Death penalty, also known as the capital punishment, has been one of the most controversial legal issues since the first federal execution took place on June 25, 1790. Its constitutionality is still widely debated today. One of the most debatable aspects of the death penalty issue is whether it violates the Fifth and the Eighth Amendments to the Constitution. The Fifth Amendment prescribes that no person shall
be deprived of life
without due process of law; the Eighth Amendment bans cruel and unusual punishment. Today, there is a large number of the Constitution interpretations with regards to the death penalty issue. I compared two interpretations of the Fifth and the Eight Amendments that reflect two different but not contradictory positions.
The article 'Death Penalty', which represents the first position, was taken from the Legal Information Institute`s online law encyclopedia. The article that represents the second position, '1,000 Executions: A Death Penalty Milestone' by Michael S. Greco, was published on the website of the American Bar Association. While Legal Information Institute stays neutral with regards to the death penalty, Greco claims that there are numerous cases where it violates the Constitution. Even though both articles feature very strong argumentation, the interpretation presented in 'Death Penalty' is more persuasive to the reader due to its systematic approach to the issue and constant reference to the text of the Amendments.
Greco`s article '1,000 Executions: A Death Penalty Milestone' focuses on the analysis of the ways the laws related to the death penalty are enforced. In his pragmatic interpretation, Greco provides an assessment of today's legal practices against the constitutional norms to determine their constitutionality
[...] Even though some state courts still use other methods of execution, one of the most common methods is the lethal injection. In the case Baze v. Rees (07-5439) in 2008, the Supreme Court held that “lethal injection did not constitute a cruel or unusual punishment” as it was believed before and, therefore, is constitutional. Finally, the intention of the Eighth Amendment`s authors, according to Legal Information Institute, was to identify the group of people for whom the death penalty presents a cruel and excessive punishment due to their mental or other health condition or age related limitation. In Atkins v. [...]
[...] Holding that excessive punishment is not required by law and cruelty is not a part of the legal prosecution, Greco`s article expresses opposition to indiscriminate application of the death penalty as a violation of the Eighth Amendment. Describing the capital punishment as unjust and cruel in many cases, it offers the reader an anti death penalty insight. Unlike Greco`s article, Legal Information Institute in its historicist interpretation informs that all the states have been given the authority to use the death penalty as a punishment for the most serious offences because Supreme Court has ruled that the death penalty is not a per se [sic] violation of the Eighth Amendment`s ban on cruel and unusual punishment But at the same time, as Legal Information Institute emphasizes in its pragmatic interpretation, the Eighth Amendment imposes certain regulations regarding the procedural requirements. [...]
[...] As it has been shown through analyzing historicist, pragmatic and formalist interpretations, both articles provide a comprehensive insight into the issue of conformity of the death penalty with the Constitution. But the same text of the Fifth and the Eighth Amendments led them to different understanding of the purpose of the Constitution`s creators. Both authors emphasize that the Constitution is designed to guarantee to every person presumption of innocence, protection of individual rights, fair and impartial (i.e. due) legal proceeding, and a just punishment in case if a crime has been committed. [...]
[...] At the same time, there are states that do allow execution of rapists which may be unconstitutional because in this case the punishment becomes cruel and excessive, and thus violates the Eighth Amendment. The principle of individualizing sentencing in its pragmatic and historicist interpretations of the Fifth Amendment, that requires due process of before death sentence can be imposed, means that impose a death sentence, the jury must be guided by the particular circumstances of the criminal, and the court must have conducted an individualizing sentencing process” (“Death Penalty”). In the case 2002 Ring v. [...]
[...] The language used in the articles also indicates that their authors` positions with regards to the constitutionality of the death penalty differ, showing the strengths and the weaknesses of each interpretation. The language used by the Legal Information Institute is adequate for the informative and explanatory purpose of the article. The author`s vocabulary is mostly neutral and features legal terms, like “capital crimes”, “aggravating facts”, “standards of decency”, “offence`s gravity”, “jurisdiction” and others. The article is structured in the way that makes it clear to the reader what issues related to the death penalty the author considers the most important in terms of their constitutionality. [...]
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