Friday, April 10, 2015

The Death Penalty: Academia v. Public Opinion

In the past decade or so, the subject of capital punishment has spurred many academics to heated opinions arguing for and against the death penalty.  Some opponents of capital punishment have highlighted the world trend of abolishing the death penalty, noting that China, Iran, Pakistan, Saudi Arabia, and the United States carry out most of the known executions around the world, and that “the number of countries that still allow the death penalty has been dwindling. 

However, it appears that the American public does not seem to share the academic opposition to the death penalty. In fact, over the past seven decades, there has been a significant showing of support in favor of the death penalty, according to Gallup Poll results.

The discrepancy between academic opposition and American citizens’ support of the death penalty may suggest that Justice Breyer was correct in asserting the legislature will be slow to abolish the death penalty, if it should ever do so.  If the legislature accurately reflects the public will on this issue, the death penalty is still a widely favored justice mechanism.

For prosecutors and defense attorneys, this dichotomy presents a challenge as to how to argue capital punishment cases.  Under federal statutes, the death penalty can appear in cases of murder (18 U.S.C. 1111), espionage (18 U.S.C. 794), Treason (18 U.S.C. 2381), Trafficking in large quantities of drugs (18 U.S.C. 3591(b)), and attempting, authorizing or advising the killing of any officer, juror, or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs (18 U.S.C. 3591 (b)(2)). As of 2009, there are no individuals on death row for any charge other than murder.

For prosecutors, there are no significant barriers to requesting the death penalty in appropriate cases; however, prosecutorial discretion allows for life without parole as a viable alternative.  Because capital punishment has been so carefully applied, case law on the matter is often readily available to crimes where the death penalty may be justified. Thus, where capital punishment is sought, it is often strongly supported.

For defense attorneys, challenging the death penalty sentence poses a significant challenge, given how strongly a prosecutor can usually support a death penalty request.  However, notable academic opposition provides some fodder for the idea that defense attorneys can argue for life without parole as an alternative, and argue to both the judge’s and jury’s sensibilities on the value of life to avoid the death penalty.

But where does that leave the state of capital punishment? When the views of those in the legal profession do not accurately reflect the view of people in society at large, is it merely the judge and jury’s sensibilities that determine the appropriateness of sentencing someone to death?  To what extent is the prosecution building a traditional, adversarial case thwarted by public opinion on the issue?

Ultimately, it appears that on either side of the argument, the determination of whether capital punishment is appropriate is entirely a matter of discretion—prosecutorial and judicial—to be determined on a case-by-case basis, despite the long history of attempting to define when capital punishment is warranted.  For criminal attorneys, there remains no predictable outcome, and one can only hope that their zealous advocacy prevails in the eyes of the law.

Kyle Kemper
Staffer, Criminal Law Practitioner

Photo by Patrick Feller via Flickr

No comments:

Post a Comment