(in Opposition to the Death Penalty: Arbitrariness and Discrimination, 2004). While death penalty opponents cite the fact that an Alabama woman whose attorney was so drunk during her trial that the trial judge held him in contempt had her death sentence upheld by the Alabama Supreme Court as a reason to abolish the death penalty, that same incident could just as easily be used as a reason to overhaul the legal system, not abolish capital punishment (the Lack of Competent Legal Counsel, 2004). One of the most controversial arguments regarding the death penalty is that the imposition of the death penalty is a violation of human rights. Opponents of the death penalty cite the very "different"-ness of death as a reason that it should not be used as a punishment. Furthermore, they argue that murder, whether by an individual or by the state, is morally wrong, and that society debases itself when it resorts to murder as a means of punishment.

To support the arguments that the death penalty is a violation of human rights, death penalty opponents demonstrate that the death penalty has traditionally been used on society's most vulnerable members. As previously noted, the minorities and the poor are disproportionately represented on the nation's death rows. In addition, the death penalty has historically been imposed on people who are legally incompetent due to mental illness or mental retardation.

Death penalty proponents argue that those deficiencies have been remedied by recent Supreme Court decisions. In Atkins v. Virginia, 536 U.S. 304 (2002), the U.S. Supreme Court determined that executing the mentally retarded is unconstitutional.

However, opponents of the death penalty can point out the fact that many states have failed to comply with the Atkins decision. Even though there is evidence that many people currently on death row are mentally retarded, some states have failed to institute any way of determining whether or not inmates currently on death row are mentally retarded. (Mental Retardation, 2004). The fact is that mild mental retardation may not be apparent to the casual observer, including trial judges. Furthermore, it is these defendants that are among the least able to exercise the right to participate meaningfully in their own defense. However, the proponents of the death penalty can correctly point out that these issues, similar to issues of race and class discrimination, exist throughout the criminal justice system and that the problem is not with capital punishment, but with the justice system, itself.

In addition to the mentally retarded, opponents of the death penalty believe that execution of the mentally ill demonstrates how the death penalty violates human rights. The strict requirements that most states have for insanity defenses makes such a plea unavailable to even those defendants that are mentally ill. While mental illness may not be severe enough to prevent a criminal from being legally liable for his crime, mental illness can hinder a defendant's ability to participate in his own defense. At this time, the Supreme Court has not outlawed the execution of the mentally ill. However, unlike mental retardation, mental illness can oftentimes be treated and managed. Furthermore, the presence of mental illness does not mean that a defendant is necessarily unable to participate in his own defense. The proponents of the death penalty can also point out that there is an additional safeguard for the mentally ill; even those who do not qualify for an insanity defense can demonstrate that they are insane at the time of trial. In that situation, they cannot be tried, therefore they cannot be executed.

Finally, opponents and proponents of capital punishment argue over the morality of the death penalty. At the heart of this controversy is a debate over the role of the criminal justice system. According to the opponents of the death penalty, the criminal justice system exists in order to punish offenses, prevent future criminal acts by the defendant, and deter future acts by others. An additional goal of the criminal justice system may be the rehabilitation of the offender. In crimes and at punishing the offender. In addition, the imposition of a death sentence eliminates the possibility of rehabilitation.
In contrast, the proponents of the death penalty believe that the victims and their families are entitled to retribution. They do not deny the claim that death is different, but believe that some crimes are so egregious that they deserve the ultimate punishment. They believe it is unfair to the families of murder victims to protect a murderer's right to life, when that murderer disregarded the victim's right to life.

These differing belief systems strike at the heart of the debate over the death penalty: the issue of morality. Both sides believe that there position is not only morally justified, but morally mandated. For those who support capital punishment, it is society's moral obligation and duty to punish the most heinous of offenders with the ultimate punishment. These people advocate the concept of an eye for an eye, and find support for those beliefs in almost every major religion, as well as in the history of death penalty jurisprudence. In contrast, the opponents of the death penalty believe that any taking of a human life is murder, whether the actor is an individual or the state. These people do not trivialize the murders or their impact, but make the point that society is morally obligated to act in a better manner than its most scorned members. Like the proponents of the death penalty, its opponents can find support for their position in almost every major world religion.

Regardless of one's position on the death penalty, it is clear that both sides of the debate have valid points. There is an unacceptable amount of discrimination at all levels of the criminal justice system, which needs to be fixed to ensure Equal Protection. However, those points are mostly irrelevant; when people discuss the death penalty, they talk about the way it is applied in America instead of talking about whether the death penalty is ever appropriate. Death is different, and the real question is whether the most heinous of crimes deserves the most heinous of punishments.

References

Atkins v. Virginia, 536 U.S. 304 (2002).

Blume, J., T. Eisenberg, and S. Johnson. 1998. "Symposium: Post-McCleskey racial discrimination claims in capital cases. Cornell Law Review. 1771-1810.

Furman v. Georgia, 408 U.S. 153 (1972).

Green, M. (2005). History of the death penalty & recent developments. Retrieved May 3, 2005 from Focus on the Death Penalty. Web site: http://justice.uaa.alaska.edu/death/history.html

In Opposition to the Death Penalty: Arbitrariness and Discrimination. (2004). Retrieved May

3, 2005 from Michigan State University Comm Tech Lab and Death Penalty Information Center

Web site: http://www.deathpenaltyinfo.msu.edu/c/about/arguments/argument4a.htm

In Opposition to the Death Penalty: Deterrence. (2004). Retrieved May 3, 2005 from Michigan

State University Comm Tech Lab and Death Penalty Information Center

Web site: http://www.deathpenaltyinfo.msu.edu/c/about/arguments/argument1b.htm.

In Opposition to the Death Penalty: Innocence. (2004). Retrieved May 3, 2005 Michigan State

University Comm Tech Lab and Death Penalty Information Center Web site: http://www.deathpenaltyinfo.msu.edu/c/about/arguments/argument3a.htm.

King, L. (Translator, 1997). Hammurabi's code of laws. Retrieved May 3, 2005 from Exploring Ancient World Cultures

Web site: http://eawc.evansville.edu/anthology/hammurabi.htm

The Lack of Competent Legal Counsel. 2004. Retrieved May 3, 2005 from Criminal Justice

Reform Education Fund Web site: http://justice.policy.net/cjedfund/wrong

Mental Retardation and the Death Penalty. (2004). Retrieved May 3, 2005 from Death Penalty

Information Web Site: http://www.deathpenaltyinfo.org/article.php?scid=28&did=176

Roberts v. Louisiana, 428 U.S. 325 (1976).

Scattered Justice: Geographic Disparities of the Death Penalty. (2004). Retrieved May 3, 2005 from American Civil Liberties Union

Web site: http://www.aclu.org/DeathPenalty.cfm?ID=15182&c=62

U.S. Const. amend. V. Retrieved May 3, 2005 from the National Archives Experience

Web site: http://www.archives.gov/national_archives_experience/charters / bill_of_rights_transcript.html

Woodson v. North Carolina, 428 U.S. 280 (1976).