In the article, Against the American System of Capital Punishment, Jack Greenberg, a professor of Law at Columbia University, argues that the system of capital punishment that proponents of the death penalty idealize does not exist in America. To adhere to the moral principles of retribution and deterrence, prosecutors for those cases that warrant the death penalty would actually have to regularly seek and impose that penalty. For capital punishment to be a deterrent it cannot be an idle threat. The death sentence must be imposed on those that commit murder to follow the Kantain principle of retribution. In reality, the American system of capital punishment does not work this way. According to Greenberg:.
"This system violates the fundamental norms because it is haphazard and because it is regionally and racially biased." He adds, "the minuscule number of executions nowadays cannot achieve the grand moral aims that are presupposed by a serious societal commitment to retribution"(1).
For the same reasons he points out that the death penalty should be considered unconstitutional based on the fourteenth amendment provision for equal protection of the law. Because the goals of neutral administration of justice have not been met, the arguments of deterrence and retribution fail and Greenberg concludes that capital punishment is not justified.
The United States Constitution is based on the moral principle of equal justice to all. As it is now enforced it violates the Constitutional guarantee of equal protection, as well as due process of law to all. It has been proven that it is arbitrarily imposed. The arguments of deterrence and retribution are emotionally charged issues but I will show why I share Mr. Greenberg's view that the arguments cannot be justified under our current legal system.
1. Equal Justice.
In 1972, the Supreme Court declared the death penalty unconstitutional, in violation of the Eighth and the Fourteenth Amendments.