death penalty should not be allowed essay

Arguments for and Against the Death Penalty

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The death penalty deters future murders.

Retribution

A just society requires the taking of a life for a life.

The risk of executing the innocent precludes the use of the death penalty.

Arbitrariness & Discrimination

The death penalty is applied unfairly and should not be used.

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• Introduction
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Moral arguments

Utilitarian arguments, practical arguments, the abolition movement.

• Capital punishment in the early 21st century

Arguments for and against capital punishment

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• Internet Encyclopedia of Philosophy - Capital Punishment
• Santa Clara University - Capital Punishment: Our Duty or Our Doom?
• Cornell Law School - Legal Information Institute - Death penalty
• capital punishment - Children's Encyclopedia (Ages 8-11)
• capital punishment - Student Encyclopedia (Ages 11 and up)
• Table Of Contents

Capital punishment has long engendered considerable debate about both its morality and its effect on criminal behaviour. Contemporary arguments for and against capital punishment fall under three general headings: moral , utilitarian, and practical.

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Supporters of the death penalty believe that those who commit murder , because they have taken the life of another, have forfeited their own right to life. Furthermore, they believe, capital punishment is a just form of retribution , expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general. By contrast, opponents of capital punishment, following the writings of Cesare Beccaria (in particular On Crimes and Punishments [1764]), argue that, by legitimizing the very behaviour that the law seeks to repress—killing—capital punishment is counterproductive in the moral message it conveys. Moreover, they urge, when it is used for lesser crimes, capital punishment is immoral because it is wholly disproportionate to the harm done. Abolitionists also claim that capital punishment violates the condemned person’s right to life and is fundamentally inhuman and degrading.

Although death was prescribed for crimes in many sacred religious documents and historically was practiced widely with the support of religious hierarchies , today there is no agreement among religious faiths, or among denominations or sects within them, on the morality of capital punishment. Beginning in the last half of the 20th century, increasing numbers of religious leaders—particularly within Judaism and Roman Catholicism—campaigned against it. Capital punishment was abolished by the state of Israel for all offenses except treason and crimes against humanity, and Pope John Paul II condemned it as “cruel and unnecessary.”

Supporters of capital punishment also claim that it has a uniquely potent deterrent effect on potentially violent offenders for whom the threat of imprisonment is not a sufficient restraint. Opponents, however, point to research that generally has demonstrated that the death penalty is not a more effective deterrent than the alternative sanction of life or long-term imprisonment.

There also are disputes about whether capital punishment can be administered in a manner consistent with justice . Those who support capital punishment believe that it is possible to fashion laws and procedures that ensure that only those who are really deserving of death are executed. By contrast, opponents maintain that the historical application of capital punishment shows that any attempt to single out certain kinds of crime as deserving of death will inevitably be arbitrary and discriminatory. They also point to other factors that they think preclude the possibility that capital punishment can be fairly applied, arguing that the poor and ethnic and religious minorities often do not have access to good legal assistance, that racial prejudice motivates predominantly white juries in capital cases to convict black and other nonwhite defendants in disproportionate numbers, and that, because errors are inevitable even in a well-run criminal justice system, some people will be executed for crimes they did not commit. Finally, they argue that, because the appeals process for death sentences is protracted, those condemned to death are often cruelly forced to endure long periods of uncertainty about their fate.

Under the influence of the European Enlightenment , in the latter part of the 18th century there began a movement to limit the scope of capital punishment. Until that time a very wide range of offenses, including even common theft, were punishable by death—though the punishment was not always enforced , in part because juries tended to acquit defendants against the evidence in minor cases. In 1794 the U.S. state of Pennsylvania became the first jurisdiction to restrict the death penalty to first-degree murder, and in 1846 the state of Michigan abolished capital punishment for all murders and other common crimes. In 1863 Venezuela became the first country to abolish capital punishment for all crimes, including serious offenses against the state (e.g., treason and military offenses in time of war). San Marino was the first European country to abolish the death penalty, doing so in 1865; by the early 20th century several other countries, including the Netherlands, Norway , Sweden , Denmark , and Italy , had followed suit (though it was reintroduced in Italy under the fascist regime of Benito Mussolini ). By the mid-1960s some 25 countries had abolished the death penalty for murder, though only about half of them also had abolished it for offenses against the state or the military code. For example, Britain abolished capital punishment for murder in 1965, but treason, piracy, and military crimes remained capital offenses until 1998.

During the last third of the 20th century, the number of abolitionist countries increased more than threefold. These countries, together with those that are “de facto” abolitionist—i.e., those in which capital punishment is legal but not exercised—now represent more than half the countries of the world. One reason for the significant increase in the number of abolitionist states was that the abolition movement was successful in making capital punishment an international human rights issue, whereas formerly it had been regarded as solely an internal matter for the countries concerned.

In 1971 the United Nations General Assembly passed a resolution that, “in order fully to guarantee the right to life, provided for in…the Universal Declaration of Human Rights,” called for restricting the number of offenses for which the death penalty could be imposed, with a view toward abolishing it altogether. This resolution was reaffirmed by the General Assembly in 1977. Optional protocols to the European Convention on Human Rights (1983) and to the International Covenant on Civil and Political Rights (1989) have been established, under which countries party to the convention and the covenant undertake not to carry out executions. The Council of Europe (1994) and the EU (1998) established as a condition of membership in their organizations the requirement that prospective member countries suspend executions and commit themselves to abolition. This decision had a remarkable impact on the countries of central and eastern Europe , prompting several of them—e.g., the Czech Republic , Hungary , Romania , Slovakia , and Slovenia—to abolish capital punishment.

In the 1990s many African countries—including Angola, Djibouti, Mozambique, and Namibia—abolished capital punishment, though most African countries retained it. In South Africa , which formerly had one of the world’s highest execution rates, capital punishment was outlawed in 1995 by the Constitutional Court, which declared that it was incompatible with the prohibition against cruel, inhuman, or degrading punishment and with “a human rights culture.”

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Should The Death Penalty Be Legal?

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Published: Jun 6, 2024

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Table of contents

Introduction, arguments for the death penalty, arguments against the death penalty, practical considerations and alternatives.

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The Case Against the Death Penalty

The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. Furthermore, we believe that the state should not give itself the right to kill human beings – especially when it kills with premeditation and ceremony, in the name of the law or in the name of its people, and when it does so in an arbitrary and discriminatory fashion.

Capital punishment is an intolerable denial of civil liberties and is inconsistent with the fundamental values of our democratic system. The death penalty is uncivilized in theory and unfair and inequitable in practice. Through litigation, legislation, and advocacy against this barbaric and brutal institution, we strive to prevent executions and seek the abolition of capital punishment.

The ACLU’s opposition to capital punishment incorporates the following fundamental concerns:

The death penalty system in the US is applied in an unfair and unjust manner against people, largely dependent on how much money they have, the skill of their attorneys, race of the victim and where the crime took place . People of color are far more likely to be executed than white people, especially if thevictim is white

The death penalty is a waste of taxpayer funds and has no public safety benefit. The vast majority of law enforcement professionals surveyed agree that capital punishment does not deter violent crime; a survey of police chiefs nationwide found they rank the death penalty lowest among ways to reduce violent crime. They ranked increasing the number of police officers, reducing drug abuse, and creating a better economy with more jobs higher than the death penalty as the best ways to reduce violence. The FBI has found the states with the death penalty have the highest murder rates.

Innocent people are too often sentenced to death. Since 1973, over 156 people have been released from death rows in 26 states because of innocence. Nationally, at least one person is exonerated for every 10 that are executed.

INTRODUCTION TO THE “MODERN ERA” OF THE DEATH PENALTY IN THE UNITED STATES

In 1972, the Supreme Court declared that under then-existing laws "the imposition and carrying out of the death penalty… constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." ( Furman v. Georgia , 408 U.S. 238). The Court, concentrating its objections on the manner in which death penalty laws had been applied, found the result so "harsh, freakish, and arbitrary" as to be constitutionally unacceptable. Making the nationwide impact of its decision unmistakable, the Court summarily reversed death sentences in the many cases then before it, which involved a wide range of state statutes, crimes and factual situations.

But within four years after the Furman decision, several hundred persons had been sentenced to death under new state capital punishment statutes written to provide guidance to juries in sentencing. These statutes require a two-stage trial procedure, in which the jury first determines guilt or innocence and then chooses imprisonment or death in the light of aggravating or mitigating circumstances.

In 1976, the Supreme Court moved away from abolition, holding that "the punishment of death does not invariably violate the Constitution." The Court ruled that the new death penalty statutes contained "objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death." ( Gregg v. Georgia , 428 U.S. 153). Subsequently 38 state legislatures and the Federal government enacted death penalty statutes patterned after those the Court upheld in Gregg. Congress also enacted and expanded federal death penalty statutes for peacetime espionage by military personnel and for a vast range of categories of murder.

Executions resumed in 1977. In 2002, the Supreme Court held executions of mentally retarded criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Constitution. Since then, states have developed a range of processes to ensure that mentally retarded individuals are not executed. Many have elected to hold proceedings prior to the merits trial, many with juries, to determine whether an accused is mentally retarded. In 2005, the Supreme Court held that the Eighth and Fourteenth Amendments to the Constitution forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed, resulting in commutation of death sentences to life for dozens of individuals across the country. As of August 2012, over 3,200 men and women are under a death sentence and more than 1,300 men, women and children (at the time of the crime) have been executed since 1976 .

ACLU OBJECTIONS TO THE DEATH PENALTY

Despite the Supreme Court's 1976 ruling in Gregg v. Georgia , et al, the ACLU continues to oppose capital punishment on moral, practical, and constitutional grounds:

Capital punishment is cruel and unusual . It is cruel because it is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace. Like those barbaric practices, executions have no place in a civilized society. It is unusual because only the United States of all the western industrialized nations engages in this punishment. It is also unusual because only a random sampling of convicted murderers in the United States receive a sentence of death.

Capital punishment denies due process of law. Its imposition is often arbitrary, and always irrevocable – forever depriving an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction, or the setting aside of a death sentence.

The death penalty violates the constitutional guarantee of equal protection . It is applied randomly – and discriminatorily. It is imposed disproportionately upon those whose victims are white, offenders who are people of color, and on those who are poor and uneducated and concentrated in certain geographic regions of the country.

The death penalty is not a viable form of crime control. When police chiefs were asked to rank the factors that, in their judgment, reduce the rate of violent crime, they mentioned curbing drug use and putting more officers on the street, longer sentences and gun control. They ranked the death penalty as least effective . Politicians who preach the desirability of executions as a method of crime control deceive the public and mask their own failure to identify and confront the true causes of crime.

Capital punishment wastes limited resources . It squanders the time and energy of courts, prosecuting attorneys, defense counsel, juries, and courtroom and law enforcement personnel. It unduly burdens the criminal justice system, and it is thus counterproductive as an instrument for society's control of violent crime. Limited funds that could be used to prevent and solve crime (and provide education and jobs) are spent on capital punishment.

Opposing the death penalty does not indicate a lack of sympathy for murder victims . On the contrary, murder demonstrates a lack of respect for human life. Because life is precious and death irrevocable, murder is abhorrent, and a policy of state-authorized killings is immoral. It epitomizes the tragic inefficacy and brutality of violence, rather than reason, as the solution to difficult social problems. Many murder victims do not support state-sponsored violence to avenge the death of their loved one. Sadly, these victims have often been marginalized by politicians and prosecutors, who would rather publicize the opinions of pro-death penalty family members.

Changes in death sentencing have proved to be largely cosmetic. The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s, have not been appreciably altered by the shift from unrestrained discretion to "guided discretion." Such so-called “reforms” in death sentencing merely mask the impermissible randomness of a process that results in an execution.

A society that respects life does not deliberately kill human beings . An execution is a violent public spectacle of official homicide, and one that endorses killing to solve social problems – the worst possible example to set for the citizenry, and especially children. Governments worldwide have often attempted to justify their lethal fury by extolling the purported benefits that such killing would bring to the rest of society. The benefits of capital punishment are illusory, but the bloodshed and the resulting destruction of community decency are real.

CAPITAL PUNISHMENT IS NOT A DETERRENT TO CAPITAL CRIMES

Deterrence is a function not only of a punishment's severity, but also of its certainty and frequency. The argument most often cited in support of capital punishment is that the threat of execution influences criminal behavior more effectively than imprisonment does. As plausible as this claim may sound, in actuality the death penalty fails as a deterrent for several reasons.

A punishment can be an effective deterrent only if it is consistently and promptly employed. Capital punishment cannot be administered to meet these conditions .

The proportion of first-degree murderers who are sentenced to death is small, and of this group, an even smaller proportion of people are executed. Although death sentences in the mid-1990s increased to about 300 per year , this is still only about one percent of all homicides known to the police . Of all those convicted on a charge of criminal homicide, only 3 percent – about 1 in 33 – are eventually sentenced to death. Between 2001-2009, the average number of death sentences per year dropped to 137 , reducing the percentage even more. This tiny fraction of convicted murderers do not represent the “worst of the worst”.

Mandatory death sentencing is unconstitutional. The possibility of increasing the number of convicted murderers sentenced to death and executed by enacting mandatory death penalty laws was ruled unconstitutional in 1976 ( Woodson v. North Carolina , 428 U.S. 280).

A considerable time between the imposition of the death sentence and the actual execution is unavoidable, given the procedural safeguards required by the courts in capital cases. Starting with selecting the trial jury, murder trials take far longer when the ultimate penalty is involved. Furthermore, post-conviction appeals in death-penalty cases are far more frequent than in other cases. These factors increase the time and cost of administering criminal justice.

We can reduce delay and costs only by abandoning the procedural safeguards and constitutional rights of suspects, defendants, and convicts – with the attendant high risk of convicting the wrong person and executing the innocent. This is not a realistic prospect: our legal system will never reverse itself to deny defendants the right to counsel, or the right to an appeal.

Persons who commit murder and other crimes of personal violence often do not premeditate their crimes.

Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. Many capital crimes are committed by the badly emotionally-damaged or mentally ill. In such cases, violence is inflicted by persons unable to appreciate the consequences to themselves as well as to others.

Even when crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated. Furthermore, the death penalty is a futile threat for political terrorists, like Timothy McVeigh, because they usually act in the name of an ideology that honors its martyrs.

Capital punishment doesn't solve our society's crime problem. Threatening capital punishment leaves the underlying causes of crime unaddressed, and ignores the many political and diplomatic sanctions (such as treaties against asylum for international terrorists) that could appreciably lower the incidence of terrorism.

Capital punishment has been a useless weapon in the so-called "war on drugs." The attempt to reduce murders in the drug trade by threat of severe punishment ignores the fact that anyone trafficking in illegal drugs is already risking his life in violent competition with other dealers. It is irrational to think that the death penalty – a remote threat at best – will avert murders committed in drug turf wars or by street-level dealers.

If, however, severe punishment can deter crime, then permanent imprisonment is severe enough to deter any rational person from committing a violent crime.

The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states. Use of the death penalty in a given state may actually increase the subsequent rate of criminal homicide. Why? Perhaps because "a return to the exercise of the death penalty weakens socially based inhibitions against the use of lethal force to settle disputes…. "

In adjacent states – one with the death penalty and the other without it – the state that practices the death penalty does not always show a consistently lower rate of criminal homicide. For example, between l990 and l994, the homicide rates in Wisconsin and Iowa (non-death-penalty states) were half the rates of their neighbor, Illinois – which restored the death penalty in l973, and by 1994 had sentenced 223 persons to death and carried out two executions . Between 2000-2010, the murder rate in states with capital punishment was 25-46% higher than states without the death penalty.

On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between 1976 and 1989, for example, lethal assaults against police were not significantly more or less frequent in abolitionist states than in death-penalty states. Capital punishment did not appear to provide officers added protection during that time frame. In fact, the three leading states in law enforcement homicide in 1996 were also very active death penalty states : California (highest death row population), Texas (most executions since 1976), and Florida (third highest in executions and death row population). The South, which accounts for more than 80% of the country’s executions, also has the highest murder rate of any region in the country. If anything, the death penalty incited violence rather than curbed it.

Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners. The vast majority of those inmates (84%) were killed in death penalty jurisdictions. During the same period, about 2% of all inmate assaults on prison staff were committed in abolition jurisdictions . Evidently, the threat of the death penalty "does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states." Furthermore, multiple studies have shown that prisoners sentenced to life without parole have equivalent rates of prison violence as compared to other inmates.

Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.

Furthermore, there are documented cases in which the death penalty actually incited the capital crimes it was supposed to deter. These include instances of the so-called suicide-by-execution syndrome – persons who wanted to die but feared taking their own lives, and committed murder so that the state would kill them. For example, in 1996, Daniel Colwell , who suffered from mental illness, claimed that he killed a randomly-selected couple in a Georgia parking lot so that the state would kill him – he was sentenced to death and ultimately took his own life while on death row.

Although inflicting the death penalty guarantees that the condemned person will commit no further crimes, it does not have a demonstrable deterrent effect on other individuals. Further, it is a high price to pay when studies show that few convicted murderers commit further crimes of violence. Researchers examined the prison and post-release records of 533 prisoners on death row in 1972 whose sentences were reduced to incarceration for life by the Supreme Court's ruling in Furman. This research showed that seven had committed another murder. But the same study showed that in four other cases, an innocent man had been sentenced to death. (Marquart and Sorensen, in Loyola of Los Angeles Law Review 1989)

Recidivism among murderers does occasionally happen, but it occurs less frequently than most people believe; the media rarely distinguish between a convicted offender who murders while on parole, and a paroled murderer who murders again. Government data show that about one in 12 death row prisoners had a prior homicide conviction . But as there is no way to predict reliably which convicted murderers will try to kill again, the only way to prevent all such recidivism is to execute every convicted murderer – a policy no one seriously advocates. Equally effective but far less inhumane is a policy of life imprisonment without the possibility of parole.

CAPITAL PUNISHMENT IS UNFAIR

Constitutional due process and elementary justice both require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved. In murder cases (since 1930, 88 percent of all executions have been for this crime), there has been substantial evidence to show that courts have sentenced some persons to prison while putting others to death in a manner that has been arbitrary, racially biased, and unfair.

Racial Bias in Death Sentencing

Racial discrimination was one of the grounds on which the Supreme Court ruled the death penalty unconstitutional in Furman . Half a century ago, in his classic American Dilemma (1944), Gunnar Myrdal reported that "the South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions." A study of the death penalty in Texas shows that the current capital punishment system is an outgrowth of the racist "legacy of slavery." Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half (53%) were black .

Our nation's death rows have always held a disproportionately large population of African Americans, relative to their percentage of the total population. Comparing black and white offenders over the past century, the former were often executed for what were considered less-than-capital offenses for whites, such as rape and burglary. (Between 1930 and 1976, 455 men were executed for rape, of whom 405 – 90 percent – were black.) A higher percentage of the blacks who were executed were juveniles; and the rate of execution without having one's conviction reviewed by any higher court was higher for blacks. (Bowers, Legal Homicide 1984; Streib, Death Penalty for Juveniles 1987)

In recent years, it has been argued that such flagrant racial discrimination is a thing of the past. However, since the revival of the death penalty in the mid-1970s, about half of those on death row at any given time have been black . More striking is the racial comparison of victims . Although approximately 49% of all homicide victims are white, 77% of capital homicide cases since 1976 have involved a white victim.

Between 1976 and 2005 , 86% of white victims were killed by whites (14% by other races) while 94% of black victims were killed by blacks (6% by other races). Blacks and whites are murder victims in almost equal numbers of crimes – which is a very high percentage given that the general US population is 13% black. African-Americans are six times as likely as white Americans to die at the hands of a murderer, and roughly seven times as likely to murder someone. Young black men are fifteen times as likely to be murdered as young white men.

So given this information, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all.

Further, studies like that commissioned by the Governor of Maryland found that “black offenders who kill white victims are at greater risk of a death sentence than others, primarily because they are substantially more likely to be charged by the state’s attorney with a capital offense.”

The classic statistical study of racial discrimination in capital cases in Georgia presented in the McCleskey case showed that "the average odds of receiving a death sentence among all indicted cases were 4.3 times higher in cases with white victims." (David C. Baldus et al., Equal Justice and the Death Penalty 1990) In 1987 these data were placed before the Supreme Court in McCleskey v. Kemp and while the Court did not dispute the statistical evidence, it held that evidence of an overall pattern of racial bias was not sufficient. Mr. McCleskey would have to prove racial bias in his own case – a virtually impossible task. The Court also held that the evidence failed to show that there was "a constitutionally significant risk of racial bias...." (481 U.S. 279) Although the Supreme Court declared that the remedy sought by the plaintiff was "best presented to the legislative bodies," subsequent efforts to persuade Congress to remedy the problem by enacting the Racial Justice Act were not successful. (Don Edwards & John Conyers, Jr., The Racial Justice Act – A Simple Matter of Justice, in University of Dayton Law Review 1995)

In 1990, the U.S. General Accounting Office reported to the Congress the results of its review of empirical studies on racism and the death penalty. The GAO concluded : "Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision" and that "race of victim influence was found at all stages of the criminal justice system process..."

Texas was prepared to execute Duane Buck on September 15, 2011. Mr. Buck was condemned to death by a jury that had been told by an expert psychologist that he was more likely to be dangerous because he was African American. The Supreme Court stayed the case, but Mr. Buck has not yet received the new sentencing hearing justice requires.

These results cannot be explained away by relevant non-racial factors, such as prior criminal record or type of crime, as these were factored for in the Baldus and GAO studies referred to above. They lead to a very unsavory conclusion: In the trial courts of this nation, even at the present time, the killing of a white person is treated much more severely than the killing of a black person . Of the 313 persons executed between January 1977 and the end of 1995, 36 had been convicted of killing a black person while 249 (80%) had killed a white person. Of the 178 white defendants executed, only three had been convicted of murdering people of color . Our criminal justice system essentially reserves the death penalty for murderers (regardless of their race) who kill white victims.

Another recent Louisiana study found that defendants with white victims were 97% more likely to receive death sentences than defendants with black victims. [1]

Both gender and socio-economic class also determine who receives a death sentence and who is executed. Women account for only two percent of all people sentenced to death , even though females commit about 11 percent of all criminal homicides. Many of the women under death sentence were guilty of killing men who had victimized them with years of violent abuse . Since 1900, only 51 women have been executed in the United States (15 of them black).

Discrimination against the poor (and in our society, racial minorities are disproportionately poor) is also well established. It is a prominent factor in the availability of counsel.

Fairness in capital cases requires, above all, competent counsel for the defendant. Yet "approximately 90 percent of those on death row could not afford to hire a lawyer when they were tried.") Common characteristics of death-row defendants are poverty, the lack of firm social roots in the community, and inadequate legal representation at trial or on appeal. As Justice William O. Douglas noted in Furman , "One searches our chronicles in vain for the execution of any member of the affluent strata in this society"(408 US 238).

Failure of Safeguards

The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. "Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without discrimination."(Gross and Mauro, Death and Discrimination 1989)

Justice John Marshall Harlan, writing for the Court in Furman , noted "… the history of capital punishment for homicides … reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die…. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history…. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability." (402 U.S. 183 (1971))

Yet in the Gregg decision, the majority of the Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the new guided-discretion statutes could accomplish the impossible. The truth is that death statutes approved by the Court "do not effectively restrict the discretion of juries by any real standards, and they never will. No society is going to kill everybody who meets certain preset verbal requirements, put on the statute books without awareness of coverage of the infinity of special factors the real world can produce."

Evidence obtained by the Capital Jury Project has shown that jurors in capital trials generally do not understand the judge's instructions about the laws that govern the choice between imposing the death penalty and a life sentence. Even when they do comprehend, jurors often refuse to be guided by the law. "Juror comprehension of the law… is mediocre. The effect [of this relative lack of comprehension of the law]… is to reduce the likelihood that capital defendants will benefit from the safeguards against arbitrariness built into the… law."

Even if the jury's sentencing decision were strictly governed by the relevant legal criteria, there remains a vast reservoir of unfettered discretion: the prosecutor's decision to prosecute for a capital or lesser crime, the court's willingness to accept or reject a guilty plea, the jury's decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant's sanity, and the governor's final clemency decision, among others.

Discretion in the criminal justice system is unavoidable. The history of capital punishment in America clearly demonstrates the social desire to mitigate the harshness of the death penalty by narrowing the scope of its application. Whether or not explicitly authorized by statutes, sentencing discretion has been the main vehicle to this end. But when sentencing discretion is used – as it too often has been – to doom the poor, the friendless, the uneducated, racial minorities, and the despised, it becomes injustice.

Mindful of such facts, the House of Delegates of the American Bar Association (including 20 out of 24 former presidents of the ABA) called for a moratorium on all executions by a vote of 280 to 119 in February 1997 . The House judged the current system to be "a haphazard maze of unfair practices."

In its 1996 survey of the death penalty in the United States, the International Commission of Jurists reinforced this point. Despite the efforts made over the past two decades since Gregg to protect the administration of the death penalty from abuses, the actual "constitutional errors committed in state courts have gravely undermined the legitimacy of the death penalty as a punishment for crime." (International Commission of Jurists, Administration of the Death Penalty in the United States 1996)

In 2009, the American Law Institute (ALI), the leading independent organization in the U.S. producing scholarly work to clarify, modernize and improve the law, removed capital punishment from its Model Penal Code. The ALI, which created the modern legal framework for the death penalty in 1962, indicated that the punishment is so arbitrary, fraught with racial and economic disparities, and unable to assure quality legal representation for indigent capital defendants, that it can never be administered fairly.

Thoughtful citizens, who might possibly support the abstract notion of capital punishment, are obliged to condemn it in actual practice.

CAPITAL PUNISHMENT IS IRREVERSIBLE

Unlike any other criminal punishments, the death penalty is irrevocable. Speaking to the French Chamber of Deputies in 1830, years after having witnessed the excesses of the French Revolution, the Marquis de Lafayette said, "I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me." Although some proponents of capital punishment would argue that its merits are worth the occasional execution of innocent people, most would hasten to insist that there is little likelihood of the innocent being executed.

Since 1900, in this country, there have been on the average more than four cases each year in which an entirely innocent person was convicted of murder. Scores of these individuals were sentenced to death. In many cases, a reprieve or commutation arrived just hours, or even minutes, before the scheduled execution. These erroneous convictions have occurred in virtually every jurisdiction from one end of the nation to the other. Nor have they declined in recent years, despite the new death penalty statutes approved by the Supreme Court.

Disturbingly, and increasingly, a large body of evidence from the modern era shows that innocent people are often convicted of crimes – including capital crimes – and that some have been executed.

In 2012, a new report in the Columbia Human Rights Law Review chronicled the horrifying case of Carlos DeLuna, a man executed in Texas in 1989 for a murder that it was “common knowledge” had been committed by another man. [2] DeLuna’s story demonstrates so many of the factors that can go wrong in a capital case: faulty eyewitness identification, prosecutorial misconduct, police misconduct, a botched crime scene, destroyed DNA evidence, a poor person represented by ineffective by an ineffective inexperienced defense attorney overmatched by a professional prosecutor, and insufficient oversight from the bench. [3] In its case against DeLuna, the State presented no blood or DNA evidence, no crime scene fingerprints, and no proof of hair or fibers from the victim having been found on the defendant. He was convicted largely based on eyewitness testimony made from the back of a police car in a dimly lit lot near the crime scene. Meanwhile, a violent criminal named Carlos Hernandez—a man who not only shared DeLuna’s name, but also looked like him—repeatedly boasted about how he had committed the murder and gotten away with it. [4] These disturbing facts about DeLuna’s case, brought to light more than two decades after his execution, refute the claim, made by some proponents of capital punishment, that the United States has never executed an innocent person. [5]

Consider this additional handful of cases of innocent people sentenced to die – some executed and some spared:

• In 2011, the state of Georgia executed Troy Davis, a Black man who was almost certainly innocent of the murder of a white off-duty police officer. The circumstances of his execution raised an international outcry, for good reason. Davis was convicted based on eyewitness testimony, since there was no murder weapon or physical evidence presented by the prosecution. Seven of the nine eyewitnesses recanted or contradicted their trial testimony, many of them saying they were pressured or threatened by police at the time. Troy Davis came close to execution three previous times, because of the difficulty of getting any court to listen to new evidence casting doubt on his conviction. After passage of a federal law in 1996, petitioners are very limited in their ability to appeal death sentences, and courts routinely refuse to hear new testimony, even evidence of innocence. When Troy Davis finally did get a hearing on his evidence, the judge required “proof of innocence” – an impossibly high standard which he ruled that Mr. Davis did not meet. Despite the overwhelming call for clemency, supposed to be the “fail-safe” of the death penalty system, the Georgia Board of Pardons refused to commute the sentence to life and Mr. Davis was executed. Only one day after Troy Davis was executed, two men were freed by the special Innocence Commission of North Carolina after a decade apiece in prison. The two men had actually pled guilty to a crime they did not commit, because they were threatened with the death penalty.
• In Texas in 2004, Cameron Todd Willingham was executed for the arson-murder of his three children. Independent investigations by a newspaper, a nonprofit organization using top experts in the field of fire science, and an independent expert hired by the State of Texas all found that accident, not arson was the cause of the fire. There simply was no reliable evidence that the children were murdered. Yet even with these reports in hand, the state of Texas executed Mr. Willingham. Earlier this year, the Texas Forensic Science Commission was poised to issue a report officially confirming these conclusions until Texas Governor Rick Perry replaced the Commission’s chair and some of its members. Cameron Todd Willingham, who claimed innocence all along, was executed for a crime he almost certainly did not commit. As an example of the arbitrariness of the death penalty, another man, Ernest Willis, also convicted of arson-murder on the same sort of flimsy and unscientific testimony, was freed from Texas death row six months after Willingham was executed.
• In 1985, in Maryland, Kirk Bloodsworth was sentenced to death for rape and murder, despite the testimony of alibi witnesses. In 1986 his conviction was reversed on grounds of withheld evidence pointing to another suspect; he was retried, re-convicted, and sentenced to life in prison. In 1993, newly available DNA evidence proved he was not the rapist-killer, and he was released after the prosecution dismissed the case. A year later he was awarded $300,000 for wrongful punishment. Years later the DNA was matched to the real killer.
• In Mississippi, in 1990, Sabrina Butler was sentenced to death for killing her baby boy. She claimed the child died after attempts at resuscitation failed. On technical grounds her conviction was reversed in 1992. At retrial, she was acquitted when a neighbor corroborated Butler's explanation of the child's cause of death and the physician who performed the autopsy admitted his work had not been thorough.
• In 1990, Jesse Tafero was executed in Florida. He had been convicted in 1976 along with his wife, Sonia Jacobs, for murdering a state trooper. In 1981 Jacobs' death sentence was reduced on appeal to life imprisonment, and 11 years later her conviction was vacated by a federal court. The evidence on which Tafero and Jacobs had been convicted and sentenced was identical; it consisted mainly of the perjured testimony of an ex-convict who turned state's witness in order to avoid a death sentence. Had Tafero been alive in 1992, he no doubt would have been released along with Jacobs. Tafero’s execution went horribly wrong, and his head caught on fire during the electrocution.
• In Alabama, Walter McMillian was convicted of murdering a white woman in 1988. Despite the jury's recommendation of a life sentence, the judge sentenced him to death. The sole evidence leading the police to arrest McMillian was testimony of an ex-convict seeking favor with the prosecution. A dozen alibi witnesses (all African Americans, like McMillian) testified on McMillian's behalf that they were together at a neighborhood gathering, to no avail. On appeal, after tireless efforts by his attorney Bryan Stevenson, McMillian's conviction was reversed by the Alabama Court of Appeals. Stevenson uncovered prosecutorial suppression of exculpatory evidence and perjury by prosecution witnesses, and the new district attorney joined the defense in seeking dismissal of the charges.
• In 1985, in Illinois, Rolando Cruz and Alejandro Hernandez were convicted of abduction, rape, and murder of a young girl and were sentenced to death. Shortly after, another man serving a life term in prison for similar crimes confessed that he alone was guilty; but his confession was inadmissible because he refused to repeat it in court unless the state waived the death penalty against him. Awarded a new trial in 1988, Cruz was again convicted and sentenced to death; Hernandez was also re-convicted, and sentenced to 80 years in prison. In 1992 the assistant attorney general assigned to prosecute the case on appeal resigned after becoming convinced of the defendants' innocence. The convictions were again overturned on appeal after DNA tests exonerated Cruz and implicated the prisoner who had earlier confessed. In 1995 the court ordered a directed verdict of acquittal, and sharply criticized the police for their unprofessional handling of the case. Hernandez was released on bail and the prosecution dropped all charges.
• In 1980 in Texas a black high school janitor, Clarence Brandley, and his white co-worker found the body of a missing 16-year-old white schoolgirl. Interrogated by the police, they were told, "One of you two is going to hang for this." Looking at Brandley, the officer said, "Since you're the nigger, you're elected." In a classic case of rush to judgment, Brandley was tried, convicted, and sentenced to death. The circumstantial evidence against him was thin, other leads were ignored by the police, and the courtroom atmosphere reeked of racism. In 1986, Centurion Ministries – a volunteer group devoted to freeing wrongly convicted prisoners – came to Brandley's aid. Evidence had meanwhile emerged that another man had committed the murder for which Brandley was awaiting execution. Brandley was not released until 1990. (Davies, White Lies 1991)

This sample of freakish and arbitrary innocence determinations also speaks directly to the unceasing concern that there are many more innocent people on death rows across the country – as well as who have been executed. Several factors seen in the above sample of cases help explain why the judicial system cannot guarantee that justice will never miscarry: overzealous prosecution, mistaken or perjured testimony, race, faulty police work, coerced confessions, the defendant's previous criminal record, inept and under-resourced defense counsel, seemingly conclusive circumstantial evidence, and community pressure for a conviction, among others. And when the system does go wrong, it is often volunteers from outside the criminal justice system – journalists, for example – who rectify the errors, not the police or prosecutors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty.

CAPITAL PUNISHMENT IS BARBARIC

Prisoners are executed in the United States by any one of five methods; in a few jurisdictions the prisoner is allowed to choose which one he or she prefers:

The traditional mode of execution, hanging , is an option still available in Delaware, New Hampshire and Washington. Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be torn off.

Two states, Idaho and Utah, still authorize the firing squad . The prisoner is strapped into a chair and hooded. A target is pinned to the chest. Five marksmen, one with blanks, take aim and fire.

Throughout the twentieth century, electrocution has been the most widely used form of execution in this country, and is still utilized in eleven states, although lethal injection is the primary method of execution. The condemned prisoner is led – or dragged – into the death chamber, strapped into the chair, and electrodes are fastened to head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals retain consciousness. In 1983, the electrocution of John Evans in Alabama was described by an eyewitness as follows:

"At 8:30 p.m. the first jolt of 1900 volts of electricity passed through Mr. Evans' body. It lasted thirty seconds. Sparks and flames erupted … from the electrode tied to Mr. Evans' left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of grayish smoke and sparks poured out from under the hood that covered Mr. Evans' face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead.

"The electrode on the left leg was re-fastened. …Mr. Evans was administered a second thirty second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. [They] reported that his heart was still beating, and that he was still alive. At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace, to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request …was denied.

"At 8:40 p.m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans' body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes." Afterwards, officials were embarrassed by what one observer called the "barbaric ritual." The prison spokesman remarked, "This was supposed to be a very clean manner of administering death."

The introduction of the gas chamber was an attempt to improve on electrocution. In this method of execution the prisoner is strapped into a chair with a container of sulfuric acid underneath. The chamber is sealed, and cyanide is dropped into the acid to form a lethal gas. Execution by suffocation in the lethal gas chamber has not been abolished but lethal injection serves as the primary method in states which still authorize it. In 1996 a panel of judges on the 9th Circuit Court of Appeals in California (where the gas chamber has been used since 1933) ruled that this method is a "cruel and unusual punishment." Here is an account of the 1992 execution in Arizona of Don Harding, as reported in the dissent by U.S. Supreme Court Justice John Paul Stevens:

"When the fumes enveloped Don's head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes.

"At this point Don's body started convulsing violently.... His face and body turned a deep red and the veins in his temple and neck began to bulge until I thought they might explode. After about a minute Don's face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched.

"After several more minutes, the most violent of the convulsions subsided. At this time the muscles along Don's left arm and back began twitching in a wavelike motion under his skin. Spittle drooled from his mouth.

"Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete.

“Don Harding took ten minutes and thirty one seconds to die." ( Gomez v. U.S. District Court , 112 S.Ct. 1652)

The latest mode of inflicting the death penalty, enacted into law by more than 30 states, is lethal injection , first used in 1982 in Texas. It is easy to overstate the humaneness and efficacy of this method; one cannot know whether lethal injection is really painless and there is evidence that it is not. As the U.S. Court of Appeals observed, there is "substantial and uncontroverted evidence… that execution by lethal injection poses a serious risk of cruel, protracted death…. Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own asphyxiation." ( Chaney v. Heckler , 718 F.2d 1174, 1983).

Its veneer of decency and subtle analogy with life-saving medical practice no doubt makes killing by lethal injection more acceptable to the public. Journalist Susan Blaustein, reacting to having witnessed an execution in Texas, comments:

"The lethal injection method … has turned dying into a still life, thereby enabling the state to kill without anyone involved feeling anything…. Any remaining glimmers of doubt – about whether the man received due process, about his guilt, about our right to take life – cause us to rationalize these deaths with such catchwords as ‘heinous,’ ‘deserved,’ ‘deterrent,’ ‘justice,’ and ‘painless.’ We have perfected the art of institutional killing to the degree that it has deadened our natural, quintessentially human response to death."

Botched Lethal Injections

Nor does execution by lethal injection always proceed smoothly as planned. In 1985 "the authorities repeatedly jabbed needles into … Stephen Morin, when they had trouble finding a usable vein because he had been a drug abuser." In 1988, during the execution of Raymond Landry, "a tube attached to a needle inside the inmate's right arm began leaking, sending the lethal mixture shooting across the death chamber toward witnesses."

Although the U.S. Supreme Court has held that the current method of lethal injection used is constitutional, several people have suffered because of this form of execution. In Ohio, Rommel Broom was subjected to 18 attempts at finding a vein so that he could be killed by lethal injection. The process to try to execute him took over two hours. Finally, the governor had to stop the execution and grant the inmate a one week reprieve. Mr. Broom has not been executed because he is challenging the state’s right to hold a second execution attempt. Nor was he the only Ohio inmate so maltreated. During his 2006 execution Joseph Clark screamed, “it don’t work” and requested to take something by mouth so the torture would end when his executioners took thirty minutes to find a vein. Christopher Newton’s execution took over two hours – so long that he had to be given a bathroom break.

Lethal Injection Protocol Issues

Most lethal injections in the United States use a “cocktail” consisting of three drugs that sequentially render an inmate unconscious, cause paralysis and cease breathing, and stop an inmate’s heart. [6] But in 2011, the sole American manufacturer of sodium thiopental, a vital part of the three-drug cocktail, decided to discontinue production, forcing states to adapt their lethal injection methodology. [7] Some states have replaced the three-drug cocktail with a single substance, [8] while others have replaced thiopental in the three-drug sequence with another anesthetic. [9] Both three-drug and single-drug executions raise vital concerns: the three-drug cocktail’s paralyzing sedative may mask the inmate’s pain and suffering, while the single-drug method takes about 25 minutes to end a life (if there are no complications), compared with the ten-minute three-drug process. [10]

Although the Supreme Court held in 2008 that Kentucky’s three-drug lethal injection procedure did not violate the Constitution’s ban on cruel and unusual punishment, [11] it is unclear whether states’ adapted procedures pass muster. Indeed, in February 2012, a three-judge panel of the Ninth Circuit Court of Appeals admonished the Arizona Department of Corrections, stating that its approach to execution “cannot continue” and questioning the “regularity and reliability” of protocols that give complete discretion to the corrections director to determine which and how many drugs will be used for each execution. [12] In Georgia, the state Supreme Court stayed the execution of Warren Hill hours before he was scheduled to die in July 2012 in order to review the Department of Corrections’ new single-drug lethal injection procedure. [13] The Missouri Supreme Court imposed a temporary moratorium on executions in August 2012, declaring that it would be “premature” to set execution dates for death row inmates given a pending lawsuit about whether the state’s lethal injection procedures are humane. The state had amended its injection protocol to use a single drug, propofol, which advocates say causes severe pain upon injection. [14]

Although similar suits are pending in other states, [15] not all protocol-based challenges have succeeded; in Texas and Oklahoma, executions have continued despite questions about the potential cruelty of lethal injection and the type or number of chemicals used. [16]

Regardless of whether states use one or three drugs for an execution, all of the major lethal injection drugs are in short supply due to manufacturers’ efforts to prevent the use of their products for executions [17] and European Union restrictions on the exportation of drugs that may be used to kill. [18] As a result, some state executioners have pursued questionable means of obtaining the deadly chemicals from other states and foreign companies, including a pharmaceutical wholesaler operating out of the back of a London driving school. [19] These backroom deals—which, astoundingly, have been approved by the U.S. Food and Drug Administration (FDA)—are now the subject of federal litigation that could impact the legitimacy of the American death penalty system. In March 2012, six death row inmates argued that the FDA had shirked its duty to regulate lethal substances and raised concerns about the “very real risk that unapproved thiopental will not actually render a condemned prisoner unconscious.” [20] A federal district judge agreed and ordered the FDA to confiscate the imported thiopental, but the agency has appealed. [21]

Witnessing the Execution

Most people who have observed an execution are horrified and disgusted. "I was ashamed," writes sociologist Richard Moran, who witnessed an execution in Texas in 1985. "I was an intruder, the only member of the public who had trespassed on [the condemned man's] private moment of anguish. In my face he could see the horror of his own death."

Revulsion at the duty to supervise and witness executions is one reason why so many prison wardens – however unsentimental they are about crime and criminals – are opponents of capital punishment. Don Cabana, who supervised several executions in Missouri and Mississippi reflects on his mood just prior to witnessing an execution in the gas chamber:

"If [the condemned prisoner] was some awful monster deemed worthy of extermination, why did I feel so bad about it, I wondered. It has been said that men on death row are inhuman, cold-blooded killers. But as I stood and watched a grieving mother leave her son for the last time, I questioned how the sordid business of executions was supposed to be the great equalizer…. The 'last mile' seemed an eternity, every step a painful reminder of what waited at the end of the walk. Where was the cold-blooded murderer, I wondered, as we approached the door to the last-night cell. I had looked for that man before… and I still had not found him – I saw, in my grasp, only a frightened child. [Minutes after the execution and before] heading for the conference room and a waiting press corps, I… shook my head. 'No more. I don't want to do this anymore.'" 1996)

Recently, Allen Ault, former executioner for the State of Georgia, wrote , “The men and women who assist in executions are not psychopaths or sadists. They do their best to perform the impossible and inhumane job with which the state has charged them. Those of us who have participated in executions often suffer something very much like posttraumatic stress. Many turn to alcohol and drugs. For me, those nights that weren’t sleepless were plagued by nightmares.”

For some individuals, however, executions seem to appeal to strange, aberrant impulses and provide an outlet for sadistic urges. Warden Lewis Lawes of Sing Sing Prison in New York wrote of the many requests he received to watch electrocutions, and told that when the job of executioner became vacant. "I received more than seven hundred applications for the position, many of them offering cut-rate prices." (Life and Death in Sing Sing 1928)

Public executions were common in this country during the 19th and early 20th centuries. One of the last ones occurred in 1936 in Kentucky, when 20,000 people gathered to watch the hanging of a young African American male. (Teeters, in Journal of the Lancaster County Historical Society 1960)

Delight in brutality, pain, violence and death may always be with us. But surely we must conclude that it is best for the law not to encourage such impulses. When the government sanctions, commands, and ceremoniously carries out the execution of a prisoner, it lends support to this destructive side of human nature.

More than two centuries ago the Italian jurist Cesare Beccaria, in his highly influential treatise On Crimes and Punishment (1764), asserted: "The death penalty cannot be useful, because of the example of barbarity it gives men." Beccaria's words still ring true – even if the death penalty were a "useful" deterrent, it would still be an "example of barbarity." No society can safely entrust the enforcement of its laws to torture, brutality, or killing. Such methods are inherently cruel and will always mock the attempt to cloak them in justice. As Supreme Court Justice Arthur J. Goldberg wrote, "The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality."(Boston Globe, August 16, 1976)

Death Row Syndrome

Capital appeals are not only costly; they are also time-consuming. The average death row inmate waits 12 years between sentencing and execution, and some sit in anticipation of their executions on death row for up to 30 years. [22] For these prisoners, most of whom are housed in solitary confinement, this wait period may cause “Death Row Phenomenon” or “Death Row Syndrome.” Although the terms are often used interchangeably, “Death Row Phenomenon” refers to the destructive consequences of long-term solitary confinement [23] and the inevitable anxiety that results from awaiting one’s own death, while “Death Row Syndrome” refers to the severe psychological illness that often results from Death Row Phenomenon. [24]

In solitary confinement, inmates are often isolated for 23 hours each day without access to training or educational programs, recreational activities, or regular visits. Such conditions have been demonstrated to provoke agitation, psychosis, delusions, paranoia, and self-destructive behavior. [25] To inflict this type of mental harm is inhumane, but it also may prove detrimental to public safety. When death row inmates successfully appeal their sentences, they are transferred into the general inmate population, and when death row inmates are exonerated, they are promptly released into the community. [26] Death Row Syndrome needlessly risks making these individuals dangerous to those around them.

Neither Death Row Syndrome nor Death Row Phenomenon has received formal recognition from the American Psychiatric Association or the American Psychological Association. [27] In 1995, however, Justices Stevens and Breyer, in a memorandum regarding the Supreme Court’s denial of certiorari to death row inmate Clarence Lackey, highlighted the “importance and novelty” of the question “whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment.” [28] Further, as some scholars and advocates have noted, the mental deterioration symptomatic of Death Row Syndrome may render an inmate incompetent to participate in their own post-conviction proceedings. [29]

Death Row Syndrome gained international recognition during the 1989 extradition proceedings of Jens Soering, a German citizen arrested in England and charged with committing murder on American soil. [30] Soering argued, and the European Court of Human Rights agreed, that extraditing him to the United States would violate Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. [31] The Court explained that, in the United States, “the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death” such that extraditing Soering would violate protections against “inhuman or degrading treatment or punishment.” [32] Similar conclusions have been reached by the United Kingdom’s Judicial Committee of the Privy Council, the United Nations Human Rights Committee, and the Canadian Supreme Court. [33]

CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION

Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim does not bear scrutiny, however. By its nature, all punishment is retributive. Therefore, whatever legitimacy is to be found in punishment as just retribution can, in principle, be satisfied without recourse to executions.

Moreover, the death penalty could be defended on narrowly retributive grounds only for the crime of murder, and not for any of the many other crimes that have frequently been made subject to this mode of punishment (rape, kidnapping, espionage, treason, drug trafficking). Few defenders of the death penalty are willing to confine themselves consistently to the narrow scope afforded by retribution. In any case, execution is more than a punishment exacted in retribution for the taking of a life. As Nobel Laureate Albert Camus wrote, "For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life." (Reflections on the Guillotine, in Resistance, Rebellion, and Death 1960)

It is also often argued that death is what murderers deserve, and that those who oppose the death penalty violate the fundamental principle that criminals should be punished according to their just desserts – "making the punishment fit the crime." If this rule means punishments are unjust unless they are like the crime itself, then the principle is unacceptable: It would require us to rape rapists, torture torturers, and inflict other horrible and degrading punishments on offenders. It would require us to betray traitors and kill multiple murderers again and again – punishments that are, of course, impossible to inflict. Since we cannot reasonably aim to punish all crimes according to this principle, it is arbitrary to invoke it as a requirement of justice in the punishment of murder.

If, however, the principle of just deserts means the severity of punishments must be proportional to the gravity of the crime – and since murder is the gravest crime, it deserves the severest punishment – then the principle is no doubt sound. Nevertheless, this premise does not compel support for the death penalty; what it does require is that other crimes be punished with terms of imprisonment or other deprivations less severe than those used in the punishment of murder.

Criminals no doubt deserve to be punished, and the severity of the punishment should be appropriate to their culpability and the harm they have caused the innocent. But severity of punishment has its limits – imposed by both justice and our common human dignity. Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy.

Murder Victims Families Oppose the Death Penalty

Some people who have lost a loved one to murder believe that they cannot rest until the murderer is executed. But this sentiment is by no means universal. Coretta Scott King has observed, "As one whose husband and mother-in-law have died the victims of murder and assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by a legalized murder." (Speech to National Coalition to Abolish the Death Penalty, Washington, D.C., September 26, 1981)

Kerry Kennedy Cuomo, daughter of the slain Senator Robert Kennedy, has written:

"I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder.…But even as a child one thing was clear to me: I didn't want the killer, in turn, to be killed. I remember lying in bed and praying, 'Please, God. Please don't take his life too.' I saw nothing that could be accomplished in the loss of one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread through another family – another set of parents, children, brothers, and sisters thrown into grief."(Foreword to Gray and Stanley, A Punishment in Search of A Crime 1989)

Across the nation, many who have survived the murder of a loved one have joined Murder Victims' Families for Reconciliation or Murder Victims Families for Human Rights, in the effort to replace anger and hate toward the criminal with a restorative approach to both the offender and the bereaved survivors.

Groups of murder victims family members have supported campaigns for abolition of the death penalty in Illinois, Connecticut, Montana and Maryland most recently.

Barbara Anderson Young, the sister of James Anderson, who was allegedly run over by a white teenager in Mississippi in 2011, who reportedly wanted to hurt him because he was Black, wrote a letter to the local prosecutor on behalf of their family indicating the family’s opposition to the death penalty, which is “deeply rooted in our religious faith, a faith that was central in James’ life as well.” The letter also eloquently asks that the defendant be spared execution because the death penalty “historically has been used in Mississippi and the South primarily against people of color for killing whites.” It continues, “[e]xecuting James' killers will not help balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment."

Lawrence Brewer, convicted of the notorious dragging death of James Byrd in Texas, was executed in 2011. Members of Mr. Byrd’s family opposed the death penalty, despite the racist and vicious nature of the killing. Of Brewer’s remorseless – he said he had no regrets the day he was executed – Byrd’s sister, Betty Boatner, said, “If I could say something to him, I would let him know that I forgive him and then if he still has no remorse, I just feel sorry for him.” Byrd’s daughter shared that she didn’t want Brewer to die because “it’s easy . . .(a)ll he’s going to do it go to sleep” rather than live every day with what he did and perhaps one day recognize the humanity of his victim. James Byrd’s son, Ross, points out "You can't fight murder with murder . . .(l)ife in prison would have been fine. I know he can't hurt my daddy anymore. I wish the state would take in mind that this isn't what we want."

CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION

It is sometimes suggested that abolishing capital punishment is unfair to the taxpayer, on the assumption that life imprisonment is more expensive than execution. If one takes into account all the relevant costs, however, just the reverse is true. "The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment.") A murder trial normally takes much longer when the death penalty is at issue than when it is not. Litigation costs – including the time of judges, prosecutors, public defenders, and court reporters, and the high costs of briefs – are mostly borne by the taxpayer. The extra costs of separate death row housing and additional security in court and elsewhere also add to the cost. A 1982 study showed that were the death penalty to be reintroduced in New York, the cost of the capital trial alone would be more than double the cost of a life term in prison. (N.Y. State Defenders Assn., "Capital Losses" 1982)

The death penalty was eventually reintroduced in New York and then found unconstitutional and not reintroduced again, in part because of cost.

In Maryland, a comparison of capital trial costs with and without the death penalty for the years concluded that a death penalty case costs "approximately 42 percent more than a case resulting in a non-death sentence." In 1988 and 1989 the Kansas legislature voted against reinstating the death penalty after it was informed that reintroduction would involve a first-year cost of more than $11 million. 59 Florida, with one of the nation's most populous death rows, has estimated that the true cost of each execution is approximately $3.2 million, or approximately six times the cost of a life-imprisonment sentence." (David von Drehle, "Capital Punishment in Paralysis," Miami Herald, July 10, 1988)

A 1993 study of the costs of North Carolina's capital punishment system revealed that litigating a murder case from start to finish adds an extra $163,000 to what it would cost the state to keep the convicted offender in prison for 20 years. The extra cost goes up to $216,000 per case when all first-degree murder trials and their appeals are considered, many of which do not end with a death sentence and an execution.

In 2011 in California, a broad coalition of organizations called Taxpayers for Justice put repeal of the death penalty on the ballot for 2012 in part because of the high cost documented by a recent study that found the state has already spent $4 billion on capital punishment resulting in 13 executions. The group includes over 100 law enforcement leaders, in addition to crime-victim advocates and exonerated individuals. Among them is former Los Angeles County District Attorney Gil Garcetti, whose office pursued dozens of capital cases during his 32 years as a prosecutor. He said, "My frustration is more about the fact that the death penalty does not serve any useful purpose and it's very expensive." Don Heller, a Republican and former prosecutor, wrote "I am convinced that at least one innocent person may have been executed under the current death penalty law. It was not my intent nor do I believe that of the voters who overwhelmingly enacted the death penalty law in 1978. We did not consider that horrific possibility." Heller emphasized that he is not "soft on crime," but that "life without parole protects public safety better than a death sentence." Additionally, he said the money spent on the death penalty could be better used elsewhere, as California cuts funding for police officers and prosecutors. "Paradoxically, the cost of capital punishment takes away funds that could be used to enhance public safety." [34]

From one end of the country to the other public officials decry the additional cost of capital cases even when they support the death penalty system. "Wherever the death penalty is in place, it siphons off resources which could be going to the front line in the war against crime…. Politicians could address this crisis, but, for the most part they either endorse executions or remain silent." The only way to make the death penalty more "cost effective" than imprisonment is to weaken due process and curtail appellate review, which are the defendant's (and society's) only protection against the most aberrant miscarriages of justice. Any savings in dollars would, of course, be at the cost of justice : In nearly half of the death-penalty cases given review under federal habeas corpus provisions, the murder conviction or death sentence was overturned .

In 1996, in response to public clamor for accelerating executions, Congress imposed severe restrictions on access to federal habeas corpus and also ended all funding of the regional death penalty "resource centers" charged with providing counsel on appeal in the federal courts. (Carol Castenada, "Death Penalty Centers Losing Support Funds," USA Today, Oct. 24, 1995) These restrictions virtually guarantee that the number and variety of wrongful murder convictions and death sentences will increase. The savings in time and money will prove to be illusory.

CAPITAL PUNISHMENT IS LESS POPULAR THAN THE ALTERNATIVES

It is commonly reported that the American public overwhelmingly approves of the death penalty. More careful analysis of public attitudes, however, reveals that most Americans prefer an alternative; they would oppose the death penalty if convicted murderers were sentenced to life without parole and were required to make some form of financial restitution. In 2010, when California voters were asked which sentence they preferred for a first-degree murderer, 42% of registered voters said they preferred life without parole and 41% said they preferred the death penalty. In 2000, when voters were asked the same question, 37% chose life without parole while 44% chose the death penalty . A 1993 nationwide survey revealed that although 77% of the public approves of the death penalty, support drops to 56% if the alternative is punishment with no parole eligibility until 25 years in prison. Support drops even further, to 49%, if the alternative is no parole under any conditions. And if the alternative is no parole plus restitution, it drops still further, to 41% . Only a minority of the American public would favor the death penalty if offered such alternatives.

INTERNATIONALLY, CAPITAL PUNISHMENT IS WIDELY VIEWED AS INHUMANE AND ANACHRONISTIC

An international perspective on the death penalty helps us understand the peculiarity of its use in the United States. As long ago as 1962, it was reported to the Council of Europe that "the facts clearly show that the death penalty is regarded in Europe as something of an anachronism…." 1962)

Today, either by law or in practice, all of Western Europe has abolished the death penalty. In Great Britain, it was abolished (except for cases of treason) in 1971; France abolished it in 1981. Canada abolished it in 1976. The United Nations General Assembly affirmed in a formal resolution that throughout the world, it is desirable to "progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment." By mid-1995, eighteen countries had ratified the Sixth Protocol to the European Convention on Human Rights, outlawing the death penalty in peacetime.

Underscoring worldwide support for abolition was the action of the South African constitutional court in 1995, barring the death penalty as an "inhumane" punishment. Between 1989 and 1995, two dozen other countries abolished the death penalty for all crimes. Since 1995, 43 more abolished it. All told, 71% of the world’s nation’s have abolished the death penalty in law or practice; only 58 of 197 retain it .

International Law

A look at international trends and agreements sheds light on the peculiarity of the United States’ continued imposition of capital punishment. Today, over 140 nations have abolished the death penalty either by law or in practice and, of the 58 countries that have retained the death penalty, only 21 carried out known executions in 2011. [35] Furthermore, capital punishment has compelled the United States to abstain from signing or ratifying several major international treaties and perhaps to violate international agreements to which it is a party:

In 1989, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), one of the UN’s primary human rights treaties. [36] Parties to the Protocol must take all necessary measures to abolish the death penalty and protect their citizens’ right not to be executed, although signatories may reserve the right to apply the death penalty for serious military criminals during wartime. [37] The United States has yet to join the 35 signatories or 75 parties to the Protocol, trailing behind the world’s leading democracies in the protection of human rights.

Although the Second Protocol to the ICCPR is the only worldwide instrument calling for death penalty abolition, there are three such instruments with regional emphases. Adopted by the Council of Europe in 1982 and ratified by eighteen nations by mid-1995, the Sixth Protocol of the European Convention on Human Rights (ECHR) provides for the abolition of capital punishment during peacetime. In 2002, the Council adopted the Thirteenth Protocol to the ECHR, which provides for the abolition of the death penalty in all circumstances, including times of war or imminent threat of war. In 1990, the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which provides for total abolition but allows states to reserve the right to apply the death penalty during wartime. [38]

The United States has ratified the Vienna Convention on Consular Relations (VCCR), an international treaty setting forth a framework for consular relations among independent countries. Under Article 36 of the VCCR, local authorities are obligated to inform all detained foreigners “without delay” of their right to request consular notification of their detention and their right to demand and access opportunities to communicate with their consular representatives. [39] Local authorities have repeatedly disregarded this obligation, resulting in the International Court of Justice holding in 2004 that states had violated the VCCR by failing to inform 51 named Mexican nationals of their rights. All 51 were sentenced to death. When the State of Texas refused to honor this judgment and provide relief for the 15 death-row inmates whose VCCR rights it had violated, President George W. Bush sought to intervene on the prisoners’ behalf, taking the case to the United States Supreme Court. The Court denied the President’s appeal, and Texas has gone on to execute inmates whose VCCR rights it had failed to honor.

In 1994, the United States signed the United Nations (UN) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). [40] The treaty, which has now been ratified or signed by 176 nations, outlaws the imposition of physical or psychological abuse on people in detention. While it does not explicitly prohibit capital punishment, the treaty does forbid the intentional infliction of pain. Since 1976, however, more than 20 executions in the United States have involved prolonged, painful, or shocking errors, such as an inmate’s head catching fire or a lengthy and torturous search for a vein suitable for lethal injection. Additionally, accidents aside, our methods of execution—lethal injection, electrocution, firing squad, gas chamber, and hanging—may be inherently painful. The CAT also forbids the infliction of pain and suffering “based on discrimination of any kind,” [41] yet racial inequality is endemic to our death rows .

Also in 1994, the United States ratified the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), a treaty intended to protect against racial discrimination, whether intentional or resulting from seemingly neutral state policies. To meet its obligations as a party to ICERD, the United States must take steps to review and amend policies and procedures that create or perpetuate racial discrimination, including capital punishment. [42]

Once in use everywhere and for a wide variety of crimes, the death penalty today is generally forbidden by law and widely abandoned in practice, in most countries outside the United States. Indeed, the unmistakable worldwide trend is toward the complete abolition of capital punishment. In the United States, opposition to the death penalty is widespread and diverse. Catholic, Jewish, and Protestant religious groups are among the more than 50 national organizations that constitute the National Coalition to Abolish the Death Penalty.

The Case Against the Death Penalty was first published by the ACLU as a pamphlet in 1973. The original text was written by Hugo Adam Bedau, Ph.D., who also contributed to several subsequent editions of the pamphlet. This version was most recently revised by the ACLU in 2012.

[1] Glenn L. Pierce & Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990-2008 , 71 La. L. Rev. 647, 671 (2011), available at http://www.deathpenaltyinfo.org/documents/PierceRadeletStudy.pdf .

[2] Liebman et. al, Los Tocayos Carlos , 43 Colum. Hum. Rts. L. Rev. 711, 1104 (2012).

[3] See Andrew Cohen, Yes, America, We Have Executed an Innocent Man , Atlantic, May 14, 2012, http://www.theatlantic.com/national/archive/2012/05/yes-america-we-have-executed-an-innocent-man/257106/ .

[4] See id.

[5] See id. ; Carlos DeLuna Case: The Fight to Prove an Innocent Man Was Executed , PBS Newshour, May 24, 2012, http://www.pbs.org/newshour/bb/law/jan-june12/deathpenalty_05-24.html .

[6] A Three-Drug Cocktail , WashingtonPost.com, Sep. 26, 2007, http://www.washingtonpost.com/wp-dyn/content/graphic/2007/09/26/GR2007092600116.html ; see also Victoria Gill, The Search for a Humane Way to Kill , BBC News, Aug. 7, 2012, http://www.bbc.co.uk/news/magazine-19060961 .

[7] See Carol J. Williams, Maker of Anesthetic Used in Executions is Discontinuing Drug, L.A. Times, Jan. 22, 2011, http://articles.latimes.com/2011/jan/22/local/la-me-execution-drug-20110122 ; John Schwartz, Death Penalty Drug Raises Legal Questions , N.Y. Times, Apr. 13, 2011, http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all .

[8] See Brandi Grissom, Texas Will Change its Lethal Injection Protocol , Tex. Tribune, July 10, 2012, www.texastribune.org/texas-dept-criminal-justice/death-penalty/texas-changing-its-lethal-injection-protocol/ ; Rob Stein, Ohio Executes Inmate Using New, Single-Drug Method for Death Penalty , Wash. Post, Mar. 11, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/03/10/AR2011031006250.html ; David Beasley, Georgia Delays Execution Amid Drug Protocol Change , Reuters, July, 17, 2012, http://www.reuters.com/article/2012/07/17/us-usa-execution-georgia-idUSBRE86G14L20120717 ; Rhonda Cook & Bill Rankin, State Changes Lethal Injection Protocol, Reschedules Execution , Atlanta Journal-Constitution, July 17, 2012, http://www.ajc.com/news/atlanta/state-changes-lethal-injection-1479424.html ; Steve Eder, A Texas First: Single-Drug Used to Execute Inmate , WSJ Law Blog, http://blogs.wsj.com/law/2012/07/19/a-texas-first-single-drug-used-to-execute-inmate/ ; Idaho Switches Execution Protocol to Single-Drug Lethal Injection , Spokesman.com, May 18, 2012, http://www.spokesman.com/blogs/boise/2012/may/18/idaho-switches-execution-protocol-single-drug-lethal-injection/ .

[9] See Carol J. Williams, California’s New Lethal Injection Protocol Tossed By Judge, L.A. Times, Dec. 17, 2011, http://articles.latimes.com/2011/dec/17/local/la-me-executions-20111217 ; Kathy Lohr, New Lethal Injection Drug Raises Concerns , NPR, Jan. 29, 2011, http://www.npr.org/2011/01/29/133302950/new-lethal-injection-drug-raises-concerns ; Steve Eder, Virginia Adds New Drug for Lethal Injections , WSJ Law Blog, July 27, 2012, http://blogs.wsj.com/law/2012/07/27/virginia-adds-new-drug-for-lethal-injections/ .

[10] Laura Vozzella, Virginia opts for One-Drug Lethal Injection Protocol , Wash. Post, July 27, 2012, http://www.washingtonpost.com/local/dc-politics/virginia-opts-for-one-drug-lethal-injection-protocol/2012/07/27/gJQA8jxiEX_story.html .

[11] See Linda Greenhouse, Supreme Court Allows Lethal Injection for Execution , N.Y. Times, Apr. 17, 2008, http://www.nytimes.com/2008/04/17/us/16cnd-scotus.html?pagewanted=all .

[12] See Michael Kiefer, State is Sued Again Over Its Lethal-Injection Procedure , USA Today, Feb. 7, 2012, http://www.usatoday.com/USCP/PNI/Valley%20&%20State/2012-02-07-PNI0207met--executionsART_ST_U.htm ; Court Gives Arizona Warning About Execution Protocol , Associated Press, Feb. 28, 2012, available at http://www.azcentral.com/community/pinal/articles/2012/02/28/20120228arizona-moorman-execution-death-row-inmate-lawyers-seek-stays.html . Notably, however, the panel did not halt Arizona’s scheduled executions. Id.

[13] David Beasley, Georgia Inmate Gets Stay Hours Before Scheduled Execution , Reuters, July 23, 2012, http://www.reuters.com/article/2012/07/23/us-usa-execution-georgia-idUSBRE86M1F720120723 .

[14] Steve Eder, Missouri Executions on Hold Amid Concerns About New Drug , Aug. 15, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/15/missouri-executions-on-hold-amid-concerns-about-new-drug/ .

[15] Melissa Anderson, ACLU Challenges Montana’s Lethal Injection Protocol , KXLH.com, Aug. 1, 2012, http://www.kxlh.com/news/aclu-challenges-montana-s-lethal-injection-protocol/ .

[16] See Eder, supra note 3; Steve Olfason, Oklahoma to Execute Man Who Killed Ex-Girlfriend and Her Two Kids , Chicago Tribune, Aug. 14, 2012, http://articles.chicagotribune.com/2012-08-14/news/sns-rt-us-usa-execution-oklahomabre87d0s8-20120814_1_jerry-massie-method-of-lethal-injection-three-drug-protocol ; Steve Eder, Oklahoma Execution Set After Lethal Injection Challenge Fails , Aug. 13, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/13/oklahoman-set-for-executution-after-lethal-injection-challenge-fails/ .

[17] See Grissom, supra note 3; Ed Pilkington, Texas Executions Threatened As Stocks of Death Penalty Drug Run Low , Guardian, Feb. 14, 2012, http://www.guardian.co.uk/world/2012/feb/14/texas-executions-threatened-stocks-run-low ; John Schwartz, Seeking Execution Drug, States Cut Legal Corners , N.Y. Times, Apr. 13, 2011,

http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all ; Kiefer, supra note 7.

[18] EU Imposes Strict Controls on ‘Execution Drug’ Exports, BBC News, Dec. 20, 2011, http://www.bbc.co.uk/news/world-europe-16281016 ; Matt McGrath, FDA Goes to Court to Secure Drugs for Lethal Injections , BBC World, June 1, 2012, http://www.bbc.co.uk/news/science-environment-18253578 .

[19] See Jeremy Pelofsky, U.S. Wants Lawsuit Over Execution Drug Dismissed , Reuters, Apr. 20, 2011, http://www.reuters.com/article/2011/04/20/us-usa-execution-lawsuit-idUSTRE73J7MH20110420 ; Michael Kiefer, Execution Drugs: Arizona Inmate Lawsuit Seeks FDA Policing , Ariz. Republic, Feb. 3, 2011, http://www.azcentral.com/news/articles/2011/02/02/20110202arizona-execution-drug-fda-lawsuit-brk02-ON.htm l; Kevin Johnson, Lawsuit Seeks to Block Imports of Key Execution Drug , USA Today, Feb. 2, 2011, http://content.usatoday.com/communities/ondeadline/post/2011/02/lawsuit-seeks-to-block-imports-of-key-execution-drug/1#.UA2pmKBCzGc ; Ryan Gabrielson, Lethal Injection Drug Tied to London Wholesaler , California Watch, Jan. 7, 2011, http://californiawatch.org/dailyreport/lethal-injection-drug-tied-london-wholesaler-7888 ; Ryan Gabrielson, California Lethal Injection: Prison Officials Refuse to Hand Over Lethal Injection Drug , California Watch, May 30, 2012, available at http://www.huffingtonpost.com/2012/05/30/california-lethal-injection_n_1556155.html .

[20] Pelofsky, supra note 14.

[21] See Raymond Bonner, FDA’s Immoral Stance on Lethal Injection Drugs , Bloomberg, July 29, 2012, http://www.bloomberg.com/news/2012-07-29/fda-s-immoral-stance-on-lethal-injection-drugs.html .

[22] See Elizabeth Rapaport , A Modest Proposal: The Aged of Death Row Should be Deemed Too Old to Execute, 77 Brook. L. Rev. 1089 (Spring 2012); Michael J. Carter, Wanting to Die: The Cruel Phenomenon of “Death Row Syndrome”, Alternet, Nov. 7, 2008, http://www.alternet.org/rights/106300/waiting_to_die%3A_the_cruel_phenomenon_of_%22death_row_syndrome%22/ ; Dr. Karen Harrison and Anouska Tamony, Death Row Phenomenon, Death Row Syndrome, and Their Affect [sic.] on Capital Cases in the U.S. , Internet Journal of Criminology 2010, available at http://www.internetjournalofcriminology.com/Harrison_Tamony_%20Death_Row_Syndrome%20_IJC_Nov_2010.pdf .

[23] See Stop Solitary – The Dangerous Overuse of Solitary Confinement in the United States, ACLU.org, https://www.aclu.org/stop-solitary-dangerous-overuse-solitary-confinement-united-states-0 .

[24] See Harrison and Tamony, supra note 25.

[25] See Carter, supra note 25; Death Penalty Information Center, Time on Death Row (2006), at http://www.deathpenaltyinfo.org/time-death-row .

[26] See id.

[27] Amy Smith, Not “Waiving” But Drowning: The Anatomy of Death Row Syndrome and Volunteering for Execution , 17 B.U. Pub. Int. L.J. 237, 243, available at http://www.bu.edu/law/central/jd/organizations/journals/pilj/vol17no2/documents/17-2SmithArticle.pdf .

[28] Lackey v. Texas, 115 S. Ct. 1421, 1421 (1995) (Stevens, J., concurring in the denial of certiorari).

[29] Stephen Blank, Killing Time: The Process of Waiving Appeal – The Michael Ross Death Penalty Cases , 14 J.L. & Pol’y 735, 738-39 (2006).

[30] Soering v. UK , App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989), available at http://eji.org/eji/files/Soering%20v.%20United%20Kingdom.pdf .

[31] See David Wallace-Wells, What is Death Row Syndrome? , Slate, Feb. 1, 2005, http://www.slate.com/articles/news_and_politics/explainer/2005/02/what_is_death_row_syndrome.html ; Smith supra note 30.

[32] Smith supra note 30. (quoting Soering , 11 Eur. H. R. Rep. at 475-76).

[33] Id. at 239.

[34] Carol J. Williams, Death Penalty: Exhaustive Study Finds Death Penalty Costs California $184 Million a Year , L.A. Times, June 20, 2011, http://articles.latimes.com/2011/jun/20/local/la-me-adv-death-penalty-costs-20110620 .

[35] Figures on the Death Penalty , Amnesty International, http://www.amnesty.org/en/death-penalty/numbers .

[36] UN General Assembly, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty , Dec. 15, 1989, A/RES/44/128, available at: http://www.unhcr.org/refworld/docid/3ae6b3a70.html [accessed 15 August 2012] [ hereinafter Second Optional Protocol].

[37] See Pierre Desert, Second Optional Protocol: Frequently Asked Questions , World Coalition Against the Death Penalty, June 27, 2008, http://www.worldcoalition.org/Second-Optional-Protocol-Frequently-Asked-Questions.html ; Pierre Desert, Second Optional Protocol: The Only Global Treaty Aiming at the Abolition of the Death Penalty , World Coalition Against the Death Penalty, June 24, 2008, www.worldcoalition.org/UN-Protocol-the-only-global-treaty-aiming-at-the-abolition-of-the-death-penalty.html ; Second Optional Protocol, supra note 21.

[38] Desert, Second Optional Protocol: Frequently Asked Questions , supra note 22.

[39] Vienna Convention on Consular Relations, Mar. 19, 1967, 596 U.N.T.S. 261, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf .

[40] United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://treaties.un.org/doc/publication/UNTS/Volume%201465/v1465.pdf .

[41] Richard C. Dieter, Introduction: Ford Foundation Symposium, Nov. 12, 1998, available at http://www.deathpenaltyinfo.org/us-death-penalty-and-international-law-us-compliance-torture-and-race-conventions .

[42] International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195, available at http://treaties.un.org/doc/publication/UNTS/Volume%20660/v660.pdf .

Related Issues

• Capital Punishment

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‌the end of the death penalty.

‌‘Unintended consequences’ and the legacy of Furman v. Georgia

More than 50 years ago, the U.S. Supreme Court held in Furman v. Georgia that the death penalty was an unconstitutional violation of the Eighth Amendment ban against cruel and unusual punishment. With that, 629 people on death row nationwide had their capital sentences commuted, and the death penalty disappeared overnight.

“Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact.” Carol Steiker

But Furman didn’t abolish capital punishment for very long. Four years later, Gregg v. Georgia and several companion cases made clear that governments could impose capital punishment under certain conditions. Those decisions were a response to the backlash sparked by Furman , which appeared to revive support for a practice that had been in sharp decline for years. Today, 27 states in the U.S., as well as the federal government, retain the death penalty, and as of April 2022, one source reported that there were 2,414 people on death row across the country. Despite what many would have predicted in 1972, when the Furman decision suggested the U.S. would become an international leader in eliminating the death penalty, today it’s the only Western democracy that still imposes it. 

Still, while the death penalty persists in the U.S., it’s not exactly thriving. Indeed, it’s once again “withering” across the country, says Carol S. Steiker ’86 , the Henry J. Friendly Professor of Law at Harvard Law School, who has taught Capital Punishment in America at the school since 1993. Though Furman (and its subsequent overruling) helped fuel the death penalty’s revival, it also set in motion a long series of events that may ultimately eliminate capital punishment in the United States, Steiker says.

“ Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact,” says Steiker, who is co-author, with her brother, Jordan Steiker ’88, of “Courting Death: The Supreme Court and Capital Punishment” (Harvard University Press, 2016) and co-editor, also with him, of “Comparative Capital Punishment” (Edward Elgar, 2019).

“ Furman was a remarkable intervention,” says Jordan Steiker, a professor at the law school at the University of Texas at Austin and co-director of its Capital Punishment Center. “Even though it was quite short-lived in suspending the death penalty in the U.S., it completely changed its course because it essentially inspired or required states to rethink how they were doing capital punishment. And ultimately, the practice of the death penalty changed substantially over time.”

Given the greatly heightened public attention to the power of the Supreme Court today, the 50th anniversary of Furman is an opportunity to reexamine not just the history of the death penalty but the appropriate role of the Court in American life, Carol Steiker and others believe.

“Right now a lot of people are wondering how much of a role we want the courts to play in deciding what rights are guaranteed by the Constitution, and Furman v. Georgia is a unique example of when the Court struck down a policy that was widely prevalent throughout the states for violating the Constitution,” says Gene Young Chang ’24, who has been studying the death penalty with Steiker since he was a freshman in her Harvard College course The American Death Penalty: Morality, Law, and Politics. Furman , he says, “teaches us things about the role of the courts in a democratic society, the scope of constitutional rights, and the proper method for defining those rights.” 

Categorical abolition of the death penalty across the nation is unlikely without another Furman v. Georgia , “what you might call Furman II, which is obviously not forthcoming from this Court or anytime in the foreseeable future,” Carol Steiker says. Instead, the future of the death penalty, she says, is being played out at the local level, in “a kind of guerrilla war going on county by county, state by state, with the election of progressive prosecutors who do not seek the death penalty, state legislative activity, and state constitutional litigation under state constitutions.”

The final death knell for capital punishment will likely depend on a very different Supreme Court from the one we have today, she says. “But at that point,” given other trends in the country, “it may be more like a coup de grâce rather than what it was at the time of Furman .”

History of a ‘remarkable intervention’

In the 1960s, due to a campaign by the NAACP Legal Defense and Educational Fund to challenge its constitutionality in cases across the country, capital punishment was in decline. Indeed, no one was executed in the five years before Furman , as states waited to see what the high court would rule. In 1971, the Supreme Court rejected a due process challenge to capital punishment. But Furman , argued a year later, relied on the Eighth Amendment: The LDF team argued that the arbitrary application of capital punishment — jurors, often with no guidance, had complete discretion on when to impose it — was a cruel and unusual punishment.

”The Supreme Court intervention [in Furman] not only didn’t kill the death penalty but actually made it stronger when it was reinstated.” Carol Steiker

The Supreme Court agreed, 5-4, although the justices issued nine separate opinions, which was very unusual, as Carol Steiker notes. Justice Thurgood Marshall (for whom both Steikers later clerked) and Justice William J. Brennan Jr. LL.B. ’31 maintained that the death penalty was unconstitutional per se. Justice William O. Douglas was troubled by its discriminatory application, given overwhelming evidence that it was more often imposed on Black defendants, the poor, and the politically unpopular. Justices Potter Stewart and Byron White were troubled by its arbitrary application under state statutes, with Justice Stewart famously writing, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” He concluded that the Constitution could not “permit this unique penalty to be so wantonly and so freakishly imposed.” 

But abolitionists’ hopes didn’t last long. Soon after Furman, 35 states rewrote their laws to try to comply with the Court’s ruling. In 1976, in a group of consolidated cases known as Gregg v. Georgia , the Supreme Court held that the death penalty was not per se unconstitutional. It ruled the punishment could be revived if state laws provided an objective process for deciding when to apply it and gave sufficient discretion to juries to determine whether it was appropriate. However, mandatory death penalties were unconstitutional, it held, even though some states believed that mandatory penalties were necessary to eliminate sentencing discretion.

Furman created an enormous backlash, the Steikers explain, so that capital punishment — which was becoming less and less popular in public opinion — resurged. It became “more of a wedge issue, part of the tough-on-crime political strategy of [President Richard] Nixon, and political entrepreneurs exploited the resentment at the Supreme Court’s intervention in the death penalty,” says Jordan Steiker, who has frequently taught at Harvard Law School, most recently in 2018 as the Touroff-Glueck Visiting Professor of Law and Psychiatry. “In the short term, the death penalty became more vigorous, there were more death sentences, and by the 1990s, there were many more executions than we were having pre- Furman .”

At least initially, then, “the Supreme Court intervention [in Furman ] not only didn’t kill the death penalty but actually made it stronger when it was reinstated,” says Carol Steiker, something she sees as an “unintended and unforeseen consequence” of the case.

Birth of the capital defense bar

But there was another unforeseen consequence of Furman , one that Jordan Steiker describes as “probably more important and long-lasting” — the birth of a large and highly skilled capital defense bar. 

With the resurrection of the death penalty, new, sophisticated institutions were created and staffed by passionate and skilled anti-capital lawyers: state offices for capital representation at the trial, appellate, and post-conviction levels; capital habeas corpus units within state and federal public defenders’ offices; and numerous non-governmental nonprofits, such as Bryan Stevenson ’85’s Equal Justice Initiative. Today, “we have a whole legion of much more focused and talented advocates working on behalf of people facing capital charges or sentenced to death,” says Jordan Steiker.

Capital litigation has become far more complex, and the costs have soared. This has helped persuade many local prosecutors to avoid seeking the death penalty.

With these developments, as well as the Supreme Court’s imposition of special procedural requirements for cases involving the death penalty, capital litigation has become far more complex, and the costs have soared. “The constitutional decisions post- Furman have not imposed the most rigorous scrutiny of capital practices,” says Jordan Steiker, “but they have produced institutional actors who have made the death penalty much less attractive as a practical matter because to do it reasonably well is just exorbitantly expensive.” This has helped persuade many local prosecutors to avoid seeking the death penalty and has led to an “extraordinary decline in capital proceedings,” he says.

The current Supreme Court has signaled greater willingness to affirm capital sentences than in the recent past, says Jordan Steiker, and some jurisdictions have embraced that signal. The Oklahoma Court of Criminal Appeals had scheduled nearly one execution a month between 2022 and 2024 (although at the request of the new attorney general, the pace has now been slowed to no more than one every 60 days). In Texas, on the other hand, two death sentences were imposed in 2022, which contrasts starkly with the 1990s, when Texas juries were handing out more than 40 a year, Jordan Steiker says. “The practice on the ground is withering in part because of the institutions built in response to Furman ,” he says.

Local prosecutors and state courts take over

Other factors besides cost have decreased the public’s appetite for the death penalty, including media attention to, and public awareness of, the number of innocent people sentenced to death. Since 1973, at least 190 people who were wrongly convicted and sentenced to death have been exonerated, according to the Death Penalty Information Center. For that and other reasons, including declining crime rates, there has been a dramatic decline in public support for the death penalty over the past 20 years. Though the 2021 Gallup poll found that 54% of respondents continued to support it, that is the lowest number in the annual poll since 1972. 

Erica Medley LL.M. ’22 was a prosecutor in the U.S. Air Force before matriculating at HLS. When she was a schoolgirl, in Oregon, two of her friends were raped and murdered by a neighbor, Ward Weaver III. When Weaver received two life sentences, “It made no sense,” Medley recalls. “I thought he should have gotten the death penalty.” When Medley enrolled in Carol Steiker’s class on capital punishment in fall 2021, she was among the very few students who supported the death penalty, according to an informal online class poll. 

But before the first class, Medley did a complete reversal sparked by reading the course materials. “I was so overwhelmed reading everything that I did a 180. It was that fast,” says Medley, who was persuaded by the evidence of the racially disparate impact of the death penalty, its exorbitant expense compared with that of prison sentences, the number of people on death row who turn out to be innocent, and the fact that no other peer nations still impose the penalty.

The shifting demographics of urban counties are also having an effect on the use of the death penalty across the country since such counties are often the only places that can afford to prosecute many capital cases, says Jordan Steiker. As these counties become less politically conservative, they are increasingly controlled by “less zealous prosecutors,” he says. Harris County, Texas, which includes Houston, and Dallas County were “longstanding conservative-controlled political entities, and now they’re not. Now many prosecutors run not on the death penalty but away from the death penalty. That’s a very significant shift.” 

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate.” Jordan Steiker

And, just as the resurgence of the death penalty in the 1980s and ’90s paralleled public reaction to a crime surge, a drop in death penalty cases mirrors what has generally been a long-term decline in the homicide rate, as well as public concerns about mass incarceration and racial inequities in the criminal justice system, says Carol Steiker, faculty sponsor of the Capital Punishment Clinic, through which Harvard Law students are placed in externships at capital defense organizations around the country.

And the past 16 years have seen a growing legislative trend toward abolishing the death penalty. In 2007, 38 states retained it; today, there are only 27. In 2021, Virginia, which has executed more people than any other state, became the first Southern state to abolish capital punishment. It was preceded by legislative repeals in Colorado, New Jersey, Illinois, and Connecticut, among other states. In Washington state, the Supreme Court found the death penalty unconstitutional under the state constitution because it was used in an arbitrary and racially biased manner. 

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate,” says Jordan Steiker. 

“I think in the short term we’ll end up having more executions because of the Supreme Court’s reluctance to impede them, even though executions have been in as much of a decline as death sentences,” he adds. But with fewer capital sentences taking place, “death row has been shrinking considerably, and at some point we’ll have a death row that seems inconsequential as part of our criminal justice system.” 

Furman’s ultimate impact?

In the end, then, was Furman a victory for those who brought the case? “That’s a good question,” says Jordan Steiker. “There’s one point of view that I’m sympathetic to, that says that Furman revived a practice that was dying on the ground, and had there been no intervention, we might not have had a revival and then a second decline.”

On the other hand, when Michael Meltsner, one of the lawyers on the LDF team who brought Furman , speaks to Carol Steiker’s capital punishment class each year, he emphasizes that there were 629 people on death row in 1972 whose lives were saved by Furman.

“So in that sense, it was a tremendous victory,” says Carol Steiker. “It was a reset moment.”

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March 19, 2024

Evidence Does Not Support the Use of the Death Penalty

Capital punishment must come to an end. It does not deter crime, is not humane and has no moral or medical basis

By The Editors

A death penalty vigil, held in 2021 outside an Indiana penitentiary.

Bryan Woolston/Reuters/Redux

It is long past time to abolish the death penalty in the U.S.

Capital punishment was halted in the U.S. in 1972 but reinstated in 1976, and since then, nearly 1,600 people have been executed. To whose gain? Study after study shows that the death penalty does not deter crime, puts innocent people to death , is racially biased , and is cruel and inhumane. It is state-sanctioned homicide, wholly ineffective, often botched, and a much more expensive punishment than life imprisonment. There is no ethical, scientifically supported, medically acceptable or morally justifiable way to carry it out.

The recent execution of Kenneth Eugene Smith demonstrates this barbarity. After a failed attempt at lethal injection by prison officials seemingly inexperienced in the placement of an IV, the state of Alabama killed Smith in January using nitrogen gas . The Alabama attorney general claimed that this method of execution was fast and humane , despite no supporting evidence. Eyewitnesses recounted that Smith thrashed during the nitrogen administration and took more than 20 minutes to die.

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Opposition to the death penalty is growing among the American public , and the Biden administration must follow through on its promise to end this horror. The Department of Justice must heed its own admission that the death penalty doesn’t stop crime, and our legislators must continue to take up the issue on the congressional floor. The few states that still condemn people to death must follow the lead of states that have considered the evidence and rejected capital punishment.

Programs such as the Innocence Project have shown, over and over, that innocent people have been sentenced to death. Since 1973 nearly 200 people on death row have been exonerated, based on appeals, the reopening of cases, and the entrance of new and sometimes previously suppressed evidence. People have recanted testimony, and supposedly airtight cases have been poked full of evidentiary holes.

Through the death penalty, the criminal justice system has killed at least 20 people now believed to have been innocent and uncounted others whose cases have not been reexamined . Too many of these victims have been Black or Hispanic. This is not justice. These are state-sanctioned hate crimes.

Using rigorous statistical and experimental control methods, both economics and criminal justice studies have consistently found that there is no evidence for deterrence of violent crimes in states that allow capital punishment. One such study, a 2009 paper by criminology researchers at the University of Dallas, outlines experimental and statistical flaws in econometrics-based death penalty studies that claim to find a correlated reduction in violent crime. The death penalty does not stop people from killing. Executions don’t make us safer.

The methods used to kill prisoners are inhumane. Electrocution fails , causing significant pain and suffering. Joel Zivot, an anesthesiologist who criticizes the use of medicines in carrying out the death penalty, has found (at the request of lawyers of death row inmates) that the lungs of prisoners who were killed by lethal injection were often heavy with fluid and froth that suggested they were struggling to breathe and felt like they were drowning. Nitrogen gas is used in some veterinary euthanasia, but based in part on the behavior of rats in its presence, it is “unacceptable” for mammals , according to the American Veterinary Medical Association. This means that Smith, as his lawyers claimed in efforts to stop his execution, became a human subject in an immoral experiment.

Courts have often decided, against the abundant evidence, that these killings are constitutional and do not fall under the “cruel and unusual punishment” clause of the 8th Amendment or, in Smith’s appeal , both the 8th Amendment and the due process protection clause of the 14th amendment.

A small number of prosecutors and judges in a few states, mostly in the South, are responsible for most of the death sentences being handed down in the U.S. today. It’s a power they should not be able to wield. Smith was sentenced to life in prison by a jury before the judge in his case overruled the jury and gave him the death sentence.

A furious urge for vengeance against those who have done wrong—or those we think have done wrong—is the biggest motivation for the death penalty. But this desire for violent retribution is the very impulse that our criminal justice system is made to check, not abet. Elected officials need to reform this aspect of our justice system at both the state and federal levels. Capital punishment does not stop crime and mocks both justice and humanity. The death penalty in the U.S. must come to an end.

This is an opinion and analysis article, and the views expressed by the author or authors are not necessarily those of Scientific American .

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Death Penalty Abolition, the Right to Life, and Necessity

• Published: 27 December 2022
• Volume 24 , pages 77–95, ( 2023 )

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One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life. Notably, this right-to-life argument emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm. Can capital punishment be necessary in this sense—and thus justified defensive killing? If so, the right-to-life argument would have to admit certain exceptions where executions are justified. Drawing on work by Hugo Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world. A state’s obligations to its prisoners include the obligation to use nonlethal incapacitation (ONI), which applies as long as prisoners pose no imminent threat. ONI precludes executions for reasons of future dangerousness. By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground.

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Some may suggest gladiator contests, where the condemned could defend themselves, as a counterexample. Being sentenced to such combat was not a true death sentence, though. There were distinctions in ancient Rome between gladii poena (certain death by sword), summum supplicium (certain death by more cruel methods like being thrown to the beasts), and ludi damnatio (condemnation to gladiatorial games). The last penalty forced individuals into combat where death was possible but not assured (see Bauman 1996 : 14, 122). Furthermore, my description of capital punishment remains apt for present practices since gladiator combat is rightly seen as morally repugnant and not a realistic sentencing option today.

Bedau does not explicitly say that executing murderers is the only way to revive their victims, but context implies it. He writes: “taking life deliberately is not justified so long as there is any feasible alternative” (Bedau 1993 : 179).

Before Bedau, Justice Richard Maughan of the Utah Supreme Court expressed a similar idea: “Were there some way to restore the bereaved and wounded survivors, and the victims, to what was once theirs; there could then be justification for the capital sanction. Sadly, such is not available to us” (State v. Pierre 1977 : 1359). This remark is mentioned by Barry ( 2017 : 540).

That claim is questionable in the US, where most death sentences are overturned (Baumgartner and Dietrich 2015 ) and executions that do occur usually take place close to two decades after conviction (Bureau of Justice Statistics 2021 : 2). I grant this claim, though, for the sake of argument.

E.g., Thomas Creech who killed a fellow inmate after receiving life sentences for murder in Idaho (Boone 2020 ).

E.g., Clarence Ray Allen who while serving a life sentence for murder in California conspired with a recently released inmate to murder witnesses from his previous case (Egelko and Finz  2006 ).

E.g., Jeffrey Landrigan who escaped from an Oklahoma prison where he was serving a sentence for murder and went on to commit another murder in Arizona (Schwartz 2010 ).

E.g., Kenneth McDuff who was sentenced to death, had his sentences commuted to life following Furman v. Georgia ( 1972 ), and was eventually paroled, after which he murdered multiple people in Texas (Cartwright 1992 ). I thank an anonymous reviewer for suggesting the examples in footnotes 5–8.

These critics include those who grant retribution as a valid rationale for punishment but still reject it as a justification for the death penalty (see Brooks 2004 ).

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Jones, B. Death Penalty Abolition, the Right to Life, and Necessity. Hum Rights Rev 24 , 77–95 (2023). https://doi.org/10.1007/s12142-022-00677-x

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Should the Death Penalty Be Legal?

General reference (not clearly pro or con).

John Gramlich, Senior Writer and Editor at Pew Research Center, states:

“Six-in-ten U.S. adults strongly or somewhat favor the death penalty for convicted murderers, according to the April 2021 survey. A similar share (64%) say the death penalty is morally justified when someone commits a crime like murder. Support for capital punishment is strongly associated with the view that it is morally justified in certain cases. Nine-in-ten of those who favor the death penalty say it is morally justified when someone commits a crime like murder; only a quarter of those who oppose capital punishment see it as morally justified.” - John Gramlich, 10 Facts about the Death Penalty in the U.S.,” pewresearch.org, July 19, 2021

Ian Millhiser, Senior Correspondent at Vox, states:

“Fewer people were executed in 2020 than in any year for nearly three decades, and fewer people were sentenced to die than at any point since the Supreme Court created the modern legal framework governing the death penalty in 1976… One significant reason so few people were executed in 2020 is the Covid-19 pandemic — which has slowed court proceedings and turned gathering prison officials and witnesses for an execution into a dangerous event for everyone involved. But even if 2020 is an outlier year due to the pandemic, DPIC’s [Death Penalty Information Center’s] data shows a sharp and consistent trend away from the death penalty since the number of capital sentences peaked in the 1990s. In total, only 17 people were executed in 2020, a number that would be much lower if not for the Trump administration resuming federal executions this year for the first time in nearly two decades. 2020 is the first year in American history when the federal government executed more people than all of the states combined: 10 of the 17 people executed in 2020 were killed by the federal government. Only five states — Texas, Alabama, Georgia, Missouri, and Tennessee — conducted executions in 2020. And of these five states, only one, Texas, killed more than one person on death row. The trend away from new death sentences and executions has continued despite two recent significant pro-death penalty opinions from the Supreme Court. The Court’s decisions in Glossip v. Gross (2015) and especially in Bucklew v. Precythe (2019) make it much more difficult for death row inmates to claim their executions violate the Constitution’s prohibition on cruel and unusual punishments.” - Ian Millhiser, “The Decline and Fall of the American Death Penalty,” vox.com, Dec. 30, 2020

Roger Hood, former professor at the Centre for Criminological Research at the University of Oxford, states:

“[C]apital punishment, also called death penalty, [is the] execution of an offender sentenced to death after conviction by a court of law of a criminal offense. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law. The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment” - Roger Hood, “Capital Punishment,” britannica.com, Mar. 25, 2021

Robert Blecker, professor emeritus at New York Law School, states:

“Society embraces four major justifications for punishment: deterrence, rehabilitation, incapacitation and retribution. Retribution has often been scorned by academics and judges, but ultimately, it provides capital punishment with its only truly moral foundation. Critics of the theory, including Mr. [Nikolas] Cruz’s lawyers, commonly equate retribution with revenge — disparaging ‘an eye for an eye’ as barbaric. But retribution is not simply revenge. Revenge may be limitless and misdirected at the undeserving, as with collective punishment. Retribution, on the other hand, can help restore a moral balance. It demands that punishment must be limited and proportional. Retributivists like myself just as strongly oppose excessive punishment as we urge adequate punishment: as much, but no more than what’s deserved. Thus I endorse capital punishment only for the worst of the worst criminals. - Robert Blecker, “If Not the Parkland Shooter, Who Is the Death Penalty For?,” nytimes.com, Oct. 27, 2022

Jeffrey A. Rosen, Former Deputy Attorney General in the Trump Administration, states:

“The death penalty is a difficult issue for many Americans on moral, religious and policy grounds. But as a legal issue, it is straightforward. The United States Constitution expressly contemplates ‘capital’ crimes, and Congress has authorized the death penalty for serious federal offenses since President George Washington signed the Crimes Act of 1790. The American people have repeatedly ratified that decision, including through the Federal Death Penalty Act of 1994 signed by President Bill Clinton, the federal execution of Timothy McVeigh under President George W. Bush and the decision by President Barack Obama’s Justice Department to seek the death penalty against the Boston Marathon bomber and Dylann Roof. The recent executions reflect that consensus, as the Justice Department has an obligation to carry out the law. The decision to seek the death penalty against Mr. Lee was made by Attorney General Janet Reno (who said she personally opposed the death penalty but was bound by the law) and reaffirmed by Deputy Attorney General Eric Holder. Mr. Purkey was prosecuted during the George W. Bush administration, and his conviction and sentence were vigorously defended throughout the Obama administration. The judge who imposed the death sentence on Mr. Honken, Mark Bennett, said that while he generally opposed the death penalty, he would not lose any sleep over Mr. Honken’s execution.” - Jeffrey A. Rosen, “The Death Penalty Can Ensure ‘Justice Is Being Done,'” nytimes.com, July 27, 2020

Charles Stimson, Acting Chief of Staff and Senior Legal Fellow of the Heritage Foundation, states:

“[F] or the death penalty to be applied fairly, we must strive to make the criminal justice system work as it was intended. We should all agree that all defendants in capital cases should have competent and zealous lawyers representing them at all stages in the trial and appeals process. Any remnant of racism in the criminal justice system is wrong, and we should work to eliminate it. Nobody is in favor of racist prosecutors, bad judges or incompetent defense attorneys. If problems arise in particular cases, they should be corrected—and often are. That said, the death penalty serves three legitimate penological objectives: general deterrence, specific deterrence, and retribution.” - Charles Stimson, “The Death Penalty Is Appropriate,” heritage.org, Dec. 20, 2019

George Brauchler, District Attorney of the 18th Judicial District in Colorado, states:

“The paramount goal of sentencing is the imposition of justice. Sometimes, justice is dismissing a charge, granting a plea bargain, expunging a past conviction, seeking a prison sentence, or — in a very few cases, for the worst of the worst murderers — sometimes, justice is death… A drug cartel member who murders a rival cartel member faces life in prison without parole. What if he murders two, three, or 12 people? Or the victim is a child or multiple children? What if the murder was preceded by torture or rape? How about a serial killer? Or a terrorist who kills dozens, hundreds or thousands? The repeal of the death penalty treats all murders as the same. Once a person commits a single act of murder, each additional murder is a freebie. That is not justice.” - George Brauchler, “Coloradans Should Have the Final Say on the Death Penalty (and I’d Hope They Keep It),” denverpost.com, Mar. 1, 2019

Michael Meltsner and Daniel S. Medwed, Professors of Law at Northeastern University, state:

“You don’t have to be a statistician to realize that in a system that executes a tiny proportion of the eligible, selection will always be arbitrary. Indeed, now that more states have ended capital punishment and fewer death sentences are even sought in the states that retain it, executions resemble more and more the sacrificial practices of our remote ancestors. Furman found a grievous error when some persons are sentenced to death and others not for what amounts to the same crime. But it is still true that race, class, geography, and lawyer competence determine who lives and who dies. The selection process we are left with operates in a troubled judicial landscape. Courts are no longer required to compare cases to ensure even handed decisions. Hyper-technical rules often block consideration of seemingly legitimate claims. High Court decisions increasingly permit troublesome executions that go both unreviewed and unexplained. The American way of sentencing the convicted to death is rare and random—but also bureaucratic, costly, and governed by often indecipherably complex rules. When it cannot even produce the results its supporters seek, time has come for it to go. We cannot wait a moment longer.” - Michael Meltsner and Daniel S. Medwed, “Does a Fair Way to Decide Who Gets The Death Penalty Actually Exist?,” slate.com, Feb. 22, 2022

Elliot Williams, CNN legal analyst and Former Deputy Assistant Attorney General at the Justice Department, states:

“It is time to end the federal death penalty. Last week, the federal government executed two men within nearly 24 hours. What’s striking here is the timing. The deaths of Alfred Bourgeois and Brandon Bernard mark the first time the death penalty has been imposed during the lame-duck period since 1889, when Grover Cleveland was President — before the bottle cap or the diesel engine were even invented. The executions come more than a year after Attorney General William Barr directed the federal government to reinstate the death penalty for the first time in nearly 20 years. The fact that an attorney general can decide to commence the federal death penalty after years without it, or that the United States has a century-plus-old practice of suspending it at certain points in the political calendar tells us everything that is wrong with the practice. The death penalty is unique in the law — despite its finality, it is politically fraught, inconsistently applied, subject to the basest human impulses, and a relic of the ugliest elements baked into our criminal justice system.” - Elliot Williams, “The Death Penalty Confuses Vengeance with Justice, and It’s Time to End It,” cnn.com, Dec. 13, 2020

Jared Olsen, Wyoming State Representative (R), states:

“A long-held stereotype is that conservatives in this country favor capital punishment, while liberals oppose it. But that doesn’t accord with reality: In recent years, more conservatives have come to realize that capital punishment conflicts irreconcilably with their principles of valuing life, fiscal responsibility and limited government. Many conservatives also recognize that the death penalty inflicts extreme and unnecessary trauma on the family members of victims and the correctional employees who have the job of taking the prisoner’s life.” - Jared Olsen, “I’m a Republican and I Oppose Restarting Federal Executions,” nytimes.com, July 29, 2019

Kamala Harris, then U.S. Senator (D-CA), states

“As a career law enforcement official, I have opposed the death penalty because it is immoral, discriminatory, ineffective, and a gross misuse of taxpayer dollars… Black and Latino defendants are far more likely to be executed than their white counterparts. Poor defendants without a team of lawyers are far more likely to enter death row than those with strong representation. Your race or your bank account shouldn’t determine your sentence. It is also a waste of taxpayer money. The California Legislative Analyst’s office estimates that California would save $150 million a year if it replaced the death penalty with a sentence of life without parole. That’s money that could go into schools, health care, or restorative justice programs.” - Kamala Harris, “Senator Kamala Harris on California Death Penalty Moratorium,” harris.senate.gov, Mar. 13, 2019

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Capital Punishment:Our Duty or Our Doom?

But human rights advocates and civil libertarians continue to decry the immorality of state-sanctioned killing in the U.S. Is capital punishment moral?

About 2000 men, women, and teenagers currently wait on America's "death row." Their time grows shorter as federal and state courts increasingly ratify death penalty laws, allowing executions to proceed at an accelerated rate. It's unlikely that any of these executions will make the front page, having become more or less a matter of routine in the last decade. Indeed, recent public opinion polls show a wide margin of support for the death penalty. But human rights advocates and civil libertarians continue to decry the immorality of state-sanctioned killing in the U.S., the only western industrialized country that continues to use the death penalty. Is capital punishment moral?

Capital punishment is often defended on the grounds that society has a moral obligation to protect the safety and welfare of its citizens. Murderers threaten this safety and welfare. Only by putting murderers to death can society ensure that convicted killers do not kill again.

Second, those favoring capital punishment contend that society should support those practices that will bring about the greatest balance of good over evil, and capital punishment is one such practice. Capital punishment benefits society because it may deter violent crime. While it is difficult to produce direct evidence to support this claim since, by definition, those who are deterred by the death penalty do not commit murders, common sense tells us that if people know that they will die if they perform a certain act, they will be unwilling to perform that act.

If the threat of death has, in fact, stayed the hand of many a would be murderer, and we abolish the death penalty, we will sacrifice the lives of many innocent victims whose murders could have been deterred. But if, in fact, the death penalty does not deter, and we continue to impose it, we have only sacrificed the lives of convicted murderers. Surely it's better for society to take a gamble that the death penalty deters in order to protect the lives of innocent people than to take a gamble that it doesn't deter and thereby protect the lives of murderers, while risking the lives of innocents. If grave risks are to be run, it's better that they be run by the guilty, not the innocent.

Finally, defenders of capital punishment argue that justice demands that those convicted of heinous crimes of murder be sentenced to death. Justice is essentially a matter of ensuring that everyone is treated equally. It is unjust when a criminal deliberately and wrongly inflicts greater losses on others than he or she has to bear. If the losses society imposes on criminals are less than those the criminals imposed on their innocent victims, society would be favoring criminals, allowing them to get away with bearing fewer costs than their victims had to bear. Justice requires that society impose on criminals losses equal to those they imposed on innocent persons. By inflicting death on those who deliberately inflict death on others, the death penalty ensures justice for all.

This requirement that justice be served is not weakened by charges that only the black and the poor receive the death penalty. Any unfair application of the death penalty is the basis for extending its application, not abolishing it. If an employer discriminates in hiring workers, do we demand that jobs be taken from the deserving who were hired or that jobs be abolished altogether? Likewise, if our criminal justice system discriminates in applying the death penalty so that some do not get their deserved punishment, it's no reason to give Iesser punishments to murderers who deserved the death penalty and got it. Some justice, however unequal, is better than no justice, however equal. To ensure justice and equality, we must work to improve our system so that everyone who deserves the death penalty gets it.

The case against capital punishment is often made on the basis that society has a moral obligation to protect human life, not take it. The taking of human life is permissible only if it is a necessary condition to achieving the greatest balance of good over evil for everyone involved. Given the value we place on life and our obligation to minimize suffering and pain whenever possible, if a less severe alternative to the death penalty exists which would accomplish the same goal, we are duty-bound to reject the death penalty in favor of the less severe alternative.

There is no evidence to support the claim that the death penalty is a more effective deterrent of violent crime than, say, life imprisonment. In fact, statistical studies that have compared the murder rates of jurisdictions with and without the death penalty have shown that the rate of murder is not related to whether the death penalty is in force: There are as many murders committed in jurisdictions with the death penalty as in those without. Unless it can be demonstrated that the death penalty, and the death penalty alone, does in fact deter crimes of murder, we are obligated to refrain from imposing it when other alternatives exist.

Further, the death penalty is not necessary to achieve the benefit of protecting the public from murderers who may strike again. Locking murderers away for life achieves the same goal without requiring us to take yet another life. Nor is the death penalty necessary to ensure that criminals "get what they deserve." Justice does not require us to punish murder by death. It only requires that the gravest crimes receive the severest punishment that our moral principles would allow us to impose.

While it is clear that the death penalty is by no means necessary to achieve certain social benefits, it does, without a doubt, impose grave costs on society. First, the death penalty wastes lives. Many of those sentenced to death could be rehabilitated to live socially productive lives. Carrying out the death penalty destroys any good such persons might have done for society if they had been allowed to live. Furthermore, juries have been known to make mistakes, inflicting the death penalty on innocent people. Had such innocent parties been allowed to live, the wrong done to them might have been corrected and their lives not wasted.

In addition to wasting lives, the death penalty also wastes money. Contrary to conventional wisdom, it's much more costly to execute a person than to imprison them for life. The finality of punishment by death rightly requires that great procedural precautions be taken throughout all stages of death penalty cases to ensure that the chance of error is minimized. As a result, executing a single capital case costs about three times as much as it costs to keep a person in prison for their remaining life expectancy, which is about 40 years.

Finally, the death penalty harms society by cheapening the value of life. Allowing the state to inflict death on certain of its citizens legitimizes the taking of life. The death of anyone, even a convicted killer, diminishes us all. Society has a duty to end this practice which causes such harm, yet produces little in the way of benefits.

Opponents of capital punishment also argue that the death penalty should be abolished because it is unjust. Justice, they claim, requires that all persons be treated equally. And the requirement that justice bc served is all the more rigorous when life and death are at stake. Of 19,000 people who committed willful homicides in the U.S. in 1987, only 293 were sentenced to death. Who are these few being selected to die? They are nearly always poor and disproportionately black. It is not the nature of the crime that determines who goes to death row and who doesn't. People go to death row simply because they have no money to appeal their case, or they have a poor defense, or they lack the funds to being witnesses to courts, or they are members of a political or racial minority.

The death penalty is also unjust because it is sometimes inflicted on innocent people. Since 1900, 350 people have been wrongly convicted of homicide or capital rape. The death penalty makes it impossible to remedy any such mistakes. If, on the other hand, the death penalty is not in force, convicted persons later found to be innocent can be released and compensated for the time they wrongly served in prison.

The case for and the case against the death penalty appeal, in different ways, to the value we place on life and to the value we place on bringing about the greatest balance of good over evil. Each also appeals to our commitment to"justice": Is justice to be served at all costs? Or is our commitment to justice to be one tempered by our commitment to equality and our reverence for life? Indeed, is capital punishment our duty or our doom?

(Capital punishment) is . . . the most premeditated of murders, to which no criminal's deed, however calculated . . can be compared . . . For there to be an equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at mercy for months. Such a monster is not encountered in private life. --Albert Camus

If . . . he has committed a murder, he must die. In this case, there is no substitute that will satisfy the requirements of legal justice. There is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is no equality between the crime and the retribution unless the criminal is judicially condemned and put to death. --Immanuel Kant

For further reading:

Hugo Adam Bedau, Death Is Different: Studies in the Morality, Law, and Politics of Capital Punishment (Boston: Northeastern University Press, 1987).

Walter Berns, For Capital Punishment (New York: Basic Books, 1979.)

David Bruch, "The Death Penalty: An Exchange," The New Republic , Volume 192 (May 20, 1985), pp. 20-21.

Edward I. Koch, "Death and Justice: How Capital Punishment Affirms Life," The New Republic, Volume 192 (April 15,1985), pp. 13-15.

Ernest van den Haag and John P. Conrad , The Death Penalty: A Debate (New York: Plenum Press, 1983).

This article was originally published in Issues in Ethics - V. 1, N.3 Spring 1988

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Death Penalty

The death penalty, known as capital punishment, is the government-sanctioned taking of a life as punishment for a crime. Read the overview below to gain an understanding of the issues surrounding the death penalty and explore the previews of additional articles highlighting diverse perspectives.

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Capital punishment.

"Capital Punishment." Opposing Viewpoints Online Collection , Gale, 2023.

Capital punishment , also referred to as the  death penalty , has long been a feature of human society and has been used in the United States since the colonial era. Crimes punishable by death are called  capital offenses . Under US constitutional law, states have the right to apply their own criminal statutes including capital punishment. However, the death penalty remains a controversial political and legal issue in the United States. Supporters of capital punishment argue that it deters crime and provides ultimate justice for crime victims, particularly murder victims. Opponents counter that it is an immoral and costly practice that is particularly vulnerable to racial bias. It also carries the risk of wrongful execution. As of 2023, the death penalty had been abolished in twenty-three US states and the District of Columbia. In addition, governors in Arizona, California, Ohio, Oregon, and Pennsylvania had placed moratoriums on the death penalty that remained in effect.

PROS AND CONS OF ABOLISHING THE DEATH PENALTY

• The death penalty violates the Eighth Amendment's protection against "cruel and unusual punishment" by the state.
• With little evidence that capital punishment deters crime, it is a costly and ineffective use of public resources.
• Abolishing the death penalty is the only way to prevent bias in its application and ensure that no person is executed by the government erroneously or unconstitutionally.
• The option to seek the death penalty is constitutional because the Fifth Amendment authorizes its application as long as "due process of law" has been followed.
• The death penalty provides immeasurable public benefit by discouraging people from committing capital offenses.
• Capital punishment enables the state to assert its authority over the people and serve in its role as the administrator of justice.

In addition to state laws, the federal government identifies about sixty crimes to which the death penalty could be applied. These offenses involve murder, treason, or committing another crime that results in death, such as kidnapping or aircraft piracy. The US Department of Justice (DOJ) authorizes federal death penalty cases, which are prosecuted in federal court. In 2020, following seventeen years without carrying out the penalty, the federal government executed ten people. In January 2021 the federal government executed Lisa Marie Montgomery, the first woman to receive such a punishment from the federal government in sixty-seven years. Despite this surge in federal executions in 2020, state executions reached their lowest number that year since 1991.

In states that still enforce capital punishment, lethal injection is the primary method of carrying out executions. Though their use is rare, secondary execution methods permitted by individual state laws include electrocution, gas inhalation, hanging, and firing squad. As of 2023, only three people in the United States have been executed by hanging since 1965, and only four people have faced a firing squad since 1960. Tennessee used electrocution in 2020. For federal offenses, the government uses the methods of execution authorized by the state in which the court imposes the punishment. In cases handled in states that have abolished capital punishment, the federal judge can designate a death-penalty state to carry out the execution.

Several nonprofit organizations work to end the use of capital punishment. The National Coalition to Abolish the Death Penalty, the nation's oldest anti–death penalty nonprofit organization, was founded in 1976 and focuses on ending the practice through mass organization, providing legal assistance, and educating the public. The Innocence Project, founded in 1992, focuses on providing legal services and DNA testing with the purpose of winning exoneration for wrongfully convicted prisoners. Exoneration occurs when a person's conviction is overturned. Between 1973 and 2023, at least 195 inmates on death row in the United States were exonerated.

DEVELOPMENT OF US DEATH PENALTY LAWS

The Fifth Amendment of the US Constitution outlines conditions for trying individuals accused of capital crimes and states that no person "shall be deprived of life … without due process of law." The government is granted the authority to execute a person if certain conditions—such as arrest, indictment, and trial—have been met. The Eighth Amendment, however, prohibits the government from enforcing "cruel and unusual punishment," which several lawsuits have used successfully to challenge certain applications of capital punishment.

Through the Crimes Act of 1790, also referred to as the Federal Criminal Code of 1790, lawmakers of the newly independent United States granted federal judges the authority to impose the death sentence. By the 1800s, federal law not only permitted capital punishment but required it in cases involving certain crimes. This created a problem for juries that found a defendant guilty but did not believe the offense warranted a sentence of death. With no legal ability to impose a punishment other than execution, some juries chose to hand down verdicts of not guilty, a trial outcome known as  jury nullification .

Due in part to rising jury nullifications, which effectively allowed guilty criminals to be set free, state legislatures began to pass laws in 1838 that rejected mandatory application of the death penalty in favor of jury discretion in sentencing. The abolitionist movement to end capital punishment also influenced state legislatures. By the early 1900s, most states had adopted laws that allowed juries to apply either the death penalty or a sentence of life in prison.

Executions in the United States peaked during the 1930s at an average rate of 167 per year. Courts handed down death sentences fairly frequently until the 1960s when the practice began to face growing moral, legal, and political opposition. Critics cast doubt on its value as a crime deterrent and argued that the courts applied it inconsistently and unequally. Among other factors, scholars determined that the races of both the victim and the defendant often influenced sentencing. Despite comprising less than 15 percent of the US population, African Americans comprised more than half of the nearly four thousand people executed from 1930 to 1967. Facing increasing pressure to rule on the constitutionality of capital punishment law, an unofficial nationwide moratorium on executions began in 1968.

CONSTITUTIONAL CHALLENGES

The Supreme Court ruled in  Furman v. Georgia  (1972) that the death penalty, as it was implemented, violated the Constitution. The court overturned the death sentence of William Furman, an African American man whose murder trial had lasted less than one day. The court found Furman's death sentence to be "cruel and unusual punishment." The ruling determined that the unequal and arbitrary application of the death penalty to African American defendants violated the equal protection clause of the Fourteenth Amendment. The decision required states to develop consistent legal standards for capital punishment to ensure that sentences matched the severity of offenses and did not cause undue pain and suffering. From 1972 to 1976, thirty-five US states revised their death penalty laws.

On July 2, 1976, the Supreme Court handed down five decisions in cases that originated in Florida, Georgia, Louisiana, North Carolina, and Texas, collectively referred to as the July 2 cases, or by the name of the lead case,  Gregg v. Georgia . All cases involved ongoing state-level efforts to reform capital punishment laws. The court ruled that mandatory capital punishment laws were too rigid. However, the court also determined that the death penalty does not violate the Constitution, capital punishment serves as a practical deterrent, and retribution provides a justifiable basis for execution.

The court's rulings also indicated that inconsistent and racially biased death sentences could be prevented by holding two hearings: one to establish guilt and one to determine sentencing if found guilty. Most states authorized a system of allowing the jury to decide the guilty party's punishment, though some allowed judges to make the decision or retain the right to overrule the jury. These decisions allowed the reinstatement of state death penalty laws. The federal government lifted its capital punishment moratorium in 1988 but did not carry out another execution until 2001.

RESURGENCE IN THE LATE TWENTIETH CENTURY

After the unofficial moratorium on capital punishment ended with the execution of Gary Gilmore in Utah in 1977, the execution rate remained low for an extended period. During the late 1970s, the Supreme Court handed down decisions that expanded defendants' rights in capital offense trials and ruled that capital punishment could not be imposed for the rape of an adult, limiting the death penalty to offenses of murder, treason, and the rape of a child. In the 1980s, the court ruled that the death penalty could not be applied to offenders under the age of sixteen or those deemed mentally incompetent. During the 1980s, more than half of all federal appeals in capital punishment cases resulted in death sentences being overturned.

In  McCleskey v. Kemp  (1987), the Supreme Court again confronted the issue of race and capital punishment. Warren McCleskey, a Black resident of Georgia, had been convicted of killing a white police officer in 1978 and sentenced to death. McCleskey's attorneys argued that his Eighth and Fourteenth Amendment rights were violated because his race made it statistically more likely that he would receive the death penalty. McCleskey's attorney cited a 1983 study, commonly referred to as the Baldus study, that determined African Americans in Georgia were 4.3 times more likely to receive death sentences for killing a white person than they were for killing another African American. Upon losing his Supreme Court appeal, McCleskey was executed in 1991.

In the years since the McCleskey ruling, opponents of capital punishment have continued to voice concerns about the role of racial bias in death penalty sentencing. The court's ruling is believed to have made proving racial discrimination more difficult. According to the National Association for the Advancement of Colored People (NAACP), incarceration rates of racial minorities skyrocketed in the decade following the McCleskey decision. As of October 2023, Black defendants accounted for 34.1 percent of all people executed in the United States since 1976 and over 40 percent of the country's death row population despite making up just 13.6 percent of the general population.

During the 1990s, the Supreme Court issued several decisions that upheld the constitutionality of capital punishment and limited defendants' opportunities to have their cases reviewed. The number of executions performed annually began a steady rise during this decade. A total of sixteen executions were carried out in the United States in 1989. In 1999 state governments carried out ninety-eight executions, the highest number since the 1976 reinstatement of the death penalty.

TWENTY-FIRST-CENTURY DEVELOPMENTS

The 2001 execution of Timothy McVeigh, convicted for his role in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, marked the first federal execution carried out since 1963, with drug trafficker Juan Raul Garza executed eight days later. After the execution of Louis Jones Jr. in 2003, no federal executions were scheduled until US Attorney General William Barr announced a return to the practice in 2019. One year after the announcement federal executions resumed, and ten prisoners were executed by the federal government in the last six months of 2020. An additional four federal prisoners were executed in January 2021, during the last weeks of Trump's presidency. His successor, Joe Biden, has pledged to end the federal death penalty and issued a federal moratorium on executions. As of late 2023, federal courts have not issued any death sentences during the Biden administration.

Opponents of the death penalty have also focused their arguments on the mental capacity of those found guilty of capital offenses. The Supreme Court ruled in  Atkins v. Virginia  (2002) that executing people with intellectual disabilities violated the Eighth Amendment but left the definition of intellectual disabilities up to individual states. In  Hall v. Florida  (2014), the Supreme Court found Florida's system of determining intellectual disability to be unconstitutional and handed down a similar ruling in  Moore v. Texas  (2017). In several cases in 2020 the Florida Supreme Court reversed existing protections afforded to inmates sentenced to death and overturned existing evidential and jury agreement standards for imposing the death penalty.

Between 2000 and 2020, with few exceptions, the number of state executions performed annually dropped each year, with the exceptions of 2017 and 2018. While eighty-five state executions were carried out in 2000, there were twenty-five in 2018 and twenty-two in 2019. Seven state executions took place in 2020, the lowest annual number of the twenty-first century as of late 2023. Though no federal executions had taken place under the Biden administration as of 2023, forty-one state executions took place during that period, with eighteen taking place in 2022 and at least twenty in 2023. Death penalty abolitionists have expressed frustration at the Biden administration's lack of progress on permanently ending capital punishment and the DOJ's upholding of previous federal death sentences.

CRITICAL THINKING QUESTIONS

• What factors do you think have historically had the greatest influence on capital punishment reform in the United States?
• Under what conditions, if any, do you think a court should sentence a person to death? Explain your answer.
• In your opinion, should pharmaceutical companies have the right to refuse to sell drugs for executions? Why or why not?

LETHAL INJECTION CONTROVERSIES

A nationwide shortage of sodium thiopental, the barbiturate anesthetic used in lethal injections, emerged in 2009 after the only pharmaceutical plant in the United States approved by the Food and Drug Administration (FDA) to manufacture the drug announced it was stopping production. The shortage resulted in the postponement of several scheduled executions. States could only acquire the drug by importing it from abroad, sometimes improperly. European drug manufacturers objected to capital punishment procedures, and the European Commission banned the export of drugs used in lethal injection procedures in 2011. Some states attempted to circumvent regulations, resulting in the federal Drug Enforcement Administration (DEA) seizing drug supplies from prisons in Alabama, Georgia, Kentucky, South Carolina, and Tennessee.

Other states sought to carry out their scheduled executions using experimental combinations of drugs. Officials in Oklahoma were found to have made significant errors in an execution in 2014 after authorizing the use of untested drugs supplied by undisclosed sources. A grand jury determined in 2016 that state officials had committed a long list of oversights and avoidable mistakes in carrying out executions. In 2017 officials in Arkansas came under criticism for expediting the schedule of eight executions by lethal injection before the state's supply of available drugs reached its expiration date. Four of the eight inmates were ultimately executed, while four received stays of execution.

Concerns over botched executions using untested lethal injection methods reached the US Supreme Court, which handed down its decision in  Bucklew v. Precythe  in April 2019. The split five-to-four ruling held that challenges to a state's method of execution due to claims of excessive pain must demonstrate that alternative methods exist that would cause less pain than the state-determined one. The majority decision reasoned that the constitutional prohibition against cruel and unusual punishment does not equate to a guarantee of a painless execution. The dissenting opinion argued that the use of lethal injection in this case met the standards for an Eighth Amendment challenge previously established by the court itself.

During the COVID-19 pandemic, lawyers for federal death-row inmates Dustin Higgs and Corey Johnson argued that their clients, both of whom tested positive for COVID-19, should not be subject to lethal injection. The attorneys suggested that the combination of COVID-19 infection with the flooding of the lungs caused by the execution drugs would cause suffering that amounted to "cruel and unusual punishment." Like earlier appeals in defense of the prisoners' lives, this argument proved ineffective. Both men were executed in Virginia in January 2021.

Two months after these executions, on March 24, 2021, Virginia governor Ralph Northam signed a bill that abolished the death penalty in the state. When signing the bill, Northam referenced the disproportionate use of the death penalty against Black men in the state and the 170 prisoners sentenced to death row who had been exonerated after capital punishment was reinstated in the United States. Virginia became the first state in the South to abolish the death penalty, leading some to believe others could follow.

In 2015, following several botched executions, the governments of Alabama, Mississippi, and Oklahoma began to approve nitrogen hypoxia, in which the inmate dies by asphyxiation, as an execution method. In August 2023 Alabama became the first state to announce that it would use the method as it sought to schedule the execution of Kenneth Smith, whose first execution the state had botched the previous year.

More Articles

The state of the death penalty.

This in-depth article examines US state legislation that has impacted death sentencing in capital crimes. The analysis suggests that adequate provision of counsel by states in death penalty cases correlates to reduced imposition of death sentences.

The Rhetoric of Abolition: Continuity and Change in the Struggle Against America’s Death Penalty, 1900-2010

This article traces the history of anti-death penalty arguments in three US states: Connecticut, Kansas, and Texas. The authors find that the rhetoric around abolition in these regions has been framed differently over time, with more recent arguments focusing on the relationship between wrongful convictions and executions.

Rare as Hens’ Teeth: The New Geography of the American Death Penalty

This article examines the imposition of death sentences by geographic locale in the United States. While death sentences have fallen across the country since the 1970s, the majority of executions that have taken place are attributable to a relatively small number of counties. The author considers reasons for the decline in capital punishment, as well as how geographical variance impacts the debate over execution as a fair and just punishment.

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Internet Encyclopedia of Philosophy

Capital punishment.

Capital punishment, or “the death penalty,” is an institutionalized practice designed to result in deliberately executing persons in response to actual or supposed misconduct and following an authorized, rule-governed process to conclude that the person is responsible for violating norms that warrant execution.  Punitive executions have historically been imposed by diverse kinds of authorities, for an expansive range of conduct, for political or religious beliefs and practices, for a status beyond one’s control, or without employing any significant due process procedures.  Punitive executions also have been and continue to be carried out more informally, such as by terrorist groups, urban gangs, or mobs.  But for centuries in Europe and America, discussions have focused on capital punishment as an institutionalized, rule-governed practice of modern states and legal systems governing serious criminal conduct and procedures.

Capital punishment has existed for millennia, as evident from ancient law codes and Plato’s famous rendition of Socrates’s trial and execution by democratic Athens in 399 B.C.E.  Among major European philosophers, specific or systematic attention to the death penalty is the exception until about 400 years ago.  Most modern philosophic attention to capital punishment emerged from penal reform proponents, as principled, moral evaluation of law and social practice, or amidst theories of the modern state and sovereignty.  The mid-twentieth century emergence of an international human rights regime and American constitutional controversies sparked anew much philosophic focus on theories of punishment and the death penalty, including arbitrariness, mistakes, or discrimination in the American institution of capital punishment.

The central philosophic question about capital punishment is one of moral justification:  on what grounds, if any, is the state’s deliberate killing of identified offenders a morally justifiable response to voluntary criminal conduct, even the most serious of crimes, such as murder?  As with questions about the morality of punishment, two broadly different approaches are commonly distinguished: retributivism, with a focus on past conduct that merits death as a penal response, and utilitarianism or consequentialism, with attention to the effects of the death penalty, especially any effects in preventing more crime through deterrence or incapacitation.  Section One provides some historical context and basic concepts for locating the central philosophic question about capital punishment:  Is death the amount or kind of penalty that is morally justified for the most serious of crimes, such as murder?  Section Two attends to classic considerations of lex talionis (“the law of retaliation”) and recent retributivist approaches to capital punishment that involve the right to life or a conception of fairness.  Section Three considers classic utilitarian approaches to justifying the death penalty: primarily as preventer of crime through deterrence or incapacitation, but also with respect to some other consequences of capital punishment.  Section Four attends to relatively recent approaches to punishment as expression or communication of fundamental values or norms, including for purposes of educating or reforming offenders.  Section Five explores issues of justification related to the institution of capital punishment, as in America: Is the death penalty morally justifiable if imperfect procedures produce mistakes, caprice, or (racial) discrimination in determining who is to be executed? Or if the actual execution of capital punishment requires unethical conduct by medical practitioners or other necessary participants?  Section Six considers the moral grounds, if any exist, for the state’s authority to punish by death.

Table of Contents

• Historical Practices
• Philosophic Frameworks and Approaches
• Classic Retributivism: Kant and lex talionis
• Lex talionis as a Principle of Proportionality
• Retributivism and the Right to Life
• Retributivism and Fairness
• Challenges to Retributivism
• Classic Utilitarian Approaches: Bentham, Beccaria, Mill
• Empirical Considerations: Incapacitation, Deterrence
• Utilitarian Defenses: “Common Sense” and “Best Bet”
• Challenges to Utilitarianism
• Other Consequential Considerations
• Capital Punishment as Communication
• Procedural Issues: Imperfect Justice
• Discrimination: Race, Class
• Medicine and the Death Penalty
• Costs: Economic Issues
• State Authority and Capital Punishment
• Primary Sources
• Secondary Sources

1. Context and Basic Concepts

A. historical practices.

Much philosophic focus on the death penalty is modern and relatively recent.  The phrase ‘capital punishment’ is older, used for nearly a millennium to signify the death penalty.  The classical Latin and medieval French roots of the term ‘capital’ indicate a punishment involving the loss of head or life, perhaps reflecting the use of beheading as a form of execution.  The actual practice of capital punishment is ancient, emerging much earlier than the familiar terms long used to refer to it.  In the ancient world, the Babylonian Code of Hammurabi (circa 1750 B.C.E.) included about 25 capital crimes; the Mosaic Code of the ancient Hebrews identifies numerous crimes punishable by death, invoking, like other ancient law codes, lex talionis , “the law of retaliation”; Draco’s Code of 621 B.C.E. Athens punished most crimes by death, and later Athenian law famously licensed the trial and death of Socrates; the fifth century B.C.E. Twelve Tables of Roman law include capital punishment for such crimes as publishing insulting songs or disturbing the nocturnal peace of urban areas, and later Roman law famously permitted the crucifixion of Jesus of Nazareth.  Even in such early practices, capital punishment was seen as within the authority of political rulers, embodied as a legal institution, and employed for a wide range of misconduct proscribed by law.

Medieval and early modern Europe retained expansive lists of capital crimes and notably expanded the forms of execution beyond the common ancient practices of stoning, crucifixion, drowning, beating to death, or poisoning.  In the Middle Ages both secular and ecclesiastical authorities participated in executions deliberately designed to be torturous and brutal, such as beheading, burning alive, drawing and quartering, hanging, disemboweling, using the rack, using thumb-screws, pressing with weights, boiling in oil, publicly dissecting, and castrating.  Such brutality was conducted publicly as spectacle and ritual­—an important or even essential element of capital punishment was not only the death of the accused, but the public process of killing and dying on display.  Capital punishment was varied in its severity by the spectrum of torturous ways by which the offender’s death was eventually effected by political and other penal authorities.

In “the new world” the American colonies’ use of the death penalty was influenced more by Britain than by any other nation.  The “Bloody Code” of the Elizabethan era included over 200 capital crimes, and the American colonies followed England in using public, ritualized hangings as the common form of execution.  Until the mid-18 th century, the colonies employed elaborate variations of the ritual of execution by hanging, even to the point of holding fake hangings.  Stuart Banner summarizes the early American practices:

Capital punishment was more than just one penal technique among others. It was the base point from which all other kinds of punishment deviated.  When the state punished serious crime, most of the methods …were variations on execution.  Officials imposed death sentences that were never carried out, they conducted mock hangings…, and they dramatically halted real execution ceremonies at the last minute.  These were methods of inflicting a symbolic death …. Officials also wielded a set of tools capable of intensifying a death sentence – burning at the stake, public display of the corpse, dismemberment and dissection – ways of producing a punishment worse than death. (54)

In early America “capital punishment was not just a single penalty,” but “a spectrum of penalties with gradations of severity above and below an ordinary execution” (Banner, 86).

The late 18th century brought a “dramatic transformation of penal thought and practice” that was international in scope (Banner, 89). The dramatic change came with the birth of publicly supported prisons or penitentiaries that allowed extended incarceration for large numbers of people (Banner, 99).  Before prisons and the practical possibility of lengthy incarceration as an alternative, “the only available units of measurement for serious crime were degrees of deviation from an ordinary execution” (Banner, 70).  After the invention of prisons, for serious crimes there was now an alternative to capital punishment and to the practiced spectrum of torturous executions: prisons allowed varying conditions of confinement (for example, hard labor, solitary confinement, loss of privacy) and a temporal measure, at least, for distinguishing degrees of punishment to address kinds of serious misconduct.  Dramatic changes for capital punishment also came with the 1864 publication in Italy of Cesare Beccaria’s essay, “On Crimes and Punishments.”  Very influential in Europe and the United States, Beccaria’s sustained, philosophic investigation of the death penalty challenged both the authority of the state to punish by death and the utility of capital punishment as a superior deterrent to lengthy imprisonment.  Philosophic defenses of the death penalty, like that of Immanuel Kant, opposed reformers and others, who, like Beccaria, argued for abolition of capital punishment.  During the 19th century the methods of execution were made less brutal and the number of capital crimes was much reduced compared to earlier centuries of practice.  Discussions of the death penalty’s merits invoked divergent understandings of the aims of punishment in general and thus of capital punishment in particular.

By the mid-20th century, two developments prompted another period of focused philosophic attention to the death penalty.  In the United States a series of Supreme Court cases challenged whether the death penalty falls under the constitutional prohibition of “cruel and unusual punishments,” including questions about the legal and moral import of a criminal justice process that results in mistakes, caprice, or racial discrimination in capital cases.   Capital punishment also became a global concern with the post-World War II Nuremberg trials of Nazi leaders and after the 1948 Declaration of Universal Human Rights and subsequent human rights treaties explicitly accorded all persons a right to life and encouraged abolishing the death penalty worldwide.  Most nations have now abolished capital punishment, with notable exceptions including China, North Korea, Japan, India, Indonesia, Egypt, Somalia, and the United States, the only western “industrialized” nation still retaining the death penalty.

b. Philosophic Frameworks and Approaches

Capital punishment is often explored philosophically in the context of more general theories of “the standard or central case” of punishment as an institution or practice within a structure of legal rules (Hart, “Prolegomenon,” 3-5).  The philosopher’s interest in the death penalty, then, is embedded in broader issues about the moral permissibility of punishment .  Any punishment – and certainly an execution – intentionally inflicts on a person significant pain, suffering, unpleasantness, or deprivation that it is ordinarily wrong for an authority like the state to impose.  What conditions or considerations, if any, would morally justify such penal practices?  Following a framework famously offered by H.L.A. Hart,

[w]hat we should look for are answers to a number of different questions such as:  What justifies the general practice of punishment? To whom may punishment be applied? How severely may we punish? (“Prolegomenon,” 3)

These different questions are, respectively, about the general justifying aim of punishment, about the conditions of responsibility for criminal conduct and liability to punishment, and about the amount, kind, or form of punishment justifiable to address actual or supposed misconduct.  It is the last of these questions of justification – about the justified amount, kind, or form of punishment – that is foremost in philosophic approaches to the death penalty.  Almost all modern and recent discussions of capital punishment assume liability for the death penalty is only for the gravest of crimes, such as murder; almost all assume comparatively humane modes of execution and largely ignore considering obviously torturous or brutal killings of offenders; and it is assumed that some amount of punishment is merited for murderers.  The central question, then, is not often whether punishing murderers is morally justifiable (rather than rehabilitation or release, for example), but whether it is morally justifiable to punish by death (rather than by imprisonment, for example) those found to have committed a grave offense, such as murder.  Responses to this question about the death penalty often build on more general principles or theories about the purposes of punishment in general, and about general criteria for determining the proper measure or amount of punishment for various crimes.

Among philosophers there are typically identified two broadly different ways of thinking about the moral merits of punishment in general, and whether capital punishment is a proper amount of punishment to address serious criminal misconduct (see “ Punishment ”). Justifications are proposed either with reference to forward-looking considerations, such as various future effects or consequences of capital punishment, or with reference to backward-looking considerations, such as facets of the wrongdoing to be punished.   The latter approach, if dominant, has, since the 1930s, been called ‘retributivism’; retributivist justifications “look back” to the offense committed in order to link directly the amount, kind, or form of punishment to what the offense merits as penal response.  This linkage is often characterized as whether a punishment “fits” the crime committed.  For retributivists, any beneficial effects or consequences of capital punishment are wholly irrelevant or distinctly secondary.  Forward-looking justifications of punishment have been labeled ‘utilitarian’ since the 19th century and, since the mid-20th century, other versions are sometimes called ‘consequentialism’. Consequentialist or utilitarian approaches to the death penalty are distinguished from retributivist approaches because the former rely only on assessing the future effects or consequences of capital punishment, such as crime prevention through deterrence and incapacitation.

2. Retributivist Approaches

Retributivists approach justifying the amount of punishment for misconduct by “looking back” to aspects of the wrongdoing committed.  There are many different versions of retributivism; all maintain a tight, essential link between the offense voluntarily committed and the amount, form, or kind of punishment justifiably threatened or imposed.  Future effects or consequences, if any, are then irrelevant or distinctly secondary considerations to justifying punishments for misconduct, including the death penalty.  Retributivism about capital punishment often prominently appeals to the principle of lex talionis , or “the law of retaliation,” an idea popularly familiarized in the ancient and biblical phrase, “an eye for an eye and a tooth for a tooth.”  Forms of retributivism vary according to their interpretation of lex talionis or in their appealing to alternative moral notions, such as basic moral rights or a principle of fairness.

a. Classic Retributivism: Kant and lex talionis

  A classic expression of retributivism about capital punishment can be found in a late 18th century treatise by Immanuel Kant, The Metaphysical Elements of Justice (99-107; Ak. 331-337).  After dismissing Cesare Beccaria’s abolitionist stance and reliance on “sympathetic sentimentality and an affectation of humanitarianism,” Kant appeals to an interpretation of lex talionis , what he calls “ jus talionis ” or “the Law of Retribution,” as justifying capital punishment:

Judicial punishment… must in all cases be imposed on him only on the ground that he committed a crime.… He must first be found deserving of punishment… The law concerning punishment is a categorical imperative. (100; Ak. 331) What kind and degree of punishment does public legal justice adopt as its principle and standard?  None other than the principle of equality….  Only the Law of Retribution ( jus talionis ) can determine exactly the kind and degree of punishment (101; Ak. 332).

Kant then explicitly applies these principles to determine the punishment for the most serious of crimes:

 If… he has committed a murder, he must die.  In this case, there is no substitute that will satisfy the requirements of legal justice. There is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is also no equality between the crime and retribution unless the criminal is judicially condemned and put to death (102; Ak. 333).

Kant then employs a hypothetical case to insist that any social effects of the death penalty, good or bad, are wholly irrelevant to its justification:

Even if a civil society were to dissolve… the last murderer in prison would first have to be executed so that each should receive his just deserts and that the people should not bear the guilt of a capital crime… [and] be regarded as accomplices in the public violation of justice (102; Ak. 333).

So, even if social effects are not possible, since the society no longer exists, the death penalty is justified for murder.  Kant exemplifies a pure retributivism about capital punishment: murderers must die for their offense, social consequences are wholly irrelevant, and the basis for linking the death penalty to the crime is “the Law of Retribution,” the ancient maxim, lex talionis , rooted in “the principle of equality.”

The key to Kant’s defense of capital punishment is “the principle of equality,” by which the proper, merited amount and kind of punishment is determined for crimes.  Whether the best interpretation of Kant or not, the idea behind this common approach seems to be that offenders must suffer a punishment equal to the victim’s suffering: “an eye for an eye, a tooth for a tooth,” a life for a life.  But as often noted, any literalism about lex talionis cannot work as a general principle linking crimes and punishments. It seems to imply that the merited punishment for rape is to be raped, for robbery to be stolen from, for fraud to be defrauded, for assault to be assaulted, for arson to be “burned out,” etc.  For other crimes—forgery, drug peddling, serial killings or massacres, terrorism, genocide, smuggling—it is not at all clear what kind or form of punishment lex talionis would then license or require (for example, Nathanson 72-75).  As C. L. Ten succinctly says, “it would appear that the single murder is one of the few cases in which the lex talionis can be applied literally” (151).  Both practical considerations and moral principles about permissible forms of punishment, then, ground objections to invoking a literal interpretation of lex talionis to justify capital punishment for murder.

Some retributivists employ a less literal way of employing a principle of equality to justify death as the punishment for murder.  The relevant equivalence is one of harms caused and suffered:  the murder victim suffers the harm of a life ended, and the only equivalent harm to be imposed as punishment, then, must be the death of the killer.  As a general way of linking kinds of misconduct and proper amounts, kinds, or forms of punishment, this rendition of lex talionis also faces challenges (Ten, 151-154).  Furthermore, it is also often noted that, even in the case of murder, there is no equivalence between the penal experience of capital offenders and their victims’ suffering in being murdered.  Albert Camus, in his “Reflections on the Guillotine,” makes the point in a rather dramatic way:

But what is capital punishment if not the most premeditated of murders, to which no criminal act, no matter how calculated, can be compared?  If there were to be a real equivalence, the death penalty would have to be pronounced upon a criminal who had forewarned his victim of the very moment he would put him to a horrible death, and who, from that time on, had kept him confined at his own discretion for a period of months.  It is not in private life that one meets such monsters.  (199)

This inequality of experience claim is even more to the point since even Kant maintains that “the death of the criminal must be kept entirely free of any maltreatment that would make an abomination of the humanity residing in the person suffering it” (102; Ak. 333).

b. Lex talionis as a Principle of Proportionality

Most contemporary retributivists interpret lex talionis not as expressing equality of crimes and punishments, but as expressing a principle of proportionality for establishing the merited penal response to a crime such as murder.  The idea is that the amount of punishment merited is to be proportional to the seriousness of the offense, more serious offenses being punished more severely than less serious crimes.  So, one constructs an ordinal ranking of crimes according to their seriousness and then constructs a corresponding ranking of punishments according to their severity.  The least serious crime is then properly punished by the least severe penalty, the second least serious crime by the second least severe punishment, and so on.  The gravest misconduct, then, is properly addressed by the most severe of punishments, death.

To carry out such a general project of constructing scales of crimes and matching punishments is a daunting challenge, as even many retributivists admit.  Aside from these concerns, as a defense of capital punishment this approach to lex talionis simply raises the question about the morality of the death penalty, even for the most serious of crimes.   There is no reason to think that current capital punishment practices are the most severe punishment.  Consider medieval practices of death with torture, or death “with extreme prejudice”; and are there not possible conditions of confinement that are possibly more severe than execution, such as years of brutal, solitary confinement or excessively hard labor?  Such punishments would not likely now be on a list of morally permissible penal responses to even the most serious crimes.  But then what is needed is some justification for setting an upper bound of morally permissible severity for punishments, “a theory of permissibility” (Finkelstein, “A Contractarian Approach…,” 212-213).  But whether today’s death penalty is morally permissible is precisely the question at issue.  The retributivist proportionality interpretation of lex talionis simply assumes capital punishment is morally permissible, rather than offering a defense of it.

One general concern about appeals to lex talionis , under any interpretation, is that relying on “the law of retaliation” can appear to make capital punishment tantamount to justified vengeance.  But Kant and other retributivist defenders of the death penalty rightly distinguish principled retribution from vengeance.   Vengeance arises out of someone’s hatred, anger, or desires typically aimed at another:  there is no internal limit to the severity of the response, except perhaps that which flows from the personal perspective of the avenger.  The avenger’s response may be markedly disproportionate to the offense committed, whereas retributivists insist that the severity of punishments must be matched to the misconduct’s gravity.  Vengeance is typically personal, directed at someone about whom the avenger cares—it is personal.  Retribution requires responses even to injuries of people no one cares about:  its impersonality makes harms to the friendless as weighty as harms to the popular and justifies punishment without regard to whether anyone desires the offender suffer.  The avenger typically takes pleasure in the suffering of the offender, whereas “we may all deeply regret having to carry out the punishment” (Pojman, 23) or only take “pleasure at justice being done” (Nozick, 367) as a retributivist moral principle requires.  Even if desires for vengeance are satisfied by executing murderers, for retributivists such effects are not at the heart of the defense of capital punishment.  And to the extent that such satisfactions are sufficient justification, then the defense is no longer retributivist, but utilitarian or consequentialist (see sections 3 and 4).  For retributivists the morality of the death penalty for murder is a matter of general moral principle, not assuaging any desires for revenge or vengeance on the part of victims or others.

c. Retributivism and the Right to Life

Some forms of retributivism about capital punishment eschew reliance on lex talionis in favor of other kinds of moral principles, and they typically depart from Kant’s conclusion that murderers must be punished by death, regardless of any consequences.  One approach employs the idea of basic moral rights, such as the right to life, an expression of the value of life that seems to work against justifying capital punishment.   Yet John Locke, for example, in his Second Treatise on Government , posits both a natural right to life and defends the death penalty for murderers.  Echoing a line of reasoning exhibited in Thomas Aquinas’s defense of capital punishment ( Summa Theologiae II-II, Q. 64, a.2), Locke claims that a murderer violates another’s right to life, and thereby “declares himself… to be a noxious creature… and therefore may be destroyed as a lion or a tiger, one of those wild savage beasts… both to deter others from doing the like injury… and also to secure men from the attempts of a criminal” ( Treatise , sections 10-11).  For Locke, murderers have, by their voluntary wrongdoing, forfeited their own right to life and can therefore be treated as a being not possessing any right to life at all and as subject to execution to effect some good for society.

This retributivist position notably departs from Kant’s extreme view in concluding only that a murderer may be put to death, not must be, and by invoking utilitarian thinking as a secondary consideration in deciding whether capital punishment is morally justified for murderers who have forfeited their right to life.  This form of retributivism—rights forfeiture and considering consequences of the death penalty—is also explicitly expressed by W. D. Ross in his 1930 book, The Right and the Good :

But to hold that the state has no duty of retributive punishment is not necessarily to adopt a utilitarian view of punishment.… [T]he main element in any one’s right to life or property is extinguished by his failure to respect the corresponding right in others.… [T]he offender, by violating the life or liberty or property of another, has lost his own right to have his life, liberty, or property respected, so that the state has no prima facie duty to spare him as it has a prima facie duty to spare the innocent.  It is morally at liberty to injure him as he has injured others, or to inflict any lesser injury on him, or to spare him, exactly as consideration of both of the good of the community and of his own good requires. (60-61)

The retributivist argument, then, is that murderers forfeit their own right to life by virtue of voluntarily taking another’s life.  Since a right to life, like other rights, logically entails a correlative duty of others (see Consequentialism and  Ethics, section 2b ), by forfeiting their right to life murderers eliminate the state’s correlative duty not to kill them; the murderer’s forfeiture makes morally permissible the state’s putting them to death, at least as a means to some good.  Thus, capital punishment is not a violation of an offender’s right to life, as the offender has forfeited that right, and the death penalty is then justifiable as a morally permissible way to treat murderers in order to effect some good for society.

This kind of retributivist approach to capital punishment raises philosophic issues, aside from its reliance on empirical claims about the effects of the death penalty as a way to deter or incapacitate offenders (see section 3b). First, though the idea of forfeiting a right may be familiar, it leaves “troubling and unanswered questions: To whom is it forfeited? Can this right, once forfeited, ever be restored? If so, by whom, and under what conditions” (Bedau, “Capital Punishment,” 162-3)?  Second, given that the right to life is so fundamental to all rights and, as many maintain, held equally by each and all because they are humans, perhaps the right to life is exceptional or even unique in not being forfeitable at all: the right to life is actually a fundamental natural or human right.  One’s actions cannot and do not alter one’s status as a human being, Locke and Aquinas notwithstanding; thus, the right to life is inalienable and not forfeitable.  Even killers retain their right to life, the state remains bound by the correlative duty not to kill a murderer, and capital punishment, then, is a violation of the human right to life.

Developed in this way, as a matter of fundamental human rights, the merit of capital punishment becomes more about the moral standing of human beings and less about the logic and mobility of rights through forfeiture or alienation.  The point of a human right to life is that it “draws attention to the nature and value of persons, even those convicted of terrible crimes.… Whatever the criminal offense, the accused or convicted offender does not forfeit his rights and dignity as a person” (Bedau, “Reflections,” 152, 153).   This view reflects at least the spirit of the 1948 United Nations Universal Declaration of Human Rights: the right to life is universal, is rooted in each person’s dignity, and is unalienable (Preamble; Article 3).   But this view of offenders’ moral standing can be challenged if one considers the implication that, of equal standing with any of us, then, are masters of massacres or genocide (for example, Hitler, Stalin, Pol Pot), serial killers, terrorists, rampant rapists, and pedophiliac predators.  As one retributivist defender of capital punishment puts it, “though a popular dogma, the secular doctrine that all human beings have… worth is groundless.  The notion… [is] perhaps the most misused term in our moral vocabulary.… If humans do not possess some kind of intrinsic value… then why not rid ourselves of those who egregiously violate… our moral and legal codes” (Pojman, 35, 36).

d. Retributivism and Fairness

A recently revived retributivism about the death penalty builds not on individual rights, but on a notion of fairness in society.  Given a society with reasonably just rules of cooperation that bestow benefits and burdens on its members, misconduct takes unfair advantage of others, and punishment is thereby merited to address the advantage gained:

A person who violates the rules has something that others have—the benefits of the system—but by renouncing what others have assumed, the burdens of self-restraint, he has acquired an unfair advantage.  Matters are not even until this advantage is in some way erased….[P]unishing such individuals restores the equilibrium of benefits and burdens. (Morris 478)

The morally justified amount, kind, or form of punishment for a crime is then determined by an “unfair advantage principle”:

His crime consists only in the unfair advantage… [taken] by breaking the law in question. The greater the advantage, the greater the punishment should be.  The focus of the unfair advantage principle is on what the criminal gained.”  (Davis 241)

In justifying an amount of punishment, then, an unfairness principle focuses on the advantage gained, whereas the lex talionis principle attends to the harm done to another (Davis 241).

The fairness approach to punishment reflects recent uses of “the principle of fairness” as a theory of political obligation:  those engaged in a mutually beneficial system of cooperation have a duty to obey the rules from which they benefit (Rawls, 108-114).  As applied to punishment, though, its roots run also to ancient, archaic notions of justice as re-establishing an equilibrium, to Aristotle’s Nichomachean Ethics treatment of justice as requiring state corrective action to rectify the imbalances created by criminal misconduct (Book V, Chapter 4), and to G.W.F. Hegel’s claim in The Philosophy of Right that to punish “is to annul the crime… and to restore the right” (69, 331n).   Today’s popular parlance that punishment is how offenders pay for their crimes can also be seen as their paying for unfair advantages gained.

As a general approach to justifying the amount of punishment merited for misconduct, the fairness approach initially appears to work best for petty theft or possibly “free-loading” in cooperative schemes, such as penalizing tax evasion.   In such cases one can perhaps see unfair advantage gained and see the amount of punishment as tied to what is unfairly gained.  But for violent crimes such as murder, the fairness approach seems less plausible.  How does lengthy incarceration or even execution erase the unfair advantage gained, annul the crime, or  re-establish any prior balance between perpetrator and victim?  To the extent that punishment affects such things, it risks conflating retribution with restitution or restoration.  The unfair advantage principle also characterizes the wrong committed not in terms of its effects on a victim, but on third parties—society members who exercise self-restraint by obeying those norms the offender violates.  This oddly places the victim of criminal misconduct, especially for violent crimes: the person assaulted or killed is not the focus in justifying the amount of punishment, but third parties’ burdens of self-restraint are.  Additionally, taken by itself, the unfair advantage approach to establishing the proper amount of punishment can also have some odd consequences, as Jeffrey Reiman rather colorfully suggests:

For example, it would seem that the value of the unfair advantage taken of law-obeyers by one who robs a great deal of money is greater than the value of the unfair advantage taken by a murderer, since the latter gets only the advantage of ridding his world of a nuisance while the former will be able to make a new life… and have money left over for other things.  This leads to the counterintuitive conclusion that such robbers should be punished more severely… than murderers.  (“Justice, Civilization,…,” note 10)

The death penalty for murder, then, would not obviously be morally justified if the general criterion for the amount of punishment is an unfair advantage principle.

A defense of the death penalty for murder has been proposed by employing another version of this general approach to punishment.  The key is seeing the kind of unfair advantage gained by a murderer.  As Reiman suggests in the spirit of Hegelian retributivism, the act of killing another disrupts “the relations appropriate to equally sovereign individuals;” it is “an assault on the sovereignty of an individual that temporarily places one person (the criminal) in a position of illegitimate sovereignty over another (the victim)”; then there is “the right to rectify this loss of standing relative to the criminal by meting out a punishment that reduces the criminals’ sovereignty to the degree to which she vaunted it above her victim’s” (“Why…,” 89-90).   So, if a murder is committed and a life taken, the idea is that the amount of permissible punishment is for the state, as the victim’s agent, to assert a supremacy over the criminal similar to that already asserted by the killer; and to do that it is permissible for the state to impose the death penalty for murder.  So, on this interpretation of the fairness principle, the death penalty for murder is morally justified, though, for other crimes, it may not be “easy or even always possible to figure out what penalties are equivalent to the harms imposed by offenders” (Reiman, “Why…,” 69-90, 93).  As with other forms of retributivism, the fairness approach, on either interpretation, is challenged by the plausibility of using a principle that adequately addresses both the merits of capital punishment for murder and also generates a system of penalties that “fit” or are equivalent to various crimes.

e. Challenges to Retributivism

Retributivist approaches to capital punishment are many and varied.  But from even the small sample above, notable similarities are often cited as challenges for this way of thinking about the moral justification of punishment by death.   First, retributivism with respect to capital punishment either invokes principles that are plausible, if at all, only for death as penalty for murder; or it relies on principles met only with reasoned skepticism about their general adequacy for constructing a plausible scale matching various crimes with proper penal responses.

Second, retributivists presuppose that persons are responsible for any criminal misconduct for which they are to be punished, but actually instituting capital punishment confronts the reality of some social conditions, for example, that challenge the presupposition of voluntariness and, in the case of the fairness approach, that challenge the presupposition of a reasonably just system of social cooperation (see section 5b).  Third, it is often argued that, in addressing the moral merits of capital punishment, retributivists ignore or make markedly secondary the causal consequences of the practice.  What if no benefits accrue to anyone from the practice of capital punishment?  What if capital punishment significantly increases the rate of murders or violent crimes?  What if the institution of capital punishment sometimes, often, or inevitably is arbitrary, capricious, discriminatory, or even mistaken in its selecting those to be punished by death (see section 5)?  These and other possible consequences of capital punishment seem relevant, even probative.  The challenge is that retributivists ignore or diminish their importance, perhaps defending or opposing the death penalty despite such effects and not because of them.

3. Utilitarian Approaches

A utilitarian approach to justifying capital punishment appeals only to the consequences or effects of death being the penalty for serious crimes, such as murder.  A utilitarian approach, then, is a kind of consequentialism and is often said to be “forward looking,” in contrast to retributivists’ “backward looking” approach.   More specifically, a utilitarian approach sees punishment by death as justified only if that amount of punishment for murder best promotes the total happiness, pleasure, or well-being of the society.  The idea is that the inherent pain and any negative effects of capital punishment must be exceeded by its beneficial effects, such as crime prevention through incapacitation and deterrence; and furthermore, the total effects of the death penalty—good and bad, for offender and everyone else—must be greater than the total effects of alternative penal responses to serious misconduct, such as long-term incarceration.   A utilitarian approach to capital punishment is inherently comparative in this way: it is essentially tied to the consequences of the practice being best for the total happiness of the society.  It follows, then, that a utilitarian approach relies on what are, in principle, empirical, causal claims about the total marginal effects of capital punishment on offenders and others.

a. Classic Utilitarian Approaches: Bentham, Beccaria, Mill

A classic utilitarian approach to punishment is that of Jeremy Bentham.  In chapters XIII and XIV of his lengthy work, An Introduction to the Principles of Morals and Legislation , first published in 1789, Bentham addresses the appropriate amount of punishment for offenses, or, as he puts it, “the proportion between punishments and offences.”  He begins with some fundamental features of a utilitarian approach to such issues:

The general object which all law have, or ought to have in common, is to augment the total happiness of the community.… But all punishment is mischief: all punishment in itself is evil.  Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.  (XIII. I, ii.)

Bentham continues by noting the importance of attending to “the ends of punishment”:

The immediate principal end of punishment is to control action.… [T]hat of the offender it controls by its influence… on his will, in which case it is said to operate in the way of reformation ;  or on his physical power, in which case it is said to operate by disablement : that of others it can influence no otherwise than by its influence over their wills; in which case it is said to operate in the way of example . (XIII. ii. fn. 1)

So, there are three major ends of punishment related to controlling people’s action in ways promoting the total happiness of the community through crime reduction or prevention: reformation of the offender, disablement (that is, incapacitation) of the offender, and deterrence (that is, setting an example for others).   Of these three ends of punishment, Bentham says “example” – or deterrence – “is the most important end of all.” (XIII. ii. fn 1).  Since “all punishment is mischief [and] an evil,” any amount of punishment, then, is justified only if that mischief is exceeded by the penalty’s good effects, and, most importantly for Bentham, only if the punishment reduces crime by deterring others from misconduct and does so better than less painful punishments.  In other writings, Bentham explicitly applies his utilitarian approach to capital punishment, first allowing its possible justification for aggravated murder, particularly when the “effect may be the destruction of numbers” of people, and then, years later and late in life, calling for its complete abolition (Bedau, “Bentham’s Utilitarian Critique…”).

In his own writing about law, Bentham notably praises and acknowledges Cesare Beccaria’s On Crimes and Punishments , its utilitarian approach to penal reform, and its call for abolishing capital punishment. Beccaria called for abolition of the death penalty largely by appealing to its comparative inefficacy in reducing the crime rate.  In Chapter XII of his essay, Beccaria says the general aim of punishment is deterrence and that should govern the amount of punishment to be assigned crimes:

The purpose of punishment… is nothing other than to dissuade the criminal from doing fresh harm to his compatriots and to keep other people from doing the same.  Therefore, punishments and the method of inflicting them should be chosen that… will make the most effective and lasting impression on men’s minds and inflict the least torment on the body of the criminal. (23; Ch. XII)

He then argues that “capital punishment is neither useful nor necessary” in comparison to the general deterrent effects of lengthy prison sentences:

[T]here is no one who, on reflection, would choose the total and permanent loss of his own liberty, no matter how advantageous a crime might be.  Therefore, the intensity of a sentence of servitude for life, substituted for the death penalty, has everything needed to deter the most determined spirit.… With capital punishment, one crime is required for each example offered to the nation; with the penalty of a lifetime at hard labor, a single crime affords a host of lasting examples” (49-50, 51; Ch. XXVIII).

The idea here is that an execution is a single, severe event, perhaps not long remembered by others, whereas life imprisonment provides a continuing reminder of the punishment for misconduct.  In general, Beccaria says, “[i]t is not the severity of punishment that has the greatest impact on the human mind, but rather its duration, for our sensibility is more easily surely stimulated by tiny repeated impressions than by a strong but temporary movement” (49; Ch. XXVIII).

Beccaria adds to this thinking at least two claims about some bad social effects of capital punishment: first, for many the death penalty becomes a spectacle, and for some it evokes pity for the offender rather than the fear of execution needed for effective deterrence of criminal misconduct (49; Ch. XXVIII).  Second, “capital punishment is not useful because of the example of cruelty which it gives to men.… [T]he laws that moderate men’s conduct ought not to augment the cruel example, which is all the more pernicious because judicial execution is carried out methodically and formally” (51; Ch. XXVIII).  Thus, Beccaria opposes capital punishment by employing utilitarian thinking: the primary benefit of deterrence is better achieved through an alternative penal response of “a lifetime at hard labor,” and, furthermore, the cruelty of the death penalty affects society in ways much later called “the brutalization effect.”

Another major utilitarian, John Stuart Mill, also exemplifies distinctive facets of a utilitarian approach, but in defense of capital punishment.  In an 1868 speech as a Member of Parliament, Mill argues that capital punishment is justified as penalty for “atrocious cases” of aggravated murder (“Speech…,” 268).  Mill maintains that the “short pang of a rapid death” is, in actuality, far less cruel than “a long life in the hardest and most monotonous toil… debarred from all pleasant sights and sounds, and cut off from all earthly hope” (“Speech…,” 268).  As Sorell succinctly summarizes Mill’s position, “hard labor for life is really a more severe punishment than it seems, while the death penalty seems more severe than it is” (“Aggravated Murder…,” 204).  Since the deterrent effect of a punishment depends far more on what it seems than what it is, capital punishment is the better deterrent of others while also involving less pain and suffering for the offender.  Such a combination “is among the strongest recommendations a punishment can have” (Mill, “Speech…,” 269). And so, Mill says, “I defend [the death penalty] when confined to atrocious cases… as beyond comparison the least cruel mode in which it is possible adequately to deter from the crime” (“Speech…, 268).

b. Empirical Considerations: Incapacitation, Deterrence

A utilitarian approach to capital punishment depends essentially on what are, in fact, the causal effects of the practice, whether the death penalty is, in fact, effective in incapacitating or deterring potential offenders.  If, in fact, it does not effect these ends better than penal alternatives such as lengthy incarceration, then capital punishment is not justified on utilitarian grounds.   In principle, at least, the comparative efficacy of capital punishment is therefore an empirical issue.

A number of social scientific studies have been conducted in search of conclusions about the effects of capital punishment, at least in America.  With respect to the end of incapacitation, any crime prevention benefit of executing murderers depends on recidivism rates, that is, the likelihood that murderers again kill.  Recent studies of convicted murderers—death row inmates not executed, prison homicides, parolees, and released murderers—indicate that the recidivism rate is quite low, but not zero: a small percentage of murderers kill again, either in prison or upon release (Bedau, The Death Penalty , 162-182).  These crimes, of course, would not have occurred were capital punishment imposed, and, so, the death penalty does prevent commission of some serious crimes.  On the other hand, for a utilitarian, these benefits of incapacitation through execution must exceed those for possible punitive alternatives.  The data reflects recidivism rates under current practices, not other possible alternatives.  If, for example, pardons and commutations were eliminated for capital crimes, if atrocious crimes were punished by a life sentence without any possibility of parole, or if conditions of confinement were such that prison murders were not possible (for example, shackled, solitary confinement for life), then the recidivism rate might approach or be zero.  One issue, then, is how high or low a recidivism rate decides the justificatory issue for capital punishment.  Another issue is the moral permissibility of establishing conditions of confinement so restrictive that even murders in prison are reduced to nearly zero.

Since the mid-twentieth century, in America a number of empirical studies have been conducted in order to assess the deterrent effects of capital punishment in comparison to those of life imprisonment.  Scholars analyzed decades of data to compare jurisdictions with and without the death penalty, as well as the effects before and after a jurisdiction abolished or instituted capital punishment.   Such analyses “do not support the deterrence argument regarding capital punishment and homicide” (Bailey, 140).  Sophisticated statistical studies published in the mid-1970s claimed to show that each execution deterred seven to eight murders.  This exceptional study and its methodology have been much criticized (Bailey, 141-143).  Additional, more recent studies and analyses have “failed to produce evidence of a marginal deterrent effect for capital punishment” (Bailey, 155).  As indicated by Jeffrey Reiman’s succinct summary and numerous, cited literature surveys (“Why…” 100-102), nearly all relevant experts claim there is no conclusive evidence that capital punishment deters murder better than substantial prison sentences.

Determining the deterrent effects of capital punishment does present significant epistemic challenges.  In comparative studies of jurisdictions with and without the death penalty, “there simply are too many variables to be controlled for, including socio-economic conditions, genetic make-up,” demographic factors (for example, age, population densities), varying facets of law enforcement, etc.  (Pojman, 139). Numerous variables may or may not explain the data attempting to link crime rates and the death penalty in different places or times (Pojman, 139). Second, as Beccaria notes, for example, deterrent effects plausibly depend importantly on the certainty, speed, and public nature of penal responses to criminal conduct.  These factors have not been much evident in recent capital punishment practices in America, which may explain the lack of evidence revealed by recent statistical studies.  Third, deterrence is a causal concept:  the idea is that potential murderers do not kill because of the death penalty.  So, the challenges are to measure what does not occur—murders – and to establish what causes the omission—the death penalty.  The latter element is even more challenging to measure because most who do not murder do so out of habit, character, religious beliefs, lack of opportunity, etc., that is, for reasons other than any perceived threat or fear of execution by the state.  Deterrence studies, then, attempt to establish empirically a causal relationship for a small minority of people and omitted homicides within a death penalty jurisdiction.  Finally, there are disagreements about the importance of the studies’ conclusions.  For example, abolitionists typically see that, despite numerous attempts, the failure to provide conclusive evidence strongly suggests there is no such effect: the death penalty, in fact, does not deter.  Defenders of capital punishment are inclined to interpret the empirical studies as being inconclusive: it remains an open question whether the death penalty deters sufficiently to justify it.  And all this is further complicated by the fact that some studies focus on the effects of capital statutes and others look for links between actual executions and crime rates.

c. Utilitarian Defenses: “Common Sense” and “Best Bet”

Regardless of the outcomes or probative value of statistical studies, justifying capital punishment on grounds of deterrence may still have merit.  It would seem, some maintain, that “common sense” supports the notion that the death penalty deters.  The deterrence justification of capital punishment presupposes a model of calculating, deliberative rationality for potential murderers.  What people cherish most is life; what they most fear is being killed.  So, given a choice between life in prison and execution by the state, most people much prefer life and therefore will refrain from misconduct for which death is the punishment.  In short, “common sense” suggests that capital punishment does deter.  But this kind of appeal to “common sense” ignores the essentially comparative aspect of appeals to deterrence as justification: though capital punishment may deter, it may not deter any more (or significantly more) than a long life in prison. We cannot equate “what is most feared” with “what most effectively deters” (Conway, 435-436; Reiman, “Why…,” 102-106).

Another way of looking at capital punishment in terms of deterrence relies on making the best decision under conditions of uncertainty.  Given that the empirical evidence does not definitively preclude that capital punishment is a superior deterrent, “the best bet” is to employ the death penalty for serious crimes such as murder.  If capital punishment is not, in fact, a superior deterrent, then some murderers have been unnecessarily executed by the state; if, on the other hand, death is not a possible punishment for murder and capital punishment is, in fact, a superior deterrent, then some preventable killings of innocent persons would occur.  Given the greater value of innocent lives, the less risky, better option justifies capital punishment on grounds of deterrence. But the argument crucially depends on comparative risk assessments: if there is capital punishment, then certainly some murderers will be killed, whereas without the death penalty there is only a remote chance that more innocent lives would be victims of murder (Conway, 436-443).  Furthermore, the argument openly assumes that not all lives are equal—those of the innocent are not to be risked as much as those who have murdered—and that, for some, is a fundamental moral issue at stake in justifying capital punishment (see section 2c; Pojman, 35-36).

d. Challenges to Utilitarianism

Utilitarian approaches to justifying punishment are controversial and problematic, perhaps most often with respect to possibly justifying punishment of the innocent as a means to preventing crime and promoting total happiness of a society.  Even ignoring this issue and focusing only on justifying the proper amount of punishment for the guilty and the death penalty, in particular, there are concerns to be considered about a utilitarian approach.  The objection is that a utilitarian approach to the death penalty relies on a suspect general criterion—deterrence—for establishing the proper amount of punishment for crimes.  It is often argued that, for purposes of crime prevention through deterrence, a utilitarian is committed, at least in principle, to excessively severe punishments, such as torturous and gruesome executions in public even for crimes much less serious than murder (for example, Ten, 34-35, 143-145).  The idea is that the pain of excessively severe and public punishments for minor crimes is more than counterbalanced by a significant reduction in a crime rate.  It is also argued that significant crime rate reductions could perhaps be achieved, in some circumstances, by disproportionately minor punishments:  if fines, light prison sentences, or even fake executions could deter as well as actual ones, then a utilitarian is committed to disproportionately mild penalties for grave crimes.  Utilitarians respond to such possibilities by indicating additional considerations relevant to calculating the total costs of such disproportionate punishments, while critics continue creating even more elaborate, fantastic counterexamples designed to show the utilitarian approach cannot always avoid questions about the upper or lower limits of morally permissible penal responses to misconduct.  As C. L. Ten summarizes succinctly, a utilitarian approach establishing a proper amount of punishment is “inadequate to account for both the strength of the commitment to the maintenance of a proportion between crime and punishment, and [to] the great reluctance to depart… from that proportion when required to so do by purely aggregative consequential considerations” (146).

Another common criticism of the utilitarian approach points to the very structure of justifications rooted in deterrence.  As evident in Bentham’s classic statements, for example, the purpose of punishment “is to control action,” primarily through deterrence (see section 3a).  Punishments deter and “control action” by example, by the demonstration to others that they, too, will suffer similarly should they similarly misbehave. Capital punishment, then, aims to deter actions of potential killers by inflicting death on actual ones: the technique works by threat, by instilling fear in others.  A fundamental objection to this way of thinking is to see that, in effect, persons are being used as a means to controlling others’ actions; capital offenders are being used simply as a means to deter others and reduce the crime rate.  Such a use of persons is morally impermissible, it is argued, echoing Immanuel Kant’s famous categorical imperative against treating any person merely as means to an end.  No gain in deterrence, incapacitation, or other beneficial effects can justify deliberately killing a captive human being as a means to even such desirable ends as deterring others from committing grave crime.  The argument, then, is that justifying capital punishment on grounds of deterrence is a morally impermissible way to treat persons, even those found to have committed atrocious crimes.

e. Other Consequential Considerations

In discussions of capital punishment, it is deterrence that receives much of the attention for those exploring a utilitarian approach to the moral justification of the practice.  There are, however, other significant consequences of the death penalty that are relevant, as noted even by classic utilitarians.  Beccaria, for example, asserts a brutalization effect on society: executions are cruel and are examples to others of the states’ cruelty.  The suggestion seems to be that capital punishment increases people’s tolerance for another’s suffering, their callousness about human suffering, a willingness to impose suffering on another, even the rate of violent crimes (for example, assaults or homicides).  In contrast, one recent defender of the death penalty, Jeffrey Reiman, argues that, for some developed societies, abolition of capital punishment for serious crimes shows restraint and thereby actually advances civilization by reducing our tolerance for others’ suffering.  Such claims are, in principle, empirical ones about the causal effects of the practice of capital punishment.  As with recent deterrence studies, there is no clear empirical evidence of any brutalizing or civilizing effects of capital punishment.

For classic utilitarian thinking, another important consequence of punishment is its effect on the offender.   According to Jeremy Bentham, one of the three ends of punishment is reform of the offender through “its influence on his will” (XIII.ii. fn. 1).  This penal aim of reform (or rehabilitation) may suggest capital punishment is not justifiable for any crime.  But that need not be the case.  The ancient Roman Stoic Seneca, for example, argues that proper punishment for criminal misconduct depends on its “power to improve the life of the defendant” (Nussbaum, 103).   But he also defends capital punishment as a kind of merciful euthanasia: execution is “in the interest of the punished, given that a shorter bad life is better than a longer one” (Nussbaum, 103, note 43).  Plato also defends capital punishment by looking to its impact on the offender.  In his later works and as part of a general theory of penology, Plato maintains that the primary penal purpose is reform—to “cure” offenders, as he says.  For crimes that show offenders are “incurable,” Plato argues execution is justifiable.  In his late work, The Laws, Plato explicitly prescribes capital punishment for a wide range of offenses, such as deliberate murder, wounding a family member with the intent to kill, theft from temples or public property, taking bribes, and waging private war, among others (MacKenzie; Stalley).  In a utilitarian approach to capital punishment, then, attending to the end of reforming offenders need not be irrelevant to possible moral justifications of the death penalty.

4. Capital Punishment as Communication

A cluster of distinctive approaches to issues of justifying punishment and, at least by implication, the death penalty, are united by taking seriously the idea of punishment as expression or communication.  Often called “the expressive theory of punishment,” such approaches to punishment are sometimes classified as utilitarian or consequentialist, sometimes as retributivist, and sometimes as neither.  The root idea is that punishment is more than “the infliction of hard treatment” by an authority for prior misconduct; it is also “a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation….  Punishment, in short, has a symbolic significance ” (Feinberg, “The Expressive Function…,” 98).  Hard treatment, deprivations, incarceration, or even death can be, and perhaps are, vehicles by which messages are communicated by the community.  To see capital punishment as a deterrent is to see it as communicative:  the death penalty communicates to the community—at least potential killers—that murder is a serious wrong and that execution awaits those who kill others.  Various developments of punishment as communication, though, attend to other messages expressed, some emphasizing the sender and others the recipient of the message.

One version of this kind of approach emphasizes that, with capital punishment, a community is expressing strong disapproval or condemnation of the misconduct.  Sometimes called “the denunciation theory,” the basic contention is evident in Leslie Stephens’ late 19th-century work, Liberty, Equality, Fraternity (a reply to J.S. Mill’s On Liberty ), as well as by the oft-quoted remarks of Lord Denning recorded in the 1953 Report of the Royal Commission on Capital Punishment :

The punishment for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the object of punishment as being deterrent or reformative or preventive and nothing else.… The ultimate justification of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a crime; and from this point of view, there are some murders which, in the… public opinion, demand the most emphatic denunciation of all, namely the death penalty. (As quoted in Hart, “Punishment…,” 170)

In the United States, Supreme Court decisions in death penalty cases have more than once employed such reasoning:  a stable, ordered society is better promoted by capital punishment practices than risking “the anarchy of self-help, vigilante justice, and lynch law” as ways of expressing communal outrage (Justice Stewart, in Furman v. Georgia (1972), as quoted in Gregg v. Georgia (1976)).

As a defense of capital punishment, at least, this “denunciation theory” leaves multiple questions not adequately addressed.  For example, the approach presupposes some moral merit to popular sentiments of indignation, outrage, anger, condemnation, even vengeance or vindictiveness in response to serious misconduct.  There are significant differences between expressing such emotions and punishing justly or morally (see section 2b).  Secondly, the structure of the thinking seems entirely consequentialist or utilitarian: capital punishment is justified as effective means to communicate condemnation, or to satisfy others’ desires to see someone suffer for the crime, or as an outlet for strong, aggressive feelings that otherwise are expressed in socially disruptive ways.  Such utilitarian reasoning would seem to justify executing pedophiles or even innocent persons in order to communicate condemnation or avoid an “anarchy of self-help, vigilante justice, and lynch law.” On the other hand, even Jeremy Bentham argues that “no punishment ought to be allotted merely to this purpose” because such widespread satisfactions or pleasures cannot ever “be equivalent to the pain… produced by punishment” (Bentham XIII. ii. fn. 1).  Third, it leaves unanswered why the expression of communal outrage—even if morally warranted—is best or only accomplished through capital punishment.  Why would not harsh confinement for life serve as well any desirable expressive, cathartic function?  Or on what grounds are executions not to be conducted in ways torturous and prolonged, even publicly, as means of better communicating denunciation and expressing society’s outrage about the offenders’ misconduct?  And does not the death penalty also express or communicate other, conflicting messages about, for example, the value of life?  As a justification of capital punishment, even for the most heinous of crimes, a “denunciation theory” faces significant challenges.

Other uses of the idea of punishment as communication focus not on the sender of the message, but on the good of the intended recipient, the offender.  Punishment is paternalistic in purpose: it aims to effect some beneficial change in the offender through effective communication.  In Philosophical Explanations Robert Nozick, for example, holds that punishment is essentially “an act of communicative behavior” and the “message is: this is how wrong what you did was” (370).  Wrongdoers have “become disconnected from correct values, and the purpose of punishment is to (re)connect him” (374).  The justified amount of punishment, then, is tied to the magnitude of the wrong committed (363): “for the most serious flouting of the most important values… capital punishment is a response of equal magnitude” (377).  But, Nozick maintains, the aim of punishment is not to have an effect on the offender, but “for an effect in the wrongdoer: recognition of the correct value, internalizing it for future action—a transformation in him” (374-5).  This paternalistic end seems to preclude the death penalty being imposed for any kind of wrongdoing; however, in “truly monstrous cases” (for example, Adolph Hitler, genocides) there seems to be perhaps the highest magnitude of wrong, a disconnection from the most basic values, and acts worthy of the most emphatic penal expression possible.  As Nozick himself admits and others have noted, this approach to punishment as communication provides “no clear stable conclusion… on the issue of an institution of capital punishment” (378).

Some employing a similar reliance on punishment as communication are less ambivalent about its implications for the death penalty.   The “moral education theory of punishment,” its proponent maintains, precludes “cruel and disfiguring punishments such as torture or maiming,” as well as “rules out execution as punishment” (Hampton, 223).  This argument for death penalty abolition takes seriously the expressive, communicative function of punishments: as aiming to effect significant benefits in and for the offender and, through general deterrence and in other ways, as “teaching the public at large the moral reasons for choosing not to perform an offense” (Hampton, 213).  Punishment as education is not a conditioning program; it addresses autonomous beings, and the moral good aimed at is persons freely choosing attachment to that which is good.  Executing criminals, then, seems to require judging them as having “lost all their essential humanity, making them wild beasts or prey on a community that must, to survive, destroy them” (Hampton 223).  Furthermore, it is argued, capital punishment conveys multiple messages, for example, about the value of a human life; and, it is argued, since one can never be certain in identifying the truly incorrigible, the death penalty is morally unjustified in all cases.   As R.A. Duff puts the abolitionist point in Punishment, Communication, and Community (2001), “punishment should be understood as a species of secular penance that aims not just to communicate censure but thereby to persuade offenders to repentance , self – reform, and reconciliation” (xvii-xix).

Approaches to capital punishment as paternalistic communication are challenged on several grounds.  First, as a general theory of punishment, such expressive theories posit an extraordinarily optimistic view of offenders as open to the message that penal experiences aim to convey.  Are there not some offenders who will not be open to moral education, to hearing the message expressed through their penal experiences?  Are there not some offenders who are incorrigible?  On these approaches to capital punishment, the reasons against executing serious offenders are essentially empirical ones about the communicative effects on the public of executions or the limits of diagnostic capabilities in identifying the truly incorrigible.  Second, with respect to capital punishment, perhaps for some offenders, the experience of trial, sentencing, and awaiting execution does successfully communicate and effect reform in the offender, with the death penalty then imposed to affirm that which effected the beneficial reform in the offender.  Third, as with other approaches to punishment, the moral education theory renders it extremely difficult, if not impossible, to “fashion a tidy punishment table” pairing kinds of misconduct and merited penalties (Hampton, 228).  Focusing on reforming or educating a recipient of a message suggests very individualistic and situational sentencing guidelines.  Not only may this not be practical, such discretion in sentencing risks caprice or arbitrariness in punishing offenders by death or in other ways (see section 5); and it challenges the fundamental, formal principle of justice, that is, that like case be treated alike.  Finally, the implications of these approaches to punishment are quite at odds with the system of incarceration employed so universally for so many offenders.  The implications of punishment as communication aimed at the offender would require radical revisions of current penal practices, as some proponents readily admit.

5. The Institution of Capital Punishment

Much philosophic focus on punishment and the death penalty has been rooted in theoretical questions and principles.  A result is that philosophers have mostly ignored more practical matters and moral facets of the institution of capital punishment.  That historical tendency began to change in the mid-twentieth century with a decidedly American concern: whether the practice of capital punishment is legally permissible, given the United States Constitution’s eighth amendment prohibition of “cruel and unusual punishments.”  Scholars and lawyers investigated the history and continuing death penalty practices in America, producing evidence of racial discrimination in the institution of capital punishment, especially in southern states.  By the early 1970s, a series of United States Supreme Court decisions established especially elaborate criminal procedures to be followed in capital cases: bifurcated trials (one for conviction and one for establishing the sentence), a finding of at least one aggravator for a murder to be a capital crime, automatic appellate review of all sentences to death, guidelines for jury selections, etc. The aim of such “super due process” is to improve criminal procedures employed in capital cases so as avoid arbitrariness in administering the death penalty in America (Radin).

After implementation of these Court-mandated procedures for death penalty cases, a number of empirical studies indicated continuing concerns and problems with the practice of capital punishment in America.  For example, studies of capital cases conducted in some southern states showed that disproportionately large numbers of convicted murderers received death sentences if they were black, a disproportion even greater when the convicted murderer was black and the victim was white (Bedau, The Death Penalty , 268-274).   Also, especially with the advent of new, scientific sources of evidence (for example, DNA matching), studies suggest that numbers of persons innocent of any crime have been wrongly convicted, sentenced, and even executed for committing a capital crime (Bedau, The Death Penalty , 344-360).   Morally justifying punishment in theory is distinguishable from whether it is justified in practice, given extant conditions.  For some, even though questions of theory and practice are distinguishable, they may not be unrelated. As Stephen Nathanson asks, “does it matter if the death penalty is arbitrarily administered?”

a. Procedural Issues: Imperfect Justice

Moral arguments about the death penalty based on procedural issues attend to the outcomes and steps of a long and involved process “as a person goes the road from freedom to electric chair” (Black, 22).  Such a process involves an “entire series of decisions made by the legal system”:  whether to arrest; what criminal charges to file; decisions about plea bargaining offers, if any;  a criminal trial, with jury selection, countless tactical decisions, possible employment of a defense like insanity; sentencing that requires juries find and weigh statutory factors of aggravation and mitigation; post-conviction appeals and possible remedies decided; clemency decisions, to commute a sentence or even pardon the convicted (Black, 22-26).  It is apparent, then, “that the choice of death as the penalty is the result of not just one choice… but of a number of choices, starting with the prosecutor’s choice of a charge, and ending with the choice of the authority… charged with the administration of clemency” (Black, 27).  At each one of these points of decisions, it is argued, there is room for arbitrariness, mistakes, even discrimination.  Furthermore, it is impossible and undesirable to remove all latitude, all discretion, in order to allow each of these decisions to be properly made in light of the particularities of the case, person, situation.  And so, the institution of capital punishment, even as practiced in America, brings along with it “the inevitability of caprice and mistake” (Black).

A criminal trial and, more broadly, criminal procedures in toto are exemplars of what John Rawls, in A Theory of Justice , characterizes as imperfect procedural justice.   There is an independently defined standard external to the procedure by which we judge outcomes of the process; and there is no procedure “that is sure to give the desired outcome” (Rawls 74-75).  For criminal procedures, the aim is “to impose deprivations on all and only guilty convicted offenders because of their wrongdoing”; and for capital punishment, the aim is to impose the death penalty on all and only those guilty of committing crimes for which the merited amount of punishment is execution (Bedau, Reflections 173).  In capital procedures, too, it is “impossible to design the legal rules so that they always lead to the correct result” (Rawls, 75).  Whether due to inherent vagaries of legal language, the necessity of discretion to judge properly complex, particular cases, the fallibility of human beings, or political pressures and other factors affecting decisions made within the system, such as clemency, the risk of error is not eliminable for the institution of capital punishment.  Given unavoidably imperfect criminal justice procedures, at issue, then, is the moral import of any arbitrariness, caprice, mistake, or discrimination in the institution of capital punishment.

The appeal to procedural imperfections is often employed by those opposed to capital punishment and who seek its complete abolition on the grounds that its institution is intolerably arbitrary, capricious, or discriminatory in selecting who lives and who dies. This abolitionist reasoning is challenged in various ways.  Given the fact that there are imperfections in the system or practice of capital punishment, what follows is not abolition of the death penalty, but justification only for procedural improvements in order to reduce problematic outcomes.  A second issue, aside from disputes about the actual frequency of problematic outcomes, is a question of thresholds: how many imperfect outcomes are tolerable in the institution of capital punishment?  Abolitionists tend to have near-zero tolerance, whereas some defenders of capital punishment argue that some arbitrariness is acceptable.  For a utilitarian approach to capital punishment, assessing the total consequences—benefits and “costs”— of the death penalty must include the inevitable arbitrariness of its institution.  And in as much as any deterrent effects are linked to certainty of punishment, any degree of arbitrariness in administering capital punishment does affect a central utilitarian consideration in determining whether the institution is morally justified.  For retributivist approaches, the question is whether some arbitrariness in the institution violates requisite pre-conditions for morally justifying the institution of capital punishment (see section 2c).  Jeffrey Reiman, for example, argues, on retributivist grounds, that capital punishment is justified in principle; however, “the death penalty in… America is unjust in practice,” and he therefore favors abolition (see 5b).

A third issue for appeals to procedural imperfections involves limiting the scope of the argument for abolition.   Since all criminal cases are administered through unavoidably imperfect procedures, if arbitrariness justifies abolishing the death penalty for murder, then it would seem also to justify abolishing lesser punishments for less serious criminal misconduct.  In short, the imperfect administration of capital punishment matters morally only if the death penalty is distinctive among punishments.  Punishment by death is often said to be distinctive because, unlike incarceration, death is irrevocable.  But years spent imprisoned, for example, can also not be revoked, once they have been endured.  The idea must be that incarceration, if found to be mistaken, can be ceased: by executive or judicial action the imprisoned can be released and receive remedies, even if only gestures.   On the other hand, a death sentence, once executed, has none of those qualities: death is permanent; punishment by death has finality.  “Because of the finality and the extreme severity of the death penalty, we need to be more scrupulous in applying it as punishment than is necessary with any other punishment” (Nathanson, Eye , 67).

Another major issue involves distinguishing the kinds of imperfect outcomes resulting from the criminal procedures employed in capital cases.  For example, the arbitrariness evident in the procedures may be one of selectivity : among all the convicted killers who merit a death sentence, some of those are actually sentenced or executed and others are not.  As Ernest van den Haag argues, that some who merit the death penalty escape that punishment does not make morally unjustified selectively executing some who do merit that punishment (Nathanson, 49).  Analogies with selective ticketing for excessive speed support this kind of reasoning: justice is a matter of each individual being treated as they merit, without regard to how other, similar cases are treated.  But this argument makes what is just or justified entirely non-comparative, when substantive comparative considerations often are also necessary when arbitrariness or discrimination is at issue (Feinberg, “Noncomparative Justice,” 265-269).  Justice requires treating similar cases in similar ways, and this kind of arbitrary imposition of the death penalty violates that requirement.  Furthermore, it may matter morally what are the grounds of selecting only some convicted killers to receive death sentences or to be executed.  If the selectivity is based on race, for example, then the moral import of the arbitrariness might be far greater, whether for traffic tickets or the death penalty for murder.  Aside from the moral import of arbitrariness as selectivity, there is also an arbitrariness that issues in mistakes , where persons who did not commit a capital crime (or perhaps did not commit any crime at all) are wrongly convicted, sentenced and executed.  This sort of imperfect outcome would seem far more problematic morally than the selective execution of only some of those who merit the death penalty.  As Stephen Nathanson states it with respect to executing the innocent, “this is the moral force of the argument from arbitrary judgment” ( Eye , 53).

b. Discrimination: Race, Class

Criminal justice systems that administer the death penalty operate in the context of a society that may or may not itself be entirely just.  The procedures employed in capital cases, then, can be imperfect due to external social factors affecting its outcomes, and not only due to features internal to the structure of a legal system itself.  Various sources of data suggest to many that American criminal justice procedures produce disproportionately large numbers of capital convictions and death sentences for the poor and for African-Americans.  In short, it is claimed, the institution of capital punishment is imperfect, capricious, or arbitrary in a particular way: it discriminates on the basis of economic class and race.   Poverty and race, it is argued, have “warping effects” on the long, involved process whereby “a person goes the road from freedom to electric chair” (Black, 22).   At numerous decision points, a lack of funds affects how the process proceeds for a poor person charged with a capital crime: the quality of legal counsel for plea bargaining, investigation, and conduct of a trial; financial resources needed to build a strong evidentiary case through crime scene investigation, forensic testing, and expert testimony at trial;  money for background investigations, professional examinations, and expert testimony in the crucial sentencing phase of a capital trial; securing attorneys for legally required and elective appeals; accessing those political offices and officers with the legally unlimited authority to commute a sentence or even pardon a convicted offender.   Given the high correlation in America between poverty and race, any disproportionate outcomes with respect to economic class parallel those with respect to race.  Also, as described above, the “entire series of decisions made by the legal system” in capital cases provides numerous opportunities for unconscious racial bias or blatant discrimination in the exercise of discretion by those administering the process.  Opponents of the death penalty, then, see factors of race and poverty as increasing the likelihood of error in capital cases, and see such discriminatory outcomes as especially problematic from a moral point of view.

This line of reasoning invokes the specter of discrimination in the institution of capital punishment.  The basic empirical claim is that, by race and economic class, America’s imperfect procedures produce disproportionate outcomes.  The issue is not necessarily one of intentional racial discrimination, though that may occur, as well.  Considerations of perhaps unintended discriminatory outcomes, however, need not support abolition of the death penalty.  Aside from disputes about the data supporting the basic empirical claim of disproportionate outcomes, responses parallel those reviewed above with respect to the internal structures of criminal justice procedures in capital cases (see section 5a).  In particular, it is argued that disproportionate outcomes support reforms to mitigate such discrimination, such as quality legal representation being provided for the poor, increased budgetary allegations for defense of the indigent in capital cases, etc. And given that what explains the disproportionate outcomes are social conditions external to the process itself, it would seem that discriminatory outcomes are not inevitable in the way that the effects of ineliminable discretion might be.  The issue, then, becomes the moral import of problematic social conditions that “warp” the institution of capital punishment.  How does such “warping” affect any justification of the death penalty?  Does it matter morally that the institution of capital punishment exists amidst a society insufficiently just regarding matters of economic class or race?

For a utilitarian approach to capital punishment, the issue is addressed in terms of total consequences for the society.  As with other kinds of arbitrariness previously reviewed, any discriminatory outcomes of the institution of capital punishment are part of the total cost of the practice and are to be considered along with all other costs and benefits.  Depending on the causal consequences of the practice in a society at a given time, then, capital punishment is or is not morally justified.  For some retributivists, however, the relevance of current social conditions can be quite different for whether capital punishment is morally justified.  For example, the fairness approach to punishment and the death penalty presupposes a society with reasonably just rules of cooperation that bestow benefits and burdens on its members. Whether America today, for example, satisfies such a pre-condition is, for some, doubtful; and thus, it is argued, even if justified in theory, capital punishment is not justified under current social conditions (for example, Reiman).  Also, retributivists typically presuppose punishment is to address misconduct that is voluntary, a matter of free choice.  But Marx, for example, maintains that such a presupposition of free will is simply false, a delusion:

Is it not a delusion to substitute for the individual with his real motives, with multifarious circumstances pressing upon him, the abstraction of “free will”…?  Is there not a necessity for deeply reflecting upon an alteration of the system that breeds these crimes, instead of glorifying the hangman who executes a lot of criminals to make room for the supply of new ones?

Though Marx is himself sympathetic to a retributivist justification of punishment, theory and practice cannot be divorced.  Marx and many Marxists oppose capital punishment because it is inapplicable to the actual conditions of society where criminality is rooted in structural inequalities of wealth (Murphy).  Thus, for some retributivist and utilitarian approaches to capital punishment, the death penalty may be morally unjustified because of inherently imperfect legal procedures, morally problematic outcomes, or the social conditions surrounding the institution.

c. Medicine and the Death Penalty

In recent years, issues of medical ethics have been a facet of philosophic focus on the institution of capital punishment, especially in America.  Health care professionals—including physicians—can be active participants in the actual execution of a death-row prisoner.  Medical expertise needed for an execution itself can include administering medicines or psychiatric treatments to calm the condemned, judging whether intramuscular or intravenous techniques are best, or actually injecting a lethal dose of drugs to bring about a death (Gaie, 1).  Even if not directly participating in executions and regardless of the method of execution employed, health care professionals can be involved by providing capital trial testimony related to findings of guilt or punishment, such as competency to stand trial, possibly exculpating mental illness, or forensic analyses of murder scene evidence.  Physicians are needed to certify death following a successful execution, and they may have a role in possible organ donations arranged by the deceased (Gaie, 2).  All such participation requires relevant expertise and is important to contemporary death penalty practices.  An important question, however, is whether it is morally permissible for health care professionals to be involved or participate in the institution of capital punishment.

A common assumption is that health care professionals—physicians, at least—have significant moral duties to those they treat or administer to.  Many, like Gaie, address such issues of professional ethics as independent of the morality of capital punishment itself.  Thus, for example, since physicians have a duty to minimize suffering, it would seem to follow that medical professionals’ participation is morally justified for that purpose, perhaps especially in executions by lethal injection.  Others maintain that, analogous to relieving the suffering of a torture victim so that they can be further tortured, physicians ought not participate in executions in order to reduce the suffering of the condemned (Dworkin).  Physician participation in an unjust practice, such as capital punishment, makes them complicit and, so, they ought not be involved. Thus, it is argued, one cannot separate the ethics of physicians’ participation in capital punishment from the moral merits of the institution itself (Litton).

Since the early 1980s, lethal injection has almost completely replaced electrocution as the preferred method of execution for those convicted of a capital crime and sentenced to death in the United States.  This recent, novel method of execution has itself generated considerable controversy.  First, unlike other constitutionally permissible modes of execution in America (that is, electrocution, hanging, firing squad, gas inhalation), a lethal injection requires medical expertise in order to be administered properly.  Thus, health care professionals must be direct participants in executions: for example, by preparing the lethal drug dosages, by establishing suitable sites for an injection, and by actually administering the drugs that cause the death of the convicted.   In comparison to other methods of execution, such participation is more essential, more direct, and ethically more problematic.  Execution by lethal injection makes more acute and controversial the ethical issues surrounding the involvement of health care professionals in the institution of capital punishment.  Second, whether employing the typical three-drug “cocktail,” or some variant of that process, acquiring the designated pharmaceuticals has often become difficult or impossible.  Some foreign-based companies face legal restrictions on exporting drugs for such uses, and some foreign and domestic drug companies, for reasons of public image or ethical considerations, for example, choose not to manufacture or supply their pharmaceutical products for use in executions.  This sometimes delays execution or leads governments to employ alternative drugs for which there may not be sufficient evidence of their effectiveness in effecting a human death.  Third, whether any formulas for lethal injections are a humane way (or a more humane way) of causing death is itself controversial, with disputes about the science (or lack thereof) behind the drug formulas and protocols used, disagreements about the evidentiary significance of physiological data from autopsies used to assess the humanity of death by lethal injection, etc.  Finally, so-called “botched executions” are still not entirely avoided by using lethal injection rather than electrocution or hanging, for example.  Cases do occur where the condemned endure an extended process of dying that sometimes suggests lingering sentience, discomfort, or suffering.  As with other facets of the institution of the death penalty, there is disagreement about the import of such practical challenges for the moral justification of capital punishment.

d. Costs: Economic Issues

At least in popular discourse, if rarely among philosophic discussions, considerations of monetary cost are adduced with respect to morally justifying capital punishment.  As Stephen Nathanson rightly recognizes, in its bald form it is a simple economic argument:  the state ought to execute murderers because it is less costly than imprisoning them for life ( Eye , 33).  Even among proponents, though, cost considerations are perhaps plausibly relevant only as secondary, subsidiary supplements to some anterior justification for executing murderers: if murderers merit death as punishment for criminal misconduct, then economic cost is perhaps relevant to justifying their execution over a sentence of life spent in prison.

The argument depends crucially on the empirical claim that, in fact, it is less costly to execute murderers than it is to imprison them for life.  But the facts do not support this supposition.  The costs are not only those of a single execution, but for a system of due process and an infrastructure of facilities and personnel needed for the institution of capital punishment (Nathanson, Eye 36).  A possible reply is that such costs could be reduced, especially if we were to replace America’s elaborate “due process” for capital cases with something much more minimal: fewer appeals and appellate reviews, for example (Nathanson, Eye 38).  Such an approach may save some economic costs but increase the cost of thereby perhaps increasing the frequency of mistakes or arbitrariness.  Furthermore, reliance on comparative costs in determining who is executed potentially introduces a novel, morally suspect kind of arbitrariness.  Given that the cost of life imprisonment would be a function of a convicted murderer’s health and age, younger, healthier persons would be selected for the death penalty, while older, or more feeble, unhealthy killers would be sentenced to life in prison as the cheaper alternative.  The costs argument risks introducing a kind of age and medical status discrimination into the imperfect procedures employed to determine who merits the death penalty for murder.

6. State Authority and Capital Punishment

Exploring fully whether capital punishment is morally justified leads to considering a normative account of the modern state, its foundations, proper functions, and penal powers.  The modern practice of capital punishment presupposes a state which has the authority to make, administer, and enforce criminal law and procedures and then, if merited, impose the death penalty to address serious misconduct.  On what basis does the state possess the authority to punish by death?  This question of justification seems to raise issues about capital punishment that are “more squarely within the province of political philosophy” (Simmons, 311).

Contractarian accounts of the state share the feature that authority is derived from or constructed out of the authority granted to it by individuals that have or would “contract” to create it (see Social Contract Theory ).  Any authority of the state to punish by death is, then, consent-based.  Thus, for example, as with others in the natural rights tradition, John Locke’s contractarian approach grounds state authority in individuals transferring their pre-political right to punish (including by death) those who have violated another’s basic rights by killing.   As Locke maintains in his Second Treatise on Government , the purpose of the state is to protect individuals’ basic rights, and individuals each grant the state the authority to protect rights through laws and punishments that are effective and comply with natural law principles about the amount of punishment (that is, lex talionis ).  Though invoking such a pre-political right of individuals to punish is common in the natural rights tradition, and though there are some recent defenders of such an approach among libertarians (for example, Nozick), Locke himself admits that the notion of a natural executive right to punish “will seem a very strange doctrine to some men” ( Treatis e, sec. 9).

The classic contractarian theories of Jean-Jacques Rousseau and Thomas Hobbes also justify state authority to punish by death on grounds of individuals’ consent.  In the Leviathan , the pre-political state of nature is famously characterized by Hobbes as a life “solitary, poor, nasty, brutish, and short” (89; Ch. 13).  This life in the state of nature is so insecure that each person, as a means to self-preservation, authorizes the created sovereign power—the state—to punish by death criminal misconduct “to the end that the will of men may thereby better be disposed to obedience” (214; Ch. 28).  Rousseau, in On the Social Contract , holds that “the social treaty has as its purpose the conservation of the contracting parties,” each of whom wills the means to end of preserving his life.  “And whoever wishes to preserve his own life at the expense of others should also give it up for them when necessary….  It is in order to avoid being the victim of an assassin that a person consents to die, were he to become one” (35; Book II, Ch. v).  And so, Rousseau maintains, the political society has the right to put to death, even as an example, those who cannot be preserved without danger to others or the society itself.  In the case of all the classic social contract theories of the state, individuals’ consent to the practice of capital punishment is included in the created authority of the state to rule and to punish.

Some more recent contractarian accounts of state authority to punish are explored in the spirit of John Rawls’s A Theory of Justice , with its Kantian conceptions of rationality and basic human goods (for example, liberties, autonomy, dignity).  The general idea is that a system of social cooperation is just if it would be consented to by rational, mutually disinterested individuals making their choice while ignorant of particularities about themselves and their own place in the system.  Such contractarian approaches typically support a penal system which merges both retributivist and utilitarian approaches in establishing a just system of punishment.  Whether such contractarian approaches justify capital punishment depends, as do classic social contract theories, on the details of the conditions under which a rational choice would be made.  A recent proponent of a contractarian theory of punishment, for example, argues that individuals would consent to an institution only if it would leave individuals better off than they would be in its absence.  This “benefit principle,” it is argued, justifies a system of punishment, as each would be better off with punitive sanctions than without.  As to capital punishment, though, “[c]an a person who receives the death penalty… regard himself as better off… than he would have been had he never agreed to the contract in the first place” (Finkelstein, “A Contractarian Approach…,” 216)?  There is a paradoxical air to individuals consenting to a system whereby they may be executed.  Finkelstein argues that, even if the death penalty deters, the benefit principle is not satisfied by a system of punishment that includes the death penalty.  On this contemporary contractarian theory, then, capital punishment is not justified because it would not be agreed to by rational individuals choosing the social institutions under which they would live.

A quite different approach to justifying state authority to punish by death appeals to the idea of societal self-defense or self-protection.  In a short piece, “On Punishment,” John Stuart Mill says, “the only right by which society is warranted in inflicting any pain upon any human creature, is the right of self-defense…. Our right to punish, is a branch of the universal right of self-defence”(79).  One recent development of this approach argues that a societal right of self-protection entails the right to threaten punishment for misconduct, and that a right to impose punishments follows from the society’s right to threaten sanctions (Quinn).  Whether a society has a right to threaten or impose a death penalty for murder, then, is based on its efficacy for deterrence and incapacitation, that is, as a protector of society.  A second, slightly different argument appeals more directly to the model of individual self-defense as a right.  Just as an individual has a right to use deadly force to address imminent, unavoidable aggression against self or other innocent parties, so society, as a collective, has a right to employ deadly force to address violent aggression against innocent third parties within that society.  The amount of punishment that society has the right to employ is constrained as it is for an individual’s moral right of self-defense: the response must be proportionate to the threatened loss.  So, given a moral right of individuals to employ deadly force in defense of their own or other innocents’ lives, by analogy society has such a right to use death as a punishment for murders of innocent third parties in the society.  Whether as an exercise of a right of self-protection or self-defense, the state then has the right to institute capital punishment for serious crimes such as murder.

7. References and Further Reading

A. primary sources.

• References to this extensive work are by number of question and article in the second part of part two (i.e., II-II), available at http://www.gutenberg.org/cache/epub/18755/pg18755.html.
• Quotations and references are by page number and chapter number to this translation and edition.
• References to this classic text are by chapter and section number.
• Camus, Albert. “Reflections on the Guillotine.” Resistance, Rebellion, and Death. Trans. Justin O’Brien. New York: Knopf, 1966. 175-234.
• Hegel, G.W.F. The Philosophy of Right. (1821) Trans. T. M. Knox. Oxford: Clarendon Press, 1962.
• References to this text are by pagination in this edition, followed by chapter number, to allow reliance on various translations and editions available in print or on-line.
• Quotations and parenthetical references are from this translation and edition, followed by the standard AK pagination, to allow reliance on various translations and editions available in print or on-line.
• Quotations are from this recent scholarly edition; all references are to section number of The Second Treatise, to allow reliance on various other editions available on-line or in print.
• Marx, Karl. “Capital Punishment.” New York Tribune. 1853. https://www.marxists.org/archive/marx/works/1853/02/18.htm.
• Mill, John Stuart. ”Speech in Favor of Capital Punishment 1868.” The Collected Works of John Stuart Mill, Vol. XXVIII.: Public and Parliamentary Speeches. Eds. John M. Robson and Bruce Kinzer. Toronto: University of Toronto Press, 1988. pp. 266-273. http://oll.libertyfund.org/titles/mill-the-collected-works-of-john-stuart-mill-volume-xxviii-public-and-parliamentary-speeches-part-i.
• Mill, John Stuart. “On Punishment.” The Collected Works of John Stuart Mill, Vol. XXI: Equality, Law, and Education. Ed. John M. Robson. Toronto: University of Toronto Press, 1984, pp. 77-79. http://oll.libertyfund.org/titles/mill-the-collected-works-of-john-stuart-mill-volume-xxi-essays-on-equality-law-and-education.
• Plato. The Collected Dialogues. Ed. Edith Hamilton and Huntington Cairns. Princeton: Princeton University Press, 1961.
• Ross, W.D. The Right and the Good. Oxford: Oxford University Press, 1930.
• Quotations and references are to this translation and edition, using page number followed by book and chapter number, to allow reliance on various translations and editions available in print or on-line.

b. Secondary Sources

• Bailey, William C. and Ruth D. Peterson. “Murder, Capital Punishment, and Deterrence: A Review of the Literature.” The Death Penalty in America: Current Controversies. Ed. Hugo Adam Bedau. Oxford: Oxford University Press, 1997. 135-161.
• An excellent, thoughtful, and readable rendition of the long history of death penalty law and practice in America, from colonial beginnings through the end of the 20th century.
• Bedau, Hugo Adam. “Bentham’s Utilitarian Critique of the Death Penalty.” Journal of Criminal Law and Criminology 74 (1983): 1033-1065.
• Bedau, Hugo Adam. “Capital Punishment.” Matters of Life and Death: New Introductory Essays in Moral Philosophy. Third edition. Ed. Tom Regan. New York: Random House, 1980. 160-194.
• Despite its publication date, this anthology is still quite useful. It is the best, basic reference for primary and secondary source materials related to American death penalty law, constitutional issues, Supreme Court decisions, public attitudes, social scientific studies of deterrence, and explorations of procedural problems with capital punishment, including matters of race.
• Bedau has long been a prominent philosophic scholar specializing in research and writing about capital punishment in the United States. The first half of this volume is primarily descriptive of the American system, including problematic procedural outcomes and some recent history of the death penalty. The second half of the book “undertakes a critical evaluation…from a constitutional and ethical point of view.” As a matter of applied ethics, Bedau argues for abolition of the death penalty in reasonably just, constitutional democracies, such as the United States.
• Written by a legal scholar, an accessible appeal to problematic outcomes of American criminal procedure as justification for abolishing the death penalty.
• Caplan, Arthur A. “Should Physicians Participate in Capital Punishment?” Mayo Clinic Proceedings 82 (2007): 1047-48. http://www.mayoclinicproceedings.org/article/S0025-6196(11)61363-3/fulltext
• Conway, David A. “Capital Punishment and Deterrence: Some Considerations in Dialogue Form.” Philosophy & Public Affairs 3 (1974): 431-443.
• Davis, Michael. “Harm and Retribution.” Philosophy & Public Affairs 15 (1986): 236-266.
• Duff, R. A. Punishment, Communication, and Community. Oxford: Oxford University Press, 2001.
• Dworkin, Gerald. “Patients and Prisoners: The Ethics of Legal Injection.” Analysis 62 (2002): 181-189.
• Feinberg, Joel. “The Expressive Function of Punishment. Doing and Deserving. Princeton: Princeton University Press, 1970. 95-118.
• Feinberg, Joel. “Noncomparative Justice.” Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy. Princeton: Princeton University Press, 1980. 265-306.
• Finkelstein, Claire. “A Contractarian Approach to Punishment.” The Blackwell Guide to the Philosophy of Law and Legal Theory. Ed. Martin Golding and William Edmundson. Oxford: Blackwell Publishing, 2005. 207-220.
• Finkelstein, Claire. “A Contractarian Argument Against the Death Penalty.” New York University Law Review 81 (2006): 1283-1330.
• Gaie, Joseph B.R. The Ethics of Medical Involvement in Capital Punishment: A Philosophical Discussion. Dordrecht: Kluwer Academic Publishers, 2004.
• Hampton, Jean. “The Moral Education Theory of Punishment.” Philosophy & Public Affairs 13 (1984): 208-238.
• Hart, H.L.A. “Bentham and Beccaria.” Essays on Bentham. Oxford: Clarendon Press, 1982. 40-52.
• This essay remains hugely influential in providing the dominant framework for philosophic theories of punishment, including the death penalty.
• Hart, H.L.A. “Punishment and the Elimination of Responsibility.” Punishment and Responsibility: Essays in the Philosophy of Law. Oxford: Clarendon Press, 1968. pp. 158-185.
• Heyd, David. “Hobbes on Capital Punishment.” History of Philosophy Quarterly 8 (1991): 119-134.
• Litton, Paul, Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship (June 28, 2013). 41 Journal of Law, Medicine, & Ethics 333 (2013); University of Missouri School of Law Legal Studies Research Paper No. 2013-13.  https://ssrn.com/abstract=2286788.
• Mackenzie, Mary Margaret. Plato on Punishment. Berkeley: University of California Press, 1981.
• McGowen, Randall. “The Death Penalty.” The Oxford Handbook of the History of Crime and Criminal Justice. Edited by Paul Knepper and Anja Johansen. Oxford: Oxford University Press, 2016. 615-634.
• Montague, Phillip. Punishment as Societal Defense. Lanham: Rowman & Littlefield, 1995.
• Morris, Herbert. “Persons and Punishment.” The Monist 52 (1968): 475-501.
• Murphy, Jeffrie. “Marxism and Retribution.” Philosophy & Public Affairs 2 (1973): 217-243.
• An accessible, readable argument to the conclusion “that the death penalty is not morally acceptable.” Nathanson considers a variety of arguments offered in defense of capital punishment in America: deterrence, costs, problematic procedural outcomes, moral desert and the death penalty, American constitutional considerations. An especially helpful treatment of the arguments based on criminal procedure in America.
• Nathanson, Stephen. “Does It Matter if the Death Penalty Is Arbitrarily Administered?” Philosophy & Public Affairs 14 (1985): 149-164. Print.
• Chapter 4 deals with theories of punishment (retributive and deterrence) with respect to a contractarian theory of a libertarian state developed in the spirit of John Locke’s emphasis on individual rights.
• Section III of Chapter 4 (pp. 363-398) deals with punishment as communication, including some ambivalence about its implications for the death penalty for murderous offenders.
• Nussbaum, Martha. “Equity and Mercy.” Philosophy & Public Affairs 22 (1993): 83-125.
• Pojman, Louis. “For the Death Penalty.” The Death Penalty: For and Against. Lanham, MD: Rowman & Littlefield, 1998. 1-66.
• Distinctly different, opposing, nuanced approaches to the death penalty in the context of more general theories about punishment and illustrating ways in which justifications are often hybrid theories that synthesize elements of retributivism and consequentialism. Both authors also address the import of imperfect criminal procedures in the administration of the death penalty in America (or perhaps anywhere). The text includes a response by each to the other’s arguments.
• Quinn, Warren. “The Right to Threaten and the Right to Punish.” Philosophy & Public Affairs 4 (1985): 327-373.
• Radin, Margaret Jane. “Cruel Punishment and Respect for Person: Super Due Process for Death.” Southern California Law Review 53 (1980): 1143-1185.
• Rawls, John. A Theory of Justice. Revised edition. Cambridge: Harvard University Press, 1971, 1999.
• Reiman, Jeffrey. “Justice, Civilization, and the Death Penalty: Answering van den Haag.” Philosophy & Public Affairs 14 (1985): 115-148.
• Reiman, Jeffrey. “Why the Death Penalty Should be Abolished in America.” The Death Penalty: For and Against. Lanham, MD: Rowman & Littlefield, 1998. 67-132.
• An excellent survey of the title topic, an aspect of capital punishment not often engaged in the work of others in this list.
• Royal Commission on Capital Punishment 1949-1953.: Report. Cmd.8932. London: Her Majesty’s Stationery Office, 1953.
• Simmons, A. John. “Locke and the Right to Punish.” Philosophy & Public Affairs 20 (1991): 311-349.
• An excellent analysis of the arguments of John Stuart Mill and Immanuel Kant in defense of capital punishment for at least some murders.
• Though the primary aim of this book is to show how philosophic arguments and theories “can be useful in producing an improved moral rhetoric,” Sorell does offer a non-consequentialist and retributivist defense of capital punishment on the ground that murderers deserve to die. He opposes alternative forms of retributivism (e.g., appeals to fairness) and argues that utilitarian or consequentialist arguments are inconclusive, including J.S. Mill’s little-known defense of capital punishment.
• Stalley, R.F. An Introduction to Plato’s Laws. Indianapolis: Hackett, 1983.
• A clear, organized introduction to an array of recent theories of punishment, though not specifically addressed to issues of capital punishment. Chapter 7, “The Amount of Punishment,” engages retributivist and utilitarian approaches to justifying the form or kind of punishment for offenders.
• United Nations. “The Universal Declaration of Human Rights.” (1948). http://www.un.org/en/universal-declaration-human-rights/.
• United Nations. “International Covenant on Civil and Political Rights.” (1976). http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
• United States. House of Representatives. The Constitution of the United States of America. Washington: Government Printing Office, 2000. https://www.gpo.gov/fdsys/pkg/CDOC-110hdoc50/pdf/CDOC-110hdoc50.pdf.
• Waisel, David. “Physician Participation in Capital Punishment.” Mayo Clinic Proceedings 82 (2007): 1073-1080. http://www.mayoclinicproceedings.org/article/S0025-6196(11)61369-4/fulltext.

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Robert Hoag Email: [email protected] Berea College U.S.A.

An encyclopedia of philosophy articles written by professional philosophers.

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I Put Him on Death Row. He Shouldn’t Die.

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‘I Am So Sorry’: Meeting the Man I Put on Death Row

Admitting a mistake can be very hard. But how would it feel if the mistake helped put a man on death row?

That’s the burden the Rev. Brian Wharton has been carrying for more than two decades. He played a crucial role in the prosecution of Robert Roberson, who was found guilty in 2003 of killing his 2-year-old daughter and sentenced to death.

But as the Opinion video above explores, Wharton came to regret his involvement and the outcome of the case. He recently visited Texas death row, along with a crew from Opinion Video, and met with Roberson. It was the first time the men had spoken with each other since before Roberson’s conviction.

The film is the first in a three-part series that we’re publishing over the next few weeks, each taking a critical view of the death penalty by exposing flaws in cases and questioning whether retributive justice can truly provide closure. The videos are in keeping with The Times’s longstanding position that the punishment is full of bias and error , morally abhorrent and futile in deterring crime and should be abolished .

The series lands at a hopeful but still-challenging time in the movement to get rid of capital punishment in the United States.

The death penalty has been falling out of favor with officials and the broader public alike over the past three decades, in part owing to what the Death Penalty Information Center called “society’s greater understanding about the fallibility of our legal system and its inability to protect innocent people from execution.” Twenty-nine states have now either abolished the death penalty or have paused executions by executive action, up from 12 in 1999.

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Essay about Death Penalty Should Not Be Legal

A death sentence is a cruel and unusual punishment. The act of sentencing one to death is called an execution, or a death penalty. Death penalties can go wrong, the drugs could react incorrectly inside the victim’s body, and he/she could feel pain as they die. Death penalties are not cheap either. It costs several millions of dollars just to execute someone. Is it really worth it? Randy Workman, a former warden at the Oklahoma State Penitentiary, oversaw 32 executions. He states in an interview that death penalties waste money and fail the victim’s family. He is for the death penalty, but he doesn’t want to “push the button” because there’s always that one small possibility the victim is not guilty. "I would never take that chance with my …show more content…

In a recent survey in Houston, TX, more than two-thirds of the residents agreed that they would prefer an alternate punishment rather than death. Only 28% of the residents said they were fine with the death penalty. This is a major improvement from the past, when Harris County had produced more death penalties more than any other county, but there has been recently been a decline in executions, indicating that people are changing their minds about death sentences. Even in Oregon, there are residents changing their minds. Not just any resident; but three former Chief Justices of the Oregon Supreme Court had a say in this. The most recent, Wallace P. Carson Jr., called out on the death penalties, "In my opinion, the exceptional cost of death penalty cases and the seemingly haphazard selection of which cases deserve the death penalty outweigh any perceived public benefit of this sanction," Carson said. In 2013, retired Chief Justice Paul J. DeMuniz said, "The death penalty is getting a 'pass' from legislative scrutiny, when looking for ways to trim Oregon’s budget to fund starving schools and public safety. We currently have fewer state police today than we did in 1960." Edwin J. Petersen also put in his two cents, commenting that, "Under our system, fairness is difficult to achieve. Mistakes are made. The system sets up the possibility of a fatal mistake--killing an innocent person." Even the Chief Justices are speaking out against

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Some may think that the death penalty is a good punishment though. Their reasons being that is more humane to put someone to death than to throw them into prison to rot for the rest of their life. Inmates who receive the life without parole punishment will never see the light of day ever again. They will spend their whole life knowing that someone else was able to escape their hell by being given the death penalty. To add on to that while they live their life out, they are stuck thinking about the crimes they have committed for the rest of their existence, no matter how much they regret what they have

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The death penalty is a controversial topic in the United States today and has been for a number of years. The death penalty was overturned and then reinstated in the United States during the 1970's due to questions concerning its fairness. The death penalty began to be reinstated slowly, but the rate of executions has increased during the 1990's. There are a number of arguments for and against the death penalty. Many death penalty supporters feel that the death penalty reduces crime because it deters people from committing murder if they know that they will receive the death penalty if they are caught. Others in favor of the death penalty feel that even if it doesn't deter others from committing crimes, it will eliminate

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Thousands of people will attack the death penalty. They will give emotional speeches about the one innocent man or woman who might accidentally get an execution sentence. However, all of these people are forgetting one crucial element. They are forgetting the thousands of victims who die every year by the hands of heartless murderers. There are more murderers out there than people who are wrongly convicted, and that is what we must remember.

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Why is the death penalty used as a means of punishment for crime? Is this just a way to solve the nations growing problem of overcrowded prisons, or is justice really being served? Why do some view the taking of a life morally correct? These questions are discussed and debated upon in every state and national legislature throughout the country. Advantages and disadvantages for the death penalty exist, and many members of the United States, and individual State governments, have differing opinions. Yet it seems that the stronger arguments, and evidence such as cost effectiveness, should lead the common citizen to the opposition of Capital Punishment.

The Death Penalty is Wrong Essay

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     The death penalty is absolutely outrageous. There is no real reason that the government should feel that it has the right to execute people. Capital punishment is murder just as much as the people being executed murdered. The is no need for the death penalty and it needs to be abolished. It goes against the Constitution which states that there will be no cruel and unusual punishment. There is nothing crueler than killing a person.

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     There are many reasons to both support and oppose the death penalty. Many people can feel very strongly about whether or not they approve of this method of punishment. I feel that the death penalty is wrong, and I believe that there is much support to back this up. I believe that the death penalty is wrong because it is not an effective deterrent, racially and economically bias, unreliable, expensive, and morally wrong of society.

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“Any last words?” is the sentence that is given to the people who are about to be put to death.

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There is a lot of controversy about whether the death penalty should be legal or not. It is widely used, with only 18 out of the 50 states having abolished it, but should it be permitted, regardless of the popularity of it? The answer is no. It should be abolished because it demeans life, is cruel, prison is a better punishment, and it is not effective.

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There are many problems facing our criminal justice system today. Some of the more important ones are overcrowded jails, the increasing murder rate, and keeping tax payers content. In light of these problems, I think the death penalty is our best and most reasonable solution because it is a highly effective deterrent to murder. And, tax payers would be pleased to know that their hard-earned tax dollars are not being wasted on supporting incorrigible criminals who are menaces to society. In addition, they would not be forced to fund the development of new penitentiaries in order to make room for the growing number of inmates in our already overcrowded jails. Moreover, the death penalty would

Essay on The Death Penalty Is Morally Unjustified

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The earliest historical record of the death penalty otherwise known as capital punishment goes back as far as the eighteenth century B.C., when the code of King Hammurabi of Babylon listed 25 crimes which were punishable by death. Since then, the uses of the death penalty have prevailed throughout the ages in laws and justice systems of different civilizations. For instance, the Draconian Code of Athens punishes all crimes with the death penalty. During those times, the death penalty involved suffering a gruesome death such as being burnt alive, impaling, crucifixion and stoning (Death Penalty Information Center, 2011).

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Throughout the United States an argumentative topic is the death penalty - should it be legalized across the 50 states or be declared unconstitutional? Some believe the death penalty is a better option for those who deserve the highest form of punishment available. However, others argue capital punishment is a waste of resources and should be brought to an end. Therefore, while many believe the death penalty should be legalized throughout the United States because it offers a higher form of punishment, others believe the death penalty should be repealed because it causes unnecessary deaths.

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The death penalty, also known as capital punishment is a legal procedure in which a state executes a person for crimes he/she has committed. This punishment has been implemented by many states, and is normally used for atrocious crimes, especially murder. It is also used on crimes against the state such as treason, crimes against humanity, espionage, and violent crimes while other states use it as part of military justice. There are mixed reactions on capital punishment depending on one’s faith, and the state they come from. In my view, I am not in favor of death penalty, as I strongly believe that, death penalty is unacceptable and an inhumane practice for it denies one the right to live. Death penalty does not deter crime, it is an act

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The problem with the death penalty is that it is a big waste of money. Yes, in some cases it can make people feel better, like they are getting revenge on the people that did the crime to their loved one or someone they know but that is really cruel. In the article, The Price of Justice it shows how the price were a few years ago and it can only of up from there “in 1988, The Miami Herald reported that the cost of the death penalty in Florida was $3.2 million per execution compared to $600,000 for life imprisonment.103 Similarly, The Dallas Morning News reported in 1992 that the trials and appeals of a capital case alone cost Texas $2.3 million per case on average”. Making the criminal sit in a jail cell that is not that big with other bad people is more of a punishment then just killing them. And it is a lot cheaper to do it that way as well. The cost of the death penalty is not reasonable because the state can’t even perform the death penalty the right way. And we can use the money for better things for our states and for our society so we can improve our comity’s so

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How Trump’s criminal and civil cases could shape the 2024 campaign

Geoff Bennett Geoff Bennett

Saher Khan Saher Khan

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• Copy URL https://www.pbs.org/newshour/show/how-trumps-criminal-and-civil-cases-could-shape-the-2024-campaign

While Donald Trump holds a decisive lead in the 2024 Republican presidential primary, his 2024 calendar will be full of legal challenges and court appearances. In four major criminal cases, the former president faces 91 felony counts and two key civil cases could cost him millions of dollars in damages. Geoff Bennett discussed Trump's legal troubles with NPR's Carrie Johnson.

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Geoff Bennett:

While Donald Trump holds a decisive lead in the 2024 Republican presidential primary, his 2024 calendar will be full of legal challenges and court appearances.

In four major criminal cases, the former president faces 91 felony counts, and two key civil cases could cost him millions of dollars in damages.

To help bring us up to speed on where these legal troubles stand and their potential impact on his campaign, we're joined by NPR justice correspondent Carrie Johnson.

Carrie, welcome back to the "NewsHour."

Carrie Johnson, NPR:

Thanks for having me, Geoff.

So, before we talk about the trials and legal exposure facing Donald Trump, I want to ask you about the Michigan Supreme Court rejecting an effort to remove him from that state's 2024 primary ballot under the Constitution's so-called Insurrection Clause.

How did that court take into account Donald Trump's actions on January 6? And how did the outcome differ from the Colorado case?

Carrie Johnson:

Yes, this was an important decision from the Michigan Supreme Court, but it was a procedural one.

The High Court in that state left open the possibility that Trump could be disqualified from the general election ballot, but allowed his name to continue on the Republican Party ballot for the primary. And they decided that on procedural grounds. They did not get to the substance of whether the former president had engaged in an insurrection and should be booted off the ballot for that reason.

And that's one key difference between what the Michigan High Court did and what the High Court did in Colorado. In Colorado, of course, we had a five-day civil trial, where among other people who testified was a U.S. Capitol Police officer who talked about the violence he suffered on January 6, 2021 at the Capitol.

And that court basically found that Trump should be kicked off the ballot in the state of Colorado. The Republican Party in that state has now pressed the Supreme Court, the U.S. Supreme Court, to hear that case.

Well, Donald Trump faces up to five separate trials in 2024. Let's start with the special counsel Jack Smith's election interference case. Yesterday, he filed a motion trying to block Donald Trump from injecting politics into the case. Tell us more about that and give us a status update on this case.

That case, of course, had been set to go to trial in March 2024 in Washington, D.C., just a few steps away from the U.S. Capitol.

But everything's on pause, Geoff, while the former president appeals the idea of whether or not he has lifetime immunity from federal prosecution for acts he committed while he was in the White House. And so we're waiting for the federal appeals court in Washington to hear that case in early January.

And, eventually, the U.S. Supreme Court may need to weigh in there as well. But the special prosecutor, Jack Smith, has asked the trial court judge to consider blocking Trump from presenting certain kinds of evidence in the case when it finally does happen. The special counsel seems to be worried that Trump is going to make all kinds of arguments about vindictive prosecution and allege that current President Joe Biden has directed the Justice Department to go after him.

And the special counsel says those arguments are improper, they could inflame and prejudice the jury, and Trump should not be allowed to argue those things before a jury.

And Donald Trump is also facing a federal indictment for illegally holding on to and mishandling sensitive national security documents at his Mar-a-Lago club.

Judge Aileen Cannon, a Trump nominee, has scheduled that trial to start on May 20. But how likely is it that it starts next spring or, for that matter, even before Election Day?

I think it's unlikely, Geoff.

As you mentioned, in that case, there's a high volume of very classified information that both sides are going back and forth on now with the judge. The judge has kind of tapped the brakes in terms of all of that litigation over the highly classified materials.

We know, for instance, the former president allegedly kept those papers in a ballroom, in a bathroom at Mar-a-Lago. The question is how much of that stuff the jury may actually get to be able to see. Judge Cannon has directed both sides in that case to submit a possible jury questionnaire by the end of February.

But a lot of people, including parties involved in that case, think it will be delayed past May, maybe past the election too.

And then shifting our focus to Georgia, the Georgia election interference case, as I understand it, there is no start date for that trial just yet.

But Donald Trump's attorneys are trying to get the case tossed on First Amendment grounds? Is that right?

Trump's lawyers are arguing that everything he said and did in advance of the January 6 violence at the Capitol and the aftermath should be protected by the First Amendment. Of course, Geoff, other courts and other cities have totally disregarded that argument by the former president. But his attorneys in Fulton County say they're going to make it there.

The district attorney in Fulton County wants Trump to go to trial in August of next year. That seems unlikely, given the sprawling RICO nature of that case, though.

And, Carrie, Donald Trump is also facing verdicts in two civil cases in New York. What should we expect there?

In January, Judge Engoron is expected to hand down his decision in that big case against the Trump Organization, which Donald Trump calls the corporate death penalty hanging over him there. And then the writer E. Jean Carroll has sued Trump once again for defamation. She's seeking millions of dollars in money damages against him.

NPR's Carrie Johnson.

Carrie, thanks so much for helping us make sense of the galaxy of legal troubles facing Donald Trump.

It's a lot.

Happy to be here. Thank you.

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Geoff Bennett serves as co-anchor of PBS News Hour. He also serves as an NBC News and MSNBC political contributor.

Saher Khan is a reporter-producer for the PBS NewsHour.

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