The Death Penalty

By Alan Shapiro

To the Teacher:

In law or practice, 123 of the world's nations have outlawed the death penalty, according to Amnesty International (www.amnesty.org). No nation that retains it can join the European Union. The United States, though, continues to execute prisoners.

The pros and cons of the death penalty have been argued in the U.S. for a long time, but rather than reviewing them, the three student readings here aim to open up new avenues for discussion and inquiry. The first reading provides capsule accounts of two Supreme Court cases: the 1972 case resulted for a short time in the elimination of capital punishment; the 1976 case resumed it. The second reading covers two murder cases: In one, the death penalty was reversed and the prisoner was released; in the other a convicted killer avoided death when an Illinois governor decided to commute the sentences of all 157 men on death row in his state. The third reading considers two writers' views on the death penalty: one presents what he regards as the strongest argument for capital punishment; the other calls it a "uniquely American brand of sadism."

A concluding activity proposes student inquiry into the many reasons offered for and against capital punishment through an internet investigation and a "constructive controversy."

Other materials on this website that teachers might find useful in connection with the death penalty issue include: "Teaching on Controversial Issues," "Teaching Critical Thinking," and, "Thinking Critically About Internet Sources."

Student Reading 1:
Two Supreme Court cases


Furman v. Georgia, 1972:

While William Henry Furman was burglarizing a home, its owners entered and discovered him. When Furman tripped, his weapon fired accidentally and one of the homeowners was killed. Furman was captured, tried, and sentenced to death.

His case reached the U.S. Supreme Court, which decided to consolidate it with that of two rape cases, Jackson v. Georgia and Brown v. Texas. Juries in those cases were not required to give the death penalty, though they did, nor were they given specific criteria for how to judge the accused.

By a 7-2 decision, the Supreme Court ruled that in the three cases the penalties provided "cruel and unusual punishment" and were therefore in violation of the Eighth and Fourteenth Amendments to the Constitution. Justice Potter Stewart wrote: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual—they are capriciously, freakishly and wantonly imposed." He also stated: "The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embedded in our humanity."

For discussion

1. Do you agree with the Supreme Court ruling in Furman v. Georgia? Why or why not?

2. Consider Justice Stewart's comparison of the sentences to being struck by lightning. What is "cruel and unusual" about being struck by lightning? What is capricious and freakish about the three sentences of death? What makes the sentences "wantonly imposed"?

Gregg v. Georgia, 1976:

On November 1, 1973, Troy Gregg and Floyd Allen were hitchhiking north in Florida. Fred Simmons and Bob Moore picked them up. That night they made a rest stop. The bodies of Simmons and Moore were found in a ditch the next day. That afternoon Gregg and Allen, driving in Simmons' car, were stopped and arrested in Asheville, North Carolina. Police found a pistol in Gregg's pocket that was later proved to be the weapon that killed Simmons and Moore. Gregg admitted to the killings but said they were in self-defense.

Gregg and Allen were taken to the scene of the killings. Allen told detectives that Gregg had told him during the rest stop that he intended to rob Simmons and Moore. As they came up an embankment, Allen said, he shot and killed both Simmons and Moore. Allen said he and Gregg then took their victims' valuables and drove off in Simmons' car.

At his trial, Gregg again confessed to the killings, but continued to maintain that he had acted in self-defense. The jury found him guilty of first-degree murder and sentenced him to death. Gregg appealed his case to the Supreme Court on the grounds that the death penalty was "cruel and unusual punishment" and therefore a violation of the Eighth Amendment to the Constitution.

This time, also in a 7-2 decision, the Supreme Court ruled that the Gregg decision was not "cruel and unusual" and that in the four years between the two decisions, Georgia and other states had named 1) specific factors "to be weighed and the procedures to be followed in deciding when to impose a capital sentence" and 2) made "the death penalty mandatory for specified crimes."

Justice Potter Stewart stated: "Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment…the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty."

For discussion

1. Why did the Supreme Court find that the death penalty was not "cruel and unusual"?

2. What happened between 1972 and 1976 that produced a different Supreme Court ruling?

3. Does Justice Stewart contradict himself in the 1972 and 1976 rulings? If so, how? If not, why not?

Student Reading 2 :
Two Illinois murder cases

The Hobley Case

A fire in a Chicago apartment building took the lives of seven people on January 6, 1987. The husband and father of two of the victims, Madison Hobley, 26, escaped the flames, wearing underwear and no shoes. But two police detectives, Robert Dwyer and James Lotito, arrested Hobley the next day as the arsonist.

The police officers said that Hobley confessed to the crime. Hobley said that they beat, kicked, and suffocated him with a plastic cover to force him to confess.

At Hobley's 1990 trial, four police officers testified that Hobley had gone to a filling station with a can, bought $1 worth of gas, gone back to the apartment house, emptied the gas in a hallway and stairwell outside his apartment and ignited it. His motive, they said, was to have a new life with another woman. The officers said they had not abused Hobley.

There was no written record of Hobley's confession. Dwyer said he had taken notes but thrown them away after something was spilled on them. Two men claimed to have witnessed Hobley's gas purchase. One of them, the attendant, failed to recognize Hobley at a police lineup. The other, Andre Council, said he was only a few feet away when Hobley purchased the gas and was still at the gas station when fire engines raced by to the apartment house. The prosecution introduced into evidence a gas can it said Hobley used. He was sentenced to death.

The following year Hobley's lawyers brought before the U.S. Supreme Court evidence that the police had withheld forensic evidence that there were no fingerprints on the gas can. They also produced evidence that Council, the prosecution's chief witness, had himself been an arson suspect in a 1987 fire. In 1998, the Supreme Court ordered a further "evidentiary hearing." In an Illinois circuit court following this hearing, the judge ruled against Hobley, confirming the death sentence. (www.law.northwestern.edu)

For small-group discussion

Divide the class into groups of four to six students for a group go-around that ensures that they hear multiple points of view. Each student, in turn and without interruption, has a minute or two to respond to the following question:

Based on what you know of the facts of the Hobley case, do you support or oppose the death penalty for him?

Allow another five minutes or so of group discussion to see if students can reach consensus. A reporter should be named to summarize the group's decision(s) for the entire class. Afterwards, there might be further class discussion. For additional class consideration, the teacher might read the following:

Hobley's sentence was overturned thorugh an appeal to then Illinois Governor George Ryan on October 18, 2002. He ruled that Hobley had been "convicted on the basis of flawed evidence" and that "the jury did not have the benefit of all existing evidence, which would have served to exonerate him." Before he was released, Hobley had been in prison for 15 years. (www.law.northwestern.edu)

The Brisbon Case

On June 3, 1973, Henry Brisbon and three partners forced several cars off interstate highway I-57, south of Chicago. Brisbon made a woman remove her clothes, then shot and killed her. He also made a young couple lie down in a field together, ordered them to "make this your last kiss," and shot both in the back.

Brisbon was not caught. But years later when he was in a penitentiary for rape and armed robbery, he confessed the I-57 crimes to a fellow inmate. Because he committed them after the Supreme Court had declared capital punishment unconstitutional in 1972, Brisbon could not be sentenced to death. He was sentenced to one thousand to three thousand years, probably one of the longest prison terms ever imposed.

Less than a year later, Brisbon stabbed and killed another prisoner. In 1982, after Illinois reinstated the death penalty, he was sentenced to death following a court hearing that included proof that Brisbon had also shot and murdered a store clerk before his imprisonment. Brisbon has been repeatedly accused of assaults against prison guards, including another stabbing. He also threw a 30-pound weight against the skull of an inmate, severely wounding him. (Scott Thurow, "To Kill or Not to Kill," The New Yorker, 1/6/03

For small-group discussion

For the Brisbon case, you might follow the procedure suggested for class discussion in the Hobley case. After class discussion and for further consideration, you might read the following:

On January 12, 2003, Illinois Governor Ryan detailed his view that the capital punishment system in his state was "broken." His reasons included:

• a study showing that 51% of Illinois jurors could not understand the "confusing and obscure" sentencing instructions given by judges
• death sentence verdicts that were overturned after they were proved to be wrong
• the fact that most of those condemned to death suffered from mental instability, alcoholism, drug addiction and/or childhood abuse but that those with money and prestige rarely received such sentences
• the fact that poor prisoners were frequently represented by unqualified and inadequate lawyers

Governor Ryan concluded: "Our capital system is haunted by the demon of error-error in determining guilt, and error in determining who among the guilty deserves to die. Because of all these reasons, today I am commuting the death sentences of all death row inmates." (The Peoria Journal-Star Online,
www.pjstar.com/news/ssection/deathpenalty/speech/html.)

Most of the 157 prisoners whose sentences were commuted, including Brisbon, received life sentences without parole. Several men who had been sentenced to death have been exonerated. According to Scott Thurow, a member of Governor Ryan's commission appointed to recommend reforms of the Illinois capital-punishment system, they "had made dubious confessions, which appeared to have been coerced or even invented." Brisbon is being held in the "super-max" Tamms Correctional Center in Illinois.

By the end of 2005, there were 3,254 prisoners awaiting execution in U.S. prisons. In 2006 there were 53 executions in the U.S., 24 of them in Texas. Of these executions, 52 were by lethal injection, one by electrocution. Since 1976 and the reinstatement of the death penalty, Texas has executed 380 prisoners, far more than any other state. (U.S. Department of Justice, Office of Justice Programs: www.ojp.usdoj.gov/bjs/cp.html)

Student Reading 3:
Two Views of the Death Penalty

Scott Thurow, who has written novels about crimes and court cases, was appointed by Governor George Ryan of Illinois to recommend reforms for the state's capital punishment system. In "To Kill or Not to Kill" he discusses his reflections on the commission's work and his own feelings and conclusions. This article includes the following:

"The case for capital punishment that seemed strongest to me came from the people who claim the most direct benefit from an execution: the families and friends of murder victims. The commission heard from survivors in public hearings and in private sessions, and I learned a great deal in these meetings. Death brought on by a random element like disease or a tornado is easier for survivors to accept than the loss of a loved one through the conscious will of another human being. It was not clear to me at first what survivors hoped to gain from the death of a murderer, but certain themes emerged. Dora Larson has been a victims' rights advocate for nearly twenty years. In 1979, her ten-year-old daughter was kidnapped, raped, and strangled by a fifteen-year-old boy who then buried her in a grave he had dug three days earlier. 'Our biggest fear is that someday our child's or loved one's killer will be released,' she told the commission. 'We want these people off the streets so that others might be safe.'"

Hendrik Hertzberg is an editorial writer for The New Yorker. In an editorial, "Desolation Rows," for that magazine, 1/15/07, he comments on what many people saw as a botched and undignified hanging of Saddam Hussein and the concludes by turning to the death penalty in the U.S.:

"The death penalty remains lawful in thirty-eight states. Though its application has been suspended in ten of them,… none have abolished it in the thirty years since the Supreme Court reinstated it. Slightly more than three thousand people are locked in the death rows of the United States-a pungent number, given the tolls of 9/11 and of American forces in Iraq. And the fate of those who die strapped to our gurneys and electric chairs is crueler than Saddam Hussein's. He was hanged fifty-five days after he was sentenced, and the elapsed time between his transfer to Iraqi custody and his execution was forty minutes. In our country, the pattern is to be condemned in youth and executed in middle age. A person is sentenced, in effect, to an indefinite period of imprisonment—an average of between ten and twelve years, but often much longer—in conditions of constant anxiety and isolation, after which, at a year and date and time unknown he is taken from his cell and burned or poisoned to death. California's first judicial killing of 2006 disposed of a man who had been on death row for twenty-three years. Seventy-six years old, legally blind from diabetes, suffering from heart disease, he made the journey to the death chamber in a wheelchair. It is an irony, and not a nice one, that this uniquely American brand of sadism is a result of the obstacles that our justice system rightly demands be overcome before execution can take place….Capital punishment's worst affront is not to the dignity and humanity of the condemned. It is to the dignity and humanity of the polity that decrees it."

For discussion

1. What does Thurow regard as the strongest argument for the death penalty? How convincing is it to you?

2. What does he think makes death by a "random element" like a storm harder for survivors to accept than the murder of a loved one?

3. Why does Hertzberg regard capital punishment as a "uniquely American brand of sadism"? Do you agree? Why or why not?

4. How do you understand Hertzberg's final sentence?

Constructive Controversy

Constructive controversy is similar in some respects to the old debate model and offers a clearly structured plan for the study of a controversial issue. It emphasizes information-gathering, small-group work, and group consensus. It asks participants to prepare arguments from more than one point of view on issues for which there is no clear right or wrong answer — and for which at least two well-documented positions are available. It was developed by David and Roger Johnson. The following represents an adaptation of their work.

Before the session, tell students: The discussion topic is the death penalty. After discussing the three readings, you are familiar with some of the arguments, pro and con, and perhaps have begun to clarify your own views.

Assign students to groups of four and pairs within each group to opposite positions.

Assign each group the common goal of reaching a group consensus and presenting a group report after all differences of opinion have been thoroughly explored.

Review or teach the necessary collaborative skills:

• active listening skills, particularly paraphrasing and summarizing another's position
• civil expression of one's own arguments
• consensus-achieving skills, such as building on others' ideas

Steps in constructive controversy:

1. Reference work: Ask each student to spend a minimum of one hour doing internet reference work outside of class. Students should take notes on arguments supporting their own position on the issue.

2. Pairs discuss: In pairs, students compare notes on their findings and prepare arguments. They may consult with pairs from other teams.

3. Pairs challenge: Each side challenges the other side's arguments and presents the strongest case it can for the opposite side of the argument.

4. Reference work: Outside of class once again, each student spends a minimum of one hour doing reference work on the internet and taking notes on arguments supporting the opposite position for the one each took originally.

5. Pairs discuss: In pairs, students compare notes on their findings, consider the arguments made originally by the other pair and prepare arguments. Again, they may consult with pairs from other teams.

6. Group discussion: As a group of four, students decide which arguments are most valid from both sides and seek a statement, resolution, or synthesis. that incorporates the best thinking of the groups as a whole.

7. Group report: The group prepares a written or oral report for presentation to the class as a whole. If no agreement can be reached, they should prepare a minority report as well, and/or a report on areas of agreement and areas of continuing disagreement.

After the sessions:

• Reflect on what students think they have learned. Have them consider both substantive and process issues.
• Give special recognition to examples of creative synthesis of opposing positions.
• Have students set goals for improving their process next time.
  

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: ashapiro7@comcast.net.

Back to top