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Should the Death Penalty Be Abolished?

In its last six months, the United States government has put 13 prisoners to death. Do you think capital punishment should end?

By Nicole Daniels

Students in U.S. high schools can get free digital access to The New York Times until Sept. 1, 2021.

In July, the United States carried out its first federal execution in 17 years. Since then, the Trump administration has executed 13 inmates, more than three times as many as the federal government had in the previous six decades.

The death penalty has been abolished in 22 states and 106 countries, yet it is still legal at the federal level in the United States. Does your state or country allow the death penalty?

Do you believe governments should be allowed to execute people who have been convicted of crimes? Is it ever justified, such as for the most heinous crimes? Or are you universally opposed to capital punishment?

In “ ‘Expedited Spree of Executions’ Faced Little Supreme Court Scrutiny ,” Adam Liptak writes about the recent federal executions:

In 2015, a few months before he died, Justice Antonin Scalia said he w o uld not be surprised if the Supreme Court did away with the death penalty. These days, after President Trump’s appointment of three justices, liberal members of the court have lost all hope of abolishing capital punishment. In the face of an extraordinary run of federal executions over the past six months, they have been left to wonder whether the court is prepared to play any role in capital cases beyond hastening executions. Until July, there had been no federal executions in 17 years . Since then, the Trump administration has executed 13 inmates, more than three times as many as the federal government had put to death in the previous six decades.

The article goes on to explain that Justice Stephen G. Breyer issued a dissent on Friday as the Supreme Court cleared the way for the last execution of the Trump era, complaining that it had not sufficiently resolved legal questions that inmates had asked. The article continues:

If Justice Breyer sounded rueful, it was because he had just a few years ago held out hope that the court would reconsider the constitutionality of capital punishment. He had set out his arguments in a major dissent in 2015 , one that must have been on Justice Scalia’s mind when he made his comments a few months later. Justice Breyer wrote in that 46-page dissent that he considered it “highly likely that the death penalty violates the Eighth Amendment,” which bars cruel and unusual punishments. He said that death row exonerations were frequent, that death sentences were imposed arbitrarily and that the capital justice system was marred by racial discrimination. Justice Breyer added that there was little reason to think that the death penalty deterred crime and that long delays between sentences and executions might themselves violate the Eighth Amendment. Most of the country did not use the death penalty, he said, and the United States was an international outlier in embracing it. Justice Ginsburg, who died in September, had joined the dissent. The two other liberals — Justices Sotomayor and Elena Kagan — were undoubtedly sympathetic. And Justice Anthony M. Kennedy, who held the decisive vote in many closely divided cases until his retirement in 2018, had written the majority opinions in several 5-to-4 decisions that imposed limits on the death penalty, including ones barring the execution of juvenile offenders and people convicted of crimes other than murder .

In the July Opinion essay “ The Death Penalty Can Ensure ‘Justice Is Being Done,’ ” Jeffrey A. Rosen, then acting deputy attorney general, makes a legal case for capital punishment:

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.

Students, read the entire article , then tell us:

Do you support the use of capital punishment? Or do you think it should be abolished? Why?

Do you think the death penalty serves a necessary purpose, like deterring crime, providing relief for victims’ families or imparting justice? Or is capital punishment “cruel and unusual” and therefore prohibited by the Constitution? Is it morally wrong?

Are there alternatives to the death penalty that you think would be more appropriate? For example, is life in prison without the possibility of parole a sufficient sentence? Or is that still too harsh? What about restorative justice , an approach that “considers harm done and strives for agreement from all concerned — the victims, the offender and the community — on making amends”? What other ideas do you have?

Vast racial disparities in the administration of the death penalty have been found. For example, Black people are overrepresented on death row, and a recent study found that “defendants convicted of killing white victims were executed at a rate 17 times greater than those convicted of killing Black victims.” Does this information change or reinforce your opinion of capital punishment? How so?

The Federal Death Penalty Act prohibits the government from executing an inmate who is mentally disabled; however, in the recent executions of Corey Johnson , Alfred Bourgeois and Lisa Montgomery , their defense teams, families and others argued that they had intellectual disabilities. What role do you think disability or trauma history should play in how someone is punished, or rehabilitated, after committing a crime?

How concerned should we be about wrongfully convicted people being executed? The Innocence Project has proved the innocence of 18 people on death row who were exonerated by DNA testing. Do you have worries about the fair application of the death penalty, or about the possibility of the criminal justice system executing an innocent person?

About Student Opinion

• Find all of our Student Opinion questions in this column . • Have an idea for a Student Opinion question? Tell us about it . • Learn more about how to use our free daily writing prompts for remote learning .

Students 13 and older in the United States and the United Kingdom, and 16 and older elsewhere, are invited to comment. All comments are moderated by the Learning Network staff, but please keep in mind that once your comment is accepted, it will be made public.

Nicole Daniels joined The Learning Network as a staff editor in 2019 after working in museum education, curriculum writing and bilingual education. More about Nicole Daniels

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 .

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.
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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.
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• 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
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• 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.
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• This essay remains hugely influential in providing the dominant framework for philosophic theories of punishment, including the death penalty.
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US death penalty must be abolished, rights experts urge President Biden

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President Biden should do everything in his power to end death row executions in the United States, UN-appointed independent rights experts  said on  Thursday.

The call comes after a resumption of federal executions in the US in the last year of Donald Trump’s Presidency, in which 13 people were put to death.

🇺🇸 #USA: UN experts call on @POTUS to do everything in his power to end executions in the #UnitedStates, at both the federal and state level.Learn more 👉 https://t.co/nKHjug2ktt#StandUp4HumanRights #EndDeathPenalty pic.twitter.com/gnlAAs43Ke UN Special Procedures UN_SPExperts March 11, 2021

In their appeal to the White House, the rights experts insisted that the death penalty served “no deterrent value and cannot be reconciled with the right to life”.

‘Inherently flawed’

The punishment is “inherently flawed” and disproportionately affected African-Americans and people living in poverty, they maintained.

Due process guarantees were also violated by the practice, the rights experts alleged, before calling on Mr. Biden to grant clemency to 48 people, many on death row for a decade or more.

“This should be only a first step”, the experts declared. “We further urge the president, as well as members of Congress, to strongly support legislative efforts to formally abolish the death penalty at a federal level.”

They argued that the president “should consider all other possible federal-level actions including directing the Department of Justice to stop seeking the death penalty and withdrawing notices of intent to seek the death penalty in ongoing cases.”

Thousands on death row

Thousands more individuals remain on state death rows across the country and several executions are scheduled at state level in 2021.

In their appeal for concrete measures to halt the practice, the experts urged lawmakers to consider linking federal funding to alternative sentencing and banning the sale and transport of chemicals used in lethal injections. 

Although 108 countries have abolished capital punishment, 60 per cent of the world's population live in the 48 countries that retain it, such as China, India and Iran.

“There is no time to lose with thousands of individuals on state death rows across the country”, they said, making clear that they had written to the White House to express their concerns.

The full list of experts involved, is at the bottom of the press statement released by the human rights office, OHCHR ,  here .

The Special Rapporteurs, Independent Experts and Working Groups are part of what is known as the  Special Procedures  of the Human Rights Council . The experts are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

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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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• Ben Jones   ORCID: orcid.org/0000-0003-2134-8631 1  

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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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I am grateful for helpful feedback on this article from Désirée Lim, Kevin Barry, and Erin Hanses.

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DEATH PENALTY

We know that, together, we can end the death penalty everywhere., every day, people are executed and sentenced to death by the state as punishment for a variety of crimes – sometimes for acts that should not be criminalized. in some countries, it can be for drug-related offences, in others it is reserved for terrorism-related acts and murder..

Some countries execute people who were  under the age of 18  when the crime for which they have been convicted was committed, others use the death penalty against people with mental and intellectual disabilities and several others apply the death penalty after unfair trials – in clear violation of international law and standards. People can spend years on death row, not knowing when their time is up, or whether they will see their families one last time.

The death penalty is the ultimate cruel, inhuman and degrading punishment. Amnesty International opposes the death penalty in all cases without exception – regardless of who is accused, the nature or circumstances of the crime, guilt or innocence or method of execution .

About the death penalty

Amnesty International holds that the death penalty breaches human rights, in particular the right to life and the right to live free from torture or cruel, inhuman or degrading treatment or punishment. Both rights are protected under the Universal Declaration of Human Rights , adopted by the UN in 1948.

Over time, the international community has adopted several instruments that ban the use of the death penalty, including the following:

• The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.
• Protocol No. 6 to the European Convention on Human Rights, concerning the abolition of the death penalty, and Protocol No. 13 to the European Convention on Human Rights, concerning the abolition of the death penalty in all circumstances.
• The Protocol to the American Convention on Human Rights to Abolish the Death Penalty.

Although international law says that the use of the death penalty must be restricted to the most serious crimes, meaning intentional killing, Amnesty International believes that the death penalty is never the answer.

Amnesty International has never felt more hopeful that this abhorrent punishment can and will be relegated to the annals of history Agnès Callamard, Secretary General, Amnesty International

Juvenile Executions

The use of the death penalty for crimes committed by people younger than 18 is prohibited under international human rights law, yet some countries still resort to the death penalty in these situations. Such executions are few compared to the total number of executions recorded by Amnesty International each year.

However, their significance goes beyond their number and calls into question the commitment of the executing states to respect international law.

Since 1990 Amnesty International has documented at least 163 executions of people who were below the age of 18, in 10 countries: China, the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, South Sudan, Sudan, the USA and Yemen.

Several of these countries have changed their laws to exclude the practice. Iran has executed more than twice as many people who were below the age of 18 at the time of the crime as the other nine countries combined. At the time of writing Iran has executed at least 113 of them since 1990.

Execution Methods used in 2022

• Lethal injection

Where do most executions take place?

In 2022, most known executions took place in China, Iran, Saudi Arabia, Egypt and the USA – in that order.

China remained the world’s leading executioner  – but the true extent of its use of the death penalty is unknown as this data is classified as a state secret; the global figure of at least  883  excludes the thousands of executions believed to have been carried out there.

Excluding China, 90% of all reported executions took place in just three countries – Iran, Saudi Arabia and Egypt.

The global view: death sentences and executions 2008-2022

*This map indicates the general locations of boundaries and jurisdictions and should not be interpreted as Amnesty International’s view on disputed territories.

**Country names listed reflect nomenclature in May 2023

How many death sentences and executions take place each year?

Death sentences.

Amnesty International recorded at least 2,016 death sentences in 52 countries in 2022, a slight decrease from the total of 2,052 reported in 2021. At least 28,282 people were known to be under sentence of death globally at the end of 2022.

Amnesty International recorded at least 883 executions in 20 countries in 2022, up by 53% from 2021 (at least 579 executions).

Reasons to abolish the death penalty

It is irreversible and mistakes happen.

Execution is the ultimate, irrevocable punishment: the risk of executing an innocent person can never be eliminated. Since 1973, for example, more than 191 prisoners sent to death row in the USA have later been exonerated or released from death row on grounds of innocence. Others have been executed despite serious doubts about their guilt.

It does not deter crime

Countries who execute commonly cite the death penalty as a way to deter people from committing crime. This claim has been repeatedly discredited, and there is no evidence that the death penalty is any more effective in reducing crime than life imprisonment.

It is often used within skewed justice systems

In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation. In some countries death sentences are imposed as the mandatory punishment for certain offences, meaning that judges are not able to consider the circumstances of the crime or of the defendant before sentencing.

It is discriminatory

The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority. This includes having limited access to legal representation, for example, or being at greater disadvantage in their experience of the criminal justice system.

It is used as a political tool

The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.

What is Amnesty International doing to abolish the death penalty?

For over 45 years, Amnesty International has been campaigning to abolish the death penalty around the world.

Amnesty International monitors its use by all states to expose and hold to account governments that continue to use the ultimate cruel, inhuman and degrading punishment.  We publish a report annually, reporting figures and analysing trends for each country . Amnesty International’s latest report, Death Sentences and Executions 2022 , was released in May 2023.

The organization’s work to oppose the death penalty takes many forms, including targeted, advocacy and campaign based projects in sub-Saharan Africa, Asia-Pacific, Americas and Europe and Central Asia , and Middle East and North Africa regions; strengthening national and international standards against its use, including by supporting the successful adoption of resolutions by the UN General Assembly on a moratorium on the use of the death penalty; and applying pressure on cases that face imminent execution. We also support actions and work by the abolitionist movement, at national, regional and global level.

When Amnesty International started its work in 1977, only 16 countries had totally abolished the death penalty. Today, that number has risen to 112 – more than half the world’s countries. More than two-thirds are abolitionist in law or practice.

Case Studies

Saved from death row: hafez ibrahim.

Thanks to Amnesty’s campaigning efforts, the execution of  Hafez Ibrahim , from Yemen, was stopped not once, but twice. Hafez, who was accused of a crime he insists he didn’t commit, first faced a firing squad in 2005. He was taken to a small yard in a Yemeni prison and brought before a row of officers with rifles in hand. He thought that moment would be his last.

Just before he was about to be shot, he was taken back to his cell, with no explanation. “I was lost, I did not understand what was happening. I later learned that Amnesty International had called on the Yemeni President to stop my execution and the message was heard,” Hafez said.

In 2007, Hafez was about to be executed again when he sent a mobile text message to Amnesty International. “They are about to execute us.” Hafez said.

It was a message that saved his life. The message sparked an international campaign, persuading the President to stop the execution for a second time.

Now Hafez is a lawyer helping juveniles who languish on death row corridors across Yemen.

Activists on a mission: Souleymane Sow

Amnesty International’s work to abolish the death penalty is also bolstered by its incredible activists, who take it upon themselves to campaign against this abhorrent practice.

Souleymane Sow ,  has been volunteering with Amnesty International since he was a student in France. Inspired to make a difference, he returned to Guinea, set up a local group of Amnesty International volunteers and got to work. Their aim? To promote the importance of human rights, educate people on these issues and abolish the death penalty in Guinea. Along with 34 NGOs, they finally achieved their goal in 2017.

“My colleagues and I lobbied against the death penalty every day for five months. In 2016, Guinea’s National Assembly voted in favour of a new criminal code which removed the death sentence from the list of applicable penalties.  Last year [2017], they did the same in the military court, too,” said Souleymane.

“It was the first time so many NGOs had come together to campaign on an issue. People said they were happy with our work and they could see that change is possible. Most of all, it inspired us to continue campaigning.” 

It was such an incredible achievement – and it showed the importance of people power. Souleymane Sow

Related Content

Iran executes 853 people in eight-year high amid relentless repression and renewed ‘war on drugs’  , drc: reinstating executions shows a callous disregard for human rights, afghanistan: taliban must halt all executions and abolish death penalty, yemen: huthis must stop executions and release dozens facing lgbti charges, zimbabwe: cabinet’s move to abolish death penalty marks progress.

Why Capital Punishment Should Be Abolished

Introduction, capital punishment and mental illness, capital punishment and race, capital punishment and age.

Capital punishment refers to the legal execution of serious offenders which also refers to the death penalty. This practice is prevalent in the United States despite the arguments concerning its merits and effectiveness as a serious crime deterrent. Capital punishment involves five lawful methods, including electrocution, gas chamber, shooting, hanging, and lethal injection. The United States legal system uses the death penalty to successfully deter serious crimes.

The first capital punishment execution occurred in the American colonies during the 17th century and was widely spread out during the revolutionary war period. Despite arguments that capital punishment is a deterrent to violent crimes, it should be abolished because it cannot be administered fairly due to factors such as mental illness, age, and race.

Arguments concerning capital punishment for mental illness raise substantive issues on how the process is unfair for individuals. People living with mental illness do not have a sound mind in decision-making regarding their fate during trial and defense, making the process unfair (Beitsch, 2017). The legal process does not stipulate any provisions that ban mental illness execution. Despite several states having legislative bills banning mentally ill execution, none has enacted laws that implement the action. The situation depicts that mental illness and capital punishment issues in the United States remain unsolved following the constitutional progression.

Despite the Supreme Court’s contribution to addressing the mental illness issues, capital punishment still prevails over the victims. Reports indicate that executions that happen include five to ten percent of mental illness individuals.

Mental illness individuals are disadvantaged while defending themselves in a court of law and experience difficulties when facing serious offenses that attract the death penalty. The stigma and fear involved in such cases affect the criminal justice system’s fairness progression.

The situation heightens the mental illness risks of losing lives unfairly due to capricious death penalty applications. In some instances, mentally ill individuals face threats and coercion for false confessions due to an inadequate understanding of human rights and lack of access to high-quality legal advice (Sandys et al., 2018). On the other hand, the criminal justice system fails to ensure fairness due to mental illness legal requirements that call for exceptions in some issues such as crime. This situation calls for the criminal justices’ responsibility in establishing a more just method for guilt determination concerning the victim’s mental status and the primary basis for capital cases.

Studies indicate that individuals with mental disorders, such as schizophrenia, have faced capital punishment for murder convictions. Only a handful of states with the encompassing lawmakers advocate for capital punishment banning while the rest still view the practice as viable for crime deterrence. The abolition proponents champion for the insane individuals to serve mental hospital terms than facing the death sentence.

Liberties Union that fights for human rights reports that individuals with mental illnesses who face death penalties entail unfair treatment (Larkin Jr & Canaparo, 2020). Most of them have severe conditions such as mental problems that led them to crime. Through the insanity provisions, such persons are unfit for trial, and through conviction, their mental incompetence during death row should prompt their exemption from execution. These circumstances have led the American Psychiatric Association and other agencies such as Death Penalty Action (DPA) to champion the ban of capital punishment for severe mental illness individuals.

Research on criminal justice progression depicts persistence in racial disparities in capital punishment implementation. The reports present the African Americans as more likely to face the death penalty than the white defendants. The situation illustrates that blacks have lower chances for mental health treatment. Although the United States’ population comprises a lower percentage of black and the majority is whites, the number of African Americans serving imprisonment with the death penalty are higher than their counterparts (Cohen, 2020). This situation indicates the heightened racial discrimination in the legal system. Even though all races engage in criminal actions, African Americans experience more punishments than whites. Also, blacks are less likely to access substantive representation in the legal system due to the existing bias.

Capital punishment dates back to the colonial era when it was only applicable to blacks. The persistent racism resulted in campaigns against its progression, contributing to the decline, but it did not stop in the 19th century. Despite many attempts to abolish the practice on a discriminatory basis, capital punishment still affects African Americans. The intrinsic racism in the current progression focuses on the victims’ race rather than the defendant determining the death sentence (Cohen, 2020).

The defendant is more likely to face a death sentence for killing a white than a black person. In contrast, chances increase when the perpetrator is an African American against an American. Research reports indicate that minorities have faced capital punishment for murdering whites while fewer whites face execution for committing the same crime against African Americans (Fenner, 2020). This situation indicates the level of intrinsic racism in the system.

The racial practice is evident, starting from the arrests to execution. The criminal justice system operation involves the police patrol, which focuses on monitoring the minority color people rather than the whites. This situation explains why many African Americans are in prisons and face harsher punishments than their counterparts. The call for capital punishment abolition would eliminate such unfair sentences for the blacks (Fenner, 2020). Even in states where there are many African Americans, the judicial system exclusively constitutes whites ranging from the judges to the chief justice. The lack of representation exposes people of color to unfair judicial execution. Despite the civil rights movement as part of societal activities, the judicial system progresses with discriminatory racial instances that are color biased.

The judicial system in death sentence encompassing the adults and youths proves unfair to the adolescents. Many proponents against capital punishment abolition explain teenagers’ execution. The scientific research on the issue depicts differences in the adult and adolescent’s emotional, cognitive, and physical capabilities (Troutman, 2018). These differences present the adolescents as incapable of making sound decisions concerning crimes and the consequences attracted. Based on the psychological and resonance imaging research, the immaturity level of the adolescents’ frontal lobe plays an essential role in planning and implementing goal-directed behavior.

While the adults have developed reasoning abilities, the adolescents are still in the developmental stages, creating an imbalance in reasoning and behavior presentation. The imbalance results in the teenagers’ emotionality and vulnerability, leading to their involvement in risky behaviors. These adolescents possess inadequate self-control and are more likely to indulge in impulsive behaviors without considering the encompassing consequences. Adolescents’ inadequacy in consequences’ anticipation for risky actions emanates from their inexperience in decision-making ability.

Additionally, they are inefficient in information processing, affecting their ability to make rational decisions based on the action and foreseen consequences (Troutman, 2018). They make quick and impulsive decisions compared to adults who have more experience in life and better reasoning capacity development. The teenager’s less future orientation contributes to their non-consequential actions that do not involve weighing the costs and benefits.

In some cases, the juveniles can make rational decisions calmly, but a stressful environment jeopardizes their thinking ability. The stressful environment also compromises their capability in weighing the costs and benefits of actions contributing to crime activities (Troutman, 2018). The encompassing issues include peer pressure and enjoyment. The quest to gain peer approval and happiness denies the adolescents chances to make long-term decisions. The psychological research indicates how peer pressure influences the youth’s brain activity stimulating the brain’s reward Centre. The stimulation emanates from the peer interaction where the crime tendencies entail challenging progression of resisting peer influence.

In conclusion, capital punishment is a violation of the constitutional ratification that views it as unusual and cruel. The abolition proponents indicate that even murderers deserve a better value for human life. At the same time, the opponents call for abolition due to the unfair progression of racial discrimination, mental illness, and age. The abolition proponents argue that an individual having mental illness cannot defend themselves in a court of law and the death sentence implication is unfair. Additionally, racial discrimination presents African Americans as more affected by capital punishment than whites.

Based on the age factor, it is unfair to place adults and adolescents at the same level of criminal actions and executions. While the former has a more developed brain and reasoning ability, the latter are immature and based on peer approval for criminal tendencies. Based on the arguments concerning the judicial system’s progression, it is essential to abolish capital punishment.

Beitsch, R. (2017). Should states ban the death penalty for people with severe mental illness? PBS News Hours. Web.

Cohen, A. (2020). Berkeley law helps governor seek more protections against racial bias in jury proceedings . Berkeley Law. Web.

Fenner, R. (2020). Faculty research spotlight: Race and the death penalty . Stanford University. Web.

Larkin Jr, P. J., & Canaparo, G. (2020). Are criminals bad or mad: Premeditated murder, mental illness, and Kahler v. Kansas. Harvard Journal of Law & Public Policy , 43 , 85.

Sandys, M., Pruss, H., & Walsh, S. M. (2018). Capital jurors, mental illness, and the unreliability principle: Can capital jurors comprehend and account for evidence of mental illness? Behavioral Sciences & the Law , 36 (4), 470-489.

Troutman, B. (2018). A more just system of juvenile justice. The Journal of Criminal Law and Criminology (1973) , 108 (1), 197-221.

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University of Miami Law Review

Official online journal for the university of miami law review, the problem with capital punishment: a critical assessment of the ultimate punitive sanction.

VINCENT R. JONES , *  69  U. Miami L. Rev. Caveat  27 (2015).

In response to Vincent R. Jones & Bruce Wilson, Innocence and Its Impact on the Reassessment of the Utility of Capital Punishment: Has Time Come to Abolish the Ultimate Sanction? ,  67  U. Miami L. Rev.  469  (2013).

One of the most controversial issues in criminal law is capital punishment. Often called the ultimate sanction, it has been used in the United States since the execution of Captain George Kendall in 1608 for the crime of espionage. Historically, capital punishment had at its core the goals of punishment, deterrence, and revenge. More recently, these goals have merged into retribution, deterrence, and closure for victims and their families. Currently, public support for capital punishment has been eroding as innocent individuals continue to be exonerated from death row. The questions now being raised are: Does the death penalty deter? Does the execution of capital offenders provide closure for victims? Can we as a society afford to use this form of punishment given the high cost of administration and the risk of executing an innocent person? This article addresses these questions.

I.  Introduction

One of the most controversial topics in criminal law is the use of the death penalty as a punitive sanction. Since the inception of the death penalty in this country in 1608, [1] whether to use execution as a form of punishment has been consistently debated. [2] Those in favor of the sanction have argued, inter alia , that it provides severe punishment for those who have committed severe crimes and is therefore just. [3] Many have also taken the position that the use of this extreme form of punishment serves as a warning to others who may be inclined to commit similar crimes. [4] Further, it has been argued that executing offenders who have committed horrible, often atrocious, crimes provides victims and their families with closure. [5]

On the other hand, those opposing the death penalty have argued that capital punishment by any means constitutes the type of “cruel and unusual” punishment [6] that the Eighth Amendment was intended to prohibit, [7] that there are—or have been—too many death-eligible crimes, [8] that the decision to execute by government authority dehumanizes society as a whole, and, finally, that the suggestion that an execution provides closure and acts as a deterrent is false or, at the very least, cannot be proven. [9] In order to assess the strengths and weaknesses of each view, it is important to begin with a historical perspective.

II. The History of the Death Penalty in America: A Brief Overview

The first person legally executed in the United States was Captain George Kendall for the offense of spying on the United States for Spain. [10] His execution was by firing squad, a method of execution that is still a military option today. [11]

Early settlers came to America armed with the experience of eighteenth-century Europe, where capital punishment was widely used. [12] In England, for example, the death penalty was imposed for a variety of offenses, [13] and that tradition continued in the new world. In early-1600s America, death-eligible crimes varied from colony to colony. Some early death-eligible offenses included trading with Native Americans, stealing grapes, idolatry, witchcraft, blasphemy, murder, poisoning, bestiality, adultery, sodomy, serving as a false witness in capital cases, conspiracy, and rebellion. [14] The large number of death-eligible crimes reflected the puritanical view of the times, which intertwined crime with sin. [15]

The methods of execution also reflected the harshness of the times; rather than rehabilitation and humane treatment of the condemned, the emphasis was on punishment and atonement. [16] Early executions were a community event and often took on a “carnival-like” atmosphere. [17] Families brought their children to witness the event and to listen to the local religious leader preach about sin and attempt to save the soul of the condemned. Often a procession, including the accused, the local religious leader, law enforcement officers, and the judge or magistrate, would march through the town before reaching the gallows where the execution would occur. [18] It was typical for the condemned to be allowed to speak his “last words.” [19] In some cases, the sincerity of the condemned’s words could persuade the executioner to forego the execution. [20]

III. Modern Death Penalty Administration and the Law

In the United States, the use of the death penalty moved forward uninterrupted until the 1970s. However, questions about the morality of its use began in earnest as early as the mid-1700s. One of the first to publicly organize against the death penalty was Dr. Benjamin Rush, a Philadelphia-based physician and original signer of the Declaration of Independence. [21] Dr. Rush, along with several prominent society members and Quakers, organized abolitionist movements in an attempt to end the death penalty. [22] Early opponents of the death penalty often joined forces with slave abolitionists and women’s suffragists. [23] These abolitionist societies were most active along the eastern seaboard. [24]

From these early efforts to abolish the sanction, the abolitionist movement grew increasingly critical of the continued use of capital punishment. Notwithstanding this growing criticism, public support for its use remained consistently favorable. This all changed in 1972 when the United States Supreme Court in Furman v. Georgia declared that the death penalty constituted cruel and unusual punishment and was therefore prohibited by the Eight Amendment to the United States Constitution. [25] This prohibition was short lived, however, because the same Supreme Court clarified a mere four years later, in Gregg v. Georgia , that the death penalty in and of itself did not necessarily constitute cruel and unusual punishment. [26] The death penalty was reinstated by the Court [27] and has continued mostly undisturbed until today. [28]

IV. Why Do We Have a Death Penalty in America?

The inevitable questions that are often asked are: Why do we have a death penalty in America? What purpose is it intended to serve? Does it accomplish its intended goals? To answer these questions, we must first examine some of the basic theories of punishment. There are three principal “theories of punishment” that endorse use of the death penalty.

A. Deterrence

One of the leading arguments in support of continuing the use of the death penalty is the deterrence argument. It is posited that in order to prevent the rampant commission of violent crimes, an equally harsh punishment must be used to deter or influence others from committing the same or similar offenses. [29] Therefore, vicious crimes must be met with harsh penalties, and the harshest of all penalties is execution. Knowing that death-eligible offenses will be met with the death penalty is an important factor in controlling crime and criminals, according to the deterrence theory of punishment.

B. Retribution

Another leading theory in support of capital punishment is requisite punishment—retribution. Extreme offenses must be met with equally extreme punishment. [30] It is only in this manner that society maintains its “balance.” [31] Offenders must be punished for the commission of their crimes to prevent societal imbalance. This theory goes to our base instinct most often exemplified by the Biblical phrase “eye for an eye.” [32] The “eye for an eye” philosophy has permeated the use of the death penalty and still carries considerable weight in modern discussions of its use. [33]

C. Closure for Victims

A third theory in support of capital punishment is closure for the victims. Once a crime is committed, the offender must be punished to prevent vigilante justice and to assuage the hurt of a victim and a victim’s family. It is argued that victims cannot have closure until the appropriate punishment has been meted out.

V. Does the Death Penalty Accomplish Its Intended Goals?

A. Does the Death Penalty Actually Deter Crime?

A common belief among death penalty proponents is that capital punishment deters crime. [34] The theory is that those who would commit a death-eligible offense will observe the harshness of the penalty imposed if convicted and will independently decide that it is best to refrain from committing such a crime, lest they too suffer this harsh fate. The problem is that such a theory presupposes that capital offenders consider the consequences of conviction when, in reality, the one thing offenders likely never consider is getting caught. [35]

Marshall Dayan, an assistant professor of law at North Carolina Central University, argues that murderers do not take into account the penalty for their crime because they do not expect to be caught; thus, the death penalty has no deterrent effect. [36] Further, he suggests that the underpinnings of the deterrence theory are also flawed because deterrence relies on the proposition that individuals know the harshness of the penalty for their crime before they commit it. [37] However, Dayan points out that several members of law enforcement, lawyers, and even judges have been found guilty of committing murder at one time or another albeit knowing the harshness of the penalty beforehand. [38] To illustrate this point, he uses the case of William Huggins Jr., a former assistant district attorney prosecuted for soliciting murder. [39] Even though Huggins knew the penalty for murder, he conspired to commit it anyway. [40]

The deterrence theory also fails to take into consideration that there are certain classes or types of offenders that will never be deterred by the penalty associated with the crime. For example, serial killers who act out of a criminal mental compulsion, attention-seeking killers who kill for the notoriety, and suicidal killers who kill to be killed due to their desire to commit suicide but lack of ability to do so. These are all types of capital offenders who would not be affected by the harshness of the penalty and, in certain circumstances, would embrace it. [41]

Finally, assuming arguendo that having a death penalty would in fact serve as a deterrent, states with a death penalty should have lower murder rates than states that do not have a death penalty. [42] However, according to the Death Penalty Information Center, states that have abolished the death penalty—such as North Dakota, Maine, Rhode Island, and Minnesota—have lower murder rates than states that continue to allow the death penalty, including Alabama, Tennessee, Louisiana, and Texas (the state with the most executions). [43] Based on the foregoing, it does not appear that having the death penalty available as a punitive sanction acts as an effective deterrent to the commission of death-eligible offenses.

B. Does the Execution of an Offender Provide “Closure” to Victims?

What about victims and co-victims? Shouldn’t the death penalty exist to provide them with a sense of finality and closure, putting an end to their misery and loss? Perhaps Professor Thomas Bertonneau said it best:

The justice that the death penalty seeks, it seeks foremostly for the deceased, who can no longer demand it for himself. In another way, the death penalty is society’s belated application of self-defense in place of the victim. “We should like to have been there,” the sentence says, “to have met lethal force with lethal force for the victim’s sake.” The death penalty thus honors and commemorates the dead and speaks to the sanctity of life in the civilized order. [44]

Most victims, however, allege that the execution of the offender does nothing to assuage the loss. [45] In fact, many take the position that executions continue the process of needlessly punishing innocent families; in the case of an execution, it is the family of the offender. [46] Even more interesting is the view of Marietta Jaeger-Lane, whose daughter was kidnapped and murdered. [47] When asked about her view of the death penalty, Jaeger-Lane said, “Loved ones wrenched from our lives by violent crime, deserve more beautiful, noble and honorable memorials than pre-meditated, state-sanctioned killings.” [48]

Or consider the view of Vicki Schieber, whose daughter Shannon was murdered. [49] “In honor of our daughter, my husband and I are committed to spending the remainder of our lives trying to seek not just the elimination of the death penalty, but meaningful change.” [50] Still, others take a less charitable position against the death penalty, arguing that murderers should live and suffer so that they can think about the harm they have caused. [51] Does the execution of offenders provide closure for victims and victims’ families? Arguably not.

VI. Is Capital Punishment Worth It?

A. Can We as a Society Afford the Financial Cost of Capital Punishment?

The death penalty is an expensive form of punishment, and taxpayers are becoming more aware of the implications of maintaining this costly system. [52] Consider, for example, that defense costs for death penalty trials in the state of Kansas average almost $400,000 per case, compared to almost $100,000 per case when the death penalty is not sought. [53] A study of Los Angeles, California, county trials showed that the average trial in which the death penalty is sought costs $1,898,323, as compared to the average trial in which the death penalty is not sought that costs $627,322. [54] In fact, in California, a recent study revealed that the state has spent over four billion dollars in costs related to capital punishment since 1978. To reach this conclusion, the study considered pretrial costs, costs of automatic appeals and state habeas corpus petitions, costs of federal habeas corpus appeals, and the cost of incarceration on death row. [55]

California is bearing the costs of capital punishment administration all while struggling financially, cutting essential services, and trying to balance the state budget. [56] A 2005 article from the Los Angeles Times tallied the annual public costs of maintaining the death penalty in California: “it costs $90,000 more per year to house an inmate on death row, where each person has a private cell and extra guard,” than to house a non-death row inmate; eleven executions over a twenty-seven-year period cost, on average, $250 million per execution; “a capital murder trial costs three times more to try than a noncapital murder trial”; “the Office of the State Public Defender, which represents some death row inmates, has an annual budget of $11.3 million”; the Habeas Corpus Resource Center “represents inmates and trains death penalty attorneys on a budget of $11 million”; federal public defenders and appointed attorneys receive $12 million annually. [57] All things considered, from a purely financial perspective, the death penalty exacts a very costly fiscal penalty on taxpayers. In times of drastic budget cuts and reductions of services, it would appear to be fiscally irresponsible to continue to administer such a costly system of punishment.

B. Wrongful Convictions, Innocence, and the Death Penalty

Perhaps the most compelling reason for questioning the continued use of the death penalty is the criminal justice system’s lack of reliability and the very real possibility of executing an innocent person for a crime he or she did not commit. [58] Executing an innocent person is an error that can never be corrected. Death row exonerations have garnered increasing attention recently. [59] Renowned author, John Grisham, wrote his first nonfiction novel about the heartbreaking story of Ron Williamson, an innocent man who came within hours of being executed only to die five years after being exonerated from death row. [60] Academy Award-winning actress, Hillary Swank, starred in a movie about the true story of Betty Anne Waters, the sister of a wrongfully convicted man. [61] Waters courageously put herself through college and law school to defend her brother and ultimately won his freedom after he had served eighteen years on death row. [62]

In fact, the problem of wrongful convictions in death penalty cases has become so pervasive that several state governors have signed legislation abolishing the death penalty in their states. [63] Perhaps former Illinois Governor George H. Ryan said it best when initially declaring a moratorium on capital punishment in Illinois: “Until I can be sure that everyone sentenced to death in Illinois is truly guilty, until I can be sure with moral certainty that no innocent man or woman is facing lethal injection, no one will meet that fate.” [64]

VII. Conclusion

The death penalty is a controversial topic over which the nation is divided. However, capital punishment fails to accomplish most, if not all, of its intended goals. Facts show that capital punishment does not deter crime nor provide closure for victims and that the system is too costly to maintain. These reasons alone are enough to declare an end to capital punishment, as many state governors have done. [65]

Notwithstanding the foregoing, there is one factor that should compel an end to capital punishment in America: innocence and wrongful convictions. Whether one is in favor of or against capital punishment, no person of sound mind could favor executing the innocent. Nevertheless, it is clear that the United States has, and most likely will, continue to put innocent individuals on death row as long as we continue to use capital punishment. If for no other reason than protecting the innocent, the time has come to abolish capital punishment in the United States. . . . Full Article .

Recommended Citation:  Vincent R. Jones,  The Problem with Capital Punishment:  A Critical Assessment of the  Ultimate Punitive Sanction , 69  U. Miami L. Rev. Caveat  27 (2015).

* Professor Vincent R. Jones is a veteran trial lawyer with extensive experience in the area of criminal defense. He is the co-author of The Death Penalty in Focus: A Special Topics Anthology , and is currently an Associate Professor of criminal justice at Governors State University, where he teaches The History of the Death Penalty in America, Constitutional Issues in Criminal Justice, Wrongful Convictions, Comparative International Criminal Justice Systems, and International Peace Initiatives. Professor Jones is a staunch advocate for the abolition of capital punishment both domestically and internationally.

[1] It is believed that the first person legally executed in the United States was Captain George Kendall. Historical records state that he was a Councilor for the Virginia Colony and was tried and executed for the crime of espionage, spying for Spain. See Part I: History of the Death Penalty , Death Penalty Info. Ctr. , http://www.deathpenaltyinfo.org/part-i-history-death-penalty (last visited Aug. 15, 2015); see also Michael H. Reggio, History of the Death Penalty , in Society’s Final Solution: A History and Discussion of the Death Penalty 3 (Laura E. Randa ed., 1997).

[2] See, e.g. , Symposium, The Future of the Death Penalty in America , 67 U. Miami L. Rev. 329 (2013).

[3] See infra Part IV.B.

[4] See infra Part IV.A.

[5] See infra Part IV.C.

[6] U.S. Const. amend VIII.

[7]  See Vincent R. Jones & Bruce Wilson, Innocence and Its Impact on the Reassessment of the Utility of Capital Punishment: Has Time Come to Abolish the Ultimate Sanction? , 67 U. Miami L. Rev. 459, 464–66 (2013); see also The Death Penalty in California: Cruel and Unusual, A Judge Strikes a Blow Against Capital Punishment , Economist (Jul. 26, 2014), http://www.economist.com/news/united-states/21608773-judge-strikes-blow-against-capital-punishment-cruel-and-unusual.

[8] A death-eligible crime is a crime that once committed, and after having been found guilty of the commission, the accused is “eligible” for the pronouncement of a death sentence depending upon the decision of the judge or jury. For a list of federal offenses punishable by death, see 41 Federal Capital Offenses , ProCon , http://deathpenalty.procon.org/view.resource. php?resourceID=004927 (last visited Aug. 15, 2015).

[9]  See, e.g. , Marilyn Peterson Armour & Mark S. Umbreit, Assessing the Impact of the Ultimate Penal Sanction on Homicide Survivors: A Two State Comparison , 96 Marquette L. Rev. 1 (2012); Study: Executions Do Not Bring Closure to Victims’ Families , CBS News (Jan. 27, 2014, 11:28 AM), http://houston.cbslocal.com/2014/27/study-executions-do-not-bring-closure-to-victims-families.

[10] See supra note 1; see also Jones & Wilson, supra note 7, at 460.

[11] As of March 2015, execution by firing squad is also an option in the State of Utah. See  H.B. 11, 2015 Gen. Sess. (Utah 2015), available at http://le.utah.gov/~ 2015/bills/static/HB0011.html; see also Josh Sanburn, The Harsh Reality of Execution by Firing Squad , Time (Mar. 12, 2015), http://time.com/3742818/utah-firing-squad-execution-lethal-injection/. For a discussion of Utah’s historical use of the firing squad, see Christopher Q. Cutler, Nothing Less Than the Dignity of Man: Evolving Standards, Botched Executions and Utah’s Controversial Use of the Firing Squad , 50 Clev. St. L. Rev. 336, 400 (2003).

[12] See Part I: History of the Death Penalty , supra note 1.

[13] See id. ; see also Reggio, supra note 1, at 2 (“In Britain, the number of capital offenses continually increased until the 1700’s when two hundred and twenty-two crimes were punishable by death.”).

[14] Robert Bohm, Death Quest III: An Introduction to the Theory and Practice of Capital Punishment in the United States 1 (Pamela Chester et al. eds., 4th ed. 2012).

[15] See id.

[16] Some of the early methods of execution were drawing and quartering, hanging, breaking on the wheel, boiling in oil, and beheading. See Part I: History of the Death Penalty , supra note 1.

[17] See Bohm , supra note 14, at 3, 7.

[18] Id. at 2–3.

[20] Id. at 2 (“Condemned prisoners would often . . . confess their guilt and proclaim their newfound faith to the congregation and especially its most influential members [because it gave the] prisoners their best opportunity of receiving executive clemency.”).

[21] Id. at 5.

[23] See generally id. at 6–7 (discussing the period between 1825 and 1850 as a “time of reform in America” where the “general abolitionist sentiment, spurred anti-death penalty activity”).

[24] Id. at 5, 7.

[25] See Furman v. Georgia, 408 U.S. 238, 240 (1972).

[26] See Gregg v. Georgia, 428 U.S. 153, 168–73 (1976) (stating that precedent requires that “the punishment must not involve the unnecessary and wanton infliction of pain [and] the punishment must not be grossly out of proportion to the severity of the crime.”).

[27] Id. at 207.

[28] Some states, however, have placed limits on the death penalty or stricken it down. See States with and Without the Death Penalty , Death Penalty Info. Ctr. , http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited Aug. 15, 2015).

[29] Deterrence: In Support of the Death Penalty , Death Penalty Curriculum , http://deathpenaltycurriculum.org/student/c/about/arguments/argument1a.htm (last visited Aug. 15, 2015).

[30]  See Retribution: In Support of the Death Penalty , Death Penalty Curriculum , http://deathpenaltycurriculum.org/student/c/about/arguments/argument2a.htm (last visited Aug. 15, 2015).

[32] Deuteronomy 19:21 (King James).

[33] See, e.g. , Art Swift, Americans: “Eye for an Eye” Top Reason for Death Penalty , Gallup (Oct. 23, 2014), http://www.gallup.com/poll/178799/americans-eye-eye-top-reason-death-penalty.aspx (“Americans who favor the death penalty most often cite ‘an eye for an eye’ as the reason they hold their position, with 35% mentioning it.”); Retribution: In Support of the Death Penalty , supra note 30 (“Retribution has its basis in religious values, which have historically maintained that it is proper to take an ‘eye for an eye’ and a life for a life.”).

[34] See supra Part IV.A.

[35] See Bohm , supra note 14, at 164–65.

[36] See Marshall Dayan, Death Penalty No Deterrent, Even to an Assistant Prosecutor , Herald-Sun , Sept. 24, 2002, at A13 (“A former client of mine, a convicted murderer, once said, ‘You can tell people that you’re going to boil ‘em in hot oil, but it won’t deter crime, because criminals don’t think they’re going to get caught.’”); see also Lauri S. Friedman, The Death Penalty 66 (Greenhaven Press 2006).

[37] See Dayan, supra note 36.

[41] See Bohm , supra note 14, at 164–65.

[42] Murder is used as an example here because it is a universally recognized death-eligible offense.

[43] See Murder Rates Nationally and by State , Death Penalty Info. Ctr. , http://www.deathpenaltyinfo.org/murder-rates-nationally-and-state (last visited Aug. 8, 2015).

[44] Thomas F. Bertonneau, Execution Gives Justice to the Forgotten Victim , Benighted Comment (2001), http://benightedcomment.com/essays/execution-gives-justice-to-the-forgotten-victim.

[45] See Victims and the Death Penalty , Death Penalty Info. Ctr., http://www.deathpenaltyinfo.org/victims-and-death-penalty (last visited Aug. 15, 2015).

[46] Id. (“The death penalty only creates more victims and more grieving families.”).

[49] Id. ; see also Testimony in Support of Senate Bill 820—Vicki A. Schieber , Md. Citizens Against St. Executions , www.mdcase.org/node/179 (last visited Aug. 8, 2015).

[50] Victims and the Death Penalty , supra note 45; Testimony in Support of Senate Bill 820—Vicki A. Schieber , supra note 49.

[51] See Catherine Appleton & Bent Grover, The Pros and Cons of Life Without Parole , 47 Brit. J. Criminological 597, 605–06 (2007).

[52] See Jon Sorenson, The Administration of Capital Punishment , 29 ACJS Today , no. 2, May/June 2004, at 1, 5 (2005) (reporting that in a comprehensive examination performed by Duke researchers “a capital murder case was found to exceed the cost of a non-capital first-degree murder case by $163k”).

[53] See Report of the Judicial Council Death Penalty Advisory Committee 1 (Feb. 13, 2014), available at http://www.deathpenaltyinfo.org/documents/KSCost2014.pdf.

[54] See David Erickson, Death Penalty Focus of Cal., Capital Punishment at What Price: An Analysis of the Cost Issue in a Strategy to Abolish the Death Penalty 25 (Spring 1993) (unpublished M.A. thesis, University of California Berkley), available at http://www.deathpenalty.org/downloads/Erickson1993COSTSTUDY.pdf. It should also be noted that most of the costs of death penalty cases result from legal fees.

[55] See Judge Arthur L. Alarcón & Paula M. Mitchell, Executing the Will of the Voters?: A Roadmap to Mend or End the California Legislature’s Multi-billion-dollar Death Penalty Debacle , 44 Loy. L.A. L. Rev. S41 (2011).

[56] See Dan Walters, California Budget Is Balanced? Not by a Long Shot , Sacramento Bee (Mar. 30, 2014), http://www.sacbee.com/news/politics-government/dan-walters/article2594117.html.

[57] Rone Tempest, Death Row Often Means a Long Life , L.A. Times (Mar. 6, 2005), http://articles.latimes.com/2005/mar/06/local/me-deathpen6.

[58] See generally David Von Drehle, More Innocent People on Death Row Than Estimated: Study , Time (Apr. 28, 2014), http://time.com/79572/more-innocent-people-on-death-row-than-estimated-study/.

[59] See generally Carimah Townes, 6 Death Row Inmates Were Exonerated in 2014. All of Them Were Black , Think Progress (Jan. 27, 2015, 1:51 PM), http://thinkprogress.org/justice/2015/01/27/3615918/black-people-have-the-highest-exoneration-rate-in-the-us/. While courts tend not to “entertain claims of innocence when the defendant is dead,” the Death Penalty Information Center provides a list of executed persons where strong evidence of innocence exists. See Executed but Possibly Innocent , Death Penalty Info. Ctr. , http://www.deathpenaltyinfo.org/executed-possibly-innocent (last visited Aug. 15, 2015).

[60] See generally John Grisham, The Innocent Man: Murder and Injustice in a Small Town (2006).

[61] See Conviction: The Incredible True Story of Betty Anne Waters , Innocence Project , http://www.innocenceproject.org/about-innocence-project/conviction (last visited Aug. 15, 2015).

[63] For a list of recent legislation on the death penalty, see Recent Legislative Activity , Death Penalty Info. Ctr. , http://www.deathpenaltyinfo.org/recent-legislative-activity (last visited Aug. 15, 2015).

[64] Jones & Wilson, supra note 7, at 469–70 & nn.83–85 (2013) (citing Press Release, Ill. Gov’t News Network, Governor Ryan Declares Moratorium on Executions, Will Appoint Commission to Review Capital Punishment System (Jan. 31, 2000), available at http://www.illinois.gov/PressReleases/PressReleasesListShow.cfm?RecNum=359).

[65] See supra note 63.

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Capital Punishment Must be Abolished Essay

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Capital Punishment Must be Abolished Is capital punishment just? The death penalty is a controversial issue for most people. Supporter’s claim that it eliminates repeat offenders, deters potential murderers and is the ultimate retribution. Opponents denounce it as murder, say that it does not cause deterrence but rather promotes violence and claim that it introduces the chance of an innocent person being executed. Due to the arguments presented by both sides and because of my own personal beliefs, the argument against legal execution is most compelling. The idea of putting another human to death is hard to completely fathom. The physical mechanics involved in carrying out a death sentence on another person, regardless of how much …show more content…

The next method of execution developed after the electric chair was the gas chamber. The gas chamber was first used in 1921. This chamber of death is an airtight room with a chair into which the accused is strapped. Death is caused by exposure to cyanide gas, produced when sodium cyanide is dropped into sulfuric acid. The suffering caused is deliberate and plain to see: writhing, vomiting, shaking and gasping for breath for many seconds. This horrendous technique is used only in a few states. Another form of the death penalty is lethal injection. This form was introduced in the U.S. in 1977 and is now in use in twenty-three states. This is the most widespread method and arguably the most humane. The condemned is strapped to a table and injected with sodium triopentone, losing consciousness in ten to fifteen seconds. This is followed by pancuronium bromide, which blocks respiration and finally potassium chloride to stop the heart (Jackson, 38-43). Finally, the last two forms of execution are death by firing squad and death by hanging. These two forms of capital punishment are very rarely ever used. In 1999 there were only two hangings and one death by firing squad. The convicted sometimes have the opportunity to decide how they wish to be executed, which was the case in these three executions. Religious people, especially those faithful to the Catholic religion believe that the death penalty is morally wrong. The Catholic Church believes that

The Death Penalty is Cruel and Unusual Punishment Essay examples

There are five ways to execute a person. The five are: lethal gas, lethal injection, electrocution, hanging, and firing squad. The most commonly used are lethal injection and electrocution. Lethal injection is when the people inject a shot into both of your arms. It takes about three minutes until the acid kills you. Firing squad is when a group of people has guns and the shoot at the murderers

Capital Punishment : The Death Penalty

Capital punishment, otherwise known as the death penalty, is a controversial subject which has been argued for decades due to the ethical decisions involved. People believe the death penalty is the right thing to do and that it is the perfect example of ‘justice’ while others believe that it is immoral and overly expensive. The death penalty is not a logical sentence for criminals, it doesn’t give them the right type of justice and it is immoral.

Essay on The Controversy of Capital Punishment.

If the defendant was found guilty in one of the thirty five United States that enforced the death penalty, he would most likely be executed by means of lethal injection. Lethal injection has proven to be the most humane way of euthanizing criminals. Before this, up to 4 different methods had been used in the United States. These included hangings, firing squads, gas chambers and the infamous electric chair.

Death Penalty As A Form Of Punishment

Throughout mankind has been using the death penalty as a form of punishment. Many people argue with this type of punishment because they believe in an eye for an eye. Many people that it is okay to murder a human being due to them having killed an individual over time. There have been many cases that have proven that they death penalty violates the constitutional ban on cruel and unusual punishment, being very expensive, and innocent lives are convicted.

Pros And Cons Of Abolishing The Death Penalty

Even though it 's still practiced today there are some limitations, for example the government can’t execute the mentally handicapped and isn’t supposed to execute juveniles. There are currently six execution methods in the united states which include, lethal injection, electrocution, lethal gas, a firing squad, and hanging. Even so executions have been steadily declining over the years.

Lethal Injection

Lethal injection was first adopted in 1977 in the state of Oklahoma and was first administrated in the state of Texas in 1982 (Crider, 2014). Before lethal injection methods like hanging, gas chamber, firing squad, and electric chair were used to execute. The United States has tried to find an alternate method that will not be considered inhumane and painful to the inmate. The effect of lethal injection is now being questioned if it is constitutional, arises medical professionals controversy, and the shortage of drug substance.

Lethal Justice Research Paper

Since 1976 there have 1386 executions by lethal injection. Lethal injection is the three drug protocol usually begins with an anesthetic or sedative, followed by pancuronium-bromide to paralyze the inmate, and potassium chloride to

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The death penalty was introduced to The United States by Britain. There have been over 14,000 executions in The United States since 1608. In 2011, 36 states held 3,158 inmates under the death sentence. Hanging, firing squad, the gas chamber, the electric chair, and lethal injections are all methods that are and were used in the history of The United States. Many individuals do not realize what the prisoners go through before getting executed. They also do not know what happens during the execution. The means of execution can be carried out through what types of executions are there, the development of lethal injection, botched execution through the eighth amendment, and the conflict of a trained medical

Should Death Penalty Be Illegal In The United States?

Whenever Capital Punishment was legal people started to use drugs to stop a person’s heart instead of some of the other methods that were used. Some of the other methods that were used were electrocution, a firing squad, a gas chamber, and hanging. A firing squad and hanging are no longer allowed in the United States. Electrocution, lethal injection, and the use of a gas chamber are all allowed in the United States. Prisoners are allowed to decide between the methods they can die from. Since 1973, 153 people have been exonerated from death, (Death Penalty Information Center

Capital Punishment Should Be Used As A Punishment For Crime Essay

When it comes to ethical dilemmas, few are more polarizing and contentious for citizens of the USA as whether capital punishment should be used as a punishment for crime. Also known as the death penalty, the practice involves legally executing a criminal if they commit a crime of a certain level; most often, this punishment is prescribed to those who have murdered other people. Opponents and proponents of the death penalty have clashed for decades, often claiming differing results prove their respective sides to be superior in many areas. For example, those that support the death penalty claim that it is a cheaper punishment in financial terms than lifelong imprisonment without parole, while those that oppose capital punishment believe the exact opposite, stating that capital punishment is the more expensive of the two options. Additionally, there is a major rift between the two sides involving the effectiveness of the death penalty as a crime deterrent; opponents believe there is little to no beneficial effect, while supporters often declare that the death penalty has been proven to decrease murders and therefore saves lives. Moral positions also play a role in the debate; proponents view the punishment as a just way to punish someone who has committed a capital offense and a path towards closure for families of victims, while some on the other side hold that it is wrong to take a life regardless of what a person has done or that death is a cruel, extreme, unnecessary

Lethal Injections

There are many methods of execution that have been used throughout the years. The most popular have been lethal injection, electrocution, and hanging. The lethal injection is the newest method of execution, and quickly became the most popular one. In 1982 the United States became the first country to use the lethal injection to carry out capital punishment. Lethal injection machine exist, and they were used by several states once, but now most states now opt to perform the injections manually due to the fear of mechanical failure. Electrocution was a popular form of capital punishment in 1880’s. In 1889, William Kemmler was sentenced to death, in Auburn Prison's electric chair, first in the country. Hanging was the primary method of execution

Capital Punishment Is Wrong

Capital Punishment is not a fair choice to do and it violates the human right to life. Everyone is born with the human right to life, even those who commit any type of crime; sentencing a person to death and executing them violates that right ( ). Just because a murderer killed someone, it does not mean their life should be taken away for punishment. It is generally accepted that people should not be punished for their actions unless they are guilty ( ). Whether the person is guilty is guilty or not they should not be given a deadly punishment. He inmates should just be locked up in prison and die from natural causes. When the prisoner becomes executed it is painful and cruel.

Death Penalty In America

Most executions in the United States are carried out by lethal injections. Another common method is death by the electric chair and states that practice this execution include Virginia, South Carolina, Florida and Alabama. Washington, New Hampshire and Delaware are some of the sates that consider hanging as an execution method .Oklahoma and Utah permit execution by firing squad but under the condition other executions methods are unconstitutional, Utah later burned the firing squad method in 2004. Some states have the same rules as Oklahoma that allow the use of other methods if lethal injection is unconstitutional. (Mark Berman-Robert Barnes)

The Death Penalty: Methods of Execution in America Essay

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In America, there have been five different execution methods used. These five methods consist of

Death Penalty Argumentative Essay

The death penalty, or capital punishment, is the execution of an offender that is sentenced to death by a court of law for a criminal offense.  This type of punishment for inmates is involved in controversy over whether or not it is an acceptable form of punishment for criminals and also whether or not it is immoral.  There are many arguments for both sides of the debate, each making valid points and pointing out the flaws of the opposing position. Many religions are either for or against capital punishment, due to them either being against killing or for it.  The controversy surrounding the death penalty laws in the United States is made up of various arguments.  Other arguments surrounding the use of the death penalty include whether

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Capital Punishment Should Be Abolished Persuasive Essay

Title: Point: Capital Punishment Should Be Abolished. By: Ballaro, Beverly, Cushman, C. Ames, Points of View: Death Penalty, 2009 Database: Points of View Reference Center Thesis: Capital punishment is useless as a deterrent, morally indefensible, discriminatory in practice, and prone to errors that may have led to the execution of wrongfully convicted people. Its continuing legality in the United States is critically undermining American moral stature around the world.

The Supreme Court should bring the United States in line with the rest of the civilized world and hold that death is a cruel and unusual punishment prohibited by the Eighth Amendment. Summary: The death penalty process consumes tremendous amounts of money and resources and fails to deter criminal activity. It is not uniformly applied geographically, and where it is allowed, it is used in an often arbitrary and racist manner. As a result, states have been curtailing the use of the death penalty, the Supreme Court has limited its application, and both death sentences and executions are down sharply.

This is at odds with the recent efforts of some states to expand the range of capital crimes, and with national polls which still reflect a clear majority of Americans favor capital punishment. Meanwhile, momentum has been accelerating in the international community to abolish the death penalty, and the United States is increasingly criticized for failing to keep in step with other civilized nations in this area. Capital Punishment in the United States Since the 1977 resumption of capital punishment in the United States, nearly 1,100 convicted prisoners have been put to death in the thirty-eight US states where the practice remains legal.

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As of the beginning of 2007, approximately 3,350 people remain on death row in American prisons. In recent years, the evidence has shown that the death penalty process consumes tremendous amounts of money and resources and fails to deter criminals. FBI Uniform Crime Report data show no statistical difference in crime rates based on the existence or frequency of use of the death penalty in a particular state. It is applied in an often arbitrary and racist manner and may have led to the execution of innocent people.

As a result, momentum has been accelerating in the international community to abolish the death penalty. In the United States, despite a national trend toward scaling back the use of capital punishment, it remains largely popular with the American people, and several states have recently attempted to broaden its scope. A 2008 ruling by the Supreme Court in Kennedy v. Louisiana, however, overturned the death sentence of a man convicted of raping a child, effectively holding that states may only impose the death penalty in murder cases.

Still, Virginia is poised to make accomplices to murder, as well as killers of judges and court witnesses, eligible for the death penalty. Missouri may pass a mandatory death penalty for the murder of law enforcement officers. Georgia lawmakers are considering legislation that would permit a judge to impose the death sentence, which currently requires a unanimous vote of jurors, if only nine of twelve jurors on a case are in favor of it.

The effort in some states to expand the range of death-penalty-eligible crimes raises questions that are deeply troubling for both pragmatic and moral reasons, and demonstrates the regionalism that has accompanied treatment of capital punishment in recent years. With states like New Jersey abolishing the death penalty completely and others like Illinois, where executions have been halted by executive order, perhaps the most important factor in whether a killer will face the death penalty is not the heinousness of the crime, but where it was committed.

From a legal perspective, the abolition of capital punishment in the United States would most likely and effectively come in the form of a decision by the Supreme Court that executions constitute cruel and unusual punishment as forbidden by the Eighth Amendment to the Constitution. As the death penalty is specifically authorized in the Constitution, it could likely not be outlawed nationwide by an Act of Congress, and as stated above, most Americans still approve, making legislative abolition in all states unlikely. Discriminatory Application In the 1972 case of Furman v.

Georgia, the Supreme Court ruled that existing state capital punishment laws were applied in an erratic and often random manner. The Supreme Court decided that the Georgia state punishment laws violated the Eighth Amendment prohibition against cruel and unusual punishment, and the Fourteenth Amendment, which guarantees equal protection and due process. Four years later, however, in Gregg v. Georgia, the Court paved the way for states to reintroduce capital punishment when it declared that the death penalty does not necessarily violate the Constitution if administered in a manner designed to guard against arbitrariness and discrimination.

Most serious legal challenges to the death penalty since then have concentrated on demonstrating that states are not living up to the standards set in that case. Despite the Court's insistence upon such safeguards, and judicial pronouncements that all states currently conducting executions have met the standards, disturbing patterns persist in the application of the death penalty. Statistics show, for example, that people who kill white people are far more likely to receive a death sentence than those whose victims were not white, and that black people who kill white people have the greatest chance of receiving a death sentence.

Of the approximately 3,350 people on death row as of 2007, nearly all are impoverished, and many belong to minority groups (more than 40 percent are African American). Defendants who have the resources to hire private investigators, psychiatrists, and expert lawyers face much lower odds of ending up in the death chamber. Predictive factors for which convicted murderers are likely to receive a death sentence have less to do with the heinousness of the crimes committed than with the race, sex, and economic class of the prisoner and victim.

Geography and politics also play a major role, as some counties and individual prosecutors seek the death penalty with much greater frequency than others. The quality of the defendant's defense counsel, the political and social leanings of the judge and jury, and the defendant's degree of mental impairment are also factors that may determine the probability of a death sentence. Fatal Errors The sociological disparities in the death penalty process are well documented.

Today, the degree to which systemic flaws in investigative, forensic, and trial procedures can lead to false conviction, and subsequent execution, is coming under increasing public scrutiny. Much of the credit for exposing these fatal errors belongs to the Innocence Project, a legal clinic founded in 1992 by Barry Scheck and Peter Neufeld to assist prisoners who could be proved innocent through post-conviction DNA (deoxyribonucleic acid, which is a sort of genetic fingerprint) testing. As of May 2007, some 201 people had been exonerated by DNA testingincluding fifteen who served time on death row.

Their experiences have exposed systemic flaws in the gathering and evaluation of criminal evidence. In most of these cases, a wrongful conviction emerged from a combination of factors, such as police misconduct or investigative errors, unreliable witnesses or false testimony, negligence, forensic errors and even false confessions. Collectively, the inmates exonerated by the Innocence Project served a total of 2,475 years in prison for crimes they hadn't committed. It is impossible to know how many additional innocent people have been wrongfully convicted and perhaps executed.

If for no other reason, the risk of imposing the ultimate penalty by mistake even in one case should give the state pause in assessing the appropriateness of capital punishment. Efforts to speed up and streamline the appeals process for death row inmates, thereby reducing the time spent awaiting execution, also reduce the time for efforts like the Innocence Project to review cases and challenge convictions. While both proponents and opponents of the death penalty have decried the exceedingly long wait between conviction and execution, that time clearly worked in favor of the fifteen prisoners spared from death row.

With such exonerations occurring with more regularity, capital punishment, a sentence that cannot be corrected or undone after the fact if a mistake is made, is increasingly at odds with any moral sense of justice. Bad Company The continued existence of the death penalty and recent efforts to broaden it in some parts of the United States have drawn a flurry of international criticism, which further damages American moral credibility on global human rights issues.

Many countries the US criticizes for lower standards of individual rights and justice refuse to extradite (deliver a prisoner to the United States to stand trial) murder suspects unless authorities agree not to seek the death penalty. With capital punishment having been banned in nearly all the nations with which the United States enjoys its closest political and cultural ties-Eastern as well as Western Europe, Scandinavia, Russia, South Africa, and most of Latin America-the United States risks increasing its global perception as a pariah nation, out of step with international human rights norms.

It was at least partly out of consideration for such norms that the Supreme Court ruled, in the 2005 case of Roper v. Simmons, that it is unconstitutional to impose capital punishment for crimes committed while the offender was under the age of eighteen, and a similar case which prohibited executions of the mentally retarded. Prior to the Court's ruling, the United States was one of only nine countries (together with China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, Sudan, and Yemen) known, since 1990, to have executed juvenile offenders.

Recent Supreme Court decisions, such as the Louisiana case referenced above, point to "evolving standards of decency" in restricting application of the death penalty based on the Eighth Amendment prohibition of cruel and unusual punishment. It seems clear to most legal analysts that these evolving standards will eventually dictate the end of the death penalty in the United States, though this may be many decades away, as only two justices (Ruth Bader Ginsburg and David Souter) appear ready to end the practice outright.

According to Amnesty International, as of 2007, 129 countries-more than half the world-have abolished the death penalty in law or practice. Nonetheless, during 2006, at least 1,591 people were executed (by methods including beheading, electrocution, hanging, lethal injection, firing squad, stoning, and stabbing) in twenty-five countries, including Bangladesh, Egypt, Iran, Iraq, North Korea, Singapore, Somalia, Uganda, Vietnam, and Yemen.

But 91 percent of all documented 2006 executions took place in China, Iran, Pakistan, Iraq, Sudan and the United States, where fifty-three people were executed in twelve states. By continuing to accept and attempting to expand capital punishment, the United States is following a rogue course among democratic nations. Such a course makes American human rights rhetoric ring hollow to our allies. It can also only encourage, in the name of security, the use of other brutal measures by the authoritarian regimes with which the US shares this practice.

It is hard for the United States to be a source of moral leadership in the world when our Supreme Court, while recognizing and citing "evolving standards of decency" in imposing limitations, has not yet seen fit to end a practice that nearly all civilized nations have already ended. Conclusion The death penalty has become cruel and unusual, in violation of the United States Constitution, and the Supreme Court should not continue to wait for American attitudes to catch up with the rest of the world, or continue to act in piecemeal fashion.

With the notable exception of 1994 Violent Crime Control and Law Enforcement Act-which made the federal death penalty applicable to, among other crimes, espionage, treason, and large-scale drug trafficking-the criteria for seeking the death penalty in the United States have generally grown more restrictive. In 2006, the number of inmates on death row declined to a historic thirty-year low. Statistically, the application of the death penalty is becoming more "unusual" each year.

The year 2008 brought a flurry of litigation concerning the extent to which lethal injection, the method of execution favored by most states, is "cruel" in that it inflicts unnecessary pain. Executions were halted nationwide as the Supreme Court took up the issue, ultimately holding in a 5-4 decision that the three-drug cocktail procedure most prevalently used in executions did not cause sufficient probability of pain to be unconstitutional.

With several aging members of the Court, and the prospect of a Democratic president poised to make appointments from 2009-2013, the issue is likely to arise again in the future. Capital punishment is useless as a deterrent, morally indefensible, discriminatory in practice, and prone to errors that have likely led to the execution of some wrongfully convicted people. The "eye for an eye, tooth for a tooth" mentality underlying the death penalty is a prescription for vengeance, not justice, and has been rejected by most civilized nations.

American cultural values and constitutional principles no more sanction the punishment of murder by death than they do the whipping of an adulterer, the amputation of a thief's hand, the beheading of a murderer, or the crucifixion of a rapist, all of which remain common public spectacles in other countries that employ the death penalty. In an era in which America's survival may depend in large part on winning the hearts and minds of our global adversaries, America's continuing taste for vengeance betrays justice at home and belies our traditional role in the world as a beacon of reason, compassion, and human dignity.

Our Supreme Court has seen the writing on the wall, that evolving global and national moral standards justify the curtailment of the death penalty. It is time for the Court to restore America's moral and human rights leadership in the world by going the rest of the distance and finally agreeing that death is a cruel and unusual punishment for any crime. Title: Counterpoint: The Death Penalty is Necessary. By: Bowman, Jeffrey, DiLascio, Tracey M. , Points of View: Death Penalty, 2009 Database: Points of View Reference Center

Thesis: Opponents of the death penalty routinely argue that it does not deter crime. They miss the point: The death penalty is about the punishment of a crime, not the deterrence of all crime. Summary: The death penalty is a subject worthy of serious debate. It involves ancient questions of crime and punishment, standards of justice and how human beings view their fellow man. In the United States, the federal government and many states allow capital punishment for those criminals guilty of murder, inflicting the ultimate punishment for the ultimate crime of taking an innocent victim's life.

However, there is a vocal minority in the United States that views capital punishment as morally and ethically wrong, equates the death penalty with legalized murder, and asks: If the premeditated killing of another human being is wrong, how does the premeditated killing of the murderer make it right? Shouldn't society repudiate the death penalty and emphasize mercy rather than revenge? These questions asked by death penalty opponents are legitimate questions for society to consider.

The debate surrounding the death penalty includes discussion of the sanctity of human life, personal responsibility, and the role of the state in administering justice. Yet, for all this complexity, the death penalty remains primarily a form of punishment. It assumes that human life is sacred, and that the killers who take the lives of their victims forfeit the rights to their own. A Short History of Murder In the Western legal tradition, murder is defined as the deliberate malicious killing of a person. Throughout history, murder has always been regarded as a serious crime.

In tribal societies, it was murder that led to the concept of the blood feud, also known as the vendetta. These destructive practices were rooted in traditions where the relatives of a murder victim demanded compensation, usually in the form of the death of the murderer. Blood feuds rarely ended peacefully, with a majority of them spiraling into full-scale war as retaliatory murders escalated beyond control. More often than not, entire tribes were destroyed by blood feuds. According to some historians and anthropologists, the emergence of religious and legal codes were the first attempts by humans to restrain the destruction of blood euds. The ancient Mesopotamian Code of Hammurabi (1760 BCE) was one of the first examples of a city forming a religious-secular code of rules for citizens to follow. In the Code of Hammurabi are the first proscriptions against murder, and the first occurrence of the phrase "an eye for an eye, a tooth for a tooth," which specified that if a free man murdered another free man, he too would die. The ancient city-states could not allow blood feuds between tribes to escalate into outright war in the streets. By codifying rules of conduct, the state claimed the right and the responsibility of vengeance from the victim's relatives.

Thus, the city-states elevated the crime of murder above the level of the blood feud, claiming that murder affected society as a whole. Murder became the ultimate crime, an offense against society, not just the victim and his family. Finally, the state ended the blood feud by inventing capital punishment. The Death Penalty Has the state always used the death penalty responsibly and fairly? The answer to that question is an unambiguous "no. " The state has repeatedly abused the death penalty, punishing people not only for murder but also for offenses against the state such as free speech and freedom of religion.

Consider some well-known examples: the Athenian Republic executed Socrates, the Roman Empire executed Jesus Christ, and the Roman Catholic Church executed uncounted thousands of heretics. Even in the twentieth century, the Nazi government executed millions. Through the arbitrary application of the death penalty, both the value of human life and the rule of law have been cheapened. If the state can execute people for political or religious beliefs, why should the state need be obeyed in other matters of law and order? Why allow the state the authority over life and death if it consistently abuses the responsibility?

In the eighteenth century, philosophers and politicians alike addressed these questions, and the modern concept of prison, a place of incarceration where a criminal pays his debt to society, came into being. Prior to prisons, the majority of crimes, including theft or poaching, were punished by death. The adoption of the prison system suggested that criminals could be reformed rather than just killed. As the idea caught on, the number of crimes punishable by death decreased. By the twentieth century, in Western societies, capital crimes were confined to two main categories: treason and murder.

In the latter half of the century, many countries around the world abolished the death penalty outright. The United States, however, did not. The Death Penalty in the United States Throughout American history, capital punishment was widely accepted and widely practiced. Up until the twentieth century, most executions were even held in public. However, coinciding with judicial executions, there was also a history of extrajudicial killings and mob violence, and a disproportionate number of lynching victims were African Americans.

Atrocities such as these tarnished the reputation of capital punishment in the United States. In response to the history of lynching and the lack of due process in capital cases, the Supreme Court ruled the death penalty unconstitutional with a 5-4 decision in the 1972 case of Furman vs. Georgia. This decision was extremely controversial, mostly because there was a wide range of judicial opinion on why the justices found the death penalty to be unconstitutional. As a result, no legally coherent rationale was provided to the states.

Some justices maintained that the death penalty violates the Eighth Amendment that prohibits cruel and unusual punishment. Others expressed concern that the civil rights of African Americans were being violated due to their disproportionate presence on death row in comparison to white prisoners. However, the overall effect of the decision was to return the death penalty debate back to the states. If states addressed the court's constitutional concerns in sentencing guidelines, the death penalty would be considered constitutional.

Subsequently, state legislatures revised their sentencing procedures. Some states banned capital punishment altogether. Others widened their statutes over what crimes qualified for capital punishment. Currently, several national and international organizations, including Amnesty International, Truth in Justice and the Roman Catholic Church, have declared themselves in outright opposition to the death penalty in America. Through legal challenges and political lobbying, these groups insist on the philosophy that the taking of human life is immoral, regardless of the circumstances.

In a court of law, though, there are four main arguments: * The Eighth Amendment bans cruel and unusual punishment * The death penalty is disproportionately applied to the poor and minorities. * The arbitrary and various sentencing structures for capital punishment vary widely from state to state. * There is a possibility that innocent people are executed for crimes they did not commit. These four claims have been the basis of thousands of lawsuits challenging the death penalty. In addition, in order to marshal public support, there are literally thousands of statistics that claim the death penalty does not deter crime.

Despite these challenges, public polls regularly reveal that at least 50 percent of the American people are in favor of the death penalty for crimes of murder. However, statistics alone are not the answer to the debate. After the state of Illinois placed a moratorium on capital punishment in 2000, the public began to question the application of the death penalty. In all, seven states have subsequently placed moratoria on executions. A 2007 survey by the Death Penalty Information Center revealed that 40 percent of all Americans would be disqualified from serving on death penalty juries because of their moral beliefs.

In the 2007 case of Uttecht vs. Brown, the Supreme Court ruled in a 5-4 decision that the state can remove jurors from serving on death penalty cases if they have moral objections to capital punishment. However, Justice Kennedy wrote in his dissent that the death penalty is becoming increasingly problematic since juries do not represent citizens who object to the death penalty. The death penalty remains an extremely controversial issue. As Americans appear to be extremely divided on the issue, there needs to be greater clarity on the reasons why the death penalty is necessary.

Crime and Punishment The debate over the death penalty is philosophical just as much as it is judicial. The central question is: What is the value of human life? By taking innocent human life, does the murderer lose claim to his own? There is no simple answer. The injunction from Hammurabi's Code of "an eye for an eye, and a tooth for a tooth" came down through Western legal tradition. This code expresses an explicit and basic human desire for vengeance and revenge. It even suggests the death penalty is more about revenge than justice.

Interestingly, this was the opinion of Albert Pierrepont, the last official hangman in the United Kingdom, who wrote in his memoirs: "Capital punishment, in my view, achieved nothing but revenge. " But is revenge inherently immoral? Let's not forget that murder is a horrifying, vicious crime. The reality is that there are few innocent people on death row; the vast majority of these inmates did, in fact, commit the crimes for which they were found guilty. These killers brutally took the lives of innocent victims. By not recognizing the lives of their victims as sacred, they cannot claim their own lives are sacred.

In the end, the death penalty is an individual punishment for an individual crime. For better or worse, the law is the codified morality of society. While society is far from perfect, it reserves the ultimate judgment on the rule of law. Punishment is the only proven method to enforce the law. Every American agrees that murder is a crime, and we agree there must be a punishment for the crime. We disagree over whether the death penalty is necessary. If you recognize the sanctity of human life, however, there can be no debate: The ultimate crime deserves the ultimate punishment.

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Capital Punishment Should Be Abolished Persuasive Essay. (2017, Jan 03). Retrieved from https://phdessay.com/death-penalty-183639/

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