being ‘cruel and unusual’. The ‘unitary trial’ procedure practised in Georgia,
whereby the jury simultaneously determined guilt and whether the death penalty
should be imposed, made sentencing arbitrary. This is one interpretation of the
word ‘unusual’.- In 1977 (Coker v.Georgia) the death penalty was (effectively) restricted to
murder, although the Federal State retains the death penalty for treason,
espionage and some military offences. - After various legal changes, such as the introduction of bifurcated jury trials, the
death penalty was restored (the term ‘post-Furman’ is used in the literature to
denote post-1976 executions). - There is a lengthy review and appeal procedure (hence the long time spent on
death row). After step 1 – sentencing at the original trial, there is: (a) Step 2 –
direct review by an appeal court to check for errors in the initial trial; possible
judgements that can be made at step 2 include: affirming the original death
sentence; reversing that sentence, which means there has to be a new capital
sentence hearing; acquittal of the crime, which could mean downgrading the
judgement from, say, first degree murder to second degree murder (there is a 40
per cent ‘success rate’ – reversal or acquittal – at this stage); (b) Step 3 – State
Collateral Review, for example, on grounds of incompetent legal representation
at steps 1 and 2 (6 per cent success rate); (c) Step 4 – Federal Habeas Corpus,
meaning that it must be determined that a prisoner’s federal rights have not been
violated (until some restrictions were introduced in 1996 there was a 40 per cent
success rate at this stage); (d) Step 5 – Section 1983: this has now become used
as a way of attacking not the death sentence (step 4) but the mode of execution
(see next point). - The current controversy over the death penalty has focused on what is now the
standard method – lethal injection (previously, methods included hanging, the
electric chair, the gas chamber, and shooting). Again, we are back to the Eighth
Amendment and the judgement that execution (by lethal injection) is ‘cruel and
unusual’. - Another controversy is the make-up of the death row population, which is
composed disproportionately of black Americans.
Retributivism and the death penalty
Kant argued that:
even if civil society [i.e. the state] were to be dissolved by consent of all its
members, the last murderer remaining in prison would first have to be executed,
so that each has done to him what his deeds deserve and blood guilt does not
cling to the people for not having insisted upon this punishment; for otherwise
the people can be regarded as collaborators in this public violation of justice.
(Kant, 1996: 474)
This is a very pure statement of retribution: (a) since society (or the state) is
going to be dissolved it carries no practical consequences (primarily, deterrence) if
the murderer is not executed; (b) the people have no choice but to execute the
murderer: if they do not execute him they are complicit in his act.
Chapter 7 Punishment 153