The Criminal Justice Process Varies From State To State Week 6
The criminal justice process varies from state to state, and the federal criminal justice system
has its own rules, procedures, and terms to describe the stages of the proceedings.
Generally speaking, however, the criminal justice process involves the following stages.
A law enforcement investigation of a crime may begin in many different ways such as:
An officer may observe a speeder on the highway or an erratic driver who may be
intoxicated and pull them over.
A quot;911quot; call of shots fired in a neighborhood may cause police to be dispatched to
determine the cause.
A person who has been defrauded by a con artist may call law enforcement officers to
report the crime and an investigation is launched based on the victim's complaint.
If investigating officers believe there's evidence of a crime at a particular location, they may try
to get a search warrant allowing them to search the premises. A judge reviews the information
submitted by the police and decides whether there is quot;probable causequot; to support it. Probable
cause means that an officer has presented enough facts to support a belief that there is evidence
of a crime at the location described in the warrant.
A warrant may not be required where there are quot;exigent circumstancesquot; (when evidence may be
destroyed or a crime is in the process of being committed).
Law enforcement officers can interrogate witnesses, and even question potential suspects, as
long as their constitutional rights are protected.
Police can make an arrest under the following conditions:
If law enforcement officers have probable cause to believe that a crime has been
committed and that a specific person has committed the crime, they may arrest the person
under suspicion, taking them into custody. Officers may need to obtain a warrant before
taking a suspect into custody.
If a person commits a felony or misdemeanor crime in the presence of a law
enforcement officer, the officer may arrest the person without a warrant.
If an officer has probable cause to believe that a person has committed a felony crime,
even if the crime was not committed in the officer's presence, the officer may arrest the
An arrest may be made in a public place, with or without a warrant. But if law enforcement
officers wish to arrest a person in a private place, they must first obtain an arrest warrant, unless
there are quot;exigent circumstances,quot; such as the possibility that the suspect will flee.
Law enforcement officials have a relatively short period of time following an arrest (24 or 48
hours, depending on the state) during which they must either charge the person with a crime or
Complaint, Information or Indictment
Law enforcement officers may decide to file criminal charges, either before or after arresting a
A filing written charge, or a “complaint,” starts the criminal justice process in motion.
A prosecutor may also put the criminal justice process in motion by filing written charges
In the case of a complaint or information, filing charges allows law enforcement officers to keep
the accused person in custody pending additional proceedings, such as arraignment and the
setting of bail.
In the federal criminal justice system and in about half of the states, defendants have the
right to indictment by a grand jury. This means that a jury composed of citizens must
hear the evidence presented by a prosecutor and decide if there is probable cause to
believe that a crime has been committed, and that the person accused committed the
Other states use a procedure called a quot;preliminary hearing,quot; where a judge considers
evidence the prosecutor presents to decide whether there is probable cause to support the
charges against the accused person.
Often, the criminal justice process will start by the filing of a complaint or information, later
followed by a grand jury proceeding resulting in an indictment, or a preliminary hearing in
states was using the preliminary hearing process.
In all of these cases - complaint, information or indictment - the resulting document is merely an
accusation against a person. It is not proof that the person committed the crime or crimes
An arraignment is the formal presentation of charges in open court. This proceeding may be
called a preliminary hearing or something else depending on the state. During an arraignment,
the charges are read to the accused person (defendant) by a judge, and the defendant is asked to
plead guilty or not guilty to the charges.
The defendant's lawyer may be present, or an attorney appointed by the court may represent the
Bail is money or property that an accused person puts forth as security, to make sure they'll show
up for further criminal proceedings, including the trial and sentencing.
Bail can be paid:
In the form of a bail bond
A pledge of property if the court permits this form of security.
A bail bond is an agreement with a bail bondsman under which the bondsman puts up bail
money in return for a fee.
There is no guaranteed right to a release on bail. If a judge believes that a defendant may flee
from the court's jurisdiction or otherwise fail to appear, or if the crime charged is extremely
serious, then bail may be denied or set at such a high figure that a defendant may not realistically
be able to post bail.
In much less serious offenses, an individual who is well established in the community with a job,
a home, and family to support may be released on relatively low bail. Or, a defendant may be
released without bail. This is sometimes referred to as being released in one's own
recognizance, or quot;R.O.R.quot;
At any time after charges have been filed, the defendant's lawyer can begin negotiating with
prosecutors to determine whether a plea bargain may be possible. A plea bargain usually
involves the defendant pleading guilty to lesser charges than those in the complaint, indictment
or information, or a guilty plea to only one of numerous charges.
The plea bargain may also include the prosecutor's agreement to recommend a particular
sentence for the charges to which the defendant agrees to plead guilty.
A lawyer considers many factors in deciding whether to recommend a plea bargain for a client.
The strength of the evidence the prosecutor may present at trial.
The potential penalties that the defendant could be subjected to if the case went to trial
and they lost.
With the quot;discovery process,quot; the prosecutor is required to reveal a wide variety of information
to the defendant's lawyer prior to trial.
The information that must be revealed and the timeframe in which the information must be
provided varies from court to court.
Information that must always be revealed is called quot;exculpatory informationquot; - information that
tends to show that the defendant isn't guilty of the crime charged.
If the defendant decides to plead guilty, the plea will be taken in open court, by a judge who
advises the defendant of the rights that are being given up by pleading guilty.
A court may also require the defendant to recite a quot;factual basis for the plea.quot; This means that
the court, in order to be assured that the defendant actually committed the crime to which he's
pleading, requires the defendant to testify to certain facts concerning the crime.
If a plea agreement is not reached, the proceedings move toward the trial stage.
A trial must be held in a relatively speedy fashion, unless the defendant waives the quot;speedy trial
rightquot; by asking for additional time for the preparation of a defense.
If a defendant is charged with a crime punishable by six or more months of imprisonment, he has
the right to a public trial by jury. The defendant may choose to waive that right, either by
pleading guilty or by agreeing to be tried by a judge. A defendant may choose a quot;bench trial,quot; a
proceeding in which the judge performs the fact-finding function of the jury.
Circumstances under which a defendant might choose a bench trial rather than a jury trial
Cases involving technical legal issues that a jury might not easily understand.
Cases in which the defendant fears that a jury may be inflamed by the nature of the
charges and be unable to judge the evidence in the case objectively.
If a jury trial is chosen the jury selection process is part of the trial. Both the defendant and the
prosecution have the right to challenge potential jurors quot;for cause,quot; meaning that they're unable
to be objective in hearing testimony and deciding the case.
Factors considered when challenging potential jurors include:
Preexisting knowledge about the case.
Whether they have any relationship with the prosecutor or the defendant.
Whether they are capable of hearing and understanding the testimony.
Both the defendant and the prosecutor also have the right to a certain number of quot;peremptory
challenges,quot; depending upon the nature of the charges and the court in which the case is being
tried. A peremptory challenge means that the defendant or the prosecutor can remove a juror
without giving a reason.
Traditionally, peremptory challenges could be used for any reason, but in recent years the federal
courts have held that peremptory challenges cannot be used to affect the racial composition of a
jury. At the trial, the prosecutor presents evidence in the form of witness testimony, documentary
evidence and quot;demonstrative evidence.quot;
Documentary evidence includes documents, such as books, deeds, wills, letters and the
Demonstrative evidence includes all kinds of exhibits, such as photographs of the victim
in the case of a homicide, or the gun used in committing a robbery.
The defendant has the right to present witnesses and other evidence in defense of criminal
charges. The defendant also has the right to quot;confrontquot; or cross-examine the witnesses brought
forward by the prosecution. Once the prosecutor finishes submitting the evidence, the judge
quot;chargesquot; the jury by giving the jurors instruction on the law. Both the prosecutor and the
defense attorney then sum up their arguments to the jury, based on the facts presented and the
applicable law. The order in which these presentations happen varies from court to court.
In rare cases, the court will dismiss the charges at the conclusion of the prosecutor's presentation
of evidence. If the court finds that the prosecutor failed to present any evidence to support any of
the elements of the offense, or didn't present enough evidence to support a verdict of guilty, the
court can enter a verdict of not guilty without submitting the case to the jury for deliberation.
The jurors in a criminal case retire to deliberate in secrecy, for a minute, an hour, days or weeks.
When the jury reaches a verdict, their finding is read to the defendant in open court.
A jury may find a person guilty of all, some, or none of the crimes charged. In some cases,
depending on the evidence presented and the nature of the instructions given by the court to the
jury, a jury may convict a defendant of a lesser crime than that charged in the indictment.
If the verdict is guilty, the defendant may have a right to appeal if error has been
committed in the process of obtaining a conviction.
If the verdict is not guilty, the court or the prosecutors cannot overturn the jury's verdict.
A defendant who is found guilty of some or all charges is entitled to an appeal to at least one
level of appellate court.
Most states have a multi-level appellate system, with a middle level appeals court hearing
appeals directly from the trial courts. The highest level appellate courts (often, but not always,
called the quot;Supreme Courtquot;) hears appeals from the middle level appeals court. Often appeals
from the middle level appeals courts to the highest level court are optional, and the defendant is
required to petition for the right to appeal.
There are many potential grounds for appeal from a verdict of guilty in a criminal case including
legal error committed at any stage of the criminal justice process. Legal error may include:
Allowing inadmissible evidence, including evidence obtained in violation of the
defendant's constitutional rights.
Lack of sufficient evidence to support a verdict of guilty.
Mistakes in the judge's charge to the jury.
A verdict may also be appealed due to misconduct on behalf of the jurors.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defense.
The effects of punishment and sentencing
The four fundamental philosophies surrounding the purpose of sentencing are; retribution, this
philosophy is the belief that those who commit criminal acts should be punished according to the
seriousness of the crime and that no other circumstances are considered, deterrence, this strategy
is the thought that if the punishment given is severe enough that it will stop the potential criminal
from committing the crime or to be a repeat offender. Incapacitate is the third philosophy that is
a belief that if the criminal is detained for a crime, thereby being separated from the community
reduces the criminal activity and once released will not be as likely to be a repeat offender.
Rehabilitation is the fourth and final philosophy that surrounds the purpose of sentencing, some
believe that society is best served when those who break the law are not simply punished but are
provided with resources needed to eliminate the need or want to engage in criminal behavior
The factors that go into determining sentencing are broke into three steps. The Legislature passes
sentencing Laws; this specifies the terms of indeterminate sentencing. An Indeterminate term of
incarceration is in which a judge determines the minimum and maximum terms of imprisonment.
Only a jury can hand down the decision of the death penalty. When the minimum term is reached
the prisoner becomes eligible to be paroled. Then there is determinate sentencing, this is a period
of incarceration that is fixed by a sentencing authority and cannot be reduced by judges or other
corrections officials. A factor that can change incarceration time is that of “good time”, this is
when a reduction in time served by a prisoner is based on good behavior and other positive
actions. This is said to promote discipline and reduce overcrowding. However, in murder
convictions and other serious crimes an inmate must complete at least 85% of his or
The debate about capital punishment, colloquially known as the death penalty, is highly
Opponents of the death penalty often state one or more of the following reasons as the basis for
their opposition: the possibility of the execution of an innocent person; the lack of deterrence of
violent crime; and opposition to the death penalty based on a moral or religious basis.
Supporters of the death penalty often state one or more of the following reasons as the basis for
their support: the deterrence of violent crime; closure to the families and friends of the victim (in
practice, the death penalty is used almost exclusively to punish convicted murderers); and the
belief that a temporary prison sentence is not effective punishment for such an act.
In the United States of America, the use of capital punishment is generally accepted, with the
conservative Republican Party in support of it, as well as most members of the varyingly centrist
Democratic Party. The Constitution Party, a strongly conservative third party, is in support of the
death penalty; the Green Party, a liberal third party, is opposed to its use. Recent polling
indicated that well over half of the American population supports the death penalty as an
appropriate punishment for murdering another individual.
The ethical debate of the capital punishment can be split into two main philosophical contexts: a
deontological context focusing on the rightness or wrongness of the punishment itself, and a
utilitarian/consequentiality context focusing on the desirability of its consequences. A priori
argument can be further categorized into a rights argument and a virtue argument.
Consequentialist arguments can be largely reduced to utilitarian formulae through what amount
to costs or benefits of the death penalty in terms of human lives and welfare .
The deontological objection to the death penalty is that it is wrong by its nature, being a violation
of the right to life, which should be universal. In philosophical debate, however, the virtue school
tends to argue that the death penalty is also wrong on the ground that the process is cruel and
inhumane; that it brutalizes the society at large, and desensitizes and dehumanizes participants of
the judicial process. In particular, naked possibility of rehabilitation and redemption of the
perpetrator. Opponents further argue that the death penalty creates secondary victims,
specifically the family and friends of the executed.
Deontological justification of the death penalty, on the other hand, argues that its use is right by
nature, since retribution against the violator of another life or liberty is just. Thus not applying
the death penalty to murder would be unjust. In the context of virtue, the belief is that without
proper retribution, the judicial system further brutalizes the victim or victims' family and friends,
which amounts to secondary victimization. Moreover, the judicial process which applies the
death penalty reinforces the sense of justice among participants as well as the citizens as a whole,
and might even provide incentive for the perpetrator to own up to their crime. There are some
deontologists, however, who argue the death penalty is not moral.
In the context of deontology, life imprisonment cannot be used as a substitute for the death
penalty, since any length of incarceration is a violation of the right to liberty. In deontological
terms, nothing is gained by substituting the violation of one type of right (the right to life) with
that of another (the right to liberty). This amounts to an argument against retribution and
punishment in general: if any restriction is to be placed on the perpetrator, then it must be on the
ground of prevention rather than retribution. Proponents of the death penalty in turn assert that a
deontological objection is absurd from moral perspective and that it is also problematic from a
consequential perspective. They point out that if there is indeed no penalty for murder or other
heinous crimes, and then there is no effective barrier against initial crime, barring one of a
psychological nature. Moreover, the victim and his/her family and friends are free to take law
into their own hands, knowing they will face no consequences because the justice system no
longer functions as a deterrent.
At least in the judicial procedure for juveniles, the retribution aspect is explicitly removed and
any restriction placed on the perpetrator is essentially for rehabilitation. Moreover, the principle
of rehabilitation is increasingly applied to other areas, such as the parole system and various
psychological, vocational and educational programs offered within the prison system. So the
deontological opposition argue that it is possible to replace the purpose of justice system from
retribution to prevention.
Some who call for the death penalty as a just form of retribution argue that rehabilitation is
justified only when the victim survives. In case of murder, they point out that possible
rehabilitation of one life cannot redeem another life taken. Alternatively, some concede that the
merit of rehabilitation may prevail over the merit of retribution in some circumstances, such as
manslaughter, negligent homicide, crime of passion or juvenile crime.
The death penalty is opposed by many on the grounds that, because of the potential fallibility of
any justice system, innocent people will inevitably be executed by mistake, and that the death
penalty is both irreversible and considerably more severe than lesser punishments. Supporters of
the death penalty claim that lesser punishments, including life imprisonment, can also be
imposed in error and incarceration is also irreversible if the innocent dies in prison. They also
point out that, given the significant majority of people who are incarcerated rather than executed;
it is more common for miscarriages of justice to occur in non-death penalty cases, though each
individual execution is undoubtedly more severe; a possible acception arguably in a case where
the innocent were incarcerated for his or her natural life. However, it is argued by opponents of
the death penalty that the execution of perceived criminals is merely legalized barbarism, the
justice system resorting to the same moral level of the presumedly barbaric crime.
Opponents of the death penalty would point out that the equation of death with life imprisonment
makes the assumption that there is no redemption or continued human development of those that
have been wrongly or rightly convicted of crimes while in prison. One could point to the writings
of death row inmates such as Wesley Cook or Stanley Williams which in the view of social
justice activists inspire a more humane society and discourage acts of violence. By engaging in
capital punishment positive human social developments for the most extreme sectors of society
are made impossible. The proponents counter by pointing out that there is strong motive for
death row inmates to make false claim of wrongful conviction or rehabilitation. They point to
cases such as Roger Keith Coleman where his claim of innocence was widely supported by the
death penalty opponents, but after the execution, SMD examination proved that he was actually
guilty. It is further pointed out that violent behavior, including murder, is life in maximum
security jail. Minority cases of genuine rehabilitation are overshadowed by the behavior of the
majority. Furthermore, the death penalty might encourage the convicted to own up and some do
make sincere apology to the crime they committed. Lastly, the proponent, especially the family
and the friends of the victim argue that rehabilitation of the perpetrator does not redeem the life
being destroyed, and without the execution, the families of the victims cannot have closure.
Opponents of the death penalty often argue that even a single case of an innocent person being
executed is unacceptable. Most arguments about wrongful convictions proceed on the basis of
empirical evidence and statistics. Opponents of the death penalty in the United States, for
example, point to the fact that between 1973 and 2005, 123 people in 25 US states were released
from death row when new evidence of their innocence emerged. However, statistics are not
necessarily a reliable measure of the actual problem of wrongful convictions. It is possible that
many cases of innocent people being executed have gone undiscovered, as once an execution has
occurred there is often insufficient motivation and finance to keep a case in the public eye.
Some opponents of the death penalty believe that, while it is unacceptable as currently practiced,
it would be permissible if criminal justice systems could be improved. However more staunch
opponents insist that, as far as capital punishment is concerned, criminal justice is irredeemable.
The US Supreme Court Justice Harry Blackmun, for example, famously wrote that it is futile to
quot;tinker with the machinery of deathquot;. In addition to the simple human fallibility factor, there are
numerous more specific causes of wrongful convictions; for example:
Convictions may rely solely on witness statements, which are vulnerable to being countered by
forensic evidence. New forensic methods, such as DNA testing, have brought to light previously
unavailable evidence and revealed errors in many old convictions, though such technology
undoubtedly makes the current conviction more secure and certain.
Suspects may receive poor legal representation. The ACLU argues that quot;the quality of legal
representation [in the USA] is a better predictor of whether or not someone will be sentenced
to death than the facts of the crime”. Improper procedure may be followed. For example,
Amnesty International argues that, in Singapore, quot;the Misuse of Drugs Act contains a series of
presumptions which shift the burden of proof from the prosecution to the accused. This
conflicts with the universally guaranteed right to be presumed innocent until proven guilty”.
However, this refers to a situation when someone is being caught with drugs. In this situation, in
almost any jurisdiction, the prosecution has a prima facie case. It may be possible to argue that
the standard of proof should be raised to higher standard in case of the death penalty trial.
However, many dispute the assertion that this fall into the definition of quot;improper procedurequot;.
Proponents of the death penalty argue that all these criticisms apply equally to life imprisonment.
They point out that there is a very much larger number of people are in prison without possibility
of parole than in death row, and hence it is far more likely that some may slip through the
judicial safeguard and died in prison, making miscarriage of justice irreversible. Therefore, this
would make the argument of substituting the death penalty with life imprisonment moot.
Opponents will often counter that while both forms of punishment are eternal in nature; capital
punishment is irreversible and does not allow for the opportunity to free someone of his or her
punishment. Proponent counter by pointing out that death penalty case receive far more chance
of judicial review hence making it less likely to cause miscarriage justice to happen than life
imprisonment case. For example, prosecution often seeks life imprisonment rather than death
penalty precisely because conviction is more likely under life imprisonment.
Executions of innocent people
There are numerous persons who have been heralded as innocent victims of the death penalty,
persons who, if their cases were able to be reopened, may be declared innocent or at least not
guilty due to lack of solid evidence. Of the many cases, one of the most cited is the execution of
Jesse Tafero, a convicted rapist and drug dealer, was convicted along with an accomplice, Sonia
Jacobs, of murdering 2 police officers in 1976 and were both sentenced to death based in part on
the testimony of a 3rd person, Walter Rhodes, who was an accessory to the crime and testified
against the pair in exchange for a lighter sentence. Jacobs got help from a friend who worked to
release her and in 1981 her sentence was commuted. In 1982, Rhodes recanted his testimony and
claimed full responsibility for the crime. Despite this admission and his own protestations,
Tafero was executed in 1990, but in 1992, the conviction against Jacobs was thrown out and the
state didn't have enough evidence to retry her. She then entered a plea of no contest and was
released for time served. It has been presumed that the same evidence was used against Tafero,
who presumably would have been released as well.
Wayne Felker is another individual cited as an innocent victim of execution. Felker, a recently
released sex offender, was a suspect in the disappearance of a woman in 1981 and was under
police surveillance for 2 weeks prior to the body being found. The autopsy was conducted by an
unqualified technician, and the results were changed to show the death occurring before the
surveillance began. After Felker's conviction, his lawyers presented testimony by forensics
experts that that the body couldn't have been dead more than 3 days when found, a stack of
evidence was found hidden by the prosecution that wasn't presented in court including DNA
evidence that might have exonerated Felker or cast doubt on his guilt, and there was even the
signed confession of another suspect in the paperwork, but despite all this, Felker was executed
in 1996. In 2000, his case was reopened as the 1st executed person to have DNA testing used to
prove innocence after execution. Although the tests were ruled inconclusive as to innocence or
guilt, this alone might have been enough to exonerate him, and coupled with the other testimony
and mishandling of evidence would have at least surely led to a new trial.
A dozen or more] may have been executed in error in the U.S. since 1976 and the
implementation of super due process. That represents nearly 3% of all executions through April
1, 1998. Also since the 1960s, one-quarter of the prisoners executed had no appeals at all, and
two-thirds of their cases were never reviewed by a federal court.
The brutalizing effect, also known as the brutalization hypothesis, argues that the death penalty
has a brutalizing or coarsening effect either upon society or those officials and jurors involved in
a criminal justice system which imposes it. It is usually argued that this is because it sends out a
message that it is acceptable to kill in some circumstances, or due to the societal disregard for the
'sanctity of life'. An extension of this argument is that the brutalizing effect of the death penalty
may even be responsible for increasing the number of murders in jurisdictions in which it is
practiced. The counter argument is that the death penalty enforces the sense of justice upon
society or those officials and jurors involved in the criminal justice system by imposing the
ultimate punishment on those who violate the lives of others. By showing how the criminal
justice system takes the right to life seriously, it reduces the number of murders in jurisdictions
in which it is practiced. Some further argue that not applying the death penalty further brutalizes
the family, and friends of murder victims as well as the society at large.
An argument used both in support of and against the death penalty is that one should follow the
majority opinion in the country concerned — greatest good should always be sought for the
greatest amount of people. This is why the argument can be used to both support and contest
There are two possible objections to this argument. First, the wishes of the majority may not
always protect the rights of the minority. Second, in a democracy where the government is
representative and not direct, the wishes of the majority will not always be turned into law by
their representatives. The opposite was done in France in 1981, where a majority of people
supported the capital punishment and elected a majority which was against — and then abolished
In countries which have abolished death penalty, horrorful and unbearable crimes brings the
debate back, pro-death penalty percentage raise in polls, which is quite logical as it is a
passionate debate. In quieter times, the debate then changes and focuses on security issues.
Law, judiciary and the death penalty
Some argue, from the perspective of a simplified version of legal positivism, that whatever law
passed through legislative process is quot;legalquot; and moral and ethical debate is futile. This leads to a
consequentialist conclusion that whatever collective consensus achieved through the democratic
process is quot;betterquot; if not quot;just.quot;
Critics of the death penalty commonly argue that the death penalty specifically and explicitly
violates the right to life clause stated in most modern constitutions and human right treaties. It
violates sections 3 and 5 of the Universal Declaration of Human Rights. While it is not a legally
binding document, the declaration served as the foundation for the legally-binding International
Covenant on Civil and Political Rights, which most of countries signed (with some legal
Supporters of the death penalty point out that the Fifth Amendment of the United States
Constitution states: quot;No person shall... be deprived of life ...without due process of law...” and
the 14th Amendment says: quot;No state shall ... deprive any person of life ... without due process of
law.quot; Therefore, with due process a person may be constitutionally deprived of life. Also, that
section 3 of the declaration proclaims the right to liberty to be universal, which is violated by
incarceration. Deprivation of liberty can also be seen as quot;cruel, inhuman or degrading treatment
or punishmentquot; as specified by section 5. Therefore, the supporters argue that the critics are
taking the declaration out of context. The International Covenant on Civil and Political Rights
specifically allows implementation of the death penalty and incarceration as a part of a criminal
justice system Similarly, most modern constitutions contain right to life as a fundamental
constitutional right, with varying degrees of exemption ranging from the explicit exemption of
quot;except in case of serious crime or national emergencyquot; to the vague exemption of quot;without due
processquot; or quot;except in defense of public interest.quot; Consequently this makes the legal debate
essentially an a priori argument based on legal text.
Rules of legislative construction
When the constitution does not explicitly exempt the death penalty from the right to life clause,
the judiciary is required to interpret the meaning of the clause based on rules of construction. The
most common method is plain meaning rule or Golden rule. This is based on strict
constructionist or teetotalism, which dictate that laws are to be interpreted using the ordinary
meaning of the language of the statute. In this sense, right to life clauses establish a priori
grounds for the prohibition of capital punishment except when it is used as a deterrent to murder.
In jurisdictions which practice the death penalty, deterrence is the most common justification
cited in the highest court. However, some jurists argue that this may not be the correct legal
interpretation, because the plain meaning rule applies only to the extent that they do not produce
an absurd or totally obnoxious result, such as removing any a priori justification of punishment.
These jurists often advocate social purpose rule, mischief rule or purposive approach which is
loosely based on Originalism. Under this criterion, it is possible to go back to the sources outside
of legal texts, such as the intention of the law makers or the meaning of the term during the
original formation of the concept, which in this case often means 18th to 19th century Europe
and America. The proponents of the death penalty may claim, citing such sources as Locke, or
more appropriately Thomas Jefferson in the case of the US, that the original argument was that
people form implicit social contracts, ceding their right to the government to protect natural
rights from being abused. Therefore, protection from abuse is the basis of such rights and those
who violate such rights automatically forfeit them. Therefore, an a priori case against
punishment does not exist. Critics from legal formalism argue that such an approach might cause
judges to inadvertently take sides in legislative or political issues which amount to quot;legislating
from the benchquot;, and that the question is for the legislature to address, not the judiciary. On the
other hand, advocates of this approach assert that, unlike modern judicial activism which does
not follow precedent, the limit is clearly set in terms of originalism and precedent. Therefore, the
approach allows middle ground between possible absurdity of teetotalism and the danger of
Protection from discrimination, persecution, and cruel and
This covers cases where the judicial process is used to prosecute every particular minorities,
political opponents or individuals. In the US the most commonly cited example for
discrimination is the disproportionate number of racial and economic minorities on death row. In
legal terms, mere prevalence of certain minorities in death row or in the general prison
population does not amount to the violation of equal protection, because it may simply be a
result of these minorities committing more capital crimes. Rather, it must be shown that there is
inherent fault in the system, that there was an implicit or explicit policy to persecute minorities
or political opponents, or that the jury or judge's decision was shown to be slanted by their
prejudice for quot;individual casesquot;. In the US it is generally considered among jurists that race does
not fall into this category except for jury bias which would result in the reversal of conviction.
Similarly, incompetent defense by court appointed public defenders is also a valid case for retrial
and stay of execution. Similarly, killing, pain or psychological fear of killing cannot be a valid
argument under the prohibition of cruel and inhumane treatment if the death penalty is declared
constitutional. It must be shown that pain is inflicted for the purpose other than execution, such
as torture. Then the court can declare that particular method of execution to be unconstitutional,
but not the death penalty itself.
United States specificities
African Americans made up 41% of death row inmates while making up only 12% of the general
population. (They have made up 34% of those actually executed since 1976.) Conversely, others
note that this is lower than the 50% of the total prison population which was African American
and that whites are in fact twice as likely as African Americans to receive the death penalty, and
are also executed more quickly after sentencing. U.S. Department of Justice statistics show that
African-Americans constituted 48 percent of adults charged with homicide, but only 41 percent
of those sentenced of death. Once arrested for murder, African-Americans are less likely to
receive a capital sentence than are whites.
Academic studies indicate that the single greatest predictor of whether a death sentence is given,
however, is not the race of the defendant, but the race of the victim. According to a 2003
Amnesty International report, blacks and whites were the victims of murder in almost equal
numbers, yet 80% of the people executed since 1977 were convicted of murders involving white
victims. But, others says ninety-five percent (95%) of murders are intra-racial, most likely
between persons who know one another, circumstances often viewed as inappropriate for the
death penalty. In crimes that qualify for a capital sentence, a significant number of death penalty
cases involve murder of law enforcement officers, about 85 percent of whom are white.
In fact, as half of the ten inmates on Connecticut's death row have been condemned for the
murders of minorities and five of the 37 inmates executed in South Carolina were white men
convicted of murdering African-Americans.
Right to fair trial and miscarriage of justice
Most often cited examples of miscarriage of Justice are the US, which probably reflects both the
high crime rate as well as the vigorous nature of its judicial process to correct its mistake.
Between 1973 and 2005, 123 people in 25 US states were released from death row when their
conviction was declared unsafe or clear new evidence of their innocence emerged. Recent
progress in forensic science, particularly DNA testing, has brought to light previously
unavailable evidence and revealed errors in many old convictions based on circumstantial
evidence such as witness testimony. Opponents of the death penalty also point out that certain
procedures may be at fault, such as quality of public defender, which quot;is a better predictor of
whether or not someone will be sentenced to death than the facts of the crimequot;. Most unusual to
the US is the frequent use of plea bargaining. Because of the large case loads of public
prosecutors, it is often commented that the American criminal justice system would cease to
function without plea bargaining. In a majority of common law and almost all civil law
countries, the prosecutor is not allowed to offer a reduced sentence in exchange for a guilty plea
or hostile testimony in serious criminal cases. Plea bargains are considered unjust because it is
inherent in the process of plea bargaining to induce the innocent to plead guilty, false testimony
against the innocent and overcharging by prosecutors.
In legal terms, advances in forensic sciences, the existence of possible miscarriage of justice or
some fault in the procedure cannot be an a priori argument for the unconstitutionality of capital
punishment. Such arguments would lead to the absurd conclusion that the death penalty as well
as any form of incarceration is unconstitutional, given that the innocents could be falsely
incarcerated or worse, die in prison before being exonerated. However, particular fault in
procedure or evidence can be used to overturn individual case of conviction, including a death
penalty case. A particular system of judiciary process such as plea bargaining or the system of
public defenders can be declared unconstitutional. However, these do not provide legal argument
to declare the death penalty as constitutionally invalid.
Another potential miscarriage of justice associated with capital punishment is the role that
judicial elections play in the sentencing process if a death penalty verdict is appealed; some
researchers believe that appellate judges who are up for re-election will be less likely to overturn
a death penalty sentence because of the potential harm to their campaign. There is both evidence
supporting and negating this theory as it continues to be an issue debated by legal scholars and
Deterrence, prevention and the economics of the death
Some of the most prominent debates surrounding the morality of the death penalty deal with its
consequences for individuals and society. Two central issues are first the effectiveness of the
death penalty as a deterrent (or prevention) and the economic costs of its imposition. Many
proponents of the death penalty argue that the death penalty is justified because, according to
them, it deters future crime, especially murders. While the death penalty does take life, they
argue, this is outweighed by the many lives they claim it saves. This is generally considered a
utilitarian argument because it is based on consequences for human welfare instead of
deontological considerations such as rights or just retribution. Utilitarian’s need not agree with
the death penalty, however (see Economic arguments).
The deterrence argument in favor of the death penalty is objected to on the a priori grounds that
it does not even have distributional justification of a specific individual. In other words, critics
argue that it implies that mistaken execution of innocents is regrettable but still justified if the
overall effect of the death penalty still saves more lives. Some proponents of the deterrence
argument do not dispute this, but some do on the grounds that if people know they might be
executed for crimes they did not commit they might live in a state of fear; therefore, significant
steps should be taken to avoid the execution of innocents.
Evidence for prevention and deterrence
Arguably, the most easily measured criterion of analysis is the number of lives being saved or
lost as a result of the death penalty. The most specific case under this criterion is incapacitation.
That is, the death penalty prevents the perpetrator from committing further murders in the future.
Several cases have been noted where convicts serving life such as Clarence Ray Allen, have
succeeded in directing other murders on their behalf. More commonly debated and cited is the
deterrence effect. The argument is that the threat of the death penalty deters potential murders or
other serious crimes such as drug trafficking. In the pre-modern period, when authorities had
neither the resources nor the inclination to detain criminals indefinitely, the death penalty or
other punishments such as caning or hand decapitation were probably the only available means
of prevention and deterrent. Opponents commonly argue that today's incapacitation or deterrent
is equally well served by incarceration including life imprisonment. The proponents, in turn,
argue that life imprisonment does not prevent murder within prison and that life imprisonment is
a less effective deterrent than the death penalty.
The question of whether or not the death penalty deters murder usually revolves around the
statistical analysis. Studies have produced disputed results with disputed significance. Some
studies have shown a positive correlation between the death penalty and murder rates] - in other
words, they show that where the death penalty applies, murder rates are also high. This
correlation can be interpreted in either that the death penalty increases murder rates by
brutalizing society (see brutalizing effect) or that higher murder rates cause the state to retain or
reintroduce the death penalty. However, supporters and opponents of the various statistical
studies, on both sides of the issue, argue that correlation does not equal causation.
It is difficult to conclusively demonstrate the existence of a deterrence effect. The opponent
would invariably point to the death row inmate and argue that they are the quot;proofquot; that the death
penalty does not work as a deterrent. However, the proponent can easily counter by pointing to a
far larger number of murderers (many of them repeat offenders) who are serving life
imprisonment or long sentences and argue that life imprisonment or long incarceration does not
work as a substitute. This can be considered the result of a sampling problem, where those who
refrain from committing crimes due to the deterrent effect of the death penalty or incarceration
automatically rule themselves out from the statistics. This means that it is almost impossible to
prove the deterrent effect of the death penalty or incarceration by quot;directquot; empirical
demonstration. Instead, researchers have to reach conclusion from statistical analysis of overall
crime statistics, which is much more inconclusive.
This further invites debate as to which side has the burden of proof. The opponents of the death
penalty argue that the burden of proof is on the retentionists to prove that the death penalty
works better than life imprisonment, and that, given the lack of statistical evidence, the death
penalty ought to be abolished. The proponents argue that, given that existence of a deterrent
effect of punishment is already accepted, the burden of proof is on the abolitionists to prove that
the life imprisonment works equally well as a deterrent, and given the lack of statistical evidence
that life imprisonment works as equal deterrent, the death penalty ought to be retained.
In recent years, a number of new studies have been published, mostly by economists, which
purport to statistically demonstrate a deterrent effect of the death penalty. However, critics claim
severe methodological flaws in these studies and hold that the empirical data offer no basis for
sound statistical conclusions about the deterrent effect. Other authors in turn counter these