CJ 100 Lecture Notes - Lecture 61: Harry Blackmun, Equal Protection Clause, Antonin Scalia
Should the Death Penalty Be Abolished?
Few areas of criminal justice have sparked as much debate as the death penalty. The public
strongly supports the death penalty even though there are strong arguments suggesting that it
should be abolished.
Capital punishment should be abolished
Critics of capital punishment put forward several arguments.
1. The application of the death penalty is so arbitrary that it violates the Eighth
Amendment's prohibition against cruel and unusual punishment. Justice Harry
Blackmun claims there is an irreconcilable conflict between two requirements in
capital sentencing. On the one hand, the Eighth Amendment demands that
sentencing discretion in capital cases be structured according to fixed, objective
standards to eliminate arbitrariness and discrimination. On the other hand, there
is a humanitarian requirement that sentencing discretion be flexible enough to
permit sentencers to individualize justice by taking mitigating circumstances into
account that might justify a sentence less than death.
2. The death penalty discriminates against racial minorities and the poor. Statistics
show that the death penalty is administered in a selective and racially
discriminatory manner.
3. The death penalty doesn't deter crime.
4. The death penalty costs taxpayers more than life imprisonment.
5. The inevitability of factual, legal, and moral errors results in a system that must
wrongly kill some innocent defendants.
6. Public support for the death penalty diminishes substantially when the public is
fully informed about the penalty, the alternative of life imprisonment without
parole, and the consequences of the death penalty.
Capital punishment should not be abolished
Proponents of the death penalty make arguments centering around the justifications of
fairness, retribution, deterrence, economy, and popularity.
1. The death penalty isn't arbitrary. In Gregg v. Georgia (1976), the Supreme Court
ruled that the death penalty isn't cruel and unusual punishment and that a two‐
part proceeding — one for determining innocence or guilt and one for
determining the sentence — is constitutional. Any conflicts between eliminating
arbitrariness and allowing sentencers to individualize justice can be resolved,
according to Justice Scalia, by dispensing with the requirement that sentencers
consider an array of mitigating circumstances.
2. The death penalty isn't discriminatory. In McCleskey v. Kemp (1987), the Court
held that statistical evidence of racial discrimination in death sentencing can't
establish a violation of the Eighth or Fourteenth Amendments. To win an appeal
under the equal protection clause of the Fourteenth Amendment, the Court
requires an appellant to prove the decision makers in his or her case acted with
intent to discriminate.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Few areas of criminal justice have sparked as much debate as the death penalty. The public strongly supports the death penalty even though there are strong arguments suggesting that it should be abolished. Critics of capital punishment put forward several arguments: the application of the death penalty is so arbitrary that it violates the eighth. Blackmun claims there is an irreconcilable conflict between two requirements in capital sentencing. On the one hand, the eighth amendment demands that sentencing discretion in capital cases be structured according to fixed, objective standards to eliminate arbitrariness and discrimination. Proponents of the death penalty make arguments centering around the justifications of fairness, retribution, deterrence, economy, and popularity: the death penalty isn"t arbitrary. Any conflicts between eliminating arbitrariness and allowing sentencers to individualize justice can be resolved, according to justice scalia, by dispensing with the requirement that sentencers consider an array of mitigating circumstances: the death penalty isn"t discriminatory.
