In an Op-Ed piece on September 9th, 2014 in the New York Times, contributor Daniel LaChance, wrote on the death penalty sharing his thoughts about how opponents (abolitionists) of the death penalty might better advance their arguments beyond the traditional idealistic theme that killing people, under all circumstances, is simply wrong. He suggests that opponents should argue that death penalty statutes do not make economic sense and the purpose of them, quick closure, doesn’t exist in the real world. His economic approach is valid; the courts are not going to allow the execution of defendants unless all their remedies have been tested and reviewed (The latest federal ruling in California, just a few weeks ago, bears this out). This takes time and costs tons of money- more money for lawyers because no longer will most courts accept defenses by unskilled death penalty advocates (at trial and on appeal); more money for expert testimony because it is unfair to punish someone who is mentally (for any number of reasons) challenged without appropriate psychiatric examinations (or for the purpose of exploring other psychological related defenses); more money for court costs, expert testimony and associated expenses. The best way to convince conservative proponents of the death penalty to reconsider their opinions is to hit them in the pocketbook.

As I was reading LaChance’s article, I took a look at the United States Supreme Court case which started the debate on whether the death penalty was being meted out disproportionately amongst the general population- Furman v. Georgia (1972) (The issue has since been revisited by the court on many different levels). A primary point, in that case, was whether the imposition and carrying out of the death penalty as presented violated the Eighth and Fourteenth Amendments to the U.S. Constitution based upon “Cruel and Unusual Punishment” and “Equal Protection” grounds. The case involved three black men all sentenced to death- their names were Jackson, Furman, and Branch.

Jackson was convicted of the rape of a white woman. He was 21. He entered the victim’s house after her husband had left for work. Once inside, he held scissors against the women’s neck while demanding money; after a while, he raped her. Jackson had previously escaped from a “work gang” in the area. He was of mid-to-marginal intelligence.

Furman shot and killed a homeowner as he was breaking into the victim’s house. He was 26 and had finished the 6th grade. At one point a psychiatric evaluation revealed that he was psychotic and incapable of assisting in his own defense, however later, the court appointed a team of “experts” who deemed him fit for trial even though he still had psychotic episodes.

Branch broke into the home of a 65-year-old sleeping widow and raped her while demanding money for over 30 minutes He had the equivalent of 5 ½ years of grade school education. Although the death penalties were stayed in these consolidated cases, the Justices seemed to make it clear that the mental status of the defendants was not adequately considered at the trial level. Moreover, it seemed clear that a disproportionate number of black men were receiving the death penalty than white men. Those considerations, the court decided were indicative of cruel and unusual punishment.

The “Concurring” Justices of the Supreme Court examined the history of cruel and unusual punishment. Concerned about the uneven application of the penalty, one Justice noted an old passage: “People live or die, dependent on the whim of one man or 12”. He observed how harshly and cruel English law (Which American Law is based upon) was on those suspected of committing treason. He notes that death was too mild for the villagers and farmers suspected of treason (if they weren’t at home or the farm, they must be away committing treasonous acts). They were rounded up and the “High Sheriff” was directed (by the King) to provide the Sheriff’s men with an ax, cleaver, a furnace or cauldron to boil their heads and quarters, and “soil to boil therewith, half a bushel to each traitor, and tar them with, and a sufficient number of spears and poles to fix their heads and quarters along the highways”. He noted, “One could have crossed a good part of Northern England by their guidance.” The concurring Justices also noted that it has been said by other courts that “the onset of insanity while awaiting execution of a death sentence is not a rare phenomenon”; also, “The calculated killing of a human being by the state involves by its very nature, a denial of the executed person’s humanity”; and further quoting a 1864 proponent of the death penalty, “When a man is hung, there is an end of our relations with him. His execution is a way of saying ‘you are not fit for this world, take your chances elsewhere”. It appears that modern thought (today’s proponents of the death penalty) have not wavered far from those living in 1864, but maybe inflation (added costs) along with some enlightened jurists of today will at least ease their enthusiasm towards killing other humans even while the death penalty does not deter murder or other crimes.

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