[MUSIC] So welcome to this fourth lecture on Hot Topics in Criminal Justice. Today we're going to be talking about the death penalty. You may remember our first lecture we talked about mass incarceration and its causes. And the second lecture we talked about how we might be able to reduce the rates of incarceration, especially in the United States. And the third lecture we talked about the nature of criminal responsibility. Today, when we're talking about the death penalty, we're going to talk about topics that are very closely related to the first three lectures. Because the death penalty is the product of our attitudes towards criminal punishment and our attitudes toward criminal responsibility. So when we're talking about the death penalty, we're going to be focusing on how it works in the United States. We're going to focus on the process of the death penalty and the process of criminal justice generally with all of his flaws, because it's the flaws in a criminal justice system. It is the mistakes that our criminal justice system makes that has a lot to do with why the death penalty so controversial today. So let's start with little bit of history. And the first video you watched, you heard that at the time of drafting the Constitution, the death penalty was very common. But in 1972, the Supreme Court held that the death penalty was unconstitutional. Struck down the death penalty in those states that had it, on the grounds that the death penalty was cruel and unusual. Now the Justices gave a number of different reasons for why the death penalty was unconstitutional, it was cruel and unusual. But the main reason was it was that it was irrational and arbitrarily applied. It was applied in an arbitrary fashion. So the death penalty disappeared for four years. But by 1976, a number of states had revamped their death penalty statutes to try to avoid the arbitrariness that the Supreme Court had talked about in its 1972 decision. And what they did is what you see here. The modern death penalty statues we have with us today identify aggravating circumstances and mitigating circumstances. All in an effort to try to control and guide juries In the decision making about the death penalty. What are aggravators? As it shows here aggravators are factors that makes the crime more serious. For instance, it's an aggravator if the defendant has committed other offenses in the past, it's an aggravator If the individual is considered particularly dangerous. Those are the kinds of factors that push in the direction of assigning the death penalty. Mitigators are factors that mitigate a person's culpability. For instance, mental disability, or perhaps the fact that the individual has no prior crimes, or the fact that in the course of the crime, the individual was a follower as opposed to the leader of the criminal group that engaged in the crime. So that's what the modern statutes described and defined is as penalty do today, and they even upheld this constitutional. But there are other restrictions on the death penalty. The Supreme Court has said that only the worst of the worst may be put to death, now what does that mean? Well first of all only people who commit murder may be put to death. So even if a person commits a horrible rape, even if a person commits a horrible armed robbery, those people cannot be put to death. They can be sentenced to very long term of imprisonment but execution is off the table. And within the group of murderers, only the most culpable murderers, only the worst of the worst may be sentenced to death. So how do we figure out who is the worst of the worst? Well, the Supreme Court has held at least one of those aggravators that I described a little bit earlier has to be proven beyond reasonable doubt. And the aggravator or aggravators that are proven by the prosecution have to outweigh the mitigating circumstances. If that happens then the death sentence can be imposed. But if the mitigators outweigh the aggravators the death sentence may not be imposed and usually the alternative sentence that the Jury is given is life without parole. The jury is given the discretion to impose life without parole as an alternative to the death penalty. The Supreme Court has also said that in this category of worst of the worst, we may not include people who run at the age of 18 who kill and people who have intellectual disability. Refers to people used to be called people with mental retardation. Why did the Supreme Court hold that? Because the Supreme Court said that people under the age of 18 are too immature to be fully culpable, they just are not the worst of the worst. And the same thing goes for people with intellectual disability. Because of a low IQ, they cannot be under any circumstances the worst of the worst. Even if they intentionally kill, they cannot be sentenced to death because they are not in that category of people that deserve the ultimate punishment. So that’s a survey of death penalty law. And about 30 American states still have the death penalty, using statutes of the type I just described. 20 states do not have the death penalty, but about 30 do. The first video said 32 states, but since that video was made, two states have gotten rid of the death penalty. So today we have 30 states. About ten of those states haven't executed anyone for the last 10 or 15 years, but the death penalty is alive and well in at least 20 states. And you see from this map that the United States is the only country in the West that still has a death penalty. The countries in red are the countries that have the death penalty. So the United States has the death penalty, China India, several countries in the middle east and Africa have the death penalty. But no other countries do. At least the robust death penalty. Why is that? Why is the United States one of the few countries that has the death penalty and the only country in the western world that has the death penalty? Well in the first lecture we talked about some of those reason. If you remember we talked about America's populace, which tends to take a knee jerk approach to increases in crime, tends to result in relatively harsh punishment. Also the idea that, outside of cases involving insanity, people are responsible for whatever they do. We have the concept of evil in the United States. And it plays a very strong role. That and it creates a culture punishment here in the United States. And finally there's an issue of race and the fear of the other that we talked about during the first lecture. So all of those factors can contribute to the relatively punitive culture we have in the United States and may help explain why we have the death penalty in the United States. But those are cultural explanations for the death penalty. What about theoretical reasons? Policy reasons for the death penalty, separating it apart from culture. What do legal theorists say are the rationales for the death penalty? Well, remember from the first and second lecture we talked about three different purposes of punishment. We talked about deterrence as a purpose of punishment. We talked about individual prevention as a purpose of punishment. And we talked about retribution as a purpose of punishment. So, how did those theories help explain or not justify the death penalty? Well, there is some research about the deterrent effect of the death penalty. And according to the National Academy of Sciences, the research at best is mixed. In other words, states with the death penalty do not have any lower crime rates than states that do not have the death penalty. And in fact some research suggest that the death penalty may actually increase crime rates, because it tends to brutalize the society in which it it's applied. But in any event the bottom line is the deterrent studies suggest that there's no clear deterrent effect to the death penalty. What about individual prevention? Clearly, if we execute someone, they're not going to be able to harm anyone else. That is a very efficient way of preventing an individual from harming someone else. But of course, there is an alternative to the death penalty in terms of protecting the public, and that's sentences of life without parole. If a person is put in prison for their entire life and not given the opportunity to obtain parole they also are kept off the streets, of course they couldn't run out the prisoners or guards. But they won't threaten the general public. And in fact when people are asked, would you prefer the death penalty or life without parole? We see a majority people saying they prefer a life without parole. They seem to think that's efficient protection for the public. In other words when people are asked would you prefer the death penalty or no death penalty. A majority of the public says they prefer the death plan but when they are asked do you prefer the death penalty. When the alternative would be life without parole support for the death penalty goes well below 50%. So suggest the individual prevention goal is not necessarily the best reason for the death penalty either. That leaves retribution. The idea that some people simply deserve the death penalty. They've done something so evil, so bad that the death penalty is the only possible penalty for them. And of course this is expressed in the biblical expression an eye for an eye. So this is the justification as most often trotted out for the death penalty. And it might be a justifiable reason for the death penalty again in case as involving the worst of the worst, the most evil individuals. I'm not going to say anything more about the moral justification for the death penalty. I'm going to assume from now on that there are some circumstances were the death penalty Be justified. What I want to focus on now, is how the death penalty works in practice, okay. How this actually function on the ground? In order to do that, we're going to talk about State of Florida. We know a whole lot about how about the death penalty functions. So when we come back, that's we're going to focus on. It's how the death penalty works in practice. But first, are there any questions about what I said so far before we take a break? Yes. >> For the aggravating and mitigating factors are there certain ones that are given more weight than others typically? >> Typically, yes. What I did not mention, is if the murder of committed and particularly heinous fashion. And torture is involved, perhaps multiple stabbings, cutting off limbs. Unfortunately there are cases involving those kinds of conduct. And that is a particularly powerful aggravate. Prior criminal history though of course is also a very powerful aggravate. Interesting enough, mental disability even though it's supposed to be a mitigator, sometimes apparently is treated by jurors as an aggravator. Why, mental disability is sometimes associated with dangerousness. And so even though it's supposed to be a mitigator, it sometimes ends up being an aggravator which puts defends attorney in a very difficult position. Do they raise or they present evidence about mental disability in the hopes that we mitigate it? Or do they not raise it out of fear, it will be treated as an aggravating circumstance? Any other questions? Okay, we'll take a break and we'll come back we'll talk about how the death penalty works in practice. [MUSIC]
