In legal terms, the sentence is the final act within a trial situation in which the judge, based on the law, or with the jury’s recommendation, passes a punishment in relation to the crime committed, again, under the basis of law. This punishment might be a monetary fine, community service, parole, restitution, imprisonment, or a combination of all. The concept goes back to Roman law, but has taken on many nuances through the history of Western European Jurisprudence.

Most legal scholars believe there are five major principals in sentencing, used y modern courts: 1) Retribution –the idea that justice is proportional to the crime; 2) Deterrence - holds that it is necessary to punish to deter others from committing the crime, but that punishment should be calculated again, based on the seriousness of said crime; 3) Denunciation- society’s grave and expressed disapproval of a crime or action, which is one of the purposes of sentencing; 4) Incapacitation - the Court’s responsibility to prevent, rather than deter, the future commission of a crime by this individual; and 5) Rehabilitation –through a variety of means, to return the offender to society after undergoing the means to change into a positive citizen. Within these principals, many factors are utilized to determine the particular sentence: 1) What punishment does the law require, usually a variable punishment; 2) What are the circumstances surrounding the crime (first time offender, passion, protection, self-defense, etc.); 3) What are the societal safety issues involved? 4) What overall purposes will the sentencing have? And 5) What was the recommendation of the Jury and or Prosecutor for this individual? (Branham, 2005).

Within the context of America’s criminal justice system, the idea of punishment is one of the most debatable issues surrounding the entire procedure. At the heart of that debate is the ultimate punishment – the State acting as executioner within the context of capital punishment. There are, of course, both positives and negatives surrounding the issue, and, with so many variables, not a concrete answer. It seems, however, that the nature of the topic, debatable as it is, may become an individual moral decision personally, but, at the governmental level a broader based, political firecracker. Sentencing, then, is designed to provide a legal finality of the punishment once a crime has been tried before a jury of peers (Banner, 2003).

The debate surrounding capital punishment is not as clear as one might think – in fact, there is a great deal of grey within this debate. The actual definition is State controlled taking of a human life in response to some crime committed by a person who was legally convicted of that crime (Bedau, 2005).

Arguments in favor of capital punishment fall into seven major areas. 1) Prison is designed for criminals who will eventually be released into society and are primarily to keep offenders away from the general population. If an offense is so grievous, it is unlikely that individual will be rehabilitated or set free, therefore capital punishment is a more effective way of removing this threat than prison. 2) The cost of keeping an offender in prison is far higher than executing that person. Should society actually have the burden of keeping someone alive who has no chance of ever being reintroduced into society. 3) The greater good of society requires that criminals of a certain type be kept away from people for a reason of safety. Taken with #2 above, executing the offender is a more logical way to keep the public safe. 4) Many believe capital punishment deters certain crimes, although there is no factual proof that this is true in countries that practice it. However, if a criminal knows that if a certain crime is committed, the State has the right to execute, will that criminal think twice about the crime? 5) Legal scholars, for centuries, have argued the biblical “eye for an eye” punishment – severe crime requires severe punishment. What is the most severe punishment if not execution? 6) Along with #5, isn’t capital punishment logical for someone who is a mass murderer themselves? 7) As illogical as it may seem, crimes such as the Manson murders, Jeffrey Dahlmer, etc. are so horrible that many in society believe revenge is the only way to justify the legal punishment of that person. (Mandery, 2004).

Some of the same reasons above can also be construed as arguments against capital punishment. 1) Prison may be a viable option, after all, isn’t it just punishment to lock someone away from society for their entire life? 2) Humane punishment – the execution of a person is not humane, regardless of the behavior of that individual. The humanity of execution is dependent upon societal mores and individual views; some cultures view killing in different manners. 3) If killing is wrong, how can killing for punishment be right? Two wrongs do not make a right. 4) Pain – Different cultures execute in different manners, and the concept of pain is different with each method. Certainly, death on the guillotine is different than death by lethal injection. 5) Capital Punishment violates a basic right to life – and can be seen as cruel and unusual, something banned by the Constitution. 6) What if, in the most extreme cases, a person is wrongly convicted and then executed? 7) Does society have the right to cause death? 8) Religiously, if a criminal is executed, then that individual has not religious way to find salvation and forgiveness. 8) Is there a place in society for forgiveness? 9) Can a criminal make amends or repair damage? If the State executes, this negates any damage repair (Haines, 1999).

In all actuality, all the arguments of both sides made sense – both philosophically and morally. Do we, as a society, really want to warehouse an individual who has committed such a heinous crime that we can never imagine letting them reenter society? But then, do we, by executing them, say that it is OK for the State to murder, but not an individual. By the same token, if a criminal kills, maims, or tortures dozens or hundreds of people, does that individual deserve to continue to live within society? Are we, as a society, acting in the best interests of society to completely remove these individuals from any chance of living – and, do the fiscal benefits outweigh the moral consequences (Zimring, 2004).

References:

Bedau, H. and P. Cassell, eds., (2005), Debating the Death Penalty: Should America

Have Capital Punishment? The Experts on Both Sides Make Their Case,

Oxford.

Branham, Lynn. (2005), The Law and Policy of Sentencing and Corrections, West.

Haines, H. (1999), Against Capital Punishment: The Anti-Death Penalty Movement

In America, 1972-1994, Oxford.

Mandery, E. (2004), Capital Punishment in America, A Balanced Explanation. Jones

and Bartlett.

Zimring, F. (2004), The Contradictions of American Capital Punishment,

Oxford.