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Death Penalty: Movement Towards Leniency In Enlightenment Period

Decent Essays
The rationale and modes of death penalty have evolved dramatically over the last several centuries. From harsh and public punishment to technology based executions, death penalty has always been at the center of the debate in criminal justice where perspectives such as rehabilitation, deterrence humanitarianism came into conversation.

I. Movement Towards Leniency in Enlightenment Period
In Discipline and Punish, Foucault analyzed the double process—the disappearance of the spectacle and the elimination of pain—of the shift in the modern ritual of execution (Foucault 1975, p11). In regards to the decline of public spectacle, Foucault argued that the ceremonial of punishment was largely reduced, though not eradicated, by the end of the eighteenth and early nineteenth century. In England, for example, amende honorable was abolished in 1837 and the use of prisoners in public works which often evoked violence was abolished in early nineteenth
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On the issue of death penalty, this can sometimes be in conflict with procedural due process which evaluates whether the government is using fair procedures. For example, in Furman v. Georgia, the court overturned Furman’s execution and ruled that it violated the 8th Amendment. Stewart wrote a concurring opinion, clarifying that the issue was not whether the death penalty was unconstitutional but whether the sentences were cruel and unusual; from a dignity perspective since capital punishment is irreversible and therefore contrary to the goal of rehabilitation and denies humanity, it is cruel and unusual. On the other hand, Justice Burger approached it from a proceduralist perspective and viewed this as an attack against discretionary sentencing cast in the language of the 8th amendment as no empirical data reveals arbitrary sentencing practices and McGautha v. California upheld discretionary sentencing practices in capital
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