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The Death Penalty - A Quick Primer

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The Supreme Court's decision this morning in Kennedy v. Louisiana to ban use of the death penalty in cases of child rape is consistent with its historical position on the issue (as part of the Eighth Amendment's ban on "cruel and unusual punishment").

Since its 1977 ruling in Coker v. Georgia, a case in which Georgia attempted to apply the death penalty to a child rapist, the Court has consistently held that the death penalty should not be used in instances where the victim does not die. Under the theory that the punishment must be proportionate to the crime, the sentence of death is inconsistent with any crime which does not bring about the death of the victim.

The rationales for the death penalty include deterrence and retribution. The Court has never felt that the deterrence question, whether having the death penalty as a punishment option deters criminals, has been effectively answered. Numerous studies have either been inconclusive or failed to persuade the Court. However, the desire for retribution, one that has its roots in the application of the death penalty since America's inception, has been consistently recognized as a valid reason for applying the ultimate punishment. The Court's evaluation on the death penalty has traditionally consisted of two components, one subjective and the other objective.

Its subjective analysis is intended to allow the Justices to determine whether social mores have evolved to a point where the death penalty is no longer an accepted means of punishment (almost as if the Court is taking America's temperature on the issue). Although, in the past, a few Justices have made the argument that the death penalty is immoral (see the quote below), given our country's long tradition of applying the ultimate penalty and its (declining but) still consistent use, the Court's conclusion has been that society hasn't reached that perspective. Applying that yardstick in the other direction, Kennedy's majority opinion today argued that these same "evolving standards of decency" justify the argument that the death penalty should not apply to instances where the victim does not die.

The objective analysis has largely been a simple process of counting states to determine whether the trend is for states to use or outlaw use of the death penalty in specific applications (see an example below). This approach was used in the 1976 case of Gregg v. Georgia, where the Court reaffirmed the constitutionality of the death penalty after a short four year hiatus caused by the Court's concern about how it was being erratically applied. Today, the Court indicated that despite the fact that six states have shifted their position (and five states have legislation pending) to authorize the death penalty for child rape, no one has been put to death for this crime since 1964. In other words, there is no trending towards greater use of the death penalty in this specific instance.

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Justice Brennan provided various eyewitness accounts of the electrocution process. Here is an excerpt from one case (Glass v. Louisiana, 1985) --

The authorities bind the condemned to a wooden chair with leather straps, affix electrodes to his shaven head and right leg, and partially cover his face with a mask. When the switch is thrown, an initial voltage of 2,000 - 2,200 (described as enough energy to illuminate 800 lights in a home) is applied and reapplied until death. The body turns bright red as its temperature rises and the prisoner's flesh swells and his skin stretches to the point of breaking. Sometimes the prisoner catches on fire, particularly if he perspires excessively. Witnesses hear a loud sustained sound like bacon frying, and the sickly sweet smell of burning flesh permeates the chamber ... the prisoner almost literally boils; the temperature in the brain itself approaches the boiling point of water. The force of the electrical current is so powerful that the prisoner's eyeballs sometimes pop out and rest on his cheeks. The prisoner often defecates, urinates, and vomits blood and drool. (taken from "Why We'll Win" )

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The Case of Willie Francis (Francis v. Resweber, 1947) --

Willie Francis was convicted of murder in 1945 and sentenced to death by electrocution. Unfortunately for Mr. Francis, the wires to his chair had been improperly installed. As a result he was only severely shocked, and his electrocution failed. His attorney appealed the case to the U.S. Supreme Court, arguing that electrocuting someone twice was surely cruel and unusual punishment. Here is the Court's response:

The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution. The situation of the unfortunate victim of this accident is just as though he had suffered the identical amount of mental anguish and physical pain in any other occurrence, such as, for example, a fire in the cell block. We cannot agree that the hardship imposed upon the petitioner rises to that level of hardship denounced as denial of due process because of cruelty. (taken from "Why We'll Win" )

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Now, I'll let all of you sound-off on the moral aspects of this issue!