December 2, 1997
The Cruel and Unusual Punishments Clause, Against the American System of Capital Punishment, The Death Penalty Is Not Cruel and Unusual Punishment Civil Liberties: Capital Punishment Raoul Berger, Jack Greenberg & William Bradford Reynolds
Recap:
Three lengthy articles discussing the very controversial topic of Capital Punishment. The first, by Berger, dealing with the history and the evolving of the punishment. The second, by Greenberg, taking the side that opposes the death penalty, and the third, by Reynolds, taking the supporting side. Greenberg approaches the topic by stating what the punishment is supposed to carry out(idealistically), what the "real" results are, and how it is abused and used so improperly that it is wrong. Reynolds emphasizes on the meaning behind capital punishment, and how it serves justice, and why it is not unconstitutional.
Analysis:
This has always been a very sensitive topic, and when two people don't agree, it can end up too violently. It is unfortunate that people choose to be rigid about this topic, as if they are hammered down to the ground about their decision, unwilling to open their minds to the different aspects of the opposing side. Objectively, this is still a touchy topic, because no matter how substantial the person presents it, he/she almost always show his/her bias, one way or the other.
In his article, Greenberg kept repeating how the death penalty's main purpose was to deter crime. He claimed that it wasn't effective in that sense. There is agreement here. The penalty does not serve as a deterrence to crime, mainly because the perpetrator, if he/she decides to kill someone, will not begin to think about the consequences(partly because they're convinced that they won't be caught in the first place). Violence flourishes in violent places. Desires to kill, to murder, to harm, will always exist no matter what the consequence. The reaction to the death penalty isn't too rebellious either. It is very different from the reaction Prohibition was given, where the percentage of illicit activity increased. This is because killing someone isn't as easily done, nor is it as common as drinking. It is true that there are more blacks than whites on death row, but there are more black male murderers than there are white male murderers(there are more white male sex offenders than there are black male sex offenders, though). It is preposterous to think this is a government conspiracy of some kind against blacks, perhaps there were(and are) some injustices here and there to create such a high number in the death row black population. But there is always appeal, so if their trial was ruled unfairly, the defense could always take the case up to a higher court. Of course, there is always the consideration that the people on death row, regardless of race, truly belong there.
As for the supporters of capital punishment, it is best not to sensationalize and exaggerate their support with ravings like, "FRY 'EM!" because it only alienates the opposers even more. Phrases like that are violent, sensationalistic, and downright immoral(a bit hypocritical). It defeats the purpose, and demonstrates a barbarism that doesn't have to exist. It is not a football game, or wrestling match. It's nothing to get excited over. Supporters have to understand that to avoid qualifying for the Cruel and Unusual Punishment Clause, they have to deal with capital punishment in a most respectful and sensitive manner. That way, the barbarism is non-existent, and decreases reason to resent the punishment, and the hatred between the two sides. Though capital punishment has failed in terms of deterrence, it has not failed in terms of serving justice and closure. The punishment should fit the crime, whatever it may be. How sadistic, or violent, or heinous the crime was does matter. Murder isn't just murder, there are different degrees of it, which is why there are so many complicated terms attached to it. The most important would have to be intent. What caused this person to kill the victim? What was the person's motive? His/her intent? The sentencing of murder always depends on intent, and therefore, the punishment does as well.
It is naïve of the opposers to believe in criminal rehabilitation, atleast for some criminals. Criminal rehabilitation is not a solution for a sex offender. Most sex offenders have had previous charges, or experiences, and will continue to commit offenses afterwards. Rehabilitation could probably work well for a small time felon, like a petty thief, because they are easy to satisfy. You can provide a petty thief stability after jail time, and teach him how to function properly in society by taking away his reasons to steal. But you cannot tell a pedophile to simply stop thinking about molesting a child, because it has become his desire. Something he needs mentally and emotionally to satisfy himself. This drive never ends, and it can never be helped or stopped. This is the same kind of desire serial killers develop, only it is for the kill(most serial killers sexually assault their victims before or after death). Murderers of such heinous crimes cannot be rehabilitated, so what's the point in keeping them around? Not only are they useless to society, but if we keep them around, they will only have more chance to get out, and kill again. Some argue that they'd be good to keep around for studying, but death row takes up a lot of time anyway, and that would be a great time to study them.
Anyway, back to the main point of the death penalty. When someone is killed, respects automatically go to the victim's family. It is the family that suffers the most, and it is for their sake that the death penalty is effective. The death of the perpetrator will not justify their loved one's death(though it will justify it more than keeping the murderer alive and well), but it will bring closure to the case, and it will promise them that the monster that killed their loved-one is restrained, forever. Some opposers believe that they understand, but find reason to dismiss the victim's death anyway, and tend to focus their compassion on the perpetrator. They are oblivious to the real pains and sufferings of the victim, and the victim's family. It is easy to look at someone and label them as decent, but it is much harder to picture someone human-like as a cold-blooded murderer.
Scott Glenn, who played Chief of Unit in The Silence of the Lambs was an opposer of the death penalty when he first walked into the FBI Headquarters in Quantico(where it was to be filmed). When he met FBI agent John Douglas, he expressed his feelings about capital punishment, and Douglas shut him in a room, and played him an audio tape of a girl being raped by two serial rapists. Breaking into tears during and after the tape hearing, Glenn soon changed his mind about the death penalty. The tape had given him a taste of what real sadism was like, and had made him come to realize what men are truly capable of.
On the surface, it may seem that supporters of the death penalty are contradicting themselves by killing to teach that killing is wrong. Opposers label the supporters as hypocrites, and murderers, and say that they have little compassion for life. This however, is not true. Where there is a surface, there is a depth that is harder to see. Like the opposers, supporters also have good intentions. They have compassion for the life of the victim, whereas the opposers find compassion for the life of the perpetrator. Both sides have a lot of compassion, only their passions are directed towards different things.
In conclusion, both sides have valid statements to make about capital punishment. Most of what they say is true, and their speculations are made out of real effort to try and comprehend. However, both sides of the extreme need to come to terms with the other side. That will be the only way to end this opposition. Some people see it as such an extreme difference, but really, the line is very, very thin.