Wednesday, April 16, 2008

The Death Penalty Decision: Score One for Barbarism

by Norman Markowitz

Most of our readers probably know that the death penalty has been abolished in most of the developed world. The Council for Europe campaigns against it and , has even established October 10 as European Day Against the Death Penalty to challenge those conservatives who wish to re-establish it. Even countries with brutal and repressive criminal justice systems like Turkey have had to abolish it because of reap economic benefits from non death penalty countries. Although non death penalty countries don't employ economic sanctions against the U.S., a number of them refuse to extradite criminals to the U.S. where the death penalty is involved.

Many conservatives accept the view that United Nations and other studies have convincingly shown--that the death penalty is not in any way a greater deterrent to major crimes than life imprisonment. Europeans who defend the outlawing of the death penalty like to point to the errors in its enforcement. especially to the Americans who have been released from death row in recent decades when they were innocent. There is also the use of the death penalty as an expression of institutional racism and other prejudices where individuals are sentenced to death after trials that are clearly flawed if not directly biased.

Finally, large numbers of people across the political spectrum have come to accept the view that killing one person for killing another, regardless of how horrible the original killing was, brings no justice to the original victim and only extends the violence or, as Mohandas K. Gandhi said for all of humanity, "an eye for an eye will make the world blind."

The center of the anti- death penalty movement is in the contemporary "Western world" with one big exception, its self-proclaimed leader of the "Western World" , the United States of America. Today, theright-wing dominated Supreme Court of the United States of America voted 7-2 (although the judges were as they sometime are all over the place) that Kentucky's policy of lethal injection did not constitute "cruel and unusual punishment." The decision was grotesque, although the oldest judge,eighty-eight year old John Paul Stevens, (who voted in 1976 for the right of states to "re-establish" the death penalty,) in his support of the majority decision, suggested that the premises on which the original death penalty was upheld may no longer apply.

A little history that most Americans either don't know or have forgotten will be of use here. In 1972, the Supreme Court appeared to have abolished the death penalty when it ruled by a narrow five to four decision in Furman v. Georgia that the death penalty as the laws governing it were written violated both the "cruel and unusual punishment" provision of the eighth amendment and the due process provisions of the fourteenth amendment. This followed after the development of a major movement against the death penalty which had produced a virtual moratorium on executions, which had numbered on the average 130 a year earlier, in the late 1960s and early 1970s. After the Furman decision, over 600 death row inmates had their sentences commuted and the death penalty was null and void for the next four years.

However, the political backlash of the Nixon years took their toll on both the Supreme Court and the "law and order" political establishment. States rewrote death penalty laws to try to get around the due process and "cruel and unusual punishment" aspects of the Furman Case. In a number of cases in 1976, a more conservative yet divided Supreme Court upheld some new death penalty state laws (most importantly Gregg v. Georgia) and rejected others, establishing though the right of individual states to re-institute with judicial review the death penalty
on a state by state basis. In 1977, executions began again and in the first decade of the new century, 2000, the number of executions reached 85, with all of the executions taking place in fourteen of the fifty states and governor George W. Bush's Texas leading the way.

Since then, the anti-death penalty movement has grown substantially, states have declared death penalty moratoriums as they did in the late 1960s, and my own state of New Jersey proudly joined other American states which never re-instituted the death penalty and most of the developed world by outlawing abolishing the death penalty in December 2007.

The present Supreme Court decision though tells us more about the present Supreme Court than it does about changing attitudes among the American people about the death penalty. The decision today is clearly a setback(one should note that Clinton appointee Stephen Breyer voted with the majority). In the Gregg Case, Justice Stevens contended, the three "societal" reasons for the death penalty, incapacitation, deterrence, and retribution" may no longer be valid. The first point means life imprisonment without parole in effect incapacitates the criminal without killing him or her. The second point. deterrence, is, given the best sociological evidence simply false. The third point, retribution, was best answered by Gandhi.

It is likely that some states will be ending their moratoriums and preparing for new executions. Justice Stevens is eighty eight years old and only two other Justices voted against the majority. John McCain is for the death penalty 100 percent. The best way to end the death penalty in the U.S. is to defeat McCain and his party and change the balance on the court, bringing over a weak centrist like Breyer to the anti-death penalty side along as new Justices are appointed. That will be necessary to end a barbaric, anachronistic institution which brings the United States into disrepute through much of the world.

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