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VARIOUS TEXTS: DEATH PENALTY: LEGAL CRUELTY? (by Donald B. Walker)

THE execution of Gary Mark Gilmore by a Utah firing squad on Jan. 17, 1977, marked the end of a 10-year moratorium on the use of capital punishment in the U. S. Since that time, seven more executions have taken place - one each in Alabama, Florida, Illinois, Mississippi, Nevada, Virginia, and Texas. The latest innovation in the manner of killing was revealed in Texas on Dec. 14, 1982, when Charlie Brooks, Jr., was put to death by lethal injection. new method of execution raises additional ethical issues in the debate over the death penalty. As a consequence of these eight executions and the impending death of numerous other death row inmates; the issue of capital punish- ment is once again in the public forum.
In 1972, at the time of the Furman v. Georgia decision, 629 persons were housed on deathrows. throughout the U.S. Today, just over 10 years later, the death row population exceeds 1,100 - 500 condemned persons more than at the time of Furman! While the debate over capital punishment has continued sporadically, and for the most part academically over the past 20 years, the issue today takes on a greater This sense of urgency. The sheer size of the death row population creates a significant moral dilemma for our society. In addition, since the appeals process for many of these condemned persons has been virtually exhausted, the debate takes on a heightened sense of immediacy. In short, under the present conditions the debate is far less an academic exercise over the significant levels of deterrence data than it is a significant public issue related to the concept of justice in our society.
The fundamental question which must be addressed with respect to the death penalty is under what circumstance does the state have the right to take the life of one of its citizens? That question, with respect to the use of capital punishment for first-degree murder convictions, was answered by the Supreme Court in the Furman and Gregg decisions. In those cases, the Court held that the death penalty itself does not contravene the Eighth Amendment's prohibition against cruel and unusual punishment as long as it is applied in a fair and impartial manner. The Gregg decision further clarified the procedure which the sentencing court must use in determining the fate of the guilty defendant.
What has been overlooked in these decisions that the Supreme Court has answered the question only in a legal and not in any moral or ethical sense. One hard lesson which the world should have learned as a consequence of the Holocaust is that law and justice are independent concepts. Law is the derivation of a society's interpretation of justice which is relative both time and place. Furthermore, the creation of law is more frequently the result of the inter- pretation of justice by the powerful in the society which is then applied at the expense of the powerless. A moral and humane society constantly seeks to bring the law into closer harmony with the widest interpretation of justice in that society at any given time. The civil rights movement in the U.S. is an excellent example of this process.
The contention here is that the continued use of the death penalty in the U.S. constitutes a flagrant example of the continuing gap between law and justice in our society. While the Su- preme Court has upheld the legality of capital punishment under the Eighth Amendment, it has ignored the moral and ethical implications of the "cruel and unusual" clause.
lf one considers the deliberate infliction of pain and suffering on others to be "cruel," then capital punishment, regardless of its legal interpretation, must fit that definition. Both the actual manner of execution and the long period of confinement in death row preceding its application cause acute pain and mental suffering to the condemned person. The uneasiness which we, in the U. S., feel towards the infliction of pain on the condemned prisoner has led to a continuous search for more refined and "humane" means of carrying out the execution order.
Charlie Brooks, Jr., the first person killed by lethal injection, has now taken his place in history along with other objects of experimentation in this quest to kill people painlessly. However, the use of otherwise life-saving medical techniques and drugs to carry out exe- raises serious ethical questions for the society as a whole and the medical profession in particular. Even though Texas District Judge to Doug Shaver feels that death by lethal injection "will make it more palatable," it surely can not make it more ethical. On the other hand, if we remain convinced that capital punishment is both a necessary and just means of ensuring social defense, why is it necessary to make it "palatable"? Despite the legal interpretation of the concept "cruel," the moral interpretation of that concept and its relationship to justice in our society remains unsettling.
823 words

Source: America in Close-up, Longman 1990

Assignments:
1. Has the state 'the right to take the life of one of its citizens'?
2. There are legal and moral/ethical viewpoints as to the application of the death penalty. What are the differences?
3. Do you agree with the Supreme Court in the Furman and Gregg decisions?


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