Arguments on both sides create a hierarchy of various goals and principals in an effort to offer resolution. The principle of common human dignity appears to play a central role in determining the appropriateness of the death penalty as punishment. But because common human dignity cannot be precisely defined, other considerations – such as whether capital punishment is acceptable to society, whether the death penalty is administered in an even-handed way, and whether the purported goals can be met – are used as gauges.
In Furman v. Georgia (1972), for example, the Supreme Court used the common human dignity principle as the basis for a test of a Georgia statute regarding capital punishment. In this case, the Supreme Court not only determined that the statute unfairly administered the death penalty, it also deemed capital punishment impermissible. The Supreme Court roughly measured common human dignity in terms of the pain that a punishment would exact, and a vague maxim that humans not be treated as non-humans, adding three additional principles to ascertain whether capital punishment passed the human dignity test.
In the Furman case, capital punishment failed all tests. First, the Furman court indicated that the Georgia statute violated a principle that even-handedness is a necessary component for punishment. The Supreme Court demonstrated that capital punishment was inflicted primarily on racial minorities, and therefore was selective and irregular. The small number of criminals that were sentenced to death, approximately 50 per year, indicated that the punishment was not regularly or fairly applied, especially because the caliber of those particular murders were no worse than cases not resulting in the death penalty.
Judged by the irregular and unusual administration, the statute did not comport with the dignity of man, and was invalidated. Second, as to whether capital punishment itself could be considered cruel and unusual, the Supreme Court assessed the acceptance level of society, and also examined whether a less severe alternative to the death penalty could accomplish the same goals as those purportedly achieved by the death penalty. The Supreme Court reasoned that if society did not accept capital punishment, then capital punishment did not pass the dignity standard.
This supplies a sliding scale standard as regards dignity, as dignity could encompass more or less barbarous acts depending on the century. There was also a scale as to what could be used to gauge what constituted societal acceptance. According to the Supreme Court in Furman, legislative authorization did not reflect societal acceptance of capital punishment. In the courts reasoning, legislatures had to be closely scrutinized to avoid terrible excesses that had occurred in England and early American history.
So even though there was a statute on the books regarding capital punishment, other factors were scrutinized to determine acceptance level – the uniqueness of the subject matter that aroused heated debate; the evidence that capital punishment is reserved only for the most heinous crimes; the general rejection of the common-law rule imposing a mandatory death sentence for murder; and a historical successive restriction of capital punishment. These factors convinced the Supreme Court that society had almost totally rejected capital punishment.
Third, the Furman court examined what it considered the main goals in favor of capital punishment to ultimately determine that capital punishment was excessive and unnecessary. On this basis, the Supreme Court recommended that extended incarceration would obtain the same rational punitive effects that capital punishment was purported to accomplish. The notion of deterrence of potential criminals was flatly rejected as a proper goal of capital punishment. The Furman court indicated that a lack of sufficient statistical evidence reduced the goal to a mere belief that it was more effective than extended incarceration.
The idea that a potential criminal might consider the possible ramifications of his acts was too abstract a notion to be of any import to substantiate the deterrence goal for capital punishment. The Supreme Court also dismissed the goal of retribution for crimes committed as irrelevant. This goal, said the Furman court, cannot be the states sole end for punishment – proper goals include measurable deterrent effects, isolation of persons dangerous to society, and rehabilitation. Since all three of the proper goals could be accomplished sufficiently through a less severe. ss permanent punishment, such as extended incarceration, capital punishment was excessive.
The arguments contained in the Furman decision were readdressed by the Supreme Court four years later in Gregg v. Georgia (1976), when it assessed a revised Georgian statute regarding capital punishment. The Gregg court reasoned that the death penalty, under certain circumstances, is not excessive punishment. While using many of the same principles as Furman to arrive at its decision (which is, of course, legal tradition), the Supreme Court in Gregg indicated that some of the goals dismissed by the earlier court were legitimate considerations.
The Supreme Court in Gregg found that the carefully drafted statute satisfied the Furman courts concerns regarding application of capital punishment. Implementation of a bifurcated trial process – guilt or innocence determined at the first stage, penalty assessed at second stage with discussion of mitigating or extenuating circumstances and standards on applying them, automatic sentence review – made the application of capital punishment more even-handed, according to the Gregg court.
While it agreed with the Furman court that societal acceptance of capital punishment was an important principal, the Gregg court disputed the Furman courts findings that contemporary society rejected capital punishment. The Gregg court showed historical evidence that capital punishment was accepted by the Framers of the Constitution and by the Supreme Court itself, based in nearly two centuries of precedent.
The Gregg court flatly rejected the Furman courts indication that legislative measures do not represent societys acceptance of capital punishment; according to the Gregg court, measures adopted by the people’s chosen representatives weigh heavily in ascertaining contemporary standards. Specifically, the Gregg court referenced new statutes enacted by Congress and at least 35 states in the four years after the Furman decision as important evidence of wide popular appeal for the death penalty.
Finally, the Gregg court pointed out that infrequent application of the death penalty does not indicate rejection, rather, it shows the prevailing sentiment that capital punishment be reserved for the most heinous of crimes. While the Gregg court agreed with the Furman court that a legislature should not be allowed to impose excessive punishment – excessive meaning that a punishment involves unnecessary infliction of pain, or is disproportionate to the crime – the Gregg court reasoned that a legislature is not required to select the least severe penalty possible.
As opposed to the Furman court, the Gregg court found that state killing of a murderer was not disproportionate to the crime of murder. Given a focused and evenhanded application, societal acceptance of capital punishment, and that a legislature is not required to select a less severe punishment, the dignity of man was not compromised when a severe punishment was selected for a severe crime. In building their opinion, the Gregg court assigned greater importance to the goals of retribution and possible deterrence than did the Furman court.
The Gregg court indicated that an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs is an essential function of society, and can be factored into the decision-making process regarding punishment. That deterrence could not be statistically assessed did not make it less important a goal. In The Death Penalty Debate, Ernest Van Den Haag agrees with the Supreme Court in the Gregg case: Deterrence is an important goal in considering capital punishment.
Van Den Haag tries to draw an analogy between deterrence and scientific endeavors in order to substantiate that statistical proof is not always necessary – just because it cannot be proven does not make it so. He indicates empirical evidence is available to determine that the death penalty is more of a deterrent than life imprisonment. Unfortunately, he tends towards gross generalization instead, such as a harsher penalty is always a greater deterrent than milder ones. Van Den Haag reasons that the elimination of one murderer by capital punishment will decrease the potential homicide rate.
He also ascribes a higher importance to the safety of potential victims to that of rights of convicted murderers when he indicates that the remote possibility that the death penalty would deter a few men from committing murder makes the process a worthy one. In this light, according to Van Den Haag, no other threat can deter certain crimes, ones which are special because of their very nature – war crimes, international spies, and murders which occur in prison. For the most part, these points rely on a different version of dignity than either of the Supreme Court cases.
To varying degrees, both Supreme Court cases attempted to maintain the principle that a convicted mans dignity be preserved to the greatest extent when punishment is decided. According to Van Den Haag, to indicate that the death penalty is unjust because it is inconsistent with human dignity lessens the horror of murder as a crime; the crime of murder is placed at par with lesser crimes, which decreases how it is perceived. This is where dignity is lost, says Van Den Haag.
Instead, dignity should be maintained by an individual by not taking a human life in the first place. Should a murder occur, society should maintain dignity by protecting the lives of innocents, vindicating the law, and imposing retribution on those who break the law by executing them. Van Den Haag indicates American law, common law, and religious doctrine backs this contention. In this argument, the role of the individual and the role of society are clearer as to maintaining dignity, and seems to return back to a no-exceptions based principle regarding certain crimes.
In How to Argue About the Death Penalty, Hugo Bedau argues that all of the arguments so far examined still exhibit at least one fatal flaw – none of the goals or principles can point with certainty to a conclusive reason to favor either side of the dispute over capital punishment. Thus, no rational resolution is possible for the controversy. The facts as we know them do not overwhelmingly point to the futility of the death penalty, nor do they indicate that capital punishment is the only means to obtaining the goals of crime reduction, economy, rectifying harm and injustice caused by crime, or channeling public indignation at the offender.
There remains little or no evidence that the death penalty is a better deterrent to murder than imprisonment. Capital punishment may still be administered in an arbitrary way. In making his case, Bedau points out what neither the Gregg decision nor Van Den Haag fully address – the risk that the death penalty will incorrectly execute an innocent person. Unlike its less severe counterparts, capital punishment is irrevocable and permanent, as pointed out in the Furman decision.
Bedau correctly articulates what the Gregg decision, the Furman decision, and Van Den Haag exemplify – that while we can assess goals and principles to come up with a decision regarding capital punishment, the outcome of these foundations depends ultimately upon the weight we give each element. Unfortunately, the several goals and principles that are identified in the debate have no obvious rank order or proper weighting. Without this, there is no rational resolution of the controversy possible.