considered that natural law is developed from society’s own values which are eventually incorporated into law.
Whilst murder has been defined as “the unlawful and malicious or pre-meditated killing of one human being by another”, capital punishment is considered lawful in the United States so, according to those precepts, cannot be described as murder. If law is designated as ‘nothing else than an ordinance of reason for the common good, made by him who has the care of the community, and promulgated’ then, according to the Supreme Court, the subject of capital punishment is justified and can be put into context. Those who support capital punishment believe that punishment should be comparable in relation to the crime. This does, however, reflect on the true morality of the situation. Statistics suggest 35 executions each year in North Carolina, with a total of around 250 people annually confined to death row .
Particularly relevant to this discussion is the correlation between positivism and subjectivism which, together “form the relationship between social values and social actions and institutions…” . The divergence of positivism from its precursor, classicism was introduced into criminological theory by Lombroso, Ferri and Garofolo . All people are considered equal according to classicist precepts and Governments are created by those individuals to protect the people’s rights through the recognition of a social contract . Classicists aspire towards civil liberties, realised through the law as a system of due process. It is this emphasis on the social contract that compounds the deviance as a moral offence against society and is particularly relevant to any discussion on the death penalty. Punishment is considered proportional to the seriousness of the offence and can only be justified to preserve the social contract and deter others .
According to classicists, however, miscreants should accept that it was designed to prevent a greater evil than it produced and should equate to pleasures derived from the criminal act from which a system of sanctions was derived, based on physical, political, moral or religious criteria. In terms of positivism the outcome was realised in crime prevention and reformation whilst the classicist objective was in reforms being applied to the criminal law and public crime control policies to become incorporated into law as a political science which sought to control through deterrence .
It was recognised that “a basic need within society for both social order and moral behaviour”, resulted in problems caused through non-conformity . Durkheim noted that a prerequisite to conformity was a personal willingness to enter into a social contract as “social exchanges depend on the duty people have to the larger groups to which they belong” . He explains that social co-operation comes about ‘through shared social values and that the unit of analysis became the group rather than the individual’ , of particular relevance in relation to capital punishment: the death penalty is by order of a legitimately elected government, according to law, not administered by an individual. Moreover, Gottfredson and Hirschi (1990) suggest that classicism is revealed through the control theories which exhibit “consequences painful to the individual” .
Gottfredson and Hirschi conclude from many of their studies that “crimes are committed in pursuit of pleasure and avoidance of pain” , which they publicise as their General Theory of Crime. Gottfredson and Hirschi argue that “differences in self control probably outweigh differences in supervision in accounting for racial or ethnic variations. Durkheim posited that it was society not law, through which morality was imposed on individuals , i.e peer pressure, and outside influence, whilst law was the tool that “preserved morality” .
Experiential evidence may suggest that capital punishment has both an immediate and irrevocable deterrent effect on crime. This is, however, extremely subjective with pragmatics lying in moral, ethical or political reasoning. Controversially, Durkheim believed that a certain amount of crime failed to harm society and was “normal and valuable in a healthy society” , with the ideas of right and wrong being reaffirmed through the existence of crime and punishment . This reflects a natural result of shared morality without which “rules would lack meaning” “.
Doolan , however, considers that “the purpose of criminal law is to forbid conduct that unjustifiably inflicts or threatens substantial harm to the individual or to the public interest” which, although at first glance does not correlate with the above statement, reveals the epitome of the natural law concept that deviance should be punished according to the due process of the law and that the public should be protected in order to guarantee the freedom of the individual.
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