O.P.

Jindal Global Law School

Instructions to Students

1. Take-home examination.
2. Due by 5 p.m. on Monday November, 23.
3. Submit by email to Professor Pashler in a separate Microsoft word document. NO PDFs.
4. You can use assigned class readings to prepare answers – no outside research required or
permitted.
5. Work must be original.
6. Again, no outside research or sources beyond assigned class readings.

Part 1: PREMISES AND CONCLUSIONS (10 points)

Identify the premises and conclusions in the following 2 arguments:

Argument #1: Owning a gun is not safe because if you have a gun in your house, the gun is more likely to
be used to harm you or a loved one than it is to be used defending your home. Guns also can cause
accidents when they are being handled, or be tempting for children to play with thinking they are toys,
so you should not buy a gun.

IDENTIFY PREMISES: if you have a gun in your house, the gun is more likely to be used to harm you or a
loved one than it is to be used defending your home. Guns also can cause accidents when they are being
handled, or be tempting for children to play with thinking they are toys

IDENTIFY CONCLUSION: Owning a gun is not safe, you should not buy a gun

Argument #2: The death penalty is much more likely to be used against minority defendants, reflecting
biases in the judicial system, and therefore should be abolished. The death penalty is also expensive,
and has never been proven to deter crimes.

IDENTIFY PREMISES: The death penalty is much more likely to be used against minority defendants,
reflecting biases in the judicial system, The death penalty is also expensive, and has never been proven to
deter crimes.

IDENTIFY CONCLUSION: therefore should be abolished

Part 2: PREPARING AN ADVOCACY SPEECH (90 points)

Your speech should include 2-3 contentions/arguments, including at least one contention regarding
politics or morality, and one contention regarding the law. It should include an argument by example
and an argument by analogy. Your speech can either be pro or against any ONE of the following topics:

Topics (CHOOSE ONE):

Gun control is an appropriate limitation of individual rights.

Privacy of internet communications is less important than a government’s ability to fight crime and
provide for a national defense.

The death penalty is an appropriate punishment for heinous crimes.

Same-sex couples should be afforded the same rights of marriage as opposite-sex couples.

ADVOCACY SPEECH:
THE DEATH PENALTY IS NOT AN APPROPRIATE PUNISHMENT FOR HEINOUS
CRIMES
I would base my arguments on the backbone of the leading case of the United States that was
Kennedy v. Louisiana. The supreme court of the United States had taken up the case of Patrick
Kennedy who was convicted for the rape of his 8 yeard old step daughter. The Louisiana
Supreme Court had affirmed his death sentence for the rape of a child who had not died.
Kennedy argued in the Supreme Court that the Eighth amendment were being violated. The USA
had not carried out any execution for a convict not charged with murder. The court in the year
1977 in the case of Coker v. Georgia limited the punishment of death penalty only to the crime
of murder.
Justice Kennedy gave a very logical and sound reasoning stating “This argument does not
overcome other objections, however. The incongruity between the crime of child rape and the
harshness of the death penalty poses risks of overpunishment and counsels against a
constitutional ruling that the death penalty can be expanded to include this offense. The goal of
retribution, which reflects society’s and the victim’s interests in seeing that the offender is repaid
for the hurt he caused, see Atkins, 536 U. S., at 319; Furman, supra, at 308 (Stewart, J.,
concurring), does not justify the harshness of the death penalty here.”1
The question that had been presented before the court was whether Eighth amendment allows the
punishment of death penalty for the crime of rape of a child and whether Louisiana’s statute
violates the eighth amendment by failing to classify such crimes. There were several social

1
Justice Kennedy’s Opinion, Pg. 37, Patrick Kennedy v. Louisiana, No. 7-343
worker organizations which filed their briefs In the Supreme Court requesting that the decision to
execute Kennedy be overturned. They believed that such a punishment is more harmful for the
victims than helpful. These organizations in their brief had given the reasons for such arguments.
There were three primary reasons:
1. These laws make the child go through an increased number of trials and humiliation via
the recounting of the horror. This hinders the healing process and makes it more painful.
2. The child molesters would then be more inclined towards killing their victims rather than
leaving them alive
3. The already under reported case of sexual abuse would increase
The USA supreme court held that the Louisiana statute is unconstitutional as it allows the
execution for the rape of child even if the child did not die. The court said that all the laws where
crimes other than murder were punishable with death penalty were against the national
consensus. The national consensus states that death penalty should be restricted to only worst
offence and that is death. The result of this case was that the two people in United States that
were charged with death penalty for offence other than murder were no longer facing execution
as the Louisiana state law was considered to be unconstitutional. the court while explaining its
judgment said the law giving death penalty to convicts for crimes other than murder were so
existing in only 6 of the 50 state in USA. Justice A. Kennedy said in this regard "Based both on
consensus and our own independent judgment, our holding is that a death sentence for one who
raped but did not kill a child, and who did not intend to assist another in killing the child, is
unconstitutional under the Eighth and Fourteenth Amendments. When the law punishes by death,
it risks its own sudden descent into brutality, transgressing the constitutional commitment to
decency and restraint."
The victims groups for children supported the decisions as they believed death penalty would
actually harm the children than protect them. They also added to their previous arguments saying
that equating the punishment of murder and rape would send a wrong message to the children.

The above case is a strong argument against death penalty. Death penalty is a futile attempt to
punish the guilty. Punishment is supposed to deprive a person of the liberties he as an individual
would normally enjoy so as to make him realise that what he has done is wrong.

Many nations consider the act of suicide to be punishable. The reason behind this is that life as
has been given to us can not be ended by us. Every life is to be lived to its fullest. Similarly, if
the act of suicide is illegal and if we as human beings are not allowed to end life prematurely, the
act of death penalty should also be abolished. The basic instinct of any constitution or any human
is to preserve life. Every action that we undertake is in furtherance of the same. Ending life runs
counter to the prevalent theme of preserving life. Right to life is a fundamental right in India and
many nations recognize the right to life and to violate that very right makes it insignificant.

Also as the ultimate purpose of any punishment is to deprive a person of his liberties and make
him suffer the consequences of his wrong deeds, death penalty does the opposite. A convict who
gets death penalty has never to go through the pain of living in a prison deprived of his liberties.
A prison cell is constructed in such a way to make those people realise what freedom means and
they start valuing it more than ever. They began to realise that in a society we are all allowed to
live freely until we do no harm to others. This realization along with guilt and pain and suffering
is just what is needed for criminals. The feeling of never being able to get out of the confinement
or never being able to gain freedom to do anything or talk to anyone is enough and the apt way to
punish someone.

To give death penalty takes away the process of realization. Moreover in today’s world where
suicide bombers are prevalent, death is not the ultimate fear. But there does exist a fear of the
prison cells and conditions in which the prison inmates live. The stories of atrocities and
confinement has created a fear among the people and acts as a deterrent. Death penalty has not
been a very successful deterrent till date especially in the case of suicide bombers where death
penalty is simply ironical.

Also the form of death penalty is always cruel which does not justify the state’s idea of right to
life with dignity. The state can not promote an idea while going against it itself.

- Vedankur Saini