Law in Contemporary Society

But footnotes are the wrong way to link in the web anyway. Why not turn the footnotes into live links in the paper? All but two of your sources are cited by URL in the footnotes, and those should have been live links to start with. -- EbenMoglen - 14 Feb 2008

The Ultimate Sentence: Discounting Capital Punishment in the United States

-- By JenniferBurke - 12 Feb 2008

America in a World Context

Thurman Arnold says that social creeds, like justice and democracy, mean nothing outside of the institutions which they are attached to | Works Cited. America’s use of the death penalty exemplifies this because while the United States uses the death penalty, its international allies reject it. The United States is the only western country to use capital punishment, and according to Amnesty International, America had the sixth highest execution rate in 2006 behind countries America identifies as enemies: Iran and Iraq | Source. While America asserts itself as a just and free democracy, its use of capital punishment actually separates it from its allies, who find capital punishment to be contradictory to the values America claims to uphold.

Valuing Life

In countless abortion cases, the Supreme Court has expressed a state interest in life and regulated abortion, even banning certain methods of abortion, in an effort to further that interest. However, the death penalty works in direct opposition to this belief, and the fact that the people being executed are criminals does not justify the contradiction. First, it should not be at the court’s discretion to determine whose life should be ended by the death penalty. If law is about prediction, as Holmes believes, the arbitrary enforcement of the death penalty makes it obvious that courts should not be determining the value of life. | Works Cited. Geography, gender, and most importantly, race, also affect its employment. The biggest indicator of a capital punishment sentence is not the crime; it is the race of the victim. Even though whites and blacks are murdered at almost equal rates, murderers of white victims are 80% more likely to be sentenced to death | Source.

Further, even if criminals lives are of less value, so as to justify the death penalty, the death penalty is not narrowly tailored enough to not infringe on the lives of the innocent. During the same period of time that 12 people were executed in Illinois, 13 people were exonerated and freed from death row. After the fact, Governor Ryan put Franklin’s words temporarily into action and commuted 156 inmate sentences| Source. This trend was not followed countrywide. Since 1973, 127 people in 26 states have been released from death row after being exonerated | Source. The social creeds regarding the value of life and innocence are purely rhetorical, not based in social statistics, which prove that innocent life is being lost in the process of capital punishment.

The Eighth Amendment:

Perhaps the biggest contradiction in social creeds is the United States’ use of the death penalty and the United States’ notion of fair and proportional punishment, exemplified by the Eighth Amendment’s prohibition against cruel and unusual punishment. America has used various methods of execution throughout its history: hanging, electrocution, firing squad, and most recently, a three drug cocktail. In a recent opinion Chief Justice Roberts said, in a case where the Supreme Court ruled that the three-drug cocktail is not cruel and unusual if administered correctly, that the death penalty would only be cruel and unusual if it creates a substantial and wanton risk of pain, torture or lingering death. However, several of the methods used throughout history have directly contradicted this prohibition, and of course, if the three-drug cocktail is not administered correctly, it can cause sever pain and might be cruel and unusual. Doctors are not allowed to administer the injections because of the Hippocratic oath, to never do harm, so it is likely that the injection will be administered incorrectly occasionally, if not often. However, the court is willing to overlook this, and maybe the American people as well, because the lives of criminals are not considered at the same level as the lives of “innocent” people.

Beyond the fact that certain methods are cruel and unusual in and of themselves, how can a court determine if the death penalty is proportional? It is arbitrary to rank one murder as a capital punishment, and another, in a different state, committed the same way, as not deserving of the death penalty. Further, what crimes are deserving of the death penalty? Usually murder was the only capital crime, but the Supreme Court is now considering death for child rapists. There can hardly be a good way for a court to determine if murder or raping a child is a more severe crime, or which criminal is actually more deserving of the death penalty. If the courts imposes death for some crimes, there is an argument that it was not a proportional punishment, specifically if the crime did not involve murder. However, one would be hard-pressed to say that raping a child is not as bad as murder.


Despite all of this, many Americans are unwilling to reject the death penalty. However, the reason for this does not lie in its social value. There is no deterrence or predictive value from the death penalty. Perhaps the justification is retributive justice, but victims do not necessarily get retributive justice. Recently, a judge ordered a murderer to life without parole instead of death, explaining that capital punishment often leads to long-term appeals and forces victims to relive the experience without closure| Source.

However, maybe the “social value” is the satisfaction the American people get that somebody as “sick” and “depraved” as a murderer was given the same punishment he gave his victims. At lunch recently, someone explained that she was horrified by the three-drug cocktail ruling, but then when she read what the criminal had done, she no longer cared because she was not “liberal” enough. Just as in criminal law, thoughts are different than actions, so being happy that someone was killed is seen as different that killing someone. However, what Americans fail to realize is that but the system all Americans are a part of upholds the death penalty, judges order death, and someone administers the drugs. Therefore, in actuality, Americans are killing people, some of them not even guilty of the crime for which they were convicted.

  • Aside from the inaccuracies, what's new here? You wrote a cliche version of the abolitionist pamphlet that we've both read hundreds if not thousands of times. Which part represented an idea you hadn't seen before?

Works Cited

Arnold, T. Folklore of Capitalism. 1937. Pg. 23.

Cohen, Felix. Transcendental Nonsense and the Functional Approach. 35 Colum. L. Rev. 809 (1935). Pg. 810

Holmes, Oliver Wendell. The Path of the Law, 10 Harv. L. Rev. 61 (1897). pg. 168

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r9 - 13 Jan 2012 - 23:14:15 - IanSullivan
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