An Eye for an Eye: Mandatory Justice for an

Outdated Form of Punishment

Vafoline Tulay

The Pennsylvania State University

 Abstract

The death penalty is implemented in America's society in order to punish those who commit

heinous crimes that go against the societies moral norms. Although there are many that favor the

legal punishment inflicted by the government, it is well known that the action itself along with

America's criminal justice system is flawed. The act of killing an individual legally is very

expensive and causes an immense tax raise for the government. Additionally, the punishment

itself is cruel and unusual, as it goes against the words of the eigth admendent and incompasses

the concept of an eye for an eye - one that is very outdated. Furthermore, research has discovered

that the use of the death penalty, which was said to effectively get criminals off the street,

doesn’t certainly deter crime at all. Finally, the use of the capital punishment runs the risk of

executing an individual who is actually innocent for the crime in which they are being blamed

for. The death penalty is an outdated form of capital punishment, and actions must be made in

order to reduce the amount of wrongful sentencings of innocent individuals. Such solutions

include preserving and accurately using DNA testings to obtain evidence that can abolish a

wrongful sentencing, and furthermore allowing newly based evidence to be introduced into a

cause upon request of the defendant.

 1. History of the death penalty

a. Introduction

The distressing case of Dzhokhar Tsarnaev captivated Americans like no other death-penalty

case has in years. The chronicles of his atrocity and further punishment, commenced with the

bloodbath he created at the Boston Marathon in 2013, and continued during the streamed

manhunt that ended in the death sentences made by a federal jury on May 15th. Justice was

perceived as found according to 70% who served for a Washington Post-ABC News survey.​2

Support for the death penalty remains strong in circumstances like this; where the violence

created by a sole individual is so outrageously brutal, and the guilt is beyond dispute.

Nevertheless opinions for and against such legal form of murder sways when an increasing

amount of suspects facing such a sentence are mentally ill, come from a low economic or

minority background, or in many cases is actually innocent.

Capital punishment has

been a controversial topic

that splits The United

States of America into

thirty states for, and

twenty states (including

DC) against the brutal

form of crime

punishment.​1​ The death

penalty has been in use for years as a way to punish those who are guilty for having committed
heinous crimes. Those in support of the punishment state that those who choose to murder

innocent individuals should be exiled themselves and that justice and closure is deserved for the

victims family. On the other hand, the opposition perspective to the death penalty obtains the

argument that the legal killing of an individuals as a direct consequence of their crime is too

barbarous, goes against the eighth amendment, does not deter crime, and costs the government

and outrageous amount of money. The Death penalty is an outdated form of capital punishment,

and actions must be made in order to reduce the amount of wrongful sentencings of innocent

individuals. Since the death penalty requires a lot of caution in order to be implemented properly,

it shouldn’t be executed in a speedy fashion in order to ensure that the suspect is not innocent.

b. History

The first laws persisting to the death penalty exists way back to the eighteenth century B.C

during the Code of King Hammurabi of Babylon, where 25 specific crimes committed would

result in the death penalty.​3​ During this era, the punishments were carried out in means of

crucifixion, drowning, burning alive and even impalement.​3​ By the time the tenth century A.D.

commenced, the usual method of execution changed to hanging. In the early European A.D.,

under the reign of Henry VIII approximately 72,000 individuals were executed. At the time,

executions were a result of capital breaches such as treason, being Jewish or marrying a Jewish

individual.
Britain can be said to be the most influential on America's usage of capital punishment. When

the European settlers arrived to America to commence a new country, they brought with them

their traditional ways of prosecuting individuals who commit a perceived sinful crime. The first

execution recorded to date in America during its colonial era occured in Virginia and was that of

Captain George Kendall, who was killed for being a Spanish spy.​3​ Interestingly, during those

times the death penalty was given as a consequence for even the deviance of folkway norms such

as stealing grapes.​3​ The history of the death penalty indicates the paradigm shift of American

values. America as a nation values progress and change. In the early 70’s the Supreme Court

passed a suspension on the capital punishment.​4​ Such suspension was passed due to the believe

that the death penalty was unconstitutional due to its imposition being unfairly distributed to

those who were poor or of a minority group, similar to the characteristics of the individuals who
have faced or will face the capital punishment in present times. Yet, the banning of the death

penalty only lasted a short four years, resuming again in 1976. According to statistics given by

the Death Penalty Information Center, the most common and primary method of execution,

being used a little of 1,300 times since 1976, is the lethal injection method.​5​ The lethal injection

is authorized by all the states that still legalize the capital punishment today, as well as the U.S.

Government and U.S. Military.​6​ An acute amount of states still continue to offer other execution

methods such as the gas chambers, hanging, firing squads and electrocution.​5
 2. An Outdated form of punishment

a. The end of the era of the Death Penalty: Tax Raises

For as long as the death penalty has been around, reasonings against the punishment as stated

have consistently failed to influence a bulk amount of Americans. Nevertheless, as time has

passed, on a new argument may have the power to turn the tables on the large public opinion -

money. An alarming statement by Fox News declares that “every time a killer is sentenced to

die, a school closes”.​9 ​Although the action of the litteral execution costs a mere amount, the

expense associated with the trials and imprisonment consequently increases the total amount.​10

Most of the cost of the death penalty thus comes from both the pre-trial and during the

conviction; illustrating that even if the post-convictions were taken away the total cost of the

execution would still be more expensive than opting for any other alternative sentencing. When a

prosecutor wants to sentence an individual to death row, two separate hearings occur. The first

being in which the suspect is convicted guilty or innocent, and the second being the sentencing

hearing. More money is then spent for any extra investigation especially in cases with murder.

Finally taxpayers will have to pay again if the trial ends in a lesser verdict or if the judge calls for

a retrial.​12
 As reported by The California Innocence

Project, since 1978 California spent over

a whopping $4 billion allocated to the

death penalty - using $300 million dollars

per each individual executed in the state.​4

Contrastly, it costs almost as low as ten

times cheaper to incarcerate an individual

for life without parole.​11​ The death

penalty steals the government's attention

away from authentic crime control.

Money spent on the system has resulted in a reduction of money that should be spent on: crime

prevention, treatment for the mentally ill, and rehabilitation. Therefore, if those sentenced to

death row were instead sentenced to life without parole the effect in which the death penalty

attempts to obtain would still occur. Murders would stay off the street without any opportunity to

come back out. Thus, the substantial amount of money saved could be used in order to improve

the heavily flawed and broken criminal justice system of today; such as through expanding and

ensuring public safety.

b. The end of the era of the Death Penalty: A cruel and unusual
punishment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted”, reads the eighth amendment.​13​ Forcing death upon an individual can be

considered cruel due to the fact that the action itself is ruthless. The offence of murdering an

individual is one of the only crimes in which the punishment is identical to the crime itself.
Sexual assaulters do not get punished by the government by getting sexually assaulted. A thief’s

valuables isn’t then stolen away from them after being taken in by police. Therefore the

conceptual image of capital punishment revolves around concept of an eye for an eye. The notion

of killing a murderer is essentially hypocritical. The ultimate punishment itself is a natural

process, everyone dies, thus the convicted felon isn’t consequently a bad outcome. A sentence to

death may actually result in the criminal getting the easy way out of their crimes in which they

executed. Through sentencing an individual to life, they are then forced to spend the rest of their

lives behind bars thinking about the life choices they’ve made. Although many Americans who

still advocate the notion of capital punishment believe that the act gives closure to the victims

family members, it doesn’t reverse the fact that the crime was committed.

c. The end of the era of the Death Penalty: Does the system deter crime?

One of the main reasons why the death penalty is so widely debated today is due to the argument

of whether or not the mechanism of using the death penalty actually deters criminals from

committing abhorrent crimes such as murder. Proponents of the form of capital punishment tend

to claim that the action prevents more homicides from occuring due to fear of getting sentenced

to death row. Nevertheless a surplus of empirical evidence has indicated that capital punishment

offers little to no practical advantages that would outweigh the amount of social costs it acquires.

According to analytical research by Professor John Lamperti from Dartmouth University, murder

is more common in states with capital punishment in comparison to those who have abolished

the legal government form of murder.​7​ Other reasons why the death penalty may have a negative

effect on homicide rates is that it could potentially be a cause of homicide. Dr. Louis West

describes this phenomenon as “attempting suicide by homicide”, as he accounted an incident of a

stranger who murdered an innocent Oklahoma truck driver; explaining to officers that he

committed the random murder because “[he] was just tired of living”.​8

d. The execution of the innocent

The death penalty by itself forces

an irreversible sentence that one

could obtain. This is due to the

fact that once a convict is

executed, there is nothing that can

be done in terms of compensation

if a mistake was made. Since

1973, after the first execution of

an innocent individual, a little

over 160 individuals have been

released from death row after an

emerge of evidence that proved

their innocence.​14​ During the same time period approximately 1,493 individuals have been

executed.​15​ Therefore for every nine people executed, there is at least one person on death row

who shouldn’t have been convicted. Such statistics symbolize an intolerable risk of accidentally

executing an innocent person. To put the statistics in another context, if an automobile

manufacturing company operated with the same failure rate (9:1), the company would most

likely run out of business. A study by the Columbia University Law School detected that two

thirds of all capital trials obtained serious errors.​16​ After a retrial of some of these cases,
approximately 80% of the defendant's charges were dropped in the context of a death sentence,

and 7% of them has there cases completely discharged.​16

When investigating such cases that involve an innocent defendant, many of the releases of the

innocent came about due to factors outside of the justice system. The case of Gary Gauger on his

parents murder, was challenged by a group of journalism students from Northwestern University

in Illinois.​17​ The goal of Professor Lawrence Marshall and his student’s were to prove Gauger’s

innocence before his time incarcerated on death row was up. After their thorough investigations,

the students were able to conclude that the reason that Gauger was convicted and thus sentenced

to death row was due to a lie said during an eyewitness testimony at the original case.​17​ The

students were also able to find the real murderer of Gauger’s mother and father, who later

confessed to committing the crime on a video recording. In this case, the defendant who was

innocent was only spared due to the existent efforts of concerned students instead of the justice

system. Alternative cases consisted of DNA testing being the blame of putting innocent

individuals on death row. Nevertheless, the justice system had still deduced that the defendant

was guilty and deserved the punishment. DNA profiling was first available in the late 1980s for

three cases two of which involved a rape charge and the other murder.​18​ It is true that the

advancement of science and technology in this case has saved many innocent inmates from being

executed. Additionally, if such tests were used even earlier such as in the years of 1970 and 1980

there would have been a higher chance that many individuals would have been proven innocent

as well.
 3. Protection against wrongful convictions

a. Preservation and use of DNA to either establish innocence or abolish

wrongful sentencing

Although the international global trend incompasses the abolition of the usage of the death

penalty, in America where it is still accepted the American legal system, international law, and

practices used for the death penalty must require that the least minimum amount of standards are

applied. American needs to strengthen such standards when applying the death penalty as a

punishment for homicide. The first step is to preserve and use DNA testing in order to fully

establish whether a defendant is innocent or guilty. In the cases in which the defendant was

sentenced to death row the federal government along with the state must execute legislations that

would require the preservation of DNA. Additionally there should be testing of biological

material that was not previously tested, in the attempt to find if such tests could produce

evidence that could further be in favor of the defendant's innocence upon request. In some cases

the failure of the current law status to preserve such DNA tests has resulted in the tragic

annihilation of potential evidence that could turn a whole case around. Jurisdictions should thus

require that all existing biological samples of both the victim and the alleged defendant are

preserved until the defendants are able to exercisers their sanctioned rights.

Second, criminal justice laws should grant a defendant the right to a secure and just testing.

Testing should be present in times where the results of such tests would deliver only on the

accurateness of the death sentence and should not further be restricted for use in cases where

innocence is a possibility. Additionally, evidential testing should not be restricted under

circumstances in which the removal of such evidence could lead to a declarement of innocence.

Thus there should be a showing of the results, as this would aide in establishing a wrongful

conviction or sentencing.

Moreover, experience with technology for DNA profiling, and furthermore the disclosure of

error that can come from such tests, should indicate to the criminal justice system the need to

establish systems and mechanisms in which the physical evidence as a result should be

preserved. The justice system must also understand and comprehend the level of humility that is

produced from the absurd amount of individuals in which a defendant was proven innocent.

Criminal trials have time after time again shown to sometimes be faulty, even when the criminal

justice system has been highly regarded as a system which functions in good faith. Convictions

in which the defendant is innocent are real and possible to occur. Therefore, the system must act

in a candid manner when additional demonstrations of its errors have been explicitly indicated -

especially in times where, unless corrected, would have caused another innocent life being taken

away.

b. The introduction of defensible evidence should be permitted through

the lifting of procedural barriers

Federal and state courts must ensure that every defendant is supplied with a sufficient

mechanism for allowing the introduction of new disclosed evidence that would in some cases be

procedurally prohibited - even if this means this may result into an alternative outcome for the

trial. The process of appealing a death row sentence is complex, difficult, time consuming and

very technical, and hence understandably causes concerns for members of the civic public,

lawyers and judges. Nevertheless the writ in which one can require an arrested individual to face
a judge, the ​habeas corpus​, does not facilitate the central question in which our criminal justice

system must always be asking themself: has the defendant been wrongly convicted or wrongly

sentenced to death?

Such public awareness of the imperfection in the current justice system has been increasing. This

comes in light of the enhance usage of DNA evidence in order to absolve innocent death row

inmates, the series of exonerations for over more than a dozen death row inmates in the state of

Illinois, and regulations such as Virginia's “twenty-one-day rule” which bares the introduction of

new evidences after a set twenty-one day period following the decision made by the court. The

court's inability to announce DNA evidence has cued the introduction of various Congress bills.

What must be understood though is that DNA evidence is only one mechanism that has the

power to acquire new evidence which can weaken the credibility of a verdict. Even under

circumstances where prosecutors are sure of a defendant's guilt, new condonable evidence may

appear later in the process of a case. For instance when looking at the Rolando Cruz case in the

state of Illinois, it took several years in order for the real murderer to confess his guilt whilst

Cruz was incarcerated on death row.​19​ In addition to new DNA evidence, other physical

evidence, renunciation of previous eyewitness testimonies, and new eyewitnesses are just more

different types of evidence that could come to light late in the process.

It is significantly critical for each defendant under a capital case to obtain the opportunity to

introduce to the judge new and relevant detected evidence which may prove their innocence.

Jurisdictions must obtain a requirement that new evidence that should be introduced only be
introduced before a certain amount of time. Nevertheless, if such evidence wont create a change

in the verdict or opinions of the judge and jury such evidence should not be required to be

obtained, nor shown in court.

In our society we take many risks when it comes to innocent lives being lost. Bridges get built

when statistically there is a conscientious knowledge that some workers can and will be killed

amidst construction; and thus we take more precautions to reduce the number of unintended

deaths in this case. On the other hand such deaths are out of our control. Wrongful executions are

a risk that can be very much preventable. Through preserving DNA, using enhanced forms of

DNA testing, and allowing the introduction of newly found evidence that could prove one’s

innocence, the criminal justice system can still meet the need of protecting our societies and

punishing those that deserve it whilst not running the unfortunate risk of executing an innocent

individual.
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