Blog

The Use of the Death Penalty at the Federal Level

By Carlos V. Martinez

1. What was the sub-topic you chose? How did you expect to see law and society interacting in terms of this issue?

For the sub-topic of the death penalty, I chose to pursue the concept of the use of the death penalty at the federal level. My expectations for this topic’s interaction with law and society were to see the differences of its use (if any) between the federal government and state governments.

• What was one example of law you identified relating to this sub-topic?

One example of law I identified relating to the use of the death penalty at the federal level was Attorney General Barr directing the Federal Bureau of Prisons to adopt an addendum in regards to “the Federal Execution Protocol and Schedule the Executions of Five Death-Row Inmates Convicted of Murdering Children” (U.S. Department of Justice, 2019).

1. Where is the law coming from? Is it a city/state/federal law, a court opinion, an agency regulation, a police directive, etc?

With this coming from the Attorney General William Barr, this decision is hailing from the federal level.

• What is one social force that you think has shaped the law? In other words, to which social pressures do you think this law is responding?

It can be argued that the social force that shaped this law would be the force of closure for the victims’ families, “‘We owe it to the victims and their families to carry forward the sentence imposed by our justice system,’ Barr said” (Williams and Arkin, 2019).

• What is a social consequence of this law? Is it combatting or advancing inequality? Is it shaping a social category or identity? Is it affecting the rights of individuals or groups?

From this decision, Inmate’s 8^th amendment rights are in jeopardy. As the 8^th amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (Legal Information Institute, 1992). In 1972 the Supreme Court ruled the death penalty as unconstitutional. In Furman v. Georgia, a split 5-4 Supreme Court ruled that the use of the death penalty was unconstitutional in three cases, with the following brief being provided. ““The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings…” (Bomboy, 2019).

• We have read about many kinds of relationships between law and society in this course. Which kind of relationship might this law represent?

The relationship between law and society best represented by this law is found from chapter 2 of Calavita’s writing. In this chapter, Calavita describes how as society progressed from having laws dealing with people having certain statuses to being treated as “…individuals with certain rights, obligations and contracts” (Calavita, 12). Looking at the matter of the death penalty, the ruling in 1972 showed a sign of progression, taking an individual’s rights (in this case their 8^th amendment right) and taking that into consideration. However, with the recent move made by Attorney General Barr, there could be a regression happening in this relationship.

Works Cited

Bomboy, Scott. “On This Day, Supreme Court Temporarily Finds Death Penalty Unconstitutional.” National Constitution Center – Constitutioncenter.org, 29 June 2019, constitutioncenter.org/blog/on-this-day-supreme-court-temporarily-finds-death-penalty-unconstitutional.

“Eighth Amendment.” Legal Information Institute, Legal Information Institute, 1992, http://www.law.cornell.edu/constitution/eighth_amendment.

U.S. Department of Justice. “Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse.” The United States Department of Justice, 25 July 2019, http://www.justice.gov/opa/pr/federal-government-resume-capital-punishment-after-nearly-two-decade-lapse.

Williams, Pete, and Daniel Arkin. “AG Barr Orders Reinstatement of the Federal Death Penalty.” NBCNews.com, NBCUniversal News Group, 25 July 2019, http://www.nbcnews.com/politics/justice-department/ag-barr-orders-reinstatement-federal-death-penalty-n1034451.

The Prohibition of the Death Penalty against the Intellectually Handicapped

By Han Quach

1. Subtopic: Laws that narrow down the applicable cases for states to impose the death penalty.

How law and society interacts:

Law’s Effects on Society:

• Law recognizes that it is cruel and unusual to sentence the death penalty for the mentally challenged, but provides the states, or society, the ability to decide on the standard at which one is deemed “mentally challenged” (Amos)
• Law recognizes that mentally challenged offenders are less culpable than average criminals therefore belong in a separate group (“ATKINS v. VIRGINIA.” Cornell)
• Increase society’s, or judges’ and jury’s, analyzation of offender’s childhood behaviors, school and court records, current demeanor, interviews with those who knew the offender, and IQ to determine whether one is criminally insane instead of depending on psychiatrists’ expertise (Cornell)
• Provide relief for family members and friends of offenders when the death penalty is not an option, and prevent guilt from families and friends of victims because death penalty often does not uphold social justice, bring closure or provide peace and healing (“Families”)

Society’s Effect on Law

• Society deems who is mentally challenged by comparing offenders’ IQ to the average IQ in society (“Atkins v. Virginia.” APA)
• Society’s morale is reflected on the law when they deem the offenses of the mentally challenged are not proportional to the punishment, unlike the average offender 

2. An example: Atkins v. Virginia (2002) – mentally handicap lessens the severity of the crime, therefore the extreme punishment by death is disproportionate (“Atkins v. Virginia.” Oyez)

1. This law is from a Supreme Court ruling, 6-3
   
   A social force that shaped the law?
   
   The mental health community advocated for the equality of the mental handicapped. The social pressure to alleviate the punishment for the more vulnerable and with less socially adaptive abilities comes from the morale that the weak should be protected if they cannot protect themselves (“Severe”)
   
2. Social consequences of this law?

• Heavy reliance on IQ to determine intelligence
• Deeper consideration of offender’s history – Troubled history are deemed more likely to correlate with a profile of the criminally insane because they also come with trouble with fitting in society and maintaining relationships which increase likeliness to commit crimes (Rueve)
• Increase public’s awareness about the death sentences of the affected mentally ill offenders (NAMI)

3. Consequences of this law?

This combats the inequality of death sentences of those who do not comprehend and react to situations the same way most average people would in the same circumstances.

This shapes the social category or identity of the mentally ill by suggesting that the offender’s illness can be determined by interviews of people who knew them, school records, court records of current and past convictions, childhood behaviors, current demeanor, and IQ (Cornell). This allows the states to determine the requirements and who fits the requirement (Cornell).

This advances the rights of the mentally challenged by decreasing the severity of their worst punishment when they cannot help how they react to situations, but encourages the public to determine the severity of one’s illness instead of relying on professionals’ opinions

4. The relationship between this law and society?

The law is the product of society. Society’s values and norms create the law in which the people in the society live by (Friedman, 15). Consequently, the law affects the way people live and think. Societal values have determined that the criminally insane do not deserve the death penalty compared to other criminals because of their handicap. Therefore, this value has been reflected in the law to demonstrate evolved standards of decency in society. Then the law allows society to try to fit or prevent people from fitting into the profile that society has deemed as “criminally insane” (Matusiak)

 “Atkins v. Virginia.” American Psychological Association, APA, 1 Nov. 2002, https://www.apa.org/about/offices/ogc/amicus/atkins.

“ATKINS v. VIRGINIA.” Legal Information Institute, Cornell Law, 20 June 2002, https://www.law.cornell.edu/supremecourt/text/536/304.

”Atkins v. Virginia.” Oyez, www.oyez.org/cases/2001/00-8452. Accessed 2 Dec. 2019.

 “Families of Murder Victims Speak Out Against the Death Penalty.” ACLU of Northern CA, ACLU of Northern CA, 22 Oct. 2014, https://www.aclunc.org/article/families-murder-victims-speak-out-against-death-penalty.

“Severe Mental Illness & the Death Penalty.” The Equitas Project, 6 Dec. 2016, https://www.equitasproject.org/severe-mental-illness-the-death-penalty/.

Amos, Brooke. “Atkins v. Virginia: Analyzing the Correct Standard and Examination Practices to Use When Determining Mental Retardation.” Gale OneFile, University of Iowa, 22 Mar. 2011, https://go-gale-com.offcampus.lib.washington.edu/ps/i.do?p=LT&u=wash_main&id=GALE|A258439648&v=2.1&it=r.

Matusiak, Matthew C., et al. “The Progression of ‘Evolving Standards of Decency’ in U.S. Supreme Court Decisions.” Research Gate, Criminal Justice Review, Aug. 2014, https://www.researchgate.net/publication/273820410_The_Progression_of_Evolving_Standards_of_Decency_in_US_Supreme_Court_Decisions.

NAMI. “Tennessee Legislative Priorities” https://namitn.org/wp-content/uploads/2019/03/Legislative-Priorities-glossy.pdf

Rueve, Marie E, and Randon S Welton. “Violence and mental illness.” Psychiatry (Edgmont (Pa. : Township)) vol. 5,5 (2008): 34-48.

Forms of Capital Punishment

By Jessica Andrews

1. What was the sub-topic you chose? How did you expect to see law and society interacting in terms of this issue?

There are multiple forms of capital punishment that are legal across the United States, but the primary is that of lethal injection. Every state where capital punishment is legal has lethal injection as the primary with some states having secondary methods such as hanging. I expect this to start to change due to complications with the original three step injection process, as well as difficulties with obtaining the necessary drugs. There have already been a number of cases questioning the humanness of lethal injection. Botched attempts have caused prolonged and painful deaths on multiple occasions. (Horne, 2017)

• What was one example of law you identified relating to this sub-topic?

The Governor of Ohio giving temporary reprieve to Warren Henness.

1. Where is the law coming from? Is it a city/state/federal law, a court opinion, an agency regulation, a police directive, etc?

The Governor of Ohio halted in execution of an inmate due to a judicial ruling about the cocktail of lethal injection drugs. Judge Michael Merz found that Ohio’s 3 drug system was, “very likely cause him severe pain and needless suffering.” Specifically, the court found that “midazolam at any dosage level has no analgesic properties” and “cannot prevent the pain incident to the second and third drugs from reaching the brain of the condemned inmate.” However, the execution was allowed to continue at the time due to a 2015 Supreme Court decision, that essentially says if there is no alternative method readily available then they can proceed with the lethal injection. (T.L.I.I.C., 2019)

• What is one social force that you think has shaped the law? In other words, to which social pressures do you think this law is responding?

The media covering the details of the botched executions and human rights groups lobbying against cruel and unusual punishment are both huge influences on the population and the courts. The only company in the US allowed to make one of the major drugs ceased all production due to a global campaign by death penalty opponents.  Many other companies who produce the drugs don’t want them being used in execution. (Horne, 2017)

• What is a social consequence of this law? Is it combatting or advancing inequality? Is it shaping a social category or identity? Is it affecting the rights of individuals or groups?

The social consequence of allowing executions to continue with unproven drugs is drastic. With executions, and prison sentences already shown to be negative towards minorities, it means these decisions will impact them more. It’s saying that these individuals are not worthy of the same rights as other citizens, it is saying they are subject to cruel and unusual punishment.

• We have read about many kinds of relationships between law and society in this course. Which kind of relationship might this law represent?

This seems like a relationship or more so a conflict between law and individual rights. A state level judge ruled a process was unjust, the governor agreed, but the federal law at the time had more precedent. Prisoners and advocates against the death penalty are working state by state to change the laws so that the federal does not take precedent over them. These individuals are pursuing their 8^th amendment rights or as Neilsen says, “name, blame, claim” (68).

Sources

Sarat, A. (2004). The Blackwell companion to law and society. Malden, MA: Blackwell Pub.

The Lethal Injection Information Center: Ohio Governor issues reprieve to death row inmate due to concerns about execution drugs; orders review of lethal injection drug protocol. (2019, Januaury 25). Retrieved from https://lethalinjectioninfo.org/ohio-governor-issues-reprieve-to-death-row-inmate-due-to-concerns-about-execution-drugs-orders-review-of-lethal-injection-drug-protocol/.

Horne, J. (2017, July). Lethal Injection Drug Shortage. Retrieved from https://www.csg.org/pubs/capitolideas/enews/issue65_4.aspx.

Is Lethal Injection Humane?

By Jessica Andrews

1. What is one organization, campaign, social movement, or even just op-ed article that advocates for a change in a law related to your sub-topic? Note that it does not have to be the same law about which you wrote in your first essay.

Amnesty international is a human rights organization that is also against the death penalty, but they work internationally not just in the United States. Recently, with the issues with botched executions, other groups like this have been coming forward trying to get rid of the death penalty completely. (AI 2019)                                                                                                                          

1. What is the law at issue?

Lethal injection and the humaneness of this form of execution. Has been cited as being cruel and unusual punishment when inmates have not passed quickly or painlessly.

• What is the change being advocated? Is a new law being demanded? Is there a request for better enforcement (or no enforcement)? Is there a critique of the inequalities the law creates? Is there a demand for some kind of rights?

The change is being made federally. The U.S. Attorney General announced that federal prisoners will start being executed again and that lethal injection will now be completed with only one drug now. (Bates 2019) The previous drugs often caused prolong deaths, but since 2010 multiple states have used the drug pentobarbital in a total 200 executions, and all 200 are apparently in line with the 8^th amendment. (Bates 2019)

• Who is asking for the change and how do they relate to the law and the underlying topic? Is it an individual or an organization? 

Mostly it is organizations that are anti-death penalty. A survey arranged by the Pew Research center shows that 54% of Americans are still in favor of the death penalty while only 39% oppose it. (Bates 2019) Reports of inmates who have experienced botched executions has come out and those have influenced the public by showing how cruel it can be.

• What techniques are being used to argue for a change in law? Are they using legal leveraging? Is it a name-blame-claim situation? Or something else?

Amnesty international uses a letter writing campaign to try and influence policy makers. They also lobby governments as a whole to adopt more human rights legislation. (AI 2019)

• What theory of the relationship between law and society are these change agents using? In other words, what do they think should be the relationship between law and society?

They seem to operate on the idea that law should be shaped around unwavering human rights. That no matter what an individual has done they still have basic entitlements for being human, one of those is not being murdered by their own government. The basis of this beliefs system in in capitalist law, “Once entrenched, capitalist law—with its principles of private property, free contract, and individual rights— came to be seen as part of the natural order of things.” (Calavita 18) While a pedophile continuing to live and reintegrate back into society may not be what is best for society, as a human they have the right to life.

Calavita, K. (2016). Invitation to law & society: an introduction to the study of real law. Chicago: The University of Chicago Press.

https://time.com/5636513/pentobarbital-executions-justice-department/

https://www.amnesty.org/en/what-we-do/death-penalty/

Death Penalty Reform of 1972

by Carlos V. Martinez

1. What is one organization, campaign, social movement, or even just op-ed article that advocates for a change in a law related to your sub-topic? Note that it does not have to be the same law about which you wrote in your first essay.
   1. What is the law at issue?

The law at issue in this instance is the Death Penalty and the 1972 ruling found by the United States Supreme Court as unconstitutional.

• What is the change being advocated? Is a new law being demanded? Is there a request for better enforcement (or no enforcement)? Is there a critique of the inequalities the law creates? Is there a demand for some kind of rights?

The change being advocated was the repealing of the use of the Death Penalty in 1972 by the United States Supreme Court, “In Furman v. Georgia (1972), the Supreme Court ruled that the death penalty systems currently in place were unconstitutional violations of the Eighth Amendment’s prohibition on ‘cruel and unusual’ punishments. The Court noted that there were no rational, objective standards for when the death penalty would be given. Justice Potter Stewart described the death penalty system at the time as ‘cruel and unusual in the same way that being struck by lightning is cruel and unusual.’ In other words, it was not the death penalty itself that was unconstitutional, but rather, the random way it was applied made it cruel and unusual. A moratorium, or temporary ban, of the death penalty went into effect in the United States. In response to the decision, 35 states changed their death penalty systems in order to comply with the Court’s ruling

” (Bill of Rights Institute, 2019). To illustrate, the Supreme Court saw that the Death Penalty was too severe of a punishment and found it to be in violation of an individual’s Eighth Amendment rights.

• Who is asking for the change and how do they relate to the law and the underlying topic? Is it an individual or an organization? 

In 1976, four years after the Supreme Court banning the Death Penalty, the court “approved these discretionary guidelines in Gregg v. Georgia, Jurek v. Texas, and Proffitt v. Florida, collectively referred to as the Gregg decision. This landmark decision held that the new death penalty statutes in Florida, Georgia, and Texas were constitutional, thus reinstating the death penalty in those states. Additionally, the Court maintained that the death penalty itself was constitutional under the Eighth Amendment” (FindLaw Writing Team, 2019). By changing the prior policies they had set in place for the use of the Death Penalty to be more in favor the Supreme Court’s opinion, Florida, Georgia, and Texas were able to have it reinstated in their states.

• What techniques are being used to argue for a change in law? Are they using legal leveraging? Is it a name-blame-claim situation? Or something else?

The technique used by the three aforementioned states was nothing terribly elaborate. What they did was simply change their policies to be more in line with what the Supreme Court would find to be morally acceptable or constitutional.

• What theory of the relationship between law and society are these change agents using? In other words, what do they think should be the relationship between law and society?

To me, I believe that the states interpreted the change enforced by the Supreme Court as means for a new collective action to take place. In our reading Law in America: A Short History by Lawrence M. Friedman, he writes “ Law is above all, collective action: action through and by a government” (Friedman, 4). In this instance, the states Texas, Georgia, and Florida, as their own state governments, collectively worked together to create new policies for the use of the Death Penalty that the Supreme Court found suitable.

Works Cited

FindLaw Writing Team. “Reinstatement of the Death Penalty.” Findlaw, 2019, criminal.findlaw.com/criminal-procedure/reinstatement-of-the-death-penalty.html.

“Gregg v. Georgia (1976).” Bill of Rights Institute, 2019, billofrightsinstitute.org/educate/educator-resources/lessons-plans/landmark-supreme-court-cases-elessons/gregg-v-georgia-1962/.

Against the Use of the Bright-line Cutt-off of IQ Test Score of 70

By Han Quach

1. What is one organization that advocates for a change in a law related to the topic?

The American Association on Intellectual and Developmental Disabilities (AAIDD) has advocated for progressive policies and universal human rights for those mental disabilities (“About”).

1. The issue?
    AAIDD targeted was the Supreme Court decision in Atkins v. Virginia which ruled that executing someone with an intellectual disability is a violation of the 8^th Amendment (prohibit cruel and unusual punishment), states can determine their own guidelines for death penalty eligibility, and the IQ test score of 70 is the bright-line cutoff for determining intellectual disability (Polloway)
2. The change being advocated for?
   AAIDD critiqued the inequalities that individuals with intellectual disabilities have to face due to the states’ dependence on IQ test scores to decide one’s eligibility for the death penalty because according to their guidelines, 70 is an estimated score but it is not a definite threshold (Ellis). There are other criteria that need to be considered such as one’s deficits in adaptive behavior, functioning intelligence in everyday life, and there must be a display of intellectual disability before the age of 18. AAIDD demanded the court to acknowledge that IQ test scores do not give a holistic view of one’s intelligence. This supports individuals’ rights to use witnesses, experts’ diagnoses and testimony to verify their disorder in addition to IQ, instead of depending on IQ scores alone. 
3. Who is asking for the change? AAIDD was founded in 1876 and is the oldest professional association focused on intellectual and developmental disabilities (“A”). AAIDD advocates for the equality, dignity, and human rights of people with intellectual and developmental disabilities, and for their inclusion in society.

The organization relate law to the inequality towards people with mental disability by IQ test scores by targeting the decision that allowed states to depend on IQ as a threshold for death penalty eligibility (Stout). The decision is Atkins v. Virginia continued the legitimization that an IQ score of 70 was qualified to be classified as “mentally disable”. However, by using advocacy to raise awareness, also expert research and opinions to legitimize the evasiveness of IQ test scores helped convince the Supreme Court. Their decision protects inmates with IQ test scores higher than 70 to be protected from the death penalty.

2. What techniques are being used to argue for a change in law?

• Communicating positions on important issues through position statements and endorsing the work of others
• Submitting Amicus Curie briefs to the US Supreme Court and others
• Commenting on draft legislation, proposed rule-making, and other federal activities
• Participating in the work of the Consortium for Citizens with Disabilities (CCD)
• Contributing to the popular press & social media on disability issues
• Sponsoring educational activities, such as the annual Disability Policy Seminar (“News”)

3. What theory of the relationship between law and society? Their participation highlights the inequality towards mentally challenged individuals with IQ test scores above 70 and win favorable media attention (McCann). This is an effort to generate responsiveness to policy demands by the court. Their contribution pushes the pubic to emphasize with the inmates and implies that the law is unethical. Therefore, the law is then more likely to side with public’s majority opinion to create more progressive policies in order to not appear unethical. In this case, the organizers are depending on society’s opinion to influence the court’s decision to change the law.

“About Us.” AAIDD, 2019, https://www.aaidd.org/about-aaidd.

Polloway, Edward A. The Death Penalty and Intellectual Disability. AAIDD, 2015.

Ellis, James W., et al. “Brief of Amici Curiae, The American Association on Intellectual and Developmental Disabilities (AAIDD), and The ARC of the United States, In Support of Petitioner.” UNM Digital Repository, University of New Mexico – School of Law, 4 Aug. 2016, https://digitalrepository.unm.edu/law_facultyscholarship/447/.

“A.” AUCD, 2011, https://www.aucd.org/resources/dictionary.cfm?letter=A.

Stout, David. “Supreme Court Bars Executing the Mentally Retarded.” The New York Times, The New York Times Company, 20 June 2002, https://www.nytimes.com/2002/06/20/national/supreme-court-bars-executing-the-mentally-retarded.html.

“News & Policy.” AAIDD, 2019, https://www.aaidd.org/news-policy.

The Movement Against Death Penalty Part 1

By Lin Zhou (Coco)

What was the sub-topic you chose? How did you expect to see law and society interacting in terms of this issue?

The subtopic that has been selected is “the movement on death penalty”. This movement has taken the stance of offering second chances to the poor, criminals, orphans rather than passing a death sentence. 

What was one example of law you identified relating to this sub-topic?

Where is the law coming from? Is it a city/state/federal law, a court opinion, an agency regulation, a police directive, etc?

The death sentence is founded on both federal and state laws. Each state is allowed to make its own rules on capital punishment.  There are specific crimes that are federally punishable by death. However, most states have developed valid death penalty statutes that include other additional crimes. Many countries around the world such as in Europe have grown indifferent from the death penalty. Many have abolished the practice on varying reasons. The main opposition has presented death penalty as an inhumane form of punishment. Society and this law are interaction unfavorably. When a law punishes by death, it risks upholding views of brutality while failing to abide by the constitutional commitment to decency and restraint (The Editorial Board, 2016).

What is one social force that you think has shaped the law? In other words, to which social pressures do you think this law is responding?

The death penalty can be passed for crimes such as murder, treason, arson, and rape. Each jurisdiction has its unique laws. For example, the state of Texas can pass a death penalty if an offender “Intentionally commits the murder in the course of committing or attempting to commit aggravated kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat.” An important social force that has shaped this law has been the war on crime. There has been a widely held belief that proposes taking stern forms of punishment as a deterrent to criminal acts (Calavita, 2010).

What is a social consequence of this law? Is it combatting or advancing inequality? Is it shaping a social category or identity? Is it affecting the rights of individuals or groups?

The law that enables offender to face capital punishment has a profound impact on society. There are elements that depict possible incidences of discrimination. For example, most people on death row can be placed into the middle or lower social classes. This is not a coincidence. Laws that carry harsh sentences such as capital punishment commonly affect the poorer demographics such as drug trafficking. It has been shown that there are more lenient laws that have a more devastating impact on society. For example, many white crimes have lenient sentences.

We have read about many kinds of relationships between law and society in this course. Which kind of relationship might this law represent?

This law represents inequality in society. Many countries around the world have identified the unjustifiable nature of capital punishment. it targets a specific demographic that upper social classes do not identify with. There are many bad crimes committed by different people. However, harsher sentences tend to be assigned to only a few of these crimes. This further highlights inequality in the relationship between law and the society.

Works Cited

Calavita, K. (2010). Invitation to Law & Society: An Introduction to the Study of Real Law.  London: The University of Chicago Press.

The Editorial Board. (2016, January 16). The Death Penalty Endgame. Retrieved from The New York Times: https://www.nytimes.com/2016/01/17/opinion/sunday/the-death-penalty-endgame.html?searchResultPosition=3

The Movement Against Death Penalty Part 2

By Lin Zhou (Coco)

What is one organization, campaign, social movement, or even just op-ed article that advocates for a change in a law related to death penalty?

The “movement on death penalty” has taken the stance of offering second chances to the poor, criminals, orphans rather than passing a death sentence. This movement opposes capital punishment. 

What is the law at issue? What is the change being advocated? Is a new law being demanded? Is there a request for better enforcement (or no enforcement)? Is there a critique of the inequalities the law creates? Is there a demand for some kind of rights?

Most states have developed unique death penalty statutes. Many countries around the world such as in Europe have grown indifferent to capital punishment. Many have abolished the practice based on varying reasons. The main opposition has presented the death penalty as an inhumane form of punishment. Society and this law are hence interacting unfavorably. When a law punishes by death, it risks upholding views of brutality while failing to abide by the constitutional commitment to decency and restraint (The Editorial Board, 2016). 

Who is asking for the change and how do they relate to the law and the underlying topic? Is it an individual or an organization?

An important social force that has shaped this law has been the war on crime. There has been a widely held belief that proposes taking stern forms of punishment as a deterrent to criminal acts is effective (Calavita, 2010). However, the movement against capital punishment has asked for the replacement of this belief with more scientific and humane approaches to criminal justice. Human rights activists have been on the forefront of this initiative to fight capital punishment. Some legal experts have also joined this movement with the view that such legal provisions tannish the legal processes. 

What techniques are being used to argue for a change in law? Are they using legal leveraging? Is it a name-blame-claim situation? Or something else?

To argue for the change of laws, the movement is using different techniques. Legal leverage has been used to justify the unconstitutional nature of capital punishment. Members of the movement argue that capital punishment is incompatible with the goals and intentions of criminal justice. The public view the constitution as a dependable and just system. When the constitution adopts capital punishment, it violates society’s expectations of its mandate. The moral view is also presented to oppose laws legalizing capital punishment. Ethical decisions have to be made during the debate on the death penalty. Many people in this movement believe it to be unethical to legitimize capital punishment.

What theory of the relationship between law and society are these change agents using? In other words, what do they think should be the relationship between law and society?

This law represents inequality in society. Many countries around the world have identified the unjustifiable nature of capital punishment. There are elements that depict possible incidences of discrimination. It targets a specific demographic that upper social classes do not identify with. For example, most people on death row can be placed into the middle or lower social classes. This is not a coincidence. Harsher sentences have tended to be assigned to only a few sets of crimes. This further highlights inequality in the relationship between law and the society.

1

Calavita, K. (2010). Invitation to Law & Society: An Introduction to the Study of Real Law.  London: The University of Chicago Press.

The Editorial Board. (2016, January 16). The Death Penalty Endgame. Retrieved from The New York Times: https://www.nytimes.com/2016/01/17/opinion/sunday/the-death-penalty-endgame.html?searchResultPosition=3

Death Penalty outside the U.S.

By Kiyoshi Zeng

What was the sub-topic you chose? How did you expect to see law and society interacting in terms of this issue?

In America, it was common to use the electric chair or drug injection for capital punishment. However, death penalty is controversial issue today. In most of the states, death penalty has already abolished while there are few states still enacting it. It is same when we expand this issue to international level. Death penalty has been abolished in most of the countries. According to research, death penalty remains legal in only 14 countries around the world includes U.S. in 2019. I want to focus on these countries that are still enacting death penalty and expect to see how different their values and laws from America.

What was one example of law you identified relating to this sub-topic?

In Japan, the death penalty shall be executed by hanging at a penal institution.

Where is the law coming from? Is it a city/state/federal law, a court opinion, an agency regulation, a police directive, etc?

The law is coming from Ministry of Justice in Japan and it is national unification.

What is one social force that you think has shaped the law? In other words, to which social pressures do you think this law is responding?

In Japan, death penalty is responding to sorrow of victims and bereaved families. So that, death penalty is believed to be justice and they enact it by cruel way, which is by hanging inmates. Some countries blame about it because hanging takes much longer time to kill a person and entails great pain compare to other capital punishment methods, it is inhuman way.

What is a social consequence of this law? Is it combatting or advancing inequality? Is it shaping a social category or identity? Is it affecting the rights of individuals or groups?

There are many human rights issues. The death penalty opponents believe there are always possibility of false charge and it is inhumane thing to kill people even the person is a serious criminal. The death penalty retentionists believe death row prisoners need to pay for victims’ lives by their lives. According to nippon.com, 80.3% of nation agree with death penalty and only 9.7% of nation disagree with death penalty. However, there are some social movements start protesting and Japan is suggested to abolish capital punishment in united nations conferences. The system of capital punishment in Japan might change little by little. According to Friedman, “Law moves slowly and sluggishly, like a snail, encased in its shell; it “lags” behind society” (Friedman 15).

We have read about many kinds of relationships between law and society in this course. Which kind of relationship might this law represent?

The Book chapter by Lawrence Friedman and Nielsen most related with this topic. It talks about human rights of the victim vs human rights of the criminal, government has to respond to public opinion and fix the law. According to Nielsen, Pressure for international law or global human rights is, like other areas of transnational law, “reorganization and reshuffling of hierarchies of positions, modes of legitimate authority, and structures of powers” (Nielsen 74).

References:

Friedman, Lawrence M (2002). Law in America. New York.

Nielsen (2004), The Blackwell Companion to Law and Society. Oxford.

Countries With Death Penalty Population. (2019-08-27). Retrieved 2019-12-03, from http://worldpopulationreview.com/countries/countries-with-death-penalty/

Death Penalty in Japan

By Kiyoshi Zeng

In between developed countries, only Japan uses hanging for death penalty method today. Few decades ago, hanging was mainstream of capital punishment method in the world. For instance, America used to punish inmates by hanging, but now, only New Hampshire state and Washington state use it for capital punishment. Today, most of the states in America use drug injection or electric chair for capital punishment method. The problem of hanging is because it is botched execution. It takes time, painful, and traumatic to the executive officers. There are several reasons why Japan still uses hanging for capital punishment.

First time hanging became constitutional in Japan was 1955 and until now, we don’t get enough information about capital punishment system since the government has been secretive about capital punishment and it makes us hard to discuss about death penalty. Even if we discuss, we don’t really talk about hanging, but talk about abolition of capital punishment. So far, changing method of capital punishment is not demanded by nation.

Besides attitude of the government, national characteristic of Japanese people is a big issue, too. Japanese people think death is negative thing and have tendency to hide it or put it away from the community. One example is process of funeral in Japan. Japan used to bury dead body after death, but now 99% of processing method is cremation. We burn the bodies and nothing left, so that we don’t have to think about death anymore. This makes Japanese people ignorance to capital punishment.

We can say that capital punishment is necessary evil, however, we have to check whether it is appropriate or not with everyone and clarify whether it is cruel method or not since it is decision by whole nation.

References:

Nielsen (2004), The Blackwell Companion to Law and Society. Oxford.

McCann (2004), The Blackwell Companion to Law and Society. Oxford.

Kansai University. https://www.kansai-u.ac.jp/reed_rfl/archive/49_1.php

How to Judge Self Defense in America

By Nannan Jia

In the United States, there is no self-defense or over defense. The criminal law of most states insists on stand your ground, that is, in case of an emergency, there is no need to give way. You can use force (including guns) on the spot or even directly kill the other party to protect yourself and your family. In the legal system of the United States, each state allows defendants to demand self-defense when accused of violent crimes, as is the case at the federal level. In the United States, however, the specific rules governing self-defence vary from state to state jurisdiction. Moreover, the United States pays attention to case law, so how to judge self-defense needs to combine the historical cases of each state and the actual situation of the case to make legal judgment. 

Unlike Britain and Canada, which strictly restrict excessive defense, most states in the United States, with a strong civil style, divide self-defense into self-defense, excusable defense (generally without legal responsibility), and unreasonable self-defense. Only the latter can bear a certain degree of legal responsibility, but this kind of criminal responsibility may not be fully implemented. Even if the judge thinks that self-defense is unreasonable, 12 jurors often ignore it and make their own judgment in favor of the defendant, which makes American self-defense more humane. Case law and citizen jury system in the United States can modify rigid rules more flexibly, and turn the consensus of the public into law.

References

Paul Stephen Dempsey. “Economic Aggression & Self-Defense in International Law: The Arab Oil Weapon and Alternative American Responses Thereto.” (2016).

Jeremy Rabkin. “American self-defense shouldn’t be too distracted by international law.” Harvard journal of law & public policy 30.1(2006):31-63.

Dapo Akande, and Thomas Lieflaender. “Clarifying Necessity, Imminence, and Proportionality in the Law of Self-Defense.” The American Journal of International Law 107.3(2013):563-570.

Calavita Kitty. “Law and society” (2010).

The Legal System

By Nannan Jia

The system and the legal system are the rules which are made by various administrative organs, enterprises, institutions and social organizations, which require members to abide by and act according to certain procedures. Its purpose is to maintain and standardize the internal order of different organizations. The law is a rule of conduct formulated by the legislature and guaranteed by the state power. Its purpose is to regulate the behaviors of all members of the whole society, including people to people, people to social organizations or groups, and social organizations and groups, so as to ensure the stability and order of social order. It can be seen that the system only restricts the norms within the organization, while the law is the norms for maintaining the whole society and restricting all members of the society. Moreover, the consequences of violating the system are different from those of violating the law. The consequences of violating the law are more serious than those of violating the system. The relationship between system law and society generally speaking, system and law are used to regulate social order, but system and law regulate order at different social levels. As Calavita states “Law, and its evil twin, crime, permeate the cultural vernacular in the contemporary United States. Arguably, no other institution gets so much press” (4). The interests represented are also different. The system is the order of the micro unit of the society, the law is the macro order of the society, and both are the means of adjusting the social relations and regulating the social order.

Many functions of law are realized through illegal legal systems and institutions. The research places of legal sociology include not only legislative bodies, courts, prisons, law firms and other legal places, but also other places in daily life, such as communities, schools, hospitals, enterprises, government agencies, etc. In fact, most ordinary people have little contact with the courts, procuratorates, lawyers and other legal professional institutions and people. Their legal consciousness – that is, the understanding and application of the law – is largely formed in illegal legal places. The unwritten code of conduct in the community, the school’s management rules for students, the daily requirements of enterprises for employees, and even the foul behavior of athletes and the way to deal with referees in sports competitions will shape people’s legal consciousness, let people gradually form the habit of following the rules, and also understand the cost and possibility of breaking the law.