사형제도의 유효성에 대한 법사회학적 고찰- 미국의 사례를 중심으로 -

Abstract

Although the death penalty is punishment for a criminal, since a human life is at stake, the decision of whether to impose it must be made carefully. Today, many countries throughout the world have abolished the death penalty for various reasons such as the sanctity of human life, unproven crime deterrence and the possibility of misjudgment. This paper analyzes the crime deterrence of the death penalty based on death sentence cases in the United States and with reference to sociology of law statistical data. Sociology of law studies done by scholars such as Ehrlich and Sellin in the United States have concluded that the death penalty does not deter crime, while Baldus has shown through statistics the problem of discrimination where the death penalty is imposed more frequently on minorities, especially blacks. In the 1972 Furman case, the US Supreme Court, citing Sellin’s study results, ruled that the death penalty is a “cruel and unusual” punishment violating the 8th Amendment and the 14th Amendment to the US Constitution, based on the reason that the death penalty is not a crime deterrent. Although the study results of Baldus reporting that discriminatory death sentences are imposed on blacks at a greater frequency is not accepted in the McCleskey case, the death penalty should be abolished regardless of sociological studies, as stated by Justice Powell in his autobiography. In the Kennedy case, the majority opinion accepted the study result that there is no connection between child rape and crime deterrence due to the death penalty. Here the distinct characteristic of the issue of child rape should be definitely considered. The connection between the death penalty and crime deterrence is being negatively proven in much of sociology of law research. Such research results should be consulted, and at the same time the seriousness of the death penalty itself must be considered. The death penalty cannot be sustained continuously without a review.