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A Random Rambling Note on the Death Penalty

In determining the evolving application of the 8th Amendment and the constitutionality of the death penalty there seems to be two blatant obvious facts before us. First, there are no mitigating factors of death - there is no reversal, when you are dead you're dead. This is a form of absolutism. The due process of law ends at death. Second, and this seems to be a theme the last two weeks, we all recognize the imperfect Judicial system - there appears to be a wide consensus on this fact. What do you get when you put together an imperfect judicial system with an absolute punishment? Injustice, weather purposeful or not, someone is going to get screwed.

Since the re-installment of the death penalty in 1976 over 1,100 individuals have been executed throughout the United States (http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976). Can we, as a rational and democratic society, honesty say that we trust that all of these executions were just? Can we overlook the racial prejudices that arises throughout our popular culture and politics, and say that they don't influence our judicial system? Recall that President Obama had to conduct a nationally televised speech during the primaries about race due to the United State's obsession with the issue. Recall that our national history is riddled with events and circumstances that point towards a citizenry often times filled with malice and distrust simply based on the color of one's skin. Recall the implicit value judgments and assumptions we make about a white male from the south, a black man from the inner city, a poor immigrant Latino, and Native American from a reservation - knowing nothing else about these individuals, what are the images and thoughts about these people? Perhaps you hold no preconceived notions, and for this you should be commended, but I imagine for a great deal of people often times implicit and subtle judgments (malicious or not) are rendered with just these labels.

With this in mind let us marvel at the paradoxical conclusion that the Supreme Court came to in McCleskey v. Kemp (1987). In concluding that Georgia's state death penalty laws were constitutional, one of the arguments of the Court was to remark that "Apparent disparities in sentencing are an inevitable part of our criminal justice system." How very, very true. And yet, given these disparities, some of which can be clearly related to race, did the Court rule that an absolute punishment like the death penalty was unconstitutional? No. No. Instead the Court holds it is rational and within the bounds of the Constitution to apply the most grave of punishments through a clearly disparate judicial system.

Should people who commit homicide be punished? Of course they should, but the death penalty, in an imperfect society as ours, cannot be an option. Society and individuals collectively enter into a social contract which implicitly grants the right to punish crimes, but also carries with it a responsibility to recognize the limitations of its powers to do so. If a person's life is so valuable to us, why do we condone state sponsored murder? Is it because due to the act that person becomes something less than human? Less then a living creature? How do we ethically and philosophically rectify our pursuit to protect life by condoning execution? I don't think we can.

Perhaps we, or individuals suffering from murderous acts, feel morally up right and that justice has been served if a rapist murderer is executed. An eye for an eye, a death for a death. Maybe the death penalty does serve to deter people from committing egregious acts. But how many? Is it worth the unjust execution of someone innocent? Can we come to the conclusion that our penitentiaries are too full and cost too much money, and so conclude that executing people is going to help solve this problem? We don't want to waste our tax money on murderers. But than what do we say of the outrageous amount of money that is spent on litigation and penitentiaries for those inmates on death row?

In a perfect society the death penalty would be constitutional. But than again, maybe people wouldn't be killing each other either.

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