浅议李昌奎案件引起的死刑适用大争论

李昌奎案经云南省高级人民法院二审后,改判李昌奎死缓。消息一出,全国舆论哗然。该案引发了一场轰动全国的死刑适用大争论。在这场大争论中,法官认为"杀人偿命的陈旧观点也要改改了",公众则认为"杀人偿命,天经地义"。这场因李昌奎案引起的死刑适用大争论,对推动法治和正义深入人心,对促进我国的法制建设,将起到难以估量的重大意义,是一次难得的普法教育。     

论死刑的程序控制

死刑作为剥夺生命的刑罚,是所有刑罚手段中最严厉的一种。虽说人们对死刑应保留还是应废除尚有争议,但是,对死刑应予以控制,应慎重使用死刑,并尽可能地减少适用死刑,却是普遍被肯定的基本共识。而就控制死刑的方法来说,主要有两种,即刑事实体法的控制与刑事程序法的控制。所谓通过刑事实体法对死刑予以控制的方法,即以修改刑法规定的方式,如刑法减少可适用死刑的犯罪的种类,或对适用死刑增加各种各样的限制条件等,以达到慎用、少用死刑的目的。对死刑的刑事实体法的控制,是人们一直重视的控制方法,这种方法的控制效果也比较容易显现。例如,我国《刑法》经过(1997年)修改后,取消了     

the death penalty: An American history

Stuart Banner's thoughtful book, The Death Penalty: An American History (2002), serves as the basis of this review essay which explores the forces shaping the nation's experiences with capital punishment. The essay traces Banner's account of important death penalty developments throughout American history and examines justifications traditionally offered in support of capital punishment, issues of administration, and execution protocols. It concludes by projecting that, consistent with historical trends and nagged by serious and recurring administrative problems, the death penalty in America will in due course become a thing of the past.     

Confidence in the death penalty and support for its use: Exploring the value-expressive dimension of death penalty attitudes

Recent media and political attention has raised public awareness of a number of issues surrounding the death penalty. Questions regarding innocence, fair trials, and equitable access to counsel and the appellate process are ubiquitous in coverage of the death penalty. Adequate information about public attitudes toward the death penalty in light of these issues is currently lacking. In 2002, as part of the annual Texas Crime Poll, questions were asked about confidence in the administration of the death penalty, support for the death penalty, and support for a moratorium. The results indicate that, although a majority of respondents support the death penalty, a substantial proportion lack confidence in its use and support a moratorium on executions. Of those lacking confidence and those supporting a moratorium, strong majorities maintain support for the death penalty (68% and 73%, respectively). These findings suggest that death penalty attitudes may be largely value expressive.     

Dilemmas in administering the death penalty

This article critiques ethical arguments against conducting forensic evaluations of capital defendants or condemned prisoners and against treating prisoners found incompetent for execution, and considers the impact of widespread professional abstention on the legal system. It concludes that arguments for abstention by forensic evaluators are grounded mainly in personal moral scruples against capital punishment, rather than in tenets of professional ethics, but that abstention would be ethically required if the evaluator's scruples preclude objectivity. It also concludes that treatment of incompetent prisoners known to want treatment is ethically permissible but that treatment for the sole purpose of readying the prisoner for execution is not.Editor's note: Adversary Forum is edited by Gary B. Melton. Stan Brodsky was asked to respond to Professor Bonnie's article, and Professor Bonnie was given an opportunity to reply.This article is based on a paper presented as the Keynote Address to the Annual Meeting of the     

The juvenile death penalty and the Eighth Amendment

The present study investigated the Eighth Amendment tests of societal consensus and proportionality as applied to juvenile death penalties. A sample of former jurors (N=179) voted on whether to execute the defendant in a hypothetical case. Defendant's age (10, 15, 16, or 19) and level of remorse were varied. A large percentage of participants voted to execute the defendant in each condition, but the defendant's age and the participant's attitude toward juvenile culpability significantly predicted the likelihood of execution. Implications for the constitutionality of the juvenile death penalty and future research directions are discussed.     

The death penalty and the right to life

On the first anniversary of the killing of Osama Bin Laden, some reflection on the phenomenon of state-sponsored execution in an enlightened, civilised world seems appropriate. While this subject has an obvious international character, it also possesses some intriguing Irish and Northern Irish dimensions. In a wide ranging treatise, I examine how the rule of law has dealt with the death penalty at both the national and international levels, highlighting in particular the important influence of national constitutional laws in this sphere. I examine also the influence of the universally acknowledged right to life and the requirement of due process.     

The enduring racial divide in death penalty support

One of the more enduring observations in the study of death penalty support within the United States is the strong divide between Whites and Blacks. Whites show significantly higher levels of support for capital punishment than Blacks. This divide between Whites and Blacks appeared in all surveys, over time, and across a variety of methodological designs. Using data from three separate studies (two local surveys of venirepersons and the NORC-General Social Surveys), this study attempted to understand the basis for this divide. It examined racial differences in socioeconomic status, religion/religiosity, political ideology, positions on right-to-life and other social issues, fear of crime and victimization experience, experience with the criminal justice system, philosophies of punishment, and attribution styles. The findings revealed that the effect of race/ethnicity on capital punishment support continued to hold while controlling for the effects of nearly all of these “explanations.”     

The gender gap in death penalty support: An exploratory study

One of the more enduring observations in the study of death penalty support within the United States is the strong divide between males and females. Men have consistently shown significantly higher levels of support for capital punishment than women. This divide between males and females has appeared in nearly every survey, over time, and across a variety of methodological designs. Using data from the cumulative (1972-2002) data file for the National Opinion Research Center (NORC) General Social Surveys, this study attempted to understand the basis for this gender gap. It examined gender differences in socioeconomic status, gender inequality, gender socialization, religion/religiosity, political ideology, positions on right-to-life and other social issues, fear of crime and victimization experience, experience with the criminal justice system, philosophies of punishment, and attribution styles. The findings revealed that the effect of gender on capital punishment support continued to be robust despite controlling for the effects of all of these explanations.     

The lethal injection quandary: how medicine has dismantled the death penalty

On February 20, 2006, Michael Morales was hours away from execution in California when two anesthesiologists declined to participate in his lethal injection procedure, thereby halting all state executions. The events brought to the surface the long-running schism between law and medicine, raising the question of whether any beneficial connection between the professions ever existed in the execution context. History shows it seldom did. Decades of botched executions prove it. This Article examines how states ended up with such constitutionally vulnerable lethal injection procedures, suggesting that physician participation in executions, though looked upon with disdain, is more prevalent--and perhaps more necessary--than many would like to believe. The Article also reports the results of this author's unique nationwide study of lethal injection protocols and medical participation. The study demonstrates that states have continued to produce grossly inadequate protocols that severely restrict sufficient understanding of how executions are performed and heighten the likelihood of unconstitutionality. The analysis emphasizes in particular the utter lack of medical or scientific testing of lethal injection despite the early and continuous involvement of doctors but ongoing detachment of medical societies. Lastly, the Article discusses the legal developments that led up to the current rush of lethal injection lawsuits as well as the strong and rapid reverberations that followed, particularly with respect to medical involvement. This Article concludes with two recommendations. First, much like what occurred in this country when the first state switched to electrocution, there should be a nationwide study of proper lethal injection protocols. An independent commission consisting of a diverse group of qualified individuals, including medical personnel, should conduct a thorough assessment of lethal injection, especially the extent of physician participation. Second, this Article recommends that states take their execution procedures out of hiding. Such visibility would increase public scrutiny, thereby enhancing the likelihood of constitutional executions. By clarifying the standards used for determining what is constitutional in Baze v. Rees, the U.S. Supreme Court can then provide the kind of Eighth Amendment guidance states need to conduct humane lethal injections.     

The death penalty: Down but not out in the summer of '02

This paper discusses questions of borders, communities, and refugees through an examination of the work of film director Theo Angelopoulos, in particular his so‐called “Balkan trilogy,” which includes Eternity and a Day. In these films, Angelopoulos looks at the nature of borders and communities and at what they do to people in general and refugees in particular. I argue that the refugees cannot be placed in any straightforward fashion according to the logics of political sovereignty and national divisions. They are a heterogeneous excess from the constitution of borders and divisions, yet by making visible this heterogeneity, Angelopoulos shows the contingency of political and national borders. As a consequence, the critique of the injustices resulting from existing borders must start from what is heterogeneous to them. Only in this way is it possible to transform existing structures. However, this does not mean that politics should aim simply at the elimination of borders and exclusion. Rather, we must accept the ineradicability of borders and exclusion while contesting any particular ones.     

Public attitudes towards the death penalty

Responses to a general question regarding the use of the death penalty were compared with the sentences that respondents chose in a set of scenarios describing homicide cases. The percentage of respondents who assigned the death sentence in one or more of the following scenarios was higher than those who favored the death penalty in the abstract question, but there were inconsistencies in the answers. A majority assigned the death penalty only for the most heinous offender described, and the figures were lower for other crimes, even clear cases of first degree murder. At the same time, a manipulation involving information about methods of execution did not affect answers. These results strongly suggest that the abstract questions typically used in public opinion polls do not accurately reflect the public's feelings about use of the death penalty in specific cases. More generally, research on public opinion regarding criminal justice policies should survey a variety of specific circumstances.     

Making the movies real: The death penalty & local TV news

Media organizations, particularly the broadcast media, have become extremely important actors on the public stage over the last three decades. As a result, what the media chose to cover and how they chose to cover it is an important question. That is magnified when the media turn their attention to a public policy issue like the death penalty that already possesses profound social significance. In no other area of public policy can the state impose its will so completely and finally on an individual citizen. Therefore, the public should understand the issues that surround capital punishment. That understanding is virtually always communicated through media organizations because very few of us have first-hand knowledge of the death penalty. In this paper, I explore how television broadcast organizations cover the imposition of the death penalty. How did they carry it out? What themes did they convey? What did the public learn?     

Legislative note: the abolition of the death penalty for drug offenses in The Gambia

The Gambia, the smallest mainland country in Africa, is increasingly a transit point for illicit drug traffic between Latin America and Europe. As part of President Yayeh Jammeh’s attempts to crack down on this drug trade, in October 2010 the Gambian legislature passed a mandatory sentence of death for drug trafficking for persons possessing more than 250 grams of cocaine or heroin. The law was not constitutionally operable, however, because of Article 18(2) of the Gambian constitution, which forbids the death penalty for crimes other than aggravated or premeditated murder. Consequently, the death penalty for drug trafficking was abolished in April 2011.