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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

Arguments for and Against the Death Penalty

Click the buttons below to view arguments and testimony on each topic.

The death penalty deters future murders.

Society has always used punishment to discourage would-be criminals from unlawful action. Since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder, and that is the death penalty. If murderers are sentenced to death and executed, potential murderers will think twice before killing for fear of losing their own life.

For years, criminologists analyzed murder rates to see if they fluctuated with the likelihood of convicted murderers being executed, but the results were inconclusive. Then in 1973 Isaac Ehrlich employed a new kind of analysis which produced results showing that for every inmate who was executed, 7 lives were spared because others were deterred from committing murder. Similar results have been produced by disciples of Ehrlich in follow-up studies.

Moreover, even if some studies regarding deterrence are inconclusive, that is only because the death penalty is rarely used and takes years before an execution is actually carried out. Punishments which are swift and sure are the best deterrent. The fact that some states or countries which do not use the death penalty have lower murder rates than jurisdictions which do is not evidence of the failure of deterrence. States with high murder rates would have even higher rates if they did not use the death penalty.

Ernest van den Haag, a Professor of Jurisprudence at Fordham University who has studied the question of deterrence closely, wrote: “Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most. Hence, the threat of the death penalty may deter some murderers who otherwise might not have been deterred. And surely the death penalty is the only penalty that could deter prisoners already serving a life sentence and tempted to kill a guard, or offenders about to be arrested and facing a life sentence. Perhaps they will not be deterred. But they would certainly not be deterred by anything else. We owe all the protection we can give to law enforcers exposed to special risks.”

Finally, the death penalty certainly “deters” the murderer who is executed. Strictly speaking, this is a form of incapacitation, similar to the way a robber put in prison is prevented from robbing on the streets. Vicious murderers must be killed to prevent them from murdering again, either in prison, or in society if they should get out. Both as a deterrent and as a form of permanent incapacitation, the death penalty helps to prevent future crime.

Those who believe that deterrence justifies the execution of certain offenders bear the burden of proving that the death penalty is a deterrent. The overwhelming conclusion from years of deterrence studies is that the death penalty is, at best, no more of a deterrent than a sentence of life in prison. The Ehrlich studies have been widely discredited. In fact, some criminologists, such as William Bowers of Northeastern University, maintain that the death penalty has the opposite effect: that is, society is brutalized by the use of the death penalty, and this increases the likelihood of more murder. Even most supporters of the death penalty now place little or no weight on deterrence as a serious justification for its continued use.

States in the United States that do not employ the death penalty generally have lower murder rates than states that do. The same is true when the U.S. is compared to countries similar to it. The U.S., with the death penalty, has a higher murder rate than the countries of Europe or Canada, which do not use the death penalty.

The death penalty is not a deterrent because most people who commit murders either do not expect to be caught or do not carefully weigh the differences between a possible execution and life in prison before they act. Frequently, murders are committed in moments of passion or anger, or by criminals who are substance abusers and acted impulsively. As someone who presided over many of Texas’s executions, former Texas Attorney General Jim Mattox has remarked, “It is my own experience that those executed in Texas were not deterred by the existence of the death penalty law. I think in most cases you’ll find that the murder was committed under severe drug and alcohol abuse.”

There is no conclusive proof that the death penalty acts as a better deterrent than the threat of life imprisonment. A 2012 report released by the prestigious National Research Council of the National Academies and based on a review of more than three decades of research, concluded that studies claiming a deterrent effect on murder rates from the death penalty are fundamentally flawed. A survey of the former and present presidents of the country’s top academic criminological societies found that 84% of these experts rejected the notion that research had demonstrated any deterrent effect from the death penalty .

Once in prison, those serving life sentences often settle into a routine and are less of a threat to commit violence than other prisoners. Moreover, most states now have a sentence of life without parole. Prisoners who are given this sentence will never be released. Thus, the safety of society can be assured without using the death penalty.

Ernest van den Haag Professor of Jurisprudence and Public Policy, Fordham University. Excerpts from ” The Ultimate Punishment: A Defense,” (Harvard Law Review Association, 1986)

“Execution of those who have committed heinous murders may deter only one murder per year. If it does, it seems quite warranted. It is also the only fitting retribution for murder I can think of.”

“Most abolitionists acknowledge that they would continue to favor abolition even if the death penalty were shown to deter more murders than alternatives could deter. Abolitionists appear to value the life of a convicted murderer or, at least, his non-execution, more highly than they value the lives of the innocent victims who might be spared by deterring prospective murderers.

Deterrence is not altogether decisive for me either. I would favor retention of the death penalty as retribution even if it were shown that the threat of execution could not deter prospective murderers not already deterred by the threat of imprisonment. Still, I believe the death penalty, because of its finality, is more feared than imprisonment, and deters some prospective murderers not deterred by the thought of imprisonment. Sparing the lives of even a few prospective victims by deterring their murderers is more important than preserving the lives of convicted murderers because of the possibility, or even the probability, that executing them would not deter others. Whereas the life of the victims who might be saved are valuable, that of the murderer has only negative value, because of his crime. Surely the criminal law is meant to protect the lives of potential victims in preference to those of actual murderers.”

“We threaten punishments in order to deter crime. We impose them not only to make the threats credible but also as retribution (justice) for the crimes that were not deterred. Threats and punishments are necessary to deter and deterrence is a sufficient practical justification for them. Retribution is an independent moral justification. Although penalties can be unwise, repulsive, or inappropriate, and those punished can be pitiable, in a sense the infliction of legal punishment on a guilty person cannot be unjust. By committing the crime, the criminal volunteered to assume the risk of receiving a legal punishment that he could have avoided by not committing the crime. The punishment he suffers is the punishment he voluntarily risked suffering and, therefore, it is no more unjust to him than any other event for which one knowingly volunteers to assume the risk. Thus, the death penalty cannot be unjust to the guilty criminal.”

Full text can be found at PBS.org .

“Persons who commit murder and other crimes of personal violence either may or may not premeditate their crimes.

When crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated….

Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. In such cases, violence is inflicted by persons heedless of the consequences to themselves as well as to others….

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

On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between l973 and l984, for example, lethal assaults against police were not significantly more, or less, frequent in abolitionist states than in death-penalty states. There is ‘no support for the view that the death penalty provides a more effective deterrent to police homicides than alternative sanctions. Not for a single year was evidence found that police are safer in jurisdictions that provide for capital punishment.’ (Bailey and Peterson, Criminology (1987))

Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners; the vast majority (84%) were killed in death penalty jurisdictions. During the same period about 2% of all assaults on prison staff were committed by inmates in abolition jurisdictions. Evidently, the threat of the death penalty ‘does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states.’ (Wolfson, in Bedau, ed., The Death Penalty in America, 3rd ed. (1982))

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

Click here for the full text from the ACLU website.

Retribution

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

When someone takes a life, the balance of justice is disturbed. Unless that balance is restored, society succumbs to a rule of violence. Only the taking of the murderer’s life restores the balance and allows society to show convincingly that murder is an intolerable crime which will be punished in kind.

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.

Although the victim and the victim’s family cannot be restored to the status which preceded the murder, at least an execution brings closure to the murderer’s crime (and closure to the ordeal for the victim’s family) and ensures that the murderer will create no more victims.

For the most cruel and heinous crimes, the ones for which the death penalty is applied, offenders deserve the worst punishment under our system of law, and that is the death penalty. Any lesser punishment would undermine the value society places on protecting lives.

Robert Macy, District Attorney of Oklahoma City, described his concept of the need for retribution in one case: “In 1991, a young mother was rendered helpless and made to watch as her baby was executed. The mother was then mutilated and killed. The killer should not lie in some prison with three meals a day, clean sheets, cable TV, family visits and endless appeals. For justice to prevail, some killers just need to die.”

Retribution is another word for revenge. Although our first instinct may be to inflict immediate pain on someone who wrongs us, the standards of a mature society demand a more measured response.

The emotional impulse for revenge is not a sufficient justification for invoking a system of capital punishment, with all its accompanying problems and risks. Our laws and criminal justice system should lead us to higher principles that demonstrate a complete respect for life, even the life of a murderer. Encouraging our basest motives of revenge, which ends in another killing, extends the chain of violence. Allowing executions sanctions killing as a form of ‘pay-back.’

Many victims’ families denounce the use of the death penalty. Using an execution to try to right the wrong of their loss is an affront to them and only causes more pain. For example, Bud Welch’s daughter, Julie, was killed in the Oklahoma City bombing in 1995. Although his first reaction was to wish that those who committed this terrible crime be killed, he ultimately realized that such killing “is simply vengeance; and it was vengeance that killed Julie…. Vengeance is a strong and natural emotion. But it has no place in our justice system.”

The notion of an eye for an eye, or a life for a life, is a simplistic one which our society has never endorsed. We do not allow torturing the torturer, or raping the rapist. Taking the life of a murderer is a similarly disproportionate punishment, especially in light of the fact that the U.S. executes only a small percentage of those convicted of murder, and these defendants are typically not the worst offenders but merely the ones with the fewest resources to defend themselves.

Louis P. Pojman Author and Professor of Philosophy, U.S. Military Academy. Excerpt from “The Death Penalty: For and Against,” (Rowman & Littlefield Publishers, Inc., 1998)

“[Opponents of the capital punishment often put forth the following argument:] Perhaps the murderer deserves to die, but what authority does the state have to execute him or her? Both the Old and New Testament says, “’Vengeance is mine, I will repay,’ says the Lord” (Prov. 25:21 and Romans 12:19). You need special authority to justify taking the life of a human being.

The objector fails to note that the New Testament passage continues with a support of the right of the state to execute criminals in the name of God: “Let every person be subjected to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists what God has appointed, and those who resist will incur judgment…. If you do wrong, be afraid, for [the authority] does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer” (Romans 13: 1-4). So, according to the Bible, the authority to punish, which presumably includes the death penalty, comes from God.

But we need not appeal to a religious justification for capital punishment. We can site the state’s role in dispensing justice. Just as the state has the authority (and duty) to act justly in allocating scarce resources, in meeting minimal needs of its (deserving) citizens, in defending its citizens from violence and crime, and in not waging unjust wars; so too does it have the authority, flowing from its mission to promote justice and the good of its people, to punish the criminal. If the criminal, as one who has forfeited a right to life, deserves to be executed, especially if it will likely deter would-be murderers, the state has a duty to execute those convicted of first-degree murder.”

National Council of Synagogues and the Bishops’ Committee for Ecumenical and Interreligious Affairs of the National Conference of Catholic Bishops Excerpts from “To End the Death Penalty: A Report of the National Jewish/Catholic Consultation” (December, 1999)

“Some would argue that the death penalty is needed as a means of retributive justice, to balance out the crime with the punishment. This reflects a natural concern of society, and especially of victims and their families. Yet we believe that we are called to seek a higher road even while punishing the guilty, for example through long and in some cases life-long incarceration, so that the healing of all can ultimately take place.

Some would argue that the death penalty will teach society at large the seriousness of crime. Yet we say that teaching people to respond to violence with violence will, again, only breed more violence.

The strongest argument of all [in favor of the death penalty] is the deep pain and grief of the families of victims, and their quite natural desire to see punishment meted out to those who have plunged them into such agony. Yet it is the clear teaching of our traditions that this pain and suffering cannot be healed simply through the retribution of capital punishment or by vengeance. It is a difficult and long process of healing which comes about through personal growth and God’s grace. We agree that much more must be done by the religious community and by society at large to solace and care for the grieving families of the victims of violent crime.

Recent statements of the Reform and Conservative movements in Judaism, and of the U.S. Catholic Conference sum up well the increasingly strong convictions shared by Jews and Catholics…:

‘Respect for all human life and opposition to the violence in our society are at the root of our long-standing opposition (as bishops) to the death penalty. We see the death penalty as perpetuating a cycle of violence and promoting a sense of vengeance in our culture. As we said in Confronting the Culture of Violence: ‘We cannot teach that killing is wrong by killing.’ We oppose capital punishment not just for what it does to those guilty of horrible crimes, but for what it does to all of us as a society. Increasing reliance on the death penalty diminishes all of us and is a sign of growing disrespect for human life. We cannot overcome crime by simply executing criminals, nor can we restore the lives of the innocent by ending the lives of those convicted of their murders. The death penalty offers the tragic illusion that we can defend life by taking life.’1

We affirm that we came to these conclusions because of our shared understanding of the sanctity of human life. We have committed ourselves to work together, and each within our own communities, toward ending the death penalty.” Endnote 1. Statement of the Administrative Committee of the United States Catholic Conference, March 24, 1999.

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

The death penalty alone imposes an irrevocable sentence. Once an inmate is executed, nothing can be done to make amends if a mistake has been made. There is considerable evidence that many mistakes have been made in sentencing people to death. Since 1973, over 180 people have been released from death row after evidence of their innocence emerged. During the same period of time, over 1,500 people have been executed. Thus, for every 8.3 people executed, we have found one person on death row who never should have been convicted. These statistics represent an intolerable risk of executing the innocent. If an automobile manufacturer operated with similar failure rates, it would be run out of business.

Our capital punishment system is unreliable. A study by Columbia University Law School found that two thirds of all capital trials contained serious errors. When the cases were retried, over 80% of the defendants were not sentenced to death and 7% were completely acquitted.

Many of the releases of innocent defendants from death row came about as a result of factors outside of the justice system. Recently, journalism students in Illinois were assigned to investigate the case of a man who was scheduled to be executed, after the system of appeals had rejected his legal claims. The students discovered that one witness had lied at the original trial, and they were able to find another man, who confessed to the crime on videotape and was later convicted of the murder. The innocent man who was released was very fortunate, but he was spared because of the informal efforts of concerned citizens, not because of the justice system.

In other cases, DNA testing has exonerated death row inmates. Here, too, the justice system had concluded that these defendants were guilty and deserving of the death penalty. DNA testing became available only in the early 1990s, due to advancements in science. If this testing had not been discovered until ten years later, many of these inmates would have been executed. And if DNA testing had been applied to earlier cases where inmates were executed in the 1970s and 80s, the odds are high that it would have proven that some of them were innocent as well.

Society takes many risks in which innocent lives can be lost. We build bridges, knowing that statistically some workers will be killed during construction; we take great precautions to reduce the number of unintended fatalities. But wrongful executions are a preventable risk. By substituting a sentence of life without parole, we meet society’s needs of punishment and protection without running the risk of an erroneous and irrevocable punishment.

There is no proof that any innocent person has actually been executed since increased safeguards and appeals were added to our death penalty system in the 1970s. Even if such executions have occurred, they are very rare. Imprisoning innocent people is also wrong, but we cannot empty the prisons because of that minimal risk. If improvements are needed in the system of representation, or in the use of scientific evidence such as DNA testing, then those reforms should be instituted. However, the need for reform is not a reason to abolish the death penalty.

Besides, many of the claims of innocence by those who have been released from death row are actually based on legal technicalities. Just because someone’s conviction is overturned years later and the prosecutor decides not to retry him, does not mean he is actually innocent.

If it can be shown that someone is innocent, surely a governor would grant clemency and spare the person. Hypothetical claims of innocence are usually just delaying tactics to put off the execution as long as possible. Given our thorough system of appeals through numerous state and federal courts, the execution of an innocent individual today is almost impossible. Even the theoretical execution of an innocent person can be justified because the death penalty saves lives by deterring other killings.

Gerald Kogan, Former Florida Supreme Court Chief Justice Excerpts from a speech given in Orlando, Florida, October 23, 1999 “[T]here is no question in my mind, and I can tell you this having seen the dynamics of our criminal justice system over the many years that I have been associated with it, [as] prosecutor, defense attorney, trial judge and Supreme Court Justice, that convinces me that we certainly have, in the past, executed those people who either didn’t fit the criteria for execution in the State of Florida or who, in fact, were, factually, not guilty of the crime for which they have been executed.

“And you can make these statements when you understand the dynamics of the criminal justice system, when you understand how the State makes deals with more culpable defendants in a capital case, offers them light sentences in exchange for their testimony against another participant or, in some cases, in fact, gives them immunity from prosecution so that they can secure their testimony; the use of jailhouse confessions, like people who say, ‘I was in the cell with so-and-so and they confessed to me,’ or using those particular confessions, the validity of which there has been great doubt. And yet, you see the uneven application of the death penalty where, in many instances, those that are the most culpable escape death and those that are the least culpable are victims of the death penalty. These things begin to weigh very heavily upon you. And under our system, this is the system we have. And that is, we are human beings administering an imperfect system.”

“And how about those people who are still sitting on death row today, who may be factually innocent but cannot prove their particular case very simply because there is no DNA evidence in their case that can be used to exonerate them? Of course, in most cases, you’re not going to have that kind of DNA evidence, so there is no way and there is no hope for them to be saved from what may be one of the biggest mistakes that our society can make.”

The entire speech by Justice Kogan is available here.

Paul G. Cassell Associate Professor of Law, University of Utah, College of Law, and former law clerk to Chief Justice Warren E. Burger. Statement before the Committee on the Judiciary, United States House of Representatives, Subcommittee on Civil and Constitutional Rights Concerning Claims of Innocence in Capital Cases (July 23, 1993)

“Given the fallibility of human judgments, the possibility exists that the use of capital punishment may result in the execution of an innocent person. The Senate Judiciary Committee has previously found this risk to be ‘minimal,’ a view shared by numerous scholars. As Justice Powell has noted commenting on the numerous state capital cases that have come before the Supreme Court, the ‘unprecedented safeguards’ already inherent in capital sentencing statutes ‘ensure a degree of care in the imposition of the sentence of death that can only be described as unique.’”

“Our present system of capital punishment limits the ultimate penalty to certain specifically-defined crimes and even then, permit the penalty of death only when the jury finds that the aggravating circumstances in the case outweigh all mitigating circumstances. The system further provides judicial review of capital cases. Finally, before capital sentences are carried out, the governor or other executive official will review the sentence to insure that it is a just one, a determination that undoubtedly considers the evidence of the condemned defendant’s guilt. Once all of those decisionmakers have agreed that a death sentence is appropriate, innocent lives would be lost from failure to impose the sentence.”

“Capital sentences, when carried out, save innocent lives by permanently incapacitating murderers. Some persons who commit capital homicide will slay other innocent persons if given the opportunity to do so. The death penalty is the most effective means of preventing such killers from repeating their crimes. The next most serious penalty, life imprisonment without possibility of parole, prevents murderers from committing some crimes but does not prevent them from murdering in prison.”

“The mistaken release of guilty murderers should be of far greater concern than the speculative and heretofore nonexistent risk of the mistaken execution of an innocent person.”

Full text can be found here.

Arbitrariness & Discrimination

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

In practice, the death penalty does not single out the worst offenders. Rather, it selects an arbitrary group based on such irrational factors as the quality of the defense counsel, the county in which the crime was committed, or the race of the defendant or victim.

Almost all defendants facing the death penalty cannot afford their own attorney. Hence, they are dependent on the quality of the lawyers assigned by the state, many of whom lack experience in capital cases or are so underpaid that they fail to investigate the case properly. A poorly represented defendant is much more likely to be convicted and given a death sentence.

With respect to race, studies have repeatedly shown that a death sentence is far more likely where a white person is murdered than where a Black person is murdered. The death penalty is racially divisive because it appears to count white lives as more valuable than Black lives. Since the death penalty was reinstated in 1976, 296 Black defendants have been executed for the murder of a white victim, while only 31 white defendants have been executed for the murder of a Black victim. Such racial disparities have existed over the history of the death penalty and appear to be largely intractable.

It is arbitrary when someone in one county or state receives the death penalty, but someone who commits a comparable crime in another county or state is given a life sentence. Prosecutors have enormous discretion about when to seek the death penalty and when to settle for a plea bargain. Often those who can only afford a minimal defense are selected for the death penalty. Until race and other arbitrary factors, like economics and geography, can be eliminated as a determinant of who lives and who dies, the death penalty must not be used.

Discretion has always been an essential part of our system of justice. No one expects the prosecutor to pursue every possible offense or punishment, nor do we expect the same sentence to be imposed just because two crimes appear similar. Each crime is unique, both because the circumstances of each victim are different and because each defendant is different. The U.S. Supreme Court has held that a mandatory death penalty which applied to everyone convicted of first degree murder would be unconstitutional. Hence, we must give prosecutors and juries some discretion.

In fact, more white people are executed in this country than black people. And even if blacks are disproportionately represented on death row, proportionately blacks commit more murders than whites. Moreover, the Supreme Court has rejected the use of statistical studies which claim racial bias as the sole reason for overturning a death sentence.

Even if the death penalty punishes some while sparing others, it does not follow that everyone should be spared. The guilty should still be punished appropriately, even if some do escape proper punishment unfairly. The death penalty should apply to killers of black people as well as to killers of whites. High paid, skillful lawyers should not be able to get some defendants off on technicalities. The existence of some systemic problems is no reason to abandon the whole death penalty system.

Reverend Jesse L. Jackson, Sr. President and Chief Executive Officer, Rainbow/PUSH Coalition, Inc. Excerpt from “Legal Lynching: Racism, Injustice & the Death Penalty,” (Marlowe & Company, 1996)

“Who receives the death penalty has less to do with the violence of the crime than with the color of the criminal’s skin, or more often, the color of the victim’s skin. Murder — always tragic — seems to be a more heinous and despicable crime in some states than in others. Women who kill and who are killed are judged by different standards than are men who are murderers and victims.

The death penalty is essentially an arbitrary punishment. There are no objective rules or guidelines for when a prosecutor should seek the death penalty, when a jury should recommend it, and when a judge should give it. This lack of objective, measurable standards ensures that the application of the death penalty will be discriminatory against racial, gender, and ethnic groups.

The majority of Americans who support the death penalty believe, or wish to believe, that legitimate factors such as the violence and cruelty with which the crime was committed, a defendant’s culpability or history of violence, and the number of victims involved determine who is sentenced to life in prison and who receives the ultimate punishment. The numbers, however, tell a different story. They confirm the terrible truth that bias and discrimination warp our nation’s judicial system at the very time it matters most — in matters of life and death. The factors that determine who will live and who will die — race, sex, and geography — are the very same ones that blind justice was meant to ignore. This prejudicial distribution should be a moral outrage to every American.”

Justice Lewis Powell United States Supreme Court Justice excerpts from McCleskey v. Kemp, 481 U.S. 279 (1987) (footnotes and citations omitted)

(Mr. McCleskey, a black man, was convicted and sentenced to death in 1978 for killing a white police officer while robbing a store. Mr. McCleskey appealed his conviction and death sentence, claiming racial discrimination in the application of Georgia’s death penalty. He presented statistical analysis showing a pattern of sentencing disparities based primarily on the race of the victim. The analysis indicated that black defendants who killed white victims had the greatest likelihood of receiving the death penalty. Writing the majority opinion for the Supreme Court, Justice Powell held that statistical studies on race by themselves were an insufficient basis for overturning the death penalty.)

“[T]he claim that [t]his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. Similarly, since [this] claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges. Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could — at least in theory — be based upon any arbitrary variable, such as the defendant’s facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential in jury decision making. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. As we have stated specifically in the context of capital punishment, the Constitution does not ‘plac[e] totally unrealistic conditions on its use.’ (Gregg v. Georgia)”

The entire decision can be found here.

5 Death Penalty Essays Everyone Should Know

Capital punishment is an ancient practice. It’s one that human rights defenders strongly oppose and consider as inhumane and cruel. In 2019, Amnesty International reported the lowest number of executions in about a decade. Most executions occurred in China, Iran, Saudi Arabia, Iraq, and Egypt . The United States is the only developed western country still using capital punishment. What does this say about the US? Here are five essays about the death penalty everyone should read:

“When We Kill”

By: Nicholas Kristof | From: The New York Times 2019

In this excellent essay, Pulitizer-winner Nicholas Kristof explains how he first became interested in the death penalty. He failed to write about a man on death row in Texas. The man, Cameron Todd Willingham, was executed in 2004. Later evidence showed that the crime he supposedly committed – lighting his house on fire and killing his three kids – was more likely an accident. In “When We Kill,” Kristof puts preconceived notions about the death penalty under the microscope. These include opinions such as only guilty people are executed, that those guilty people “deserve” to die, and the death penalty deters crime and saves money. Based on his investigations, Kristof concludes that they are all wrong.

Nicholas Kristof has been a Times columnist since 2001. He’s the winner of two Pulitizer Prices for his coverage of China and the Darfur genocide.

“An Inhumane Way of Death”

By: Willie Jasper Darden, Jr.

Willie Jasper Darden, Jr. was on death row for 14 years. In his essay, he opens with the line, “Ironically, there is probably more hope on death row than would be found in most other places.” He states that everyone is capable of murder, questioning if people who support capital punishment are just as guilty as the people they execute. Darden goes on to say that if every murderer was executed, there would be 20,000 killed per day. Instead, a person is put on death row for something like flawed wording in an appeal. Darden feels like he was picked at random, like someone who gets a terminal illness. This essay is important to read as it gives readers a deeper, more personal insight into death row.

Willie Jasper Darden, Jr. was sentenced to death in 1974 for murder. During his time on death row, he advocated for his innocence and pointed out problems with his trial, such as the jury pool that excluded black people. Despite worldwide support for Darden from public figures like the Pope, Darden was executed in 1988.

“We Need To Talk About An Injustice”

By: Bryan Stevenson | From: TED 2012

This piece is a transcript of Bryan Stevenson’s 2012 TED talk, but we feel it’s important to include because of Stevenson’s contributions to criminal justice. In the talk, Stevenson discusses the death penalty at several points. He points out that for years, we’ve been taught to ask the question, “Do people deserve to die for their crimes?” Stevenson brings up another question we should ask: “Do we deserve to kill?” He also describes the American death penalty system as defined by “error.” Somehow, society has been able to disconnect itself from this problem even as minorities are disproportionately executed in a country with a history of slavery.

Bryan Stevenson is a lawyer, founder of the Equal Justice Initiative, and author. He’s argued in courts, including the Supreme Court, on behalf of the poor, minorities, and children. A film based on his book Just Mercy was released in 2019 starring Michael B. Jordan and Jamie Foxx.

“I Know What It’s Like To Carry Out Executions”

By: S. Frank Thompson | From: The Atlantic 2019

In the death penalty debate, we often hear from the family of the victims and sometimes from those on death row. What about those responsible for facilitating an execution? In this opinion piece, a former superintendent from the Oregon State Penitentiary outlines his background. He carried out the only two executions in Oregon in the past 55 years, describing it as having a “profound and traumatic effect” on him. In his decades working as a correctional officer, he concluded that the death penalty is not working . The United States should not enact federal capital punishment.

Frank Thompson served as the superintendent of OSP from 1994-1998. Before that, he served in the military and law enforcement. When he first started at OSP, he supported the death penalty. He changed his mind when he observed the protocols firsthand and then had to conduct an execution.

“There Is No Such Thing As Closure on Death Row”

By: Paul Brown | From: The Marshall Project 2019

This essay is from Paul Brown, a death row inmate in Raleigh, North Carolina. He recalls the moment of his sentencing in a cold courtroom in August. The prosecutor used the term “closure” when justifying a death sentence. Who is this closure for? Brown theorizes that the prosecutors are getting closure as they end another case, but even then, the cases are just a way to further their careers. Is it for victims’ families? Brown is doubtful, as the death sentence is pursued even when the families don’t support it. There is no closure for Brown or his family as they wait for his execution. Vivid and deeply-personal, this essay is a must-read for anyone who wonders what it’s like inside the mind of a death row inmate.

Paul Brown has been on death row since 2000 for a double murder. He is a contributing writer to Prison Writers and shares essays on topics such as his childhood, his life as a prisoner, and more.

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About the author, emmaline soken-huberty.

Emmaline Soken-Huberty is a freelance writer based in Portland, Oregon. She started to become interested in human rights while attending college, eventually getting a concentration in human rights and humanitarianism. LGBTQ+ rights, women’s rights, and climate change are of special concern to her. In her spare time, she can be found reading or enjoying Oregon’s natural beauty with her husband and dog.

The Case Against the Death Penalty

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

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

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

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

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

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

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

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

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

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

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

ACLU OBJECTIONS TO THE DEATH PENALTY

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

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

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

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

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

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

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

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

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

CAPITAL PUNISHMENT IS NOT A DETERRENT TO CAPITAL CRIMES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CAPITAL PUNISHMENT IS UNFAIR

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

Racial Bias in Death Sentencing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Failure of Safeguards

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

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

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

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

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

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

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

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

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

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

CAPITAL PUNISHMENT IS IRREVERSIBLE

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

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

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

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

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

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

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

CAPITAL PUNISHMENT IS BARBARIC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Botched Lethal Injections

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

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

Lethal Injection Protocol Issues

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

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

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

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

Witnessing the Execution

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

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

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

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

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

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

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

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

Death Row Syndrome

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

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

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

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

CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION

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

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

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

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

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

Murder Victims Families Oppose the Death Penalty

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

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

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

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

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

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

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

CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION

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

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

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

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

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

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

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

CAPITAL PUNISHMENT IS LESS POPULAR THAN THE ALTERNATIVES

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

INTERNATIONALLY, CAPITAL PUNISHMENT IS WIDELY VIEWED AS INHUMANE AND ANACHRONISTIC

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

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

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

International Law

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

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

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

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

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

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

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

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

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

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

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

[4] See id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[20] Pelofsky, supra note 14.

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

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

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

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

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

[26] See id.

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

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

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

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

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

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

[33] Id. at 239.

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

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

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

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

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

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

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

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

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

Related Issues

Capital Punishment

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Pros & Cons of the Death Penalty

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M.B.A., California State University, Long Beach
B.A., Journalism and Nonfiction Writing, University of California, Los Angeles

Capital punishment, also dubbed the "death penalty," is the planned taking of a human life by a government in response to a crime committed by that legally convicted person.

Passions in the United States are sharply divided and run equally strong among both supporters and protesters of the death penalty.

Quotations from Both Sides

Arguing against capital punishment, Amnesty International believes:

"The death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state in the name of justice. It violates the right to life...It is the ultimate cruel, inhuman and degrading punishment. There can never be any justification for torture or for cruel treatment."

Arguing for capital punishment, the Clark County, Indiana, prosecuting attorney writes:

"There are some defendants who have earned the ultimate punishment our society has to offer by committing murder with aggravating circumstances present. I believe life is sacred. It cheapens the life of an innocent murder victim to say that society has no right to keep the murderer from ever killing again. In my view, society has not only the right, but the duty to act in self-defense to protect the innocent."

And Catholic Cardinal Theodore McCarrick, Archbishop of Washington, wrote:

"The death penalty diminishes all of us, increases disrespect for human life, and offers the tragic illusion that we can teach that killing is wrong by killing."

Death Penalty in the United States

The death penalty has not always been practiced in the United States, although Time magazine, using research from M. Watt Espy and John Ortiz Smykla and data from the Death Penalty Information Center, estimated that in this country, more than 15,700 people have been legally executed since 1700.

The Depression-era 1930s, which saw a historic peak in executions, was followed by a dramatic decrease in the 1950s and 1960s. No executions occurred in the United States between 1967 and 1976.
In 1972, the Supreme Court effectively nullified the death penalty and converted the death sentences of hundreds of death row inmates to life in prison.
In 1976, another Supreme Court ruling found capital punishment to be constitutional. Since 1976, almost 1,500 people have been executed in the United States.

Latest Developments

The vast majority of democratic countries in Europe and Latin America have abolished capital punishment over the last 50 years, but the United States, most democracies in Asia, and almost all totalitarian governments retain it.

Crimes that carry the death penalty vary greatly worldwide , from treason and murder to theft. In militaries around the world, courts-martial have sentenced capital punishments also for cowardice, desertion, insubordination, and mutiny.

Per Amnesty International's 2017 death penalty annual report, "Amnesty International recorded at least 993 executions in 23 countries in 2017, down by 4% from 2016 (1,032 executions) and 39% from 2015 (when the organization reported 1,634 executions, the highest number since 1989)." However, those statistics do not include China, known as the world's top executioner, because the use of the death penalty is a state secret. Countries in the table below with a plus sign (+) indicate that there were executions, but numbers were not received by Amnesty International.

Executions in 2017, by Country

China: +
Iran: 507+
Saudi Arabia: 146
Iraq: 125+
Pakistan: 60+
Egypt: 35+
Somalia: 24
United States: 23
Vietnam: +
North Korea: +
All other: 58 Source: Amnesty International

As of 2020, capital punishment in the United States is officially sanctioned by 29 states, as well as by the federal government. Each state with legalized capital punishment has different laws regarding its methods, age limits, and crimes that qualify.

From 1976 through October 2018, 1,483 felons were executed in the United States, distributed among the states as follows:

Executions from 1976–October 2018, by State

Texas: 555
Virginia: 113
Oklahoma: 112
Florida: 96
Missouri: 87
Georgia: 72
Alabama: 63
North Carolina: 43
South Carolina: 43
Louisiana: 28
Arkansas: 31
All others: 184

Source: Death Penalty Information Center

States and U.S. territories with no current death penalty statute are Alaska (abolished in 1957), Connecticut (2012), Delaware (2016), Hawaii (1957), Illinois (2011), Iowa (1965), Maine (1887), Maryland (2013), Massachusetts (1984), Michigan (1846), Minnesota (1911), New Hampshire (2019), New Jersey (2007), New Mexico (2009), New York (2007), North Dakota (1973), Rhode Island (1984), Vermont (1964), Washington (2018), West Virginia (1965), Wisconsin (1853), District of Columbia (1981), American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and U.S. Virgin Islands.

The Moral Conflict: Tookie Williams

The case of Stanley "Tookie" Williams illustrates the moral complexities of the death penalty .

Williams, an author and Nobel Peace and Literature Prizes nominee who was put to death on December 13, 2005, by lethal injection by the state of California, brought capital punishment back into prominent public debate.

Williams was convicted of four murders committed in 1979 and sentenced to death. Williams professed innocence of these crimes. He was also co-founder of the Crips, a deadly and powerful Los Angeles–based street gang responsible for hundreds of murders.

About five years after incarceration, Williams underwent a religious conversion and, as a result, wrote many books and created programs to promote peace and to fight gangs and gang violence. He was nominated five times for the Nobel Peace Prize and four times for the Nobel Literature Prize.

Williams admitted his life of crime and violence, which was followed by genuine redemption and a life of unusually good works.

The circumstantial evidence against Williams left little doubt that he committed the four murders, despite last-minute claims by supporters. There also existed no doubt that Williams posed no further threat to society and would contribute considerable good. His case forced public reflection on the purpose of the death penalty:

Is the purpose of the death penalty to remove from society someone who would cause more harm?
Is the purpose to remove from society someone who is incapable of rehabilitation?
Is the purpose of the death penalty to deter others from committing murder?
Is the purpose of the death penalty to punish the criminal?
Is the purpose of the death penalty to take retribution on behalf of the victim?

Should Stanley "Tookie" Williams have been executed by the state of California?

Exorbitant Costs

The New York Times penned in its op-ed "High Cost of Death Row ":

"To the many excellent reasons to abolish the death penalty—it’s immoral, does not deter murder and affects minorities disproportionately—we can add one more. It’s an economic drain on governments with already badly depleted budgets. "It is far from a national trend, but some legislators have begun to have second thoughts about the high cost of death row." (September 28, 2009)

In a 2016 California had the unique situation of having two ballot measures up for a vote that purported would save taxpayers millions of dollars per year: one to speed up existing executions (Proposition 66) and one to convert all death penalty convictions to life without parole (Proposition 62). Proposition 62 failed in that election, and Proposition 66 narrowly passed.

Arguments For and Against

Arguments commonly made for supporting the death penalty are:

To serve as an example to other would-be criminals, to deter them from committing murder or terrorist acts.
To punish the criminal for his/her act.
To obtain retribution on behalf of the victims.

Arguments commonly made to abolish the death penalty are:

Death constitutes "cruel and unusual punishment," which is prohibited by the Eighth Amendment to the U.S. Constitution . Also, the various means used by the state to kill a criminal are cruel.
The death penalty is used disproportionately against the poor, who cannot afford expensive legal counsel, as well as against racial, ethnic, and religious minorities.
The death penalty is applied arbitrarily and inconsistently.
Wrongly convicted, innocent people have received death penalty sentences, and tragically, were killed by the state.
A rehabilitated criminal can make a morally valuable contribution to society.
Killing human life is morally wrong under all circumstances. Some faith groups, such as the Roman Catholic Church, oppose the death penalty as not being "pro-life."

Countries that Retain the Death Penalty

As of 2017 per Amnesty International, 53 countries, representing about one-third of all countries worldwide, retain the death penalty for ordinary capital crimes, including the United States, plus:

Afghanistan, Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Botswana, China, Comoros, Democratic Republic of Congo, Cuba, Dominica, Egypt, Equatorial Guinea, Ethiopia, Guyana, India, Indonesia, Iran, Iraq, Jamaica, Japan, Jordan, Kuwait, Lebanon, Lesotho, Libya, Malaysia, Nigeria, North Korea, Oman, Pakistan, Palestinian Authority, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Sierra Leone, Singapore, Somalia, Sudan, Syria, Taiwan, Thailand, Trinidad and Tobago, Uganda, United Arab Emirates, United States of America, Viet Nam, Yemen, Zimbabwe.

The United States is the only westernized democracy, and one of the few democracies worldwide, to not have abolished the death penalty.

Countries That Abolished the Death Penalty

As of 2017 per Amnesty International, 142 countries, representing two-thirds of all countries worldwide, have abolished the death penalty on moral grounds, including:

Albania, Andorra, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Belgium, Bhutan, Bosnia-Herzegovina, Bulgaria, Burundi, Cambodia, Canada, Cape Verde, Colombia, Cook Islands, Costa Rica, Cote D'Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Dominican Republic, Ecuador, Estonia, Finland, France, Gambia, Georgia, Germany, Greece, Guatemala, Guinea, Guinea-Bissau, Haiti, Holy See (Vatican City), Honduras, Hungary, Iceland, Ireland, Italy, Kiribati, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco, Mongolia, Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niue, Norway, Palau, Panama, Paraguay, Philippines, Poland, Portugal, Romania, Rwanda, Samoa, San Marino, Sao Tome and Principe, Senegal, Serbia (including Kosovo), Seychelles, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sweden, Switzerland, Timor-Leste, Togo, Turkey, Turkmenistan, Tuvalu, Ukraine, United Kingdom, Uruguay, Uzbekistan, Vanuatu, Venezuela.

Some others have a moratorium on executions or are taking strides to abolish death penalty laws on the books.

“ Executions in the U.S. 1608-2002: The Espy File .” Death Penalty Information Center .

“ Executions Overview .” Death Penalty Information Center , 23 Oct. 2017.

“ The Death Penalty in 2017: Facts and Figures .” Amnesty International .

“ State by State .” Death Penalty Information Center .

“ The 2018 Death Penalty Facts and Figures You Need to Know .” Amnesty International .

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Death Penalty: Utilitarian View on Capital Punishment

Introduction, overview of utilitarianism: death penalty, utilitarian view on capital punishment, utilitarian argument against death penalty, works cited.

The death penalty is arguably the most controversial legal punishment imposed by the Criminal Justice System of our country. This form of punishment stands out from the rest due to its harshness and severity. There is general agreement that capital punishment is the most severe punishment that a judge can give an offender.

Due to the perceived severity of the death penalty, there has been intense controversy surrounding the issue. Opponents of the death penalty declare that it is barbaric and inhumane hence the government should do away with it. On the other hand, its supporters maintain that the death penalty is a necessary form of punishment that should be used on the most vicious offenders in society.

The highly polarized debate on the death penalty has continued to exist for decades. Ethical theories can be used to come up with a solution to this highly controversial issue. Ethics determine what is the right course of action in a given situation. A number of solid ethical theories have been proposed by scholars and philosophers over the years. This paper will make use of one of the most widely applied ethical theories, which is utilitarianism, to demonstrate that the death penalty is indeed justified.

Utilitarianism is a popular and widely applied ethical theory that was first proposed by John Stuart Mill. According to this theory, the moral nature of an action can be deduced by calculating its net utility. According to the utilitarian, an ethical action is one that “maximizes the happiness for the largest number of people”. Actions are viewed as having either benefits or negative consequences.

Individuals should act in a manner that increases the benefits since if the consequences outweigh the benefits, the action will be considered unethical. From a utilitarian perspective, actions that promote the happiness of the majority in society should be pursued while those that deter this happiness should be avoided. The utilitarian theory can be applied to the issue of capital punishment since this form of punishment produces both positive and negative consequences.

Net Benefits

The first major benefit offered by the death penalty is that it plays a significant deterrence role. The most important goal of the criminal justice system is to discourage people from engaging in crime.

This is achieved by attaching punishments to crimes so that a person perceives the merits of engaging in illegal actions as being outweighed by the consequences. As such, an ideal society would be one where no one is punished since the threat of punishment keeps everyone from engaging in crime. The death penalty is the most severe punishment and its availability is likely to deter people who might not be scared by long prison sentences.

Research indicates that there is a negative relationship between executions and murder incidents thereby suggesting that the death penalty plays a deterrence role (Kirchgassner 448). From a utilitarian perspective, the deterrence role is ethical since it contributes to the overall happiness of the society. When criminals are deterred from engaging in crime, the society is safer and people enjoy the peace and security in their communities.

Another significant benefit offered by the death penalty to the society is that it leads to the permanent incapacitation of the convicted person. Unlike other forms of punishment which only restrict some of the freedoms of the offender, the death penalty takes away his life.

Once the convicted person is executed, the community can be assured that he/she will never commit another vicious crime against the society members (Sunstein and Vermeule 848). While other forms of punishment such as life imprisonment also have an incapacitation effect, this effect is not as definite.

A person who has been imprisoned for life can still engage in vicious crimes against his fellow inmates or even the prison guards. The probability of recidivist murder is removed by implementing the death penalty. From a utilitarian point of view, this benefit is significant since it completely safeguards the society from future offences from a convict. The community’s peace of mind is also ensured since the death penalty permanently gets rid of vicious criminals, ensuring that they are not able to reenter society.

The death penalty leads to a sense of justice for the individuals affected by the crime perpetrated by the convicted person. As has been highlighted, the death penalty is only given to individuals who have engaged in vicious crimes such as violent murder. When a person commits a violent murder, he causes significant emotional distress to the family and friends of the victim (Stambaugh and Gary 1).

This pain and suffering can be alleviated if the convicted person is given a punishment that fits his crime. Without the death penalty, the convicted person is given a long prison sentence. This might expose the family of the victims to future emotional suffering as they might be required to attend parole hearings for the convict. The death penalty provides maximum retribution and therefore gives peace to the family and friends of the victim.

The final benefit of the death penalty is that it gives the judge the ability to provide adequate retribution for any crime. For justice to be served, it is necessary for the severity of the punishment to equal the crime committed. If the punishment is regarded as lenient, then there will be a sense of injustice by society members.

There are crimes that cannot be punished satisfactorily without the death penalty. Without the death penalty, people found guilty of these crimes would be given the maximum life imprisonment sentence. This would create a sense of injustice therefore decreasing the credibility of the justice system.

This might cause people to engage in extrajudicial killings (Steiker and Jordan 649). A utilitarian approach would support a punishment that leads to a sense of justice and hence increases the credibility of the justice system. Capital punishment fulfils this role and leads to the perception of justice therefore preventing the breakdown in law and order that might occur if people seek out their own justice.

A significant consequence of the death penalty is that is has a high fiscal cost compared to the alternatives. The taxpayers have to shoulder the financial burden associated with implementing the death penalty. Traditionally, the death penalty was considered to be a cheaper method of punishing convicts compared to the alternative, which is a longer prison term. However, this has changed as procedures that are more stringent have been put in place when dealing with capital cases.

Instead of tackling these cases as other criminal cases, the prosecutor and defender are required to be thorough and make use of expert witnesses. Once the judgment has been passed, the offender can engage in numerous appeals making the case last for many years. While it is possible to reduce the costs associated with capital punishment, such a move would require neglecting some of the procedural safeguards put in place to ensure that the risk of wrongful conviction is reduced to the minimal.

From a utilitarian perspective, the huge financial cost is a negative consequence to the society. Opponents of capital punishment point out that the society would benefit more if the money currently used to sustain the death penalty was used for other pursuits such as building rehabilitation centers or increasing the police force in order to deter crime in the community (Dieter par.15).

Another major consequence of the death penalty is that it might lead to a miscarriage of justice. If this happens, an innocent person can be put to death by the criminal justice system. While miscarriages of justice occur even in non-capital cases, there is the hope that the innocent person can be exonerated in the future through appeals.

However, the death penalty is final and once the sentence has been carried out, there is no chance for the innocent person to challenge the wrongful conviction and attain his freedom. Aronson and Cole reveal that the danger of wrongful conviction remains to be the most dominant issue in capital punishment discussions (604).

This situation can lead to a crisis of confidence in capital punishment since killing an innocent person is unacceptable. To a utilitarian, the wrongful killing of an innocent person is a great loss to the society since he can no longer make a positive contribution to his society. In addition to this, wrongful execution might lead to emotional distress by the people who were involved in the trial. It therefore has a negative impact and reduces the happiness of the society.

Ethical Analysis

To determine the ethical nature of an action using utilitarianism, one must weigh the benefits against the consequences. In this case, the benefits of the death penalty include deterrence, incapacitation, retribution, and the preservation of law and order. On the other hand, the consequences include high fiscal cost and a potential loss of innocent lives.

As can be seen, the benefits of implementing the death penalty outweigh the consequences. It can therefore be asserted that the death penalty is ethical from a utilitarian perspective since it has a net beneficial effect, which leads to the maximization of the happiness of the greatest amount of people.

This paper set out to demonstrate the ethical nature of the death penalty using the utilitarian theory. It began by acknowledging that the death penalty issue is highly controversial and people are divided in their opinions concerning its usefulness.

The paper then demonstrated how the utilitarian theory, which seeks to maximize the happiness of the majority, could be used to ascertain the ethical nature of capital punishment. It has shown that the death penalty has major advantages to society including deterrence, incapacitation, and an increase in the credibility of the criminal justice system. However, the death penalty also has major consequences since it is costly to the citizen and it might lead to wrongful executions.

However, the benefits are more prominent and when implemented, the death penalty reaffirms the value of observing the law, thus creating a safer society for all citizens. From the arguments provided in this paper, it is clear that the death penalty has the most favorable results for the majority in society. This punishment should therefore be implemented more often in our country since it is ethically sound and leads to overall benefits to the society.

Aronson, Jay and Cole Simon. “Science and the Death Penalty: DNA, Innocence, and the Debate over Capital Punishment in the United States.” Law & Social Inquiry 34.3 (2009): 603-633. Print.

Dieter, Richard. “Capital Punishment Is Too Expensive to Retain.” Death Penalty Information Center 21.2 (2009): 1-2. Web.

Kirchgassner, Gebhard. “Econometric Estimates of Deterrence of the Death Penalty: Facts or Ideology?” Kyklos 64.3(2011): 448-478. Web.

Stambaugh, Irl, and Gary Stam. “Death Penalty Would End Punishment of Victim’s Family.” Anchorage Daily News . 2009. Web.

Steiker, Carol and Jordan Morris. Capital Punishment: A Century of Discontinuous Debate. Journal of Criminal Law & Criminology, 100.3 (2010): 643-689. Print.

Sunstein, Cass and Vermeule Adrian. “Deterring Murder: A Reply.” Stanford Law Review 58.1 (2005): 847–857. Web.

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IvyPanda. (2024, March 2). Death Penalty: Utilitarian View on Capital Punishment. https://ivypanda.com/essays/a-utilitarian-approach-to-the-death-penalty/

"Death Penalty: Utilitarian View on Capital Punishment." IvyPanda , 2 Mar. 2024, ivypanda.com/essays/a-utilitarian-approach-to-the-death-penalty/.

IvyPanda . (2024) 'Death Penalty: Utilitarian View on Capital Punishment'. 2 March.

IvyPanda . 2024. "Death Penalty: Utilitarian View on Capital Punishment." March 2, 2024. https://ivypanda.com/essays/a-utilitarian-approach-to-the-death-penalty/.

1. IvyPanda . "Death Penalty: Utilitarian View on Capital Punishment." March 2, 2024. https://ivypanda.com/essays/a-utilitarian-approach-to-the-death-penalty/.

Bibliography

IvyPanda . "Death Penalty: Utilitarian View on Capital Punishment." March 2, 2024. https://ivypanda.com/essays/a-utilitarian-approach-to-the-death-penalty/.

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A Factful Perspective on Capital Punishment

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David T Johnson, A Factful Perspective on Capital Punishment, Journal of Human Rights Practice , Volume 11, Issue 2, July 2019, Pages 334–345, https://doi.org/10.1093/jhuman/huz018

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Substantial progress has been made towards worldwide abolition of capital punishment, and there are good reasons to believe that more progress is possible. Since 2000, the pace of abolition has slowed, but by several measures the number of executions in the world has continued to decline. Several causes help explain the decline, including political leadership from the front and an increased tendency to regard capital punishment as a human rights issue rather than as a matter of domestic criminal justice policy. There are significant obstacles in the movement to eliminate state killing in the world, but some strategies could contribute to additional decline in the years to come.

People tend to notice the bad more than the good, and this ‘negativity instinct’ is apparent when it comes to capital punishment ( Rosling et al. 2018 : 48). For example, two decades ago, Leon Radzinowicz (1999 : 293), the founder of Cambridge University’s Institute of Criminology, declared that he ‘did not expect any substantial further decrease’ in the use of capital punishment because ‘most of the countries likely to embrace the abolitionist cause’ had already done so. In more recent years, other analysts have claimed that the human rights movement is in crisis, and that ‘nearly every country seems to be backsliding’ ( Moyn 2018 ). If this assessment is accurate, it should be cause for concern for opponents of capital punishment because a heightened regard for human rights is widely regarded as the key cause of abolition since the 1980s ( Hood and Hoyle 2009 ).

To be sure, everything is not fine with respect to capital punishment. Most notably, the pace of abolition has slowed in recent years, and executions have increased in several countries, including Iran and Taiwan (in the 2010s), Pakistan (2014–15), and Japan (2018). But too much negativity will not do. I adopt a factful perspective about the future of capital punishment: I see substantial progress toward worldwide abolition, and this gives me hope that further progress is possible ( Rosling et al. 2018 ).

This article builds on Roger Hood’s seminal study of the movement to abolish capital punishment, which found ‘a remarkable increase in the number of abolitionist countries’ in the 1980s and 1990s ( Hood 2001 : 331). It proceeds in four parts. Section 1 shows that in the two decades or so since 2000 the pace of abolition has slowed but not ceased, and the total number of executions in the world has continued to decline. Section 2 explains how death penalty declines have been achieved in recent years. Section 3 identifies obstacles in the movement toward elimination of state killing in the modern world. And Section 4 suggests some priorities and strategies that could contribute to additional decline in the death penalty in the third decade of the third millennium.

These examples exclude estimates for the People’s Republic of China, which does not disclose reliable death penalty figures, but which probably executes more people each year than the rest of the world combined.

Table 1 displays the number of countries with each of these four death penalty statuses in five years: 1988, 1995, 2000, 2007, and 2017. Overall, the percentage of countries to retain capital punishment has declined by half over that period, from 56 per cent in 1988 to 28 per cent in 2017. But Table 2 shows that the pace of abolition has slowed since the 1990s, when 37 countries abolished. By comparison, only 23 countries abolished in the 2000s, with 11 more countries abolishing in the first eight years of the 2010s. The pace of abolition has declined partly because much of the lowest hanging fruit has already been picked.

Number of abolitionist and retentionist countries, 1988–2017

Note : Figures in parentheses show the percentage of the total number of countries in the world in that year.

Sources : Hood 2001 : 334 (for 1988, 1995, and 2000); Amnesty International annual reports (for 2007 and 2017).

Number of Countries That Abolished the Death Penalty by Decade, 1980s – 2010s

Sources : Death Penalty Information Center; Amnesty International annual reports.

Table 3 uses Hood’s figures for 1980 to 1999 ( Hood 2001 : 335) and figures from Hands Off Cain and Amnesty International to report the estimated number of executions and death sentences worldwide from 1980 to 2017. Because several countries (including China, the world’s leading user of capital punishment) do not disclose reliable death penalty statistics, the figures in Table 3 cannot be considered precise measures of death sentencing and execution trends over time, but the numbers do suggest recent declines. For instance, the average number of death sentences per year in the 2010s (2,220) was less than half the annual average for the 2000s (4,576). Similarly, the average number of executions per year in the 2010s (867) was less than half the annual average for the 2000s (1,762). Moreover, while the average number of countries per year to impose a death sentence remained fairly flat in the four decades covered in Table 3 (58 countries in the 1980s, 68 in the 1990s, 56 in the 2000s, and 58 in the 2010s), the average number of countries per year which carried out an execution declined by about one-third, from averages of 37 countries in the 1980s and 35 countries in the 1990s, to 25 countries in the 2000s and 23 countries in the 2010s. In short, fewer countries are using capital punishment, and fewer people are being condemned to death and executed.

Number of death sentences and executions worldwide, 1980–2017

Notes : (a) The numbers of reported and recorded death sentences and executions are minimum figures, and the true totals are substantially higher. (b) In 2009, Amnesty International stopped publishing estimates of the minimum number of executions per year in China.

Sources : Hood 2001 : 335 (1980–1999); Hands Off Cain (2001); Amnesty International annual reports (2002–2017).

In 2001, Hood (2001 : 336) reported that 26 countries had executed at least 20 persons in the five-year period 1994–1998. Table 4 compares those figures with figures for the same 26 countries in 2013–2017, and it also presents the annual rate of execution per million population for each country (in parentheses). The main pattern is striking decline. In 2009, Amnesty International stopped publishing estimates of the minimum number of executions per year in the People’s Republic of China, so trend evidence from that source is unavailable, but other sources indicate that executions in China have declined dramatically in the past two decades, from 15,000 or more per year in the late 1990s and early 2000s ( Johnson and Zimring 2009 : 237), to approximately 2,400 in 2013 ( Grant 2014 ) and 2,000 or so in 2016. Of the other 25 countries in Hood’s list of heavy users of capital punishment in the 1990s, 11 saw executions disappear (Ukraine, Turkmenistan, Russia, Kazakhstan, Congo, Sierra Leone, Kyrgyzstan, South Korea, Libya, Rwanda, and Zimbabwe), eight had the execution rate decline by half or more (USA, Nigeria, Singapore, Belarus, Taiwan, Yemen, Jordan, Afghanistan), and two experienced more modest declines (Saudi Arabia and Egypt). Altogether, 22 of the 26 heavy users of capital punishment in the latter half of the 1990s have experienced major declines in executions. Of the remaining four countries, one (Japan) saw its execution rate remain stable until executions surged when 13 former members of Aum Shinrikyo were hanged in July 2018 (for murders and terrorist attacks committed in the mid-1990s), while three (Iran, Pakistan, and Viet Nam) experienced sizeable increases in both executions and execution rates.

Executions and execution rates by country, 1994–1998 and 2013–2017

a The figure of 429 executions for Viet Nam is for the three years from August 2013 to July 2016.

Notes: Countries reported to have executed at least 20 persons in 1994–1998, and execution figures for the same countries in 2013–2017 (with annual rates of execution per million population for both periods in parentheses).

As explained in the text, in addition to the 26 countries that appeared in Table 3 of Hood (2001 : 336), India had at least 24 judicial executions in 1994–1998, Indonesia had four, and Iraq had an unknown number. The comparable figures for these countries in 2013–2017 (with the execution rate per million population in parentheses) are India = 2 (0.0003), Indonesia = 23 (0.09), and Iraq = 469 (2.78).

Sources : Hood 2001 : 336 (1994–1998); Amnesty International (2013–2017); the Death Penalty Database of the Cornell Center on the Death Penalty Worldwide (for India, Indonesia, and Iraq); Johnson and Zimring 2009 : 430 (for India 1994–1998).

The execution rate increases in Table 4 are striking but exceptional. In Iran, the fourfold increase in the execution rate gives it the highest per capita execution rate in the world for 2013–2017, with 6.68 executions per million population per year. This is approximately four times higher than the estimated execution rate for China (1.5) in the same period. The increase in Viet Nam is also fourfold, from 0.38 executions per million population per year to 1.5, while the increase in Pakistan is tenfold, from 0.05 to 0.49. Nonetheless, Viet Nam’s substantially increased execution rate in the 2010s would not have ranked it among the top ten executing nations in the 1990s, while Pakistan’s increased rate in the 2010s would not have ranked it among the top 15 nations in the 1990s. Even among the heaviest users of capital punishment, times have changed.

At least two countries that did not appear on Hood’s heavy user list for the 1990s executed more than 20 people in 2013–2017. The most notable newcomer is Iraq, which executed at least 469 persons in this five-year period, with an execution rate of 2.78 per million population per year. And then there is Indonesia. In the five years from 1994 to 1998, this country (with the world’s largest Muslim population) executed a total of four people, while in 2013–2017 the number increased to 23, giving it an execution rate of 0.09 per year per million population—about the same as the (low) execution rates in Japan and Taiwan.

When Iraq and Indonesia are added to the heavy user list for 2013–2017, only five countries out of 28 have execution rates that exceed one execution per year per million population, giving them death penalty systems that can be deemed ‘operational’ in the sense that ‘judicial executions are a recurrent and important part’ of their criminal justice systems ( Johnson and Zimring 2009 : 22). By contrast, in 1994–1998, 14 of these 28 countries had death penalty systems that were ‘operational’.

India is a country with a large population that does not appear on the frequent executing list for either the 1990s or the 2010s. In 2013–2017, this country of 1.3 billion people executed only two people, giving it what is probably the lowest execution rate (0.0003) among the 56 countries that currently retain capital punishment. India has long used judicial execution infrequently, but its police and security forces continue to kill in large numbers. In the 22 years from 1996 through 2017, India’s legal system hanged only four people, giving it an annual rate of execution that is around 1/25,000th the rate of executions in China. But over the same period, India’s police and security forces have killed thousands illegally and extrajudicially, many in ‘encounters’ that officials try to justify with the lie that the bad guy fired first.

Two fundamental forces have been driving the death penalty down in recent decades ( Johnson and Zimring 2009 : 290–304). First, while prosperity is neither a necessary nor a sufficient condition for abolition, economic development does tend to encourage declines in judicial execution and steps toward the cessation of capital punishment. Second, the general political orientation of government often has a strong influence on death penalty policy, at both ends of the execution spectrum. High-execution rate nations tend to be authoritarian, as in China, Viet Nam, North Korea, Singapore, Saudi Arabia, Iran, and Iraq. Conversely, low-execution rate nations tend to be democracies with institutionalized limits on governmental power, as in most of the countries of Europe and in Australia, New Zealand, Canada, South Korea, and India. Of course, these are tendencies, not natural laws. Exceptions exist, including the USA at the high end of the execution spectrum, and Myanmar and Nepal at the low end.

In addition to economic development and democratization, concerns about wrongful convictions and the execution of innocents have made some governments more cautious about capital punishment. In the USA, for example, the discovery of innocence has led to historic shifts in public opinion and to sharp declines in the use of capital punishment by prosecutors and juries across the country ( Baumgartner et al. 2008 ; Garrett 2017 ). In China, too, wrongful convictions and executions help explain both declines in the use of capital punishment and legal reforms of the institution ( He 2016 ).

The question of capital punishment is fundamentally a matter of human rights, not an isolated issue of criminal justice policy.

Death penalty policy should not be governed by national priorities but by adherence to international human rights standards.

Since capital punishment is never justified, a national government may demand that other nations’ governments end executions. ( Zimring 2003 : 27)

As the third premise of this orthodoxy suggests, political pressure has contributed to the decline of capital punishment. This influence has been especially striking in Europe, where abolition of capital punishment is an explicit and absolute condition for becoming a member of the European Union. In other countries, too, from Singapore and South Korea to Rwanda and Sierra Leone, the missionary zeal of European governments committed to abolition has led to the elimination of capital punishment or to major declines in its usage.

Political leadership has also fostered the death penalty’s decline. There are few iron rules of abolition, but one seems to be that when the death penalty is eliminated, it invariably happens despite the fact of majority public support for the institution at the time of abolition. This—‘leadership from the front’—is such a common pattern, and public resistance to abolition is so stubborn, that some analysts believe ‘the straightest road to abolition involves bypassing public opinion entirely’ ( Hammel 2010 : 236). There appear to be at least two political circumstances in which the likelihood of leadership from the front rises and the use of capital punishment falls ( Zimring 2003 : 22): after the collapse of an authoritarian government, when new leaders aim to distance themselves from the repressive practices of the previous regime (as in West Germany, Italy, Portugal, Spain, Romania, Cambodia, and Timor Leste); and after a left-liberal party gains control of government (as in Austria, Great Britain, France, South Korea, and Taiwan).

Although use of the death penalty continues to decline, there are countervailing forces that continue to present obstacles to abolition, as they have for decades. First and foremost, there is an argument about national sovereignty made by many states, that death penalty policy and practice are not human rights issues but rather matters of criminal justice policy that should be decided domestically, according to the values and traditions of each individual country. There is the role of religion—especially Islamic beliefs, where in some countries and cultures it is held that capital punishment must not be opposed because it has been divinely ordained. There are claims that capital punishment deters criminal behaviour and drug trafficking, though there is little evidence to support this view ( National Research Council 2012 ; Muramatsu et al. 2018 ). And there is the continued use of capital punishment in the USA, which helps to legitimate capital punishment in other countries ( Hood 2001 : 339–44).

The death penalty also survives in some places because it performs welcome functions for some interests. For instance, following the Arab Spring movements of 2010–2012, Egypt and other Middle Eastern governments employed capital punishment against many anti-government demonstrators and dissenters. In other retentionist countries, capital punishment has little to do with its instrumental value for government and crime control and much to do with the fact that it is ‘productive, performative, and generative—that it makes things happen—even if much of what happens is in the cultural realm of death penalty discourse rather than the biological realm of life and death’ or the penological realms of retribution and deterrence ( Garland 2010 : 285). For elected officials, the death penalty is a political token to be used in electoral contests. For prosecutors and judges, it is a practical instrument that enables them to harness the rhetorical power of death in the pursuit of professional objectives. For the mass media, it is an arena in which dramas can be narrated about the human condition. And for the onlooking public, it is a vehicle for moral outrage and an opportunity for prurient entertainment.

In addition to these long-standing obstacles to abolition, several other impediments have emerged in recent years. Most notably, as populism spreads ( Luce 2017 ) and democracy declines in many parts of the world ( Levitsky and Ziblatt 2018 ), an ‘anti-human rights agenda’ is forcing human rights proponents to rethink their assumptions and re-evaluate their strategies ( Alston 2017 ). Much of the new populist threat to democracy is linked to post-9/11 concerns about terrorism, which have been exploited to justify trade-offs between democracy and security. Of course, we are not actually living in a new age of terrorism. If anything, we have experienced a decline in terrorism from the decades in which it was less of a big deal in our collective consciousness ( Pinker 2011 : 353). But emotionally and rhetorically, terrorism is very much a big deal in the present moment, and the cockeyed ratio of fear to harm that is fostered by its mediated representations has been used to buttress support for capital punishment in many countries, including the USA (the Oklahoma City bombings in 1995), Japan (the sarin gas attacks of 1994 and 1995), China (in Xinjiang and Tibet), India (the Mumbai attacks of 1993 and 2008 and the 2001 attack on the Parliament in New Delhi), and Iraq (where executions surged after the post-9/11 invasion by the USA, and where most persons executed have been convicted of terrorism). More broadly, the present political resonance of terrorism has resulted in some abolitionist states assisting with the use of capital punishment in retentionist nations ( Malkani 2013 ).

Some analysts believe that the ‘abolition of capital punishment in all countries of the world will ensure that the killing of citizens by the state will no longer have any legitimacy and so even more marginalize and stigmatize extra-judicial executions’ ( Hood and Hoyle 2008 : 6). Others claim that the abolition of capital punishment is ‘one of the great, albeit unfinished, triumphs of the post-Second World War human rights movement’ ( Hodgkinson 2004 : 1). But states kill extrajudicially too, and sometimes the scale so far exceeds the number of judicial executions that death penalty reductions and abolitions seem like small potatoes. The most striking example is occurring under President Rodrigo Duterte in the Philippines: thousands of extrajudicial executions in a country that abolished capital punishment (for the second time!) in 2006.The case of the Philippines illustrates a pattern that has been seen before and will be seen again in polities with weak law, strong executives, and fearful and frustrated citizens ( Johnson and Fernquest 2018 ). State killing often survives and sometimes thrives after capital punishment is abolished (as in Mexico, Brazil, Nepal, and Cambodia, among other countries). And in countries where capital punishment has not been abolished, extrajudicial executions are frequently carried out even after the number of judicial executions has fallen to near zero (as in Bangladesh, India, Indonesia, and Thailand).

Despite these obstacles to abolition, the decline of capital punishment seems likely to continue in the years to come. The trajectory of this institution is shaped by political and cultural processes over which human rights practices have little influence ( Garland 2010 : Chapter 5), but priorities and strategies do matter. In this section I suggest five imperatives for the future.

First, opponents of capital punishment should recognize the limited importance of public opinion and the generally disappointing results of public education campaigns. There is in fact ‘no real evidence of a public relations campaign ever having had a significant, sustained effect on mass public opinion on capital punishment’ ( Hammel 2010 : 39). Such campaigns are not useless ( Singer 2016 ), but when they make a difference they usually do so by influencing the views of elites. To put the point a little differently, cultural change can stimulate death penalty reform, but the cultural shifts that matter most are those that operate ‘on and through state actors’ ( Garland 2010 : 143). This is where abolitionists should focus their efforts at persuasion.

Second, legal challenges to capital punishment should continue, for they have been effective in Africa, the former British colonies of the Caribbean, the USA, and many other countries (see the Death Penalty Project, https://www.deathpenaltyproject.org ). Moreover, legal challenges tend to be most effective when they come not from individual attorneys but from teams of attorneys and their non-attorney allies—social workers, scholars, mitigation investigators, and the like ( Garrett 2017 : Chapters 5–6). The basic strategy of successful teams is to ‘Make the law do what it promises. Make it be perfect’ ( Von Drehle 2006 : 196). One result is the growing recognition that state killing is incompatible with legal values. Another is a shift in focus from what the death penalty does for people to what it does to them. The evidence of the death penalty’s decline summarized in the first section of this article suggests that country after country has realized that retaining capital punishment breeds disrespect for law by exposing many of its shortcomings ( Sarat 2001 ). In some contexts, this recognition is best cultivated not by invoking ‘human rights’ as a ‘rhetorical ornament’ for anti-death penalty claims ( Dudai 2017 : 18), but simply by concentrating on what domestic law promises—and what it fails to deliver.

Third, research has contributed to the decline of capital punishment, both by undermining claims about its purported deterrent effects and by documenting flaws in its administration. In these ways, a growing empirical literature highlights ‘the lack of benefits associated with capital punishment and the burgeoning list of problems with its use’ ( Donohue 2016 : 53). Unfortunately, much of the available research concentrates on capital punishment in one country—the USA—which provides ‘a rather distorted and partial view of the death penalty’ worldwide ( Hood and Hoyle 2015 : 3). Going forward, scholars should explore questions about capital punishment in the many under-researched retentionist nations of Asia and the Middle East, and they should focus their dissemination efforts on the legal teams and governmental elites that have the capacity to challenge and change death penalty policy and practice, as described above in the first and second imperatives.

Fourth, abolition alone is not enough, in two senses. For one, it is not acceptable to replace capital punishment with a sentence of life without parole which is itself a cruel punishment that represents ‘life without hope’ and disrespect for human rights and human dignity ( Hood 2001 : 346). Moreover, when life without parole sentences are established, far more offenders tend to receive them than the number of offenders actually condemned to death. Overall, the advent of life without parole sometimes results in small to modest reductions in execution, but its main effect on the criminal process is ‘penal inflation’ ( Zimring and Johnson 2012 ). For most human rights practitioners, this is hardly a desirable set of outcomes. In addition, abolition is a hollow victory when extrajudicial executions continue or increase afterwards, yet this occurs often. The nexus between judicial and extrajudicial executions is poorly understood and much in need of further study, but the available evidence from countries such as Mexico and the Philippines suggests that ending judicial executions may do little to diminish state killing. In the light of this legal realism, a single-issue stress on abolishing capital punishment because it is inconsistent with human rights might well be considered more spectacle than substance ( Nagaraj 2017 : 23).

Finally, while the present moment is in some ways an ‘extraordinarily dangerous time’ for human rights advocates ( Alston 2017 : 14), there is room for optimism that the death penalty may be nearing the ‘end of its rope’ ( Garrett 2017 ). Overall, a factful consideration of contemporary capital punishment suggests that the situation in the world today is both bad and better ( Rothman 2018 ). A factful perspective on capital punishment also makes it reasonable to be a ‘possibilist’ about the future of this form of state killing ( Rosling et al. 2018 : 69). Substantial progress has been made toward worldwide abolition, and there are good reasons to believe that more progress is possible.

Special thanks to Professor Roger Hood for his foundational studies of the death penalty worldwide.

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Expert Commentary

The research on capital punishment: Recent scholarship and unresolved questions

2014 review of research on capital punishment, including studies that attempt to quantify rates of innocence and the potential deterrence effect on crime.

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This work is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License .

by Alexandra Raphel and John Wihbey, The Journalist's Resource January 5, 2015

This <a target="_blank" href="https://journalistsresource.org/criminal-justice/research-capital-punishment-key-recent-studies/">article</a> first appeared on <a target="_blank" href="https://journalistsresource.org">The Journalist's Resource</a> and is republished here under a Creative Commons license.<img src="https://journalistsresource.org/wp-content/uploads/2020/11/cropped-jr-favicon-150x150.png" style="width:1em;height:1em;margin-left:10px;">

Over the past year the death penalty has again come into focus as a major public policy and political issue, catalyzed by several high-profile events.

The botched execution of convicted murderer and rapist Clayton Lockett in Oklahoma in 2014 was seen as a potential turning point in the debate, bringing increased attention to the mechanisms by which persons are executed. That was followed by a number of other closely scrutinized cases, and the year ended with few executions relative to years past. On December 31, 2014, Maryland Gov. Martin O’Malley commuted the sentences of the remaining four prisoners on death row in that state. In 2013, Maryland became the 18th state to abolish the death penalty after Connecticut in 2012 and New Mexico in 2009.

Meanwhile, polling data suggests some softening of public attitudes, though the majority Americans continue to support capital punishment. Gallop noted in October 2014 that the level of public support (60%) is at its lowest in 40 years. A Washington Post -ABC News poll in mid-2014 found that more Americans support life sentences, rather than the death penalty, for convicted murderers. Further, recent polls from the Pew Research Center indicate that only a bare majority of Americans now support capital punishment, 55%, down from 78% in 1996.

Scholarly research sheds light on a number of important aspects of this issue:

False convictions

One key reason for the contentious debate is the concern that states are executing innocent people. How many people are unjustly facing the death penalty? By definition, it is difficult to obtain a reliable answer to this question. Presumably if judges, juries, and law enforcement were always able to conclusively determine who was innocent, those defendants would simply not be convicted in the first place. When capital punishment is the sentence, however, this issue takes on new importance.

Some believe that when it comes to death-penalty cases, this is not a huge cause for concern. In his concurrent opinion in the 2006 Supreme Court case Kansas v. Marsh , Justice Antonin Scalia suggested that the execution error rate was minimal, around 0.027%. However, a 2014 study in the Proceedings of the National Academy of Sciences suggests that the figure could be higher. Authors Samuel Gross (University of Michigan Law School), Barbara O’Brien (Michigan State University College of Law), Chen Hu (American College of Radiology) and Edward H. Kennedy (University of Pennsylvania School of Medicine) examine data from the Bureau of Justice Statistics and the Department of Justice relating to exonerations from 1973 to 2004 in an attempt to estimate the rate of false convictions among death row defendants. (Determining innocence with full certainty is an obvious challenge, so as a proxy they use exoneration — “an official determination that a convicted defendant is no longer legally culpable for the crime.”) In short, the researchers ask: If all death row prisoners were to remain under this sentence indefinitely, how many of them would have eventually been found innocent (exonerated)?

Interestingly, the authors also note that advances in DNA identification technology are unlikely to have a large impact on false conviction rates because DNA evidence is most often used in cases of rape rather than homicide. To date, only about 13% of death row exonerations were the result of DNA testing. The Innocence Project , a litigation and public policy organization founded in 1992, has been deeply involved in many such cases.

Death penalty deterrence effects: What do we know?

A chief way proponents of capital punishment defend the practice is the idea that the death penalty deters other people from committing future crimes. For example, research conducted by John J. Donohue III (Yale Law School) and Justin Wolfers (University of Pennsylvania) applies economic theory to the issue: If people act as rational maximizers of their profits or well-being, perhaps there is reason to believe that the most severe of punishments would serve as a deterrent. (The findings of their 2009 study on this issue, “Estimating the Impact of the Death Penalty on Murder,” are inconclusive.) In contrast, one could also imagine a scenario in which capital punishment leads to an increased homicide rate because of a broader perception that the state devalues human life. It could also be possible that the death penalty has no effect at all because information about executions is not diffused in a way that influences future behavior.

In 1978 — two years after the Supreme Court issued its decision reversing a previous ban on the death penalty ( Gregg v. Georgia ) — the National Research Council (NRC) published a comprehensive review of the current research on capital punishment to determine whether one of these hypotheses was more empirically supported than the others. The NRC concluded that “available studies provide no useful evidence on the deterrent effect of capital punishment.”

Researchers have subsequently used a number of methods in an effort to get closer to an accurate estimate of the deterrence effect of the death penalty. Many of the studies have reached conflicting conclusions, however. To conduct an updated review, the NRC formed the Committee on Deterrence and the Death Penalty, comprised of academics from economics departments and public policy schools from institutions around the country, including the Carnegie Mellon University, University of Chicago and Duke University.

In 2012, the Committee published an updated report that concluded that not much had changed in recent decades: “Research conducted in the 30 years since the earlier NRC report has not sufficiently advanced knowledge to allow a conclusion, however qualified, about the effect of the death penalty on homicide rates.” The report goes on to recommend that none of the reviewed reports be used to influence public policy decisions on the death penalty.

Why has the research not been able to provide any definitive answers about the impact of the death penalty? One general challenge is that when it comes to capital punishment, a counter-factual policy is simply not observable. You cannot simultaneously execute and not execute defendants, making it difficult to isolate the impact of the death penalty. The Committee also highlights a number of key flaws in the research designs:

There are both capital and non-capital punishment options for people charged with serious crimes. So, the relevant question on the deterrent effect of capital punishment specifically “is the differential deterrent effect of execution in comparison with the deterrent effect of other available or commonly used penalties.” None of the studies reviewed by the Committee took into account these severe, but noncapital punishments, which could also have an effect on future behaviors and could confound the estimated deterrence effect of capital punishment.
“They use incomplete or implausible models of potential murderers’ perceptions of and response to the capital punishment component of a sanction regime”
“The existing studies use strong and unverifiable assumptions to identify the effects of capital punishment on homicides.”

In a 2012 study, “Deterrence and the Dealth Penalty: Partial Identificaiton Analysis Using Repeated Cross Sections,” authors Charles F. Manski (Northwestern University) and John V. Pepper (University of Virginia) focus on the third challenge. They note: “Data alone cannot reveal what the homicide rate in a state without (with) a death penalty would have been had the state (not) adopted a death penalty statute. Here, as always when analyzing treatment response, data must be combined with assumptions to enable inference on counterfactual outcomes.”

Number of persons executed in the U.S., 1930-2011 (BJS)

However, even though the authors do not arrive at a definitive conclusion, the National Research Council Committee notes that this type of research holds some value: “Rather than imposing the strong but unsupported assumptions required to identify the effect of capital punishment on homicides in a single model or an ad hoc set of similar models, approaches that explicitly account for model uncertainty may provide a constructive way for research to provide credible albeit incomplete answers.”

Another strategy researchers have taken is to limit the focus of studies on potential short-term effects of the death penalty. In a 2009 paper, “The Short-Term Effects of Executions on Homicides: Deterrence, Displacement, or Both?” authors Kenneth C. Land and Hui Zheng of Duke University, along with Raymond Teske Jr. of Sam Houston State University, examine monthly execution data (1980-2005) from Texas, “a state that has used the death penalty with sufficient frequency to make possible relatively stable estimates of the homicide response to executions.” They conclude that “evidence exists of modest, short-term reductions in the numbers of homicides in Texas in the months of or after executions.” Depending on which model they use, these deterrent effects range from 1.6 to 2.5 homicides.

The NRC’s Committee on Deterrence and the Death Penalty commented on the findings, explaining: “Land, Teske and Zheng (2009) should be commended for distinguishing between periods in Texas when the use of capital punishment appears to have been erratic and when it appears to have been systematic. But they fail to integrate this distinction into a coherently delineated behavioral model that incorporates sanctions regimes, salience, and deterrence. And, as explained above, their claims of evidence of deterrence in the systematic regime are flawed.”

A more recent paper (2012) from the three authors, “The Differential Short-Term Impacts of Executions on Felony and Non-Felony Homicides,” addresses some of these concerns. Published in Criminology and Public Policy , the paper reviews and updates some of their earlier findings by exploring “what information can be gained by disaggregating the homicide data into those homicides committed in the course of another felony crime, which are subject to capital punishment, and those committed otherwise.” The results produce a number of different findings and models, including that “the short-lived deterrence effect of executions is concentrated among non-felony-type homicides.”

Other factors to consider

The question of what kinds of “mitigating” factors should prevent the criminal justice system from moving forward with an execution remains hotly disputed. A 2014 paper published in the Hastings Law Journal , “The Failure of Mitigation?” by scholars at the University of North Carolina and DePaul University, investigates recent executions of persons with possible mental or intellectual disabilities. The authors reviewed 100 cases and conclude that the “overwhelming majority of executed offenders suffered from intellectual impairments, were barely into adulthood, wrestled with severe mental illness, or endured profound childhood trauma.”

Two significant recommendations for reforming the existing process also are supported by some academic research. A 2010 study by Pepperdine University School of Law published in Temple Law Review , “Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions,” surveyed the decision-making process among various state prosecutors. At the request of a state commission, the authors first surveyed California district attorneys; they also examined data from the other 36 states that have the death penalty. The authors found that prosecutors’ capital punishment filing decisions remain marked by local “idiosyncrasies,” meaning that “the very types of unfairness that the Supreme Court sought to eliminate” beginning in 1972 may still “infect capital cases.” They encourage “requiring prosecutors to adhere to an established set of guidelines.” Finally, there has been growing support for taping interrogations of suspects in capital cases, so as to guard against the phenomenon of false confessions .

Related reading: For an international perspective on capital punishment, see Amnesty International’s 2013 report ; for more information on the evolution of U.S. public opinion on the death penalty, see historical trends from Gallup .

Keywords: crime, prisons, death penalty, capital punishment

About the Authors

Alexandra Raphel

John Wihbey

Syracuse Journal of Law & Civic Engagement

An inquiry into the ethics of capital punishment.

D. Alicia Hickok , Partner at Drinker Biddle & member of the American Bar Association’s Steering Committee of the Death Penalty Representation Project , & J.J. Williamson , Associate in the Drinker Biddle’s Litigation Group

The word “ethic” is derived from the Greek “ethos,” which itself has taken on multiple meanings. In the traditional Greek, it is used by Aristotle to describe the apparent character of the speaker. The Oxford English Dictionary recognizes that its origin relates to nature or disposition, but instead defines “ethos” as “[t]he characteristic spirit of a culture, era, or community as manifested in its attitudes and aspirations” or “the character of an individual as represented by his or her values or beliefs.” [1] Regardless of the definition, it is apparent that ethical behavior is necessarily an individual action and portrayal in relation to a community – although Aristotle’s definition is more susceptible to an absolute source of such “right behavior” or “moral action” than the Oxford English Dictionary’s.

The United States Supreme Court has certainly recognized that current community values are critical to an analysis regarding whether capital punishment violates the Eighth and Fourteenth Amendments to the United States Constitution. [2] But it has also recognized that an examination of those values must be tempered with respect for the “dignity of man” such that punishment must not be excessive, either through “the unnecessary and wanton infliction of pain” or by being “grossly out of proportion to the severity of the crime.” [3] These “natural law” values correspond in many instances to moral views set forth in ancient and sacred writing. Any analysis of the ethics of capital punishment thus need to echo the Supreme Court’s recognition of the possibility that something that has become “accepted” in society may nonetheless be “immoral.”

The response to an “immoral” but “accepted” practice represents an ethical choice. Indeed, many people have explored the dilemmas that arise when a community – either through its laws or practices – mandates or prohibits a course of action that is fundamentally at odds with what a person recognizes as an ultimate moral code. This is seen in Judeo-Christian scripture at least as early as Daniel 6, when King Darius was beguiled into signing a law that forbade prayer to any but him. Daniel was a slave who had become a trusted advisor to the king. He continued with his duties, but also continued to pray to God at home daily; the legal consequence of which was that Darius was compelled to throw Daniel into a lions’ den (from which, Daniel 6 explains, God delivered him, thus honoring Daniel’s adherence to the conduct dictated by his faith rather than the law created by the king).

In examining the ethics of capital punishment, then, this article will address three questions: Is there an absolute position on the death penalty that renders it immoral in all circumstances? What does the law permit, command, or prohibit? Does the practice accord with these permissions, commands, and prohibitions – and is the perception that it does? The answer to those questions then prompts a fourth: how is a lawyer in today’s legal system to act ethically in a state that authorizes capital punishment?

I. Is Capital Punishment Wrong According to Traditional Moral Measures?

One might perhaps think that the answer to any question of the ethics of capital punishment begins and ends with moral law. To be sure, in Gregg v. Georgia , [4] the Supreme Court recognized that right and wrong can transcends the laws on the books at any given moment. It certainly is the case that for some religious groups, any notion of capital punishment is contrary to fundamental beliefs. But it is equally the case that not all persons within those religious traditions – and not all religions – condemn capital punishment.

It is beyond the scope of this article to explore the full range of religious responses, which range from a conviction that the taking of a life can be compensated for only by another life to a belief that the sacredness of life can never justify condoning of the taking of another’s life, and include everything in between.

A brief overview of a couple of religious perspectives may, however, give a flavor of the moral reasoning undergirding religious responses. Those who favor the death penalty often cite both to the religious admonitions to honor civil law and to the recognition in Exodus 21 that injury is to be recompensed in kind, admonishing Israel to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.” [5]

On the other hand, of those who are fundamentally opposed to capital punishment, most believe that taking of the life of another is wrong even for the state to do. In addition, many express a belief that capital punishment is an offense against the community, or that it is unfairly harmful to the person delegated to carry out the sentence. The conviction that the taking of life is wrong is heightened by – or in some cases replaced with – concerns that the punishment does not achieve its stated goals and is too fraught with uncertainty to be a viable sentence, even if there is a theoretical authority for a state to take a life.

Thus, for example, the Green Country Society of Friends spoke out about Oklahoma’s death penalty statute in 1996 by first recognizing that people “have the need and the right to seek safety and order for themselves and their communities” but rejecting capital punishment as a means to achieve that because (1) it does not respect the Spirit of God that they believe dwells in each person; (2) it “magnifies the tragedy of a lost life by killing again, ignoring the human capacity for change, quenching forever the possibility of redemption and renewed contribution”; (3) because it harms the community by giving violence a “legitimate status as a way to resolve problems”, sanctioning vengeance as an acceptable response to harm, shifting the focus from healing and help to victims, offenders, and affected families and communities, and because it is possible that an innocent person is being executed; (4) because those persons to whom the task of execution is delegated are at “moral and psychological peril to themselves.” [6] In 1999, the United States Conference of Catholic Bishops, observing that it had been opposed to the death penalty for over twenty-five years, stated:

We oppose capital punishment not just for what it does to those guilty of horrible crimes but for what it does to all of us as a society. Increasing reliance on the death penalty diminishes all of us and is a sign of growing disrespect for human life. We cannot overcome crime by simply executing criminals, nor can we restore the lives of the innocent by ending the lives of those convicted of their murders. The death penalty offers the tragic illusion that we can defend life by taking life.

We are painfully aware of the increased rate of executions in many states. Since the death penalty was reinstituted in 1976, more than 500 executions have taken place, while there have been seventy-four death-row reversals late in the process. Throughout the states, more than 3,500 prisoners await their deaths. These numbers are deeply troubling. The pace of executions is numbing. The discovery of people on death row who are innocent is frightening. [7]

After Timothy McVeigh, a Catholic, was executed in Indiana, John and Lauren McBride authored an article in the Saint Anthony Messenger, a paper in the area, [8] reflecting on the execution and on a commencement address that Sister Helen Prejean gave at St. Mary of the Woods College in 2001. Sister Helen Prejean had said that that the death penalty was imploding because it “has always been unfair,” remarking on the expense, the lack of deterrence, and the irreversible and irremediable character of the penalty. Quoting Matthew 25, the authors of the article contended that when Jesus taught that what was done to the least of his brothers was done to him, and linked that to Sister Helen’s admonition that scripture teaches not to return hate with hate or violence with violence. The author also quoted Archbishop Daniel M. Buechlein of the Indianapolis Archdiocese (which includes Terre Haute), who wrote that the “death penalty ‘feeds a frenzy for revenge… [which] neither liberates the families of victims nor ennobles the victims of crime. Only forgiveness liberates.’” [9] In conclusion, the authors reflected on a movement in churches across the nation to ring their bells whenever an execution takes place, remembering John Donne’s statement that “any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.” [10] The author also interviewed others who were not opposed to the death penalty per se but nonetheless expressed concerns that the process needed reform and decried the racial and economic disparities in its application.

These concerns are echoed in Jewish law, which did not proscribe capital punishment, but which did define strict parameters within which it could be applied. The Talmud Sanhedrin, in exchanging views on the Mosaic law from the third to the fifth centuries C.E., stressed the need for procedural protections before a person could be sentenced to death for treason, discussing the scriptural requirement that there be two witnesses. [11] If one witness was disqualified, the evidence of the others was invalid. Witnesses were sequestered and examined and cross-examined, with accusing witnesses permitted to retract testimony but defending witnesses not. Inconsistencies – even as to time or day – disqualified witnesses. These protections were both to “ensure reliability of outcome and to enhance the possibility of acquittal in a capital case.” [12]

A Talmudic brief was submitted as an amicus in Bryan v. Moore . [13] The authors of the brief were addressing only whether electrocution was cruel and unusual. In their analysis, they recognized that from ancient times, rabbis have been divided whether capital punishment could ever be imposed. Even those that sanctioned it required strict standards of proof (before a court of at least 23 judges), and when execution was carried out, the law required a means to be chosen that prevented unnecessary pain and avoided mutilation or dismemberment. Indeed, any in favor point to sacred writings that stress the authority to enforce justice and protect a community but also stress the exceptional nature of the punishment. [14]

These historic and faith-based perspectives, taken together, have led many persons – and an increasing number of states – to conclude that even if it is theoretically possible to have a crime that warrants a sentence of death, the cost (both economically and morally) is too high, the risk of inaccuracy is too great, and the procedural protections are not strict enough.

But many others, including many with deeply-held religious convictions, affirm the decisions of the Supreme Court, Congress, and the legislatures and high courts of many other states that continue to uphold and enforce the death penalty. That said, the law enunciated by the United States Supreme Court has not stagnated over time. Instead, the United States Supreme Court has narrowed the classes of persons who can be subject to the death penalty and has fleshed out the characteristics that need to accompany any capital sentencing scheme in order for it to satisfy the requirements of the United States Constitution.

II. What Does the Law Permit, Command, or Prohibit?

Because statutes ultimately must conform to the Constitution, the starting point for this analysis are the determinations of the United States Supreme Court in holding that capital punishment was not absolutely proscribed by the Constitution. Two days before the bicentennial, on July 2, 1976, the United States Supreme Court issued five opinions, three affirming the constitutionality of state capital sentencing schemes, and two striking down other such schemes as unconstitutional. In Gregg , the Court explained that in an Eighth Amendment analysis of a statute, there is a presumption that a statute is valid, in part because legislative judgment “weighs heavily in ascertaining [contemporary] standards” and to “respond to the will and consequently the moral values of the people.” [15] After tracing the history of capital punishment in this country, the Court found that the “relative infrequency” with which juries imposed capital sentences did not reflect a “rejection of capital punishment per se” but the belief that the “most irrevocable of sanctions should be reserved for a small number of extreme cases.” [16] The Court also recognized both the retributive and deterrent effects of the death penalty. [17]

But while a state has the right to impose the death penalty, it cannot do so arbitrarily or capriciously, and it must ensure that the sentencer’s discretion is guided and informed. [18] In looking at Georgia’s statutory scheme in particular, the Supreme Court observed that the Georgia Supreme Court was required to “review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and ‘[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’” [19] Thus, each instance in which a death sentence is imposed will receive the direct attention of the justices of the state’s Supreme Court, and they will address directly some of the criteria that the United States Supreme Court found needed to be present in a capital sentencing scheme to render it constitutional. [20]

Particularly troubling is that the shortcomings of the Georgia Supreme Court’s review are not unique to this case. In the years immediately following Gregg , it was that court’s regular practice to include in its review cases that did not result in a death sentence. The Supreme Court later clarified in Pulley v. Harris that a comparative proportionality review was not demanded for every capital sentence. [21] More recently, however, the Court explained that it had intended only to “convey our recognition of differences among the States’ capital schemes and the fact that we consider statutes as we find them” – not to undermine the Court’s prior conclusions that “such review is an important component of the Georgia scheme.” [22] As shown in the attached chart, it appears that currently there are at least nine states that have no provision for proportionality review in their state statutes.

In Proffitt v. Florida , [23] the sentencing findings of the jury were advisory only; the actual sentence was determined by the trial judge, but “‘[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ. [24] The Supreme Court found that jury sentencing was not constitutionally mandated. [25] Likewise, in Jurek v. Texas , [26] the Court upheld Texas’s capital sentencing scheme, concluding that Texas’s narrowing of death-eligible crimes to a limited category of murders served the same function as aggravating factors did in Georgia and Florida. [27] But the Court was careful to say that it would not be enough to limit the evidence relevant to why a death penalty should be imposed; there must also be consideration of evidence why the death penalty should not be imposed. In other words, a capital sentencing system must: “guide[] and focus[] the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.” [28] “What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.” [29] Finally, “[b]y providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law.” [30]

In contrast, in Woodson v. North Carolina , [31] the Supreme Court rejected the North Carolina statutory scheme, because North Carolina mandated a sentence of death for first-degree murder – in part because the Court construed such statutes as “simply paper[ing] over the problem of unguided and unchecked jury discretion.” [32] The Court explained what it meant to have a jury consider evidence in mitigation:

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death. This Court has previously recognized that “[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. [33]

Although Louisiana’s statute used “a different and somewhat narrower” definition of death-worthy murder than North Carolina, it was also mandatory, and the Supreme Court found it likewise unconstitutional in Roberts v. Louisiana . [34] In so holding, the Supreme Court reiterated that mandatory sentences simply could not be upheld, because society has “reject[ed] the belief that ‘every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.’” [35] The Court was also troubled that in order to provide an opportunity to sentence a defendant to less than death, juries were instructed on lesser offenses, regardless of the evidence, which the Court found “plainly invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate – a result that contained an unacceptable “element of capriciousness.” [36]

Through a series of opinions, the Supreme Court would later clarify that a jury cannot sentence a defendant to death without being allowed to consider mitigating evidence; indeed, “when the jury is not permitted to give meaningful effect or a ‘reasoned moral response’ to a defendant’s mitigating evidence – because it is forbidden from doing so by statute or a judicial interpretation of a statute – the sentencing process is fatally flawed.” [37] And, of course, a jury cannot consider evidence in mitigation that counsel fails to uncover, apprehend, pursue, and present. Accordingly, counsel cannot competently represent a capital defendant without developing sufficient evidence about his or her background to make a reasonable strategic decision about what evidence to present in mitigation. [38]

Of course, evidence may not be put in front of a jury because it was never produced to the defense. The role of prosecutors to ensure a fair trial predates AEDPA by decades.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. [39]

These principles have given rise to a series of decisions, beginning with Brady v. Maryland , [40] in which the Supreme Court has articulated the constitutional obligation of the prosecution to provide the defense with exculpatory and impeachment evidence. Claims involving the obligations of the attorneys in a case (so-called Strickland (ineffectiveness) or Brady (withholding of evidence)) are the primary claims raised in collateral changes to capital convictions.

In addition, in recent years, certain classes of persons have been determined incapable of being sentenced to death, including persons who are mentally retarded (in Atkins v. Virginia ) [41] and juveniles ( Roper v. Simmons ). [42] In extending the rationale of Atkins to juveniles, the Supreme Court found that there were three characteristics of juveniles that rendered the death penalty inappropriate: (1) the lack of maturity and “underdeveloped sense of responsibility;” (2) a heightened susceptibility to “negative influences and outside pressures;” (3) and a less “well formed” character. [43] The Supreme Court concluded that:

These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. [44]

There are also constraints upon the execution [45] and trial of persons who are mentally incompetent, [46] but these constraints have not led to a blanket prohibition against capital sentences for persons with specific mental illnesses – or to a suspension of all proceedings while a person is incompetent. [47]

There is one more factor that has not yet been addressed specifically by the United States Supreme Court but that bears on the reliability of the verdict and the information that is in front of sentencers to consider. There is wide variation in the statutory (or rules) requirements for notice of intent to seek the death penalty by the prosecution, with most states requiring notice at some point after arraignment (typically sixty days or less), but others requiring notice only at a certain point before trial . Indeed, in Alabama, the death penalty may be sought in any case in which a district attorney has charged a defendant with capital murder, with no notice other than the charge itself required. [48] And in New Hampshire, the only requirement is that notice occur before trial or acceptance of a guilty plea. South Carolina and Tennessee require notice only thirty days prior to trial. [49] If a defendant is provided with ample resources to prepare for a capital penalty phase – whether or not it is to occur – notice may not be problematic. But where resources are limited, it appears unreasonable to ask a lawyer – or for that matter, a trial court – to authorize extensive resources to prepare for a case in mitigation that may or may not be a part of the trial. And yet, mitigation preparation – with its requisite investigation and consultation of experts – cannot be authorized and carried out in only a month without seriously undermining the reliability of the information that is placed before the sentencer.

At the moment then, a capital sentence can be upheld by the Supreme Court as constitutional only if there is a trial in which the community can have confidence. That, in turn, requires a competent defendant represented by counsel who has the resources, time, and skill to present a sentencer with evidence in mitigation that informs the sentencer’s decision whether to impose death for the narrow class of the most serious crimes by making a non-arbitrary, non-capricious, guided decision.

The standards that are applied to evaluate the fairness of the capital process are increasingly narrowed, however. On the one hand, state and federal law permit collateral attacks on allegedly unfair processes, through state and federal habeas or other post-conviction relief mechanisms. But on the other hand, such attacks are subject to significantly heightened levels of deference and narrowed bases for challenge, some statutory (such as that imposed by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”)), and others by the standard recognition that the presumption of the finality of a judgment increases with each level of review. In collateral review, traditional criminal precepts in multiple contexts (including ineffective assistance and non-disclosure of evidence) require a showing of prejudice that is defined, not by “whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” [50] This concept is notoriously subjective and uneven in its application, thereby undermining the confidence that is the stated goal.

More fundamentally, the Court has grappled – beginning with Woodson – with the recognition that fair procedures and reliability are more essential in the capital sentencing context than in any other, because death is different in kind, and not merely in degree – indeed “[d]eath in its finality differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” [51] And yet, in a system in which the focus – and expenditures of money – increase disproportionately at the very stages when the standard of review becomes the hardest to satisfy, the public message is that procedures are not fair, sentences of death are not reliable, and verdicts are not worthy of confidence.

III. What is the Community Practice?

Because the United States Supreme Court has determined that capital punishment is not absolutely proscribed by the Constitution, current practice has largely been placed into the hands of the states, and more specifically the state legislatures, to determine how such a process will function, as well as to define its limits. Eighteen states, as well as the District of Columbia, have chosen to abolish the death penalty outright: Michigan was the first in 1846, and Maryland the most recent in 2013. Most recently, Governor Tom Wolf of Pennsylvania imposed a moratorium on the Commonwealth’s execution of individuals pending a review of a forthcoming report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment. [52] The death penalty, then, remains a viable form of punishment for thirty-two states, as well as the federal government and the U.S. military, though the exact contours of the implementation of this ultimate type of punishment varies widely by jurisdiction.

One area in which the states that continue to employ the death penalty differ is in the qualification standards each state has set (or not set) for the lawyers who represent capital-eligible defendants at the trial level. The idea of standards for capital counsel is not new; in fact, suggested qualifications have been published since 1989, when the American Bar Association (“ABA”) published the Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. [53] A little over ten years later, the campaign to implement capital counsel qualifications began anew when, in 2001, the ABA commissioned the Death Penalty Representation Project to revise the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (the “ABA Guidelines”). [54] The revised ABA Guidelines were subsequently adopted on February 10, 2003 by the ABA House of Delegates, intended to “set forth a national standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death sentence by any jurisdiction.” [55] Interestingly, the scope of the ABA Guidelines was purposefully broad, and meant to

apply from the moment the client is taken into custody and extend to all states of every case in which the jurisdiction may be entitled to seek the death penalty, including initial and ongoing investigation, pretrial proceedings, trial post-convocation review, clemency, and any connected litigation. [56]

In setting qualifications for capital defense counsel, ABA Guideline 5.1 lists several factors that a state agency establishing such qualifications should consider, including whether counsel has:

a license to practice in the jurisdiction;
demonstrated commitment to zealous advocacy and high quality legal representation in the defense of capital cases;
a completion of suggested training requirements;
substantial knowledge of relevant federal and state law governing capital cases;
skill in oral advocacy;
skill in investigation, preparation, and presentation of evidence bearing on mental status;
skill in investigation, preparation, and presentation of mitigating evidence;
skill in the elements of trial advocacy, including jury selection, cross-examination of witness, and opening statements and closing arguments.

The ABA Guidelines also call for such measures as a monitoring of capital counsel’s workload, in order that the lawyer will “provide each client with high quality legal representation in accordance with [the ABA Guidelines].” [57] Additionally, capital counsel is to create a defense team that includes persons such as a mitigation specialist, mental health specialist, and other such specialists or persons as may be needed to bring a high level of legal representation on behalf of the client. [58] The ABA Guidelines do not address, however, how such a high caliber team should be funded, suggesting only that counsel should be compensated “for actual time and service performed at an hourly rate commensurate with the prevailing rates for similar services performed by retained counsel in the jurisdiction, with no distinction between rates for services performed in or out of court.” [59] While most of the guidelines speak to lawyer behavior, funding does not. In most instances, it is the state that funds capital defense, and it is the responsibility of the electorate to hold legislators accountable for ensuring sufficient funds to attract dedicated counsel and to provide them with sufficient resources to provide a thorough defense.

Since their revision, the ABA Guidelines have received some traction among both state and federal courts. [60] These qualification standards set forth by the ABA, however, are merely suggestions; the adoption of the ABA Guidelines, or the development and implementation of a separate code, is ultimately left to the States. This was emphasized by the Supreme Court in Bobby v. Van Hook , a per curiam decision that highlighted the notion that the ABA Guidelines are “‘only guides’ to what reasonableness [in the context of attorney representation] means, not its definition.” [61] So long as capital counsel make objectively reasonable choices in the course of representation, the “states are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented[.]” [62]

As the chart below illustrates, states have implemented capital counsel qualification standards in various degrees. For example, in 2005 Alabama adopted the ABA Guidelines as its code for capital counsel qualifications, noting, however, that the adoption of said Guidelines was “not to be considered a rule or requirement but only a recommendation.” [63] Texas has adopted a set of guidelines very similar to those promulgated by the ABA, which it calls the Guidelines and Standards for Texas Capital Counsel. [64] Like the ABA Guidelines, Texas requires defense teams to include a mitigation specialist and the lawyers on the team must complete a comprehensive training program in death penalty cases. [65]

Several states have taken some aspects of the ABA Guidelines a step further, requiring counsel to meet quantifiable benchmarks before being accepted—whether formally or informally—into the capital counsel bar. Arkansas requires its capital counsel attorneys to have at least three years of criminal defense experience, as well as having served as lead or co-counsel at least five capital trials. [66] Additionally, it also imposes an additional requirement of six hours of continuing legal education in the field of capital defense within the year leading up to the capital case. [67] California requires its capital counsel to have at least ten years of litigation experience in the field of criminal law, including ten serious or violent crime jury trials, at least two of which were for murder. [68] Like Arkansas, a CLE requirement (a requirement common to almost all states with capital counsel qualifications) is imposed, requiring fifteen hours of training in capital defense within the prior two years. [69]

Most states have crafted requirements that fall somewhere in between the Arkansas and California requirements, but not all. Colorado, for example, imposes qualifications upon capital counsel, but only at the post-conviction stage of proceedings. [70] And New Hampshire does not have any policies regarding qualification standards for capital defense counsel – although it is worth noting that New Hampshire has not executed anyone since 1939, despite the death penalty remaining in state law. [71]

Although the qualification standards discussed above pertain primarily to trial counsel, the only federal “stick” that is used to ensure the quality of representation is directed not at trial counsel but at post-conviction counsel. Sections 2261 and 2265 of title 28 of the United States Code (part of the Antiterrorism and Effective Death Penalty Act, “AEDPA”) “provide[] for an expedited review procedure by which state courts are given more deference in the federal habeas review process,” only if certain requirements are satisfied by the states. [72] But both provisions place requirements on the appointment of counsel at the post-conviction stage of the proceedings, i.e ., after a capital punishment sentence has already been imposed by the trial court and affirmed on direct appeal. The deference the state court adjudications receive, then, is based not on the quality of representation when the matter was tried before a finder of fact but the quality of representation in post-conviction collateral attacks – and those state-level collateral attacks are themselves entitled to a deference that a court on direct appeal does not employ.

Two states – Utah and Pennsylvania – do not even fund capital defense at the state level. [73] It is a sobering statistic that Philadelphia’s compensation for court-appointed trial lawyers has been among the lowest of any major metropolitan area in the country – and that of the 100-plus inmates sentenced to death in Pennsylvania since 1978, almost all had their appeals overturned on collateral review. [74] Given the costs associated with post-conviction and habeas appeals, one cannot help but wonder whether the Supreme Court’s requirement of a verdict worthy of confidence needs to be the primary focus of funding for all jurisdictions that choose to maintain the death penalty, and whether, at some point, the Supreme Court will find that a right to a fair trial means that the structure that needs to be in place to ensure a fair trial has to precede trial.

It can thus be argued—as this article does—that the AEDPA statute places its emphasis on the wrong stage of the proceedings – and that creating an incentive to expend large sums of money, employ significant teams of lawyers, and retain multiple experts at the two levels of collateral attack – state and federal – at which the greatest degrees of deference are owed to the state court judgment is not only a poor allocation of resources but a trigger for tension between the bench and bar that ultimately can only harm the interests of the capital defendant.

This tension is a product of an appellate system that, on the one hand, accords deference to the fact-finding of judges and juries – and to the discretion of a trial court to manage the conduct of a trial and the evidence and witnesses that may be considered. That deference extends to the reasonable, strategic decision of a lawyer. On the other hand, habeas counsel and others are required to look at the trial through a prism of standards and scopes of review; even though they see in hindsight defenses that could have been raised, experts that could have been proffered, and mitigation that could have been presented to a jury. As will be seen at greater length below, the more convinced that those not a part of the trial become that capital trials are unfair, the further they push the envelope to force a new trial – and the more entrenched the perspective that all death sentences should be overturned, and the more strident and less respectful the call for that relief, the greater a gulf is placed between the bench and the bar.

The parameters that the United States Supreme Court have articulated for state statutory schemes – trials in which the community can have confidence at which sentencers who are fully apprised of the evidence, including evidence in mitigation, render rational and non-arbitrary sentences – are not advanced by comparing lawyers who are frequently poorly paid and who have to seek court approval for any appointed expert or testing to be measured against what sometimes appears to be unlimited resources and an unlimited appetite for flyspecking a trial in hindsight. It is at least an understandable (and perhaps a natural) reaction to say – as numerous opinions on ineffective assistance do – that the right to effective counsel is not the right to perfect or ideal counsel. [75] Or, as a recent Pennsylvania Supreme Court opinion explained, “a defendant’s competency to stand trial must be evaluated at the time of trial” – and contrary evidence produced in hindsight “overlooks this requirement.” [76] But although the response of courts is natural, so is the unease reflected in the public’s reaction to a denial of relief in the face of new information by experts and others.

IV. What is the Ethical Response?

In a provocative article, Fred Zacharias and Bruce Green explain that the nineteenth century debate about what defines a lawyer’s ethical role – that of a lawyer’s ethical responsibility being to his or her client and that of a lawyer beholden to his or her own conscience – creates a false dichotomy. [77] Instead, they posit that a coherent ethic is found in Rush v. Cavenaugh , [78] which said, inter alia , that a lawyer “is expressly bound by his official oath to behave himself in his office of attorney with all due fidelity to the court as well as the client; and he violates it when he consciously presses for an unjust judgment: much more so when he presses for the conviction of an innocent man.” Thus, they conclude, there is a professional conscience that co-exists with a personal conscience and that together set limits on what a lawyer can do in advocating for a client. [79] In this way, “lawyers’ obligations are distinguished from those of other agents because of their office, which imposes countervailing obligations to the court to which the lawyer owes fidelity.” [80]

On this view, there are obligations of professional conscience that transcend the obligations set forth expressly in rules of professional conduct (those being prohibitions against knowingly participating in illegality or fraud, filing frivolous claims, or failing to be candid with a court). [81] In addressing the unwritten obligations, a lawyer must exercise judgment in determining “the legal and systemic considerations that are familiar to lawyers” and weighing those against the client’s interests and the dictates of personal conscience. [82] The challenge here is that in most instances a person presumes that his moral convictions alone will dictate ethical choices and actions. But the legal profession – and particularly in Green’s and Zacharias’s view – requires one’s morality to inform and be informed by one’s obligations to the court and one’s duties to his or her client. This has significant implications for litigating capital cases, and particularly for collateral proceedings, because the goal cannot be to avoid the carrying out of a death sentence; it must instead be to vindicate a particular individual’s right to a fair trial, developed within the (a) law – either as it exists or as extended in good faith; (b) facts and procedural history of the case; and (c) rules of the court and professional conduct.

In 1982, the Honorable Ruggero Aldisert used the positioning of competence as first in the then-new Model Rules of Professional Conduct to discuss the responsibility a lawyer has “to his client, the courts, and the development of the law” – a responsibility that was greater than that imposed by other jurisdictions. [83] Focusing on appellate lawyers, he stressed that American lawyers need to be cognizant of their responsibility not only to the client “but also to the court in its law-making function.” [84] He then analyzed what in his mind makes an appellate lawyer competent, stating, inter alia , that the first argument in an appellate brief should be the one most likely to persuade the court and that the brief should set forth “only those arguments which have the capacity to persuade” – and he suggested that no brief should exceed five points and preferably should not have more than three. [85] This message of his – that winnowing is essential to a good appeal – is widely held among judges.

But in representing a capital defendant, this view is in tension not only with the requirement of exhaustion but with the uncertainty that a defendant will be able to avail himself or herself of developing jurisprudence without arguing for it. In Teague v. Lane , the United States Supreme Court determined that most new rules of criminal procedure – unless they came within certain narrow exceptions [86] – could not be applied retroactively. In O’Dell v. Netherland , the United States Supreme Court applied Teague to deny relief to a capital defendant, finding that the rule enunciated in Simmons v. South Carolina , 512 U.S. 154 (1994) – that a defendant must be permitted to inform his sentencing jury that he is parole-ineligible if the prosecution argues that he presents a future danger – was a new rule of criminal procedure and not a watershed one that “implicat[ed] the fundamental fairness and accuracy of the criminal proceeding.” [87] Likewise, in Beard v. Banks , the United States Supreme Court found that the invalidation of capital sentencing schemes that required jurors to disregard mitigation that was not found unanimously was a new rule that did not come within either exception. [88]

The response of a zealous advocate is to argue for good-faith extensions of the law – and to try to anticipate any such changes that might be on the horizon. But doing so is inconsistent with the premise with which Judge Aldisert and others begin – that only the strongest ( i.e ., the most likely to persuade a court) arguments should be in a brief. The ABA as well has said that given the legal climate, a lawyer has a responsibility to raise all arguments potentially available. [89] The resultant long briefs, filled with issues and sub-issues, some only partially developed, has led to frustrations by the bench at the time it takes to review (or ferret out) arguments and address them carefully, and a sense that the briefing and other tactics are placing personal agendas above the ethical obligation to the courts.

In the concurrence of Commonwealth v. Eichinger , for example, a Pennsylvania Supreme Court justice quoted the post-conviction trial court, which had had to reallocate its other cases to senior judges to handle a single post-conviction petition.

A lawyer has a sacred duty to defend his or her client. Our codes of professional responsibility additionally call upon lawyers to serve as guardians of the law, to play a vital role in the preservation of society, and to adhere to the highest standards of ethical and moral conduct. Simply stated, we are all called upon to promote respect for the law, our profession, and to do public good. …. This case has caused me to reasonably question where the line exists between a zealous defense and an agenda-driven litigation strategy, such as the budget-breaking resource-breaking strategy on display in this case. Here, the cost to the people and to the trial Court was very high. [90]

Another justice, also concurring, expressed his frustration this way:

Simply put, those who oppose the death penalty should address their concerns to the legislature. Using the court system as a way to delay, obstruct, and thus, by implication invalidate a law passed by duly elected senators and representatives cannot be characterized as proper, zealous advocacy. That is to say, “the gravity of a capital case does not relieve counsel of their obligation under Rule 3.1 of the Rules of Professional Conduct not to raise frivolous claims. . . . While an attorney may have an ethical obligation to be a zealous advocate, he has a duty not to pester the courts with frivolous arguments. In fact, an attorney does his client a disservice by failing to winnow out the weaker arguments and focusing on central, key issues, upon which his client might be granted relief. Adding weaker, particularly frivolous arguments, dilutes the force of the stronger ones and makes it difficult for a court to focus on those issues which are deserving of attention, i.e., those which are non-frivolous. Common sense dictates that, when an attorney raises an excessive number of issues, as occurred in this PCRA case, the motivation for so doing is to paralyze the court system to further political views. It is not hard to discern that, in such cases, the strategy of PCRA capital counsel is not necessarily to put forth the best legal arguments upon which the client may be granted relief, but rather, the strategy is to keep, at all costs, his client from suffering the ultimate penalty proscribed by law. Appellant as PCRA counsel have the duty, like any attorney, to raise and pursue viable claims, and they must do so within the ethical limits which govern all Pennsylvania. [91]

In other words, collateral capital litigation in Pennsylvania and elsewhere demonstrates the divide between those who advocate loyalty to the court and to jurisprudential principles and practices and those who seek to overturn death sentences through whatever procedural or legal means are available or are perceived as potentially available. Those who see the practices as disloyal to the courts also see them as divorced from a lawyer’s loyalty to his client. Those involved adamantly disagree, believing that saving or extending a life is in the best interests of the client.

The ramifications of the dilemma posed by this tension are not merely theoretical, or even philosophical. As the Supreme Court of Pennsylvania explained, its recent movement to strict word limits and other briefing parameters in all appeals was in response to what it perceived as briefing abuses in capital post-conviction briefing in that Court. [92] Similarly, while Pennsylvania has refused to find waiver for claims of incompetency that are raised for the first time in collateral proceedings, the Pennsylvania Supreme Court’s perception that such claims are being abused has led to an increasing number of justices expressing a willingness to overrule the preservation exception. [93] Said differently, what may extend the time that a defendant is alive may come at the cost of credibility and worse, not just for the defendant or petitioner in a given case but for all parties in all criminal – and, often, civil – cases. That is a high price to pay in response to a system that, if it is to work at all, must provide a cost-effective, reliable, non-arbitrary process for determining whether a defendant is death-worthy.

Moreover, when there is a lack of congruence between morality and ethics, those outside the profession question the efficacy of the system itself. Many people decry capital punishment as “too costly” or, at least more costly than life in prison – and empirically, that is true. [94] Some use that costliness as an additional reason that the death penalty should be abolished. Others decry the expense as wasteful and agenda-driven, and call for changes to the system to make it more “efficient.” [95] Part of the reason that the expense is as high as it is is attributable to the resources that are devoted to multiple rounds of review – direct appeal, followed by post-conviction trial court practice and appellate review, followed by federal habeas trial court practice and appellate review – with the potential for seeking a writ of certiorari after each round. And that may be repeated if, for example, claims in federal court are found unexhausted and a defendant is permitted to return to state court to exhaust them. The only way to lessen the costs on the “back end” of state and federal collateral review is to ensure that there are adequate resources at the front end – at the trial that is the focus of the constitutional assurances that a sentence of death can be carried out.

For states that have a death penalty on the books, the statutes and schemes must provide for verdicts in which a community can have confidence. That means that resources – mitigation specialists, mental health and other experts, and well-trained and fairly-compensated lawyers should represent defendants at trial and on direct appeal. Post-conviction proceedings and federal habeas proceedings should not be the primary stage at which the fairness of a trial is litigated. In order for that to happen, there needs to be changes, which in some cases or in some states may be radical ones.

First , as the law changes, it should change for all who were convicted under the old system. When Ring v. Arizona was decided, there were 30 resentencings on remand. [96] Until the bar has confidence that defendants will get the benefit of evolving law, lawyers will be unable to avoid arguing for extensions of the law in any way they perceive applicable to the defendants they represent.

Second , those firms and private donors that are assisting on the “back end” – at federal habeas or in state post-conviction proceedings – should help instead to fund trial-level resources, whether retaining and presenting experts, funding mitigation specialists, or donating funds to help pay for sufficient adequately compensated counsel.

Third , federal deference should be determined by how well a state ensures verdicts worthy of confidence, not by how well it structures post-conviction relief.

This article has explored several inverted incentives that call into question whether the constitutional scheme that the United States Supreme Court envisioned can be achieved – and that at the least shows that it is not there now. As lawyers, the authors of this article adhere strongly to the conviction that a lawyer may exercise zealous advocacy and personal belief only within the confines of our duties to the courts in which we practice – and, as Judge Aldisert suggested – to the law itself. In that spirit, we offer the following thoughts:

At the end of the day – whether because one cannot countenance any taking of life or because one believes that it is not possible to create a system worthy of confidence when it comes to a sentence of death, there will be some who will say that none of this matters: that no matter how a capital sentencing scheme is structured or what protections are in place, it is wrong to execute persons at all. There are two vehicles for the expression of that ethical choice: the legislatures, state and federal, which enact the laws defining or abolishing the death penalty; and the views of the community, which the United States Supreme Court has said is critical to an Eighth Amendment analysis. But for those struggling to respond to capital punishment as lawyers, all three duties of loyalty must be kept in balance: to one’s client, to one’s own conscience; and to the jurisprudential system – both the development of the law and the individual tribunal before which one appears. Daniel prayed before an open window, but he also continued to serve the king.

[1] “ethos.” Oxford English Dictionary. 2014. http://www.oed.com/viewdictionaryentry/Entry/64840 (18 Apr. 2015).

[2] Gregg v. Georgia , 428 U.S. 153, 173 (1976).

[4] Gregg v. Georgia , 428 U.S. at 183-84.

[5] Exodus 21:23-25.

[6] Minute of the Green Country Monthly Meeting of the Religious Society of Friends, on Capital Punishment (May 12, 1996) available at http://www.qis.net/~daruma/cap-pun2.html.

[7] Statement of the Administrative Committee of the United States Conference of Catholic Bishops, on Ending the Death Penalty (Mar. 24, 1999).

[8] John and Laura McBride, We’d Like To Say: Capital Punishment is Not the Answer , St. Anthony Messenger (Jan. 2002), http://www.americancatholic.org/Messenger/Jan2002/feature3.asp.

[9] John and Laura McBride, We’d Like To Say: Capital Punishment is Not the Answer , St. Anthony Messenger (Jan. 2002), http://www.americancatholic.org/Messenger/Jan2002/feature3.asp .

[11] Sheldon M. Finkelstein, A Tale of Two Witnesses: The Constitution’s Two-Witness Rule and the Talmud Sanhedrin , 43 Litigation 4 (Summer 2010).

[12] Id . at 17.

[13] Bryan v. Moore , 528 U.S. 1133 (2000) (dismissing as improvidently granted a challenge to electrocution because Florida’s law changed in the interim to permit execution by lethal injection).

[14] E.g., Qur’an 6:151 (“Take not life, which God has made sacred, except by way of justice and law. Thus does He command you, so that you may learn wisdom.”).

[15] Gregg , 428 U.S. at 175-76.

[16] Id. at 181-82.

[18] Gregg , 428 U.S. at 189, 194-95.

[19] Id . at 204.

[21] Pulley v. Harris , 465 U.S. 37 (1984).

[22] Walker v. Georgia , 555 U.S. 979, 983-84 (2008).

[23] Proffitt v. Florida , 428 U.S. 242 (1976).

[24] Id . at 208 (quoting Tedder v. State , 322 So. 2d 908, 910 (Fla. 1975)).

[25] Id . at 252.

[26] Jurek v. Texas , 428 U.S. 262 (1976).

[27] Id. at 271.

[28] Id . at 274.

[29] Id . at 276.

[31] Woodson v. North Carolina , 428 U.S. 280 (1976).

[32] Id. at 302.

[33] Id . at 304 (citations omitted).

[34] Roberts v. Louisiana, 428 U.S. 325 (1976).

[35] Id . at 333.

[36] Id . at 335.

[37] Abdul-Kabir v. Quarterman , 550 U.S. 233, 264 (2007).

[38] E.g., Wiggins v. Smith , 539 U.S. 510, 535-36 (2003). The first case to define a constitutional right to counsel as a right to effective counsel is Strickland v. Washington , 466 U.S. 668 (1984).

[39] Berger v. United States , 295 U.S. 78, 88 (1935). See also Mooney v. Holohan , 294 U.S. 103, 112 (1935) (rejecting the Attorney General’s contention that a prosecutor’s obligation extends only to evidence in possession of the defendant).

[40] Brady v. Maryland, 373 U.S. 83 (1963).

[41] Atkins v. Virginia , 536 U.S. 304 (2002).

[42] Roper v. Simmons , 543 U.S. 551 (2005).

[43] Id . at 569.

[44] Id . at 570 (citations and internal quotations omitted).

[45] Ford v. Wainwright , 477 U.S. 399, 401 (1986) (“For centuries no jurisdiction has countenanced the execution of the insane, yet this Court has never decided whether the Constitution forbids the practice. Today we keep faith with our common-law heritage in holding that it does.”).

[46] Drope v. Missouri , 420 U.S. 162, 172 (1975) (recognizing that it violates due process to fail “to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial.”).

[47] E.g ., Ryan v. Gonzales , 133 S. Ct. 696 (2013) (finding no statutory right to a suspension of habeas proceedings during the pendency of petitioner’s incompetence).

[48] Ala. Code § 13A-5-40.

[49] South Carolina Statutes, § 16-3-26; Tennessee Rule of Criminal Procedure 12.3(b)(1) (“When the indictment or presentment charges a capital offense and the district attorney general intends to ask for the death penalty, he or she shall file notice of this intention not less than thirty (30) days before trial. If the notice is untimely, the trial judge shall grant the defendant, on motion, a reasonable continuance of the trial.”).

[50] Kyles v. Whitley , 514 U.S. 419, 434 (1995) (emphasis added).

[51] Lankford v. Idaho , 500 U.S. 110, 125-26 & nn. 20, 21 (1991).

[52] See Governor Tom Wolf, Memorandum, Death Penalty Moratorium Declaration, available at http://www.pa.gov/Pages/NewsDetails.aspx?agency=PAGovNews&item=16512.

[53] ABA Resolution, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989), www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/1989guidelines.authcheckdam.pdf .

[54] ABA Resolution, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003), www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/2003guidelines.authcheckdam.pdf .

[55] ABA Guideline 1.1(A).

[56] ABA Guideline 1.1 (B).

[57] ABA Guideline 6.1.

[58] ABA Guideline 10.4. In 2008, the ABA published the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (the “Supplementary Guidelines”). The objective of the Supplementary Guidelines is to “summarize prevailing professional norms for mitigation investigation, development and presentation by capital defense teams, in order to ensure high quality representation for all persons facing the possible imposition or execution of a death sentence in any jurisdiction.”

[59] ABA Guideline 9.1.

[60] See, e.g ., Littlejohn v. Trammell , 704 F.3d 817 (10th Cir. 2013); Link v. Luebbers , 830 F. Supp. 2d 729 (E.D. Mo. 2011); State v. Hunder , 960 N.E.2d 95 (Ohio 2011).

[61] Bobby v. Van Hook , 558 U.S. 4, 8 (2009).

[62] Id . at 9.

[63] Alabama Circuit Judge’s Association Resolution (Jan. 21, 2005), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/Alabama_Resolution_for_ABA_Guidelines_Aug_2007.authcheckdam.pdf .

[64] Guidelines and Standards for Texas Capital Counsel, State Bar of Texas , 69 Tex. Bar J. 10, 966-982 (Nov. 2006), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/TX_Bar_Association_adopted_version_of_ABA_Guidelines.authcheckdam.pdf .

[66] Alabama Circuit Judge’s Association Resolution (Jan. 21, 2005), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/Alabama_Resolution_for_ABA_Guidelines_Aug_2007.authcheckdam.pdf .

[67] Public Defender Commission, State of Arkansas, available at http://www.arkansas.gov/apdc/news/qualifications.html#Cases.

[68] Cal. Rules of Court, R. 4.117.

[70] C.R.S.A. § 16-12-205.

[71] National Center for State Courts, Indigent Defense State Links, available at http://www.ncsc.org/Topics/Access-and-Fairness/Indigent-Defense/State-Links.aspx?cat=Capital%20Case%20Representation#New Hampshire.

[72] Wright v. Angelone , 644 F. Supp. 460, 462 (E.D.Va. 1996) (citing 28 U.S.C. §§ 2261, 2265).

[73] Daniel Silverman, Death Penalty System Broken, Philadelphia Inquirer, Feb. 5, 2015, available at http:/qqq/philly/com/philly/opinion/inquirer/20150105_Death-penatly_system_broker.html.

[75] E.g ., Yarborough v. Gentry , 540 U.S. 1, 8 (2003) (“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”)

[76] Commonwealth v. Bomar , 2014 Pa. LEXIS 3078 at *33.

[77] Fred C. Zacharias & Bruce A. Green, Reconceptualizing Advocacy Ethics , 74 Geo. Wash. L. Rev. 1 (November 2005).

[78] Id . at 8, quoting Rush v. Cavenaugh , 2 Pa. 187, 189, 1845 Pa. LEXIS 306 (1845).

[79] In tracing the disappearance of this concept, they observe that Henry S. Drinker, in Legal Ethics at 145 & n.32 (1953) was the last treatise author to cite to Rush – and he did so as support for his conclusion that “[a] lawyer is not bound to give his client a moral lecture. He should advise what the law requires, but should not further any of the client’s unjust schemes, and should refuse to become a party to them.” Id .

[80] Zacharias and Green at 34.

[81] Id . at 51.

[82] Id . at 52-53.

[83] 11 Cap. U. L. Rev. 446 (1981-82).

[84] Id . at 454.

[85] Teague v. Lane , 489 U.S. 288, 407 (1989).

[86] Teague recognized exceptions for “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” and “watershed rules of criminal procedure.” O’Dell v. Netherland , 521 U.S. 151, 311 (1997).

[87] O’Dell , 521 U.S. at 167.

[88] Beard v. Banks , 542 U.S. 406 (2004).

[89] See ABA Guideline 10.8 (stating that lawyer has duty to “consider all legal claims potentially available” in addition to “supplementing claims previously made with additional factual or legal information”); see also ABA Guideline 10.15.1 (stating that post-conviction counsel should “seek to litigate all issues, whether or not previously presented, that are arguably meritorious under the standards applicable to high quality capital defense representation, including challenges to any overly restrictive procedural rules”).

[90] 2014 Pa. LEXIS 3558 at *68-69.

[91] Id . at *83-85.

[92] See Commonwealth v. Spotz , 99 A.3d 866, 916 (Pa. 2014) (post-decisional single justice opinion).

[93] While only one justice called for overruling the exception in Commonwealth v. Bomar , 2014 Pa. LEXIS 3078 (Nov. 21, 2014), three did so in Commonwealth v. Blakeney , 2014 Pa. LEXIS 3517 (Pa. Dec. 29, 2014),

[94] See Senator Caroly McGinn, “Death Penalty Too Costly,” The Witchita Eagle , March 1, 2009, available at http://www.deathpenaltyinfo.org/new-voices-republican-senator-says-kansas-death-penalty-too-costly; Logan Carver, “Death Penalty Cases More Expensive than Lifetime Imprisonment, But Local CDA Says Cost Never a Consideration,” Lubbock Avalance-Journal, available at http://lubbockonline.com/stories/121309/loc_535156806.shtml .

[95] Arit John, A Botched Lethal Injection Won’t Change Anyone’s Mind About Capital Punishment (posted July 24, 2014), http://www.thewire.com/politics/2014/07/a-botched-lethal-injection-wont-change-anyones-mind-about-capital-punishment/375022 (discussing Chief Judge Alex Kozinski’s argument that to prevent executions from being cruel and unusual, a more efficient form of capital punishment, such as firing squads, should be employed).

[96] 536 U.S. 584 (2002)

Against Capital Punishment Argumentative Essay Examples

Type of paper: Argumentative Essay

Topic: Finance , Punishment , Life , Crime , Capital Punishment , Death Penalty , Criminal Justice , Death

Words: 2500

Published: 12/18/2019

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One definition of morality is “The quality of being in accord with standards of right or good conduct” (thefreedictionary). The decency of capital punishment is a largely disputed subject and one that tends to polarise people’s views. However, in 2012 and in a leading civilised nation such as the U.S. it is arguable that there can be no circumstances in which sentencing a person to death is acceptable. America is known around the world as being a well-respected, leading democracy. The act of punishing people by death is an ancient one; it is also one that no longer has place in society. /> One of the leading arguments against capital punishment is based on the value of human life. Most people believe human life to be valuable and some abolitionists think it so valuable that even the most brutal murderers should not have their lives taken from them (BBC). They believe that no amount of bad conduct can devalue an individual’s life. Some abolitionists are less certain about this. They believe that life should be preserved unless there is significant reason not to, and that the burden is on supporters of capital punishment to validate their opinions. It could be argued that people who have this ‘on the fence’ view are not truly abolitionists. People who strictly oppose capital punishment believe that everyone has a human right to life, regardless of crimes they may have committed and that sentencing them to death is an infringement of their basic human rights. The opposing argument, therefore, is that an individual who commits murder is aware of their wrong doing and is forfeiting their right to life. An extremely common case against capital punishment is that there will inevitably be errors within the justice system that result in innocent people being put to death. Jurors, prosecutors and witnesses can and do make mistakes. There are many cases of verdicts that have been appealed and the accused eventually released. If the death penalty has been implicated there is no chance of correcting the mistakes. There is a significant body of evidence supporting the notion that mistakes such as these are likely. In America since 1973, one hundred and sixteen people on death row have been discovered as innocent and released (Amnesty). Many people consider the notion and the practice of retribution to be morally unsound. They take on the view that teaching that murder is wrong by murder is unethical. On the other hand, capital punishment supporters maintain that in order for justice to work, criminal individuals need to suffer in a way that is proportionate to their crime. Following this rule it makes sense that a murderer should be punished with death. Many people who are unsure of their position on capital punishment do find that this idea corresponds with their inherent sense of justice. This argument in favour of retribution is often supported with the “an eye for an eye” argument. However, using this quote from the Old Testament actually demonstrates a misunderstanding of the text. The Old Testament meaning of “an eye for an eye” actually means only that a guilty individual should be punished though not too severely. Another argument to the capital punishment supporters’ view of retribution concerns the uniqueness of the death penalty. If murderers are put on death row as a punishment directly relating to their crime, then it raises questions as to why the rule doesn’t apply to other types of crimes. For example, convicts of rape are not chastised with rape and burglars do not have their possessions taken away from them. Other abolitionists argue that the death penalty is not, in fact, proportionate to the crime of murder. They claim that this punishment delivers two punishments; both the execution and the wait leading up to it. They see this, therefore, as a mismatch. Many offenders spend a long time on death row before finally being put to death. In the U.S. the average is ten years. Conversely, some abolitionists oppose the death penalty as they feel it isn’t enough of a retribution. It is arguable that life in prison causes a much higher degree of suffering than a short prison sentence and then a pain free death. Another question when assessing the ethical appropriateness of the death sentence is whether it actually works as a crime deterrent. It doesn’t appear to; what seems to deter is the chance of being found out. Social scientists generally agree that the death penalty’s effectiveness as a deterrent is unconfirmed. In 1988 a survey was carried out to establish the connection between the death penalty and rates of murder. In 1996 it was brought up to date and concluded: “research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment” (Amnesty). Irrespective of the moral and ethical position of capital punishment, it is arguable that to cause so much suffering to the individual is bordering on torture, and is wrong. Some means of execution are clearly probable to cause suffering. Examples of this are execution by strangulation, lethal gas and electrocution, to name just a few. Other methods, such as firing squads and beheading have been banned because they were considered too brutal, or because the executioner had to be too closely involved. Many countries now opt for the lethal injection method of execution as it is thought to be less severe for both the offender and the executioner. However, there are known flaws with this method, including the necessity for a medical professional to be involved in the actual killing; this is a contradiction to medical ethics.

A particularly contested area of capital punishment regards the sentencing of individuals with learning disabilities.

The Penry v. Lynaugh case provides a sound example of the issues surrounding this matter. In 1989, in the state of Texas, Pamela Carpenter was raped and stabbed to death in her home (Chan). Before Carpenter died in hospital she was able to give the police a description of her attacker. The description led the police to Johnny Paul Penry. Penry confessed to the crime and he was charged with capital murder. However, the conviction was the most simple part of what was to be a very long and complicated case. Penry was classed as “mentally retarded” (Chan) and therefore the suit contained far more considerations than a more standard murder trial. Penry was assessed by a clinical psychologist who testified that Penry had an IQ of fifty-four and, although he was twenty-two at the time of the trial, he was reported to have the learning age of a six-year-old and the social maturity level of a nine or ten-year old. The psychologist, Dr Brown, testified that “there’s a point at which anyone with [Penry’s] IQ is always competent, but, you know, this man is more in the borderline” (Chan 1121). What proceeded was a long trial in which there was a distinct lack of consensus among the Justices. The main problem was in assessing Penry’s levels of comprehension and of his levels of culpability regarding the murder. Eventually the court ruled that it is not cruel and unusual punishment to sentence a mentally retarded person to death under the eighth amendment. This position could be argued as wrong as, by definition, every mentally retarded individual is handicapped in his mental abilities and, therefore, his culpability. The death penalty for mentally retarded individuals is not banned by common law or by national consensus. However, it almost definitely violates the matter of proportionality; mentally retarded criminals do not possess the levels of culpability worthy of the death sentence. Furthermore, as Peter Chan argues, “because of the unique finality and harshness of the death penalty, the Court should always rule in favour of life if there are any doubts or uncertainties about the correctness of the sentence” (Chan 1234). Another example levels of culpability coming into question is when sentencing juveniles. A study investigated the eighth amendment of societal consensus and proportionality with reference to juvenile death penalties (Crosby). A selection of individuals who had previously worked as jurors were asked to vote on whether to execute a defendant in an hypothetical case. The defendant’s age and the level of remorse displayed were mixed. The majority of the participants chose to execute the defendant in all of the situations. However the defendant’s age and the voter’s views on juvenile culpability lessened the chance of execution. The researcher commented that “the large percentage of our sample of former jurors voting to execute even the youngest defendant was unanticipated. A high rate of death sentences for the 15, 16, and 19-year-old defendants may not be quite so startling; the finding that a majority of our sample of former jurors, specifically 60.5%, voted to execute a 10-year-old child is striking” (Crosby).

In 1972 the U.S. Supreme Court sustained the structure of the death penalty. Sixteen years later the Court finally addressed this structure regarding juvenile offenders. In 1987, in the Thomson v. Oklahoma case, a majority of the Court decided that giving the death penalty to a fifteen-year-old defendant constituted cruel and unusual punishment under the Eighth amendment. Nevertheless, just two years later in the Stanford v. Kentucky case, a ruling percentage of the Court ruled that the death penalty was not unconstitutional when sentencing a sixteen or seventeen-year-old defendant (Crosby).

This seems an unethical decision. In the U.S. seventeen-year-olds are not yet even legally allowed to drink alcohol. Imposing the death sentence onto a defendant of such a young age could be argued to be barbaric. Further to implementing capital punishment, the nation goes one step further and decides that it is appropriate to televise the executions. Robert Bryan (Bedau 385) speaks about his time defending individuals facing the death penalty. He reports that “as the debate on televising executions became a hot topic, clients began to express their feelings about becoming a source of public entertainment. Many were strongly against such a notion, while others felt it might help the struggle to end capital punishment” (Bedau 386). Bryan views the U.S. broadcast of executions as simply using defendants to quench America’s thirst for violent entertainment. He claims that executions bring out the worst in people, and have done throughout history. Most people have seen movies featuring scenes of capital punishment; the on screen audience are shouting and throwing objects at the person about to be killed, and then at the moment of death the crowd erupts into excitement and cheering. As Bryan rightly points out, these scenes are historically accurate. Furthermore, Bryan argues that regardless on anyone’s position on televising executions, the larger issue is whether governments should be in the business of killing at all (Bedau 387). William Bailey investigated the validly of the argument for murder and capital punishment as being a deterrent (Bailey). In order to do this he examined the monthly homicidal rates alongside the amount of television exposure of executions from 1976 through to 1987. His findings were that “despite the power of television as a source of news in the United States, the results of this study do not support either the deterrence argument, which contends that capital punishment reduces killings, or the brutalization argument, which contends that capital punishment promotes killings. Homicide rates were not found to be related to either the amount or the type of execution publicity over the period” (Bailey).

Bailey found no evidence that the amount of television exposure of executions had a significant effect of deterrent on the homicides during the period studied. He claims that as television has become the most depended on news medium then any deterrent to murder would be displaying the punishment via this means. He concludes that the current numbers of executions or broadcasts of such neither dissuade nor encourage murder (Bailey). Capital punishment provokes debate in the U.S. and all over the world. American citizen’s put their money and trust into government officials to run the country and to uphold the nation’s pride in being a country of democracy and human rights. However, a government who would allow and promote the implementation of the death penalty cannot really be upholding either principle.

The ethical arguments against capital punishment are vast, ranging from philosophies on the value of life to basic human rights. Furthermore, the degree of disagreement within the Courts is a concern. The case of John Penry illustrates the point that a courtroom is made up of many people who will not always unanimously agree. If a decision cannot be made unanimously over an issue as fundamental as this one, then there should be no opportunity for someone to be sentenced to death despite it. It is an embarrassment that America, one of the leading and most respected nations in the world, can still be using this out-dated tradition.

Works Cited

Bailey, W.C. “Murder, Capital Punishment, and Television: Execution Publicity and Homicide”. American Sociological Association. American Sociological Review, Vol. 55, No. 5 May 2012. http://www.jstor.org/stable/2095860

BBC. “Arguments against capital punishment.” 2012. Web. May 2012. http://www.bbc.co.uk/ethics/capitalpunishment/against_1.shtml

Bedau, H.A. (1998) “The Death Penalty in America: Current Controversies". OUP USA. Chan, P. “Eighth Amendment: The Death Penalty and the Mentally Retarded Criminal: Fairness, Culpability, and Death”. The Journal of Criminal Law and Criminology. Vol. 80, No. 4. Northwestern University. 19 Jan. 2011. http://www.jstor.org/stable/1143696

Crosby, Catherine, Preston Britner, Kathleen Jodi and Sharon Porwtood. “The Juvenile death Penalty and the Eighth Amendment: An Empirical Investigation of Societal Concensus and Proportionality”. Law and Human Behavior, Vol. 19, No. 3. 19 Jan. 2011. http://www.jstor.org/stable/1143696

“Death Penalty”. Amnesty International. 28 Feb. 2011. http://www.amnesty.org/en/death-penalty

“Morality”. The Free Dictionary. 28 Feb. 2011. http://www.thefreedictionary.com/morality

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Essay: Arguments against the Death Penalty

Essay: Arguments against the Death…

The idea of putting another human to death is hard to completely fathom. The physical mechanics involved in the act of execution are easy to grasp, but the emotions involved in carrying out a death sentence on another person, regardless of how much they deserve it, is beyond my own understanding. However, this act is sometimes necessary and it is our responsibility as a society to see that it is done. Opponents of capital punishment have basically four arguments.

The first is that there is a possibility of error. However, the chance that there might be an error is separate from the issue of whether the death penalty can be justified or not. If an error does occur, and an innocent person is executed, then the problem lies in the court system, not in the death penalty.

Furthermore, most activities in our world, in which humans are involved, possess a possibility of injury or death. Construction, sports, driving, and air travel all offer the possibility of accidental death even though the highest levels of precautions are taken.

These activities continue to take place and continue to occasionally take human lives, because we have all decided, as a society, that the advantages outweigh the unintended loss. We have also decided that the advantages of having dangerous murderers removed from our society outweigh the losses of the offender.

The second argument against capital punishment is that it is unfair in its administration. Statistics show that the poor and minorities are more likely to receive the death penalty. Once again, this is a separate issue.

It can’t be disputed sadly, the rich are more likely to get off with a lesser sentence, and this bias is wrong. However, this is yet another problem with our current court system. The racial and economic bias is not a valid argument against the death penalty. It is an argument against the courts and their unfair system of sentencing.

The third argument is actually a rebuttal to a claim made by some supporters of the death penalty. The claim is that the threat of capital punishment reduces violent crimes. Opponents of the death penalty do not agree and have a valid argument when they say, “The claims that capital punishment reduces violent crime is inconclusive and certainly not proven.”

The fourth argument is that the length of stay on death row, with its endless appeals, delays, technicalities, and retrials, keep a person waiting for death for years on end. It is both cruel and costly. This is the least credible argument against capital punishment. The main cause of such inefficiencies is the appeals process, which allows capital cases to bounce back and forth between state and federal courts for years on end.

If supporting a death row inmate for the rest their life costs less than putting them to death, and ending their financial burden on society, then the problem lies in the court system, not in the death penalty. As for the additional argument, that making a prisoner wait for years to be executed is cruel, then would not waiting for death in prison for the rest of your life be just as cruel, as in the case of life imprisonment without parole.

Many Americans will tell you why they are in favor of the death penalty. It is what they deserve. It prevents them from ever murdering again. It removes the burden from taxpayers. We all live in a society with the same basic rights and guarantees. We have the right to life, liberty, and the pursuit of happiness with equal opportunities.

This is the basis of our society. It is the foundation on which everything else is built upon. When someone willfully and flagrantly attacks this foundation by murdering another, robbing them of all they are, and all they will ever be, then that person can no longer be a part of this society. The only method that completely separates cold blooded murderers from our society is the death penalty.

As the 20th century comes to a close, it is evident that our justice system is in need of reform. This reform will shape the future of our country, and we cannot jump to quick solutions such as the elimination of the death penalty. As of now, the majority of American supports the death penalty as an effective solution of punishment.

“An eye for an eye,” is what some Americans would say concerning the death penalty. Supporters of the death penalty ask the question, “Why should I, an honest hardworking taxpayer, have to pay to support a murderer for the rest of their natural life? Why not execute them and save society the cost of their keep?” Many Americans believe that the death penalty is wrong. However, it seems obvious to some Americans that the death penalty is a just and proper way to handle convicted murderers.

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Author: William Anderson (Schoolworkhelper Editorial Team)

10 Comments

The title is Arguments against the Death Penalty yet the author spent the whole time counterclaiming any arguments brought up rather than explaining the logistics behind the arguments. No side was taken in this essay however the title clearly states that the essay should be on arguments against.

Who is the Author?

I agree with y’all the death penalty is wrong because why make them die really quick when you can make them suffer for what they did?

I disagree entirely

I agree with you!

Are you Gonna pay for them to be alive then? We are wasting money that could be spent helping the homeless or retired vetrans.

more money is spent on actually executing prisoners ? so how that makes any sense i dont know?

Whatever henious crime one does,we are not uncivilised and barbaric to take the lives of others.If we ought to give them death sentence as punishment,then what distinguishes us from the criminals?Also I don’t think that giving death sentence would deter the other criminals from doing the same and reduce the number of crimes.If insecurity is the major issue behind demanding capital punishment,then the best solution is framing the punishment in such a way that the culprit would never be a threat to the society,not hanging to death.

what distinguishes us from murderers is that we ONLY kill when necessary, if for example there was a serial killer arrested a death penalty is necessary because 1. if said killer ever breaks out they could kill many more people, and 2. the government is already pouring enough money into the prisons right now. more people means more money needed. money that could go to our military or police.

now there is also (as said above) problems with the current situation in the courts, a rich man will get a great lawyer while a poor man gets the best they can afford, though the reasoning behind the long wait I do understand, it is to reduce the likelihood of an innocent man or woman from being put to death.

by the way we don’t hang people anymore we give them painless deaths

also, in response to your idea of a different punishment to stop a criminal from committing crime again do YOU have any ideas because if you do I please post them. I AM willing to have a actual debate if you are willing to calmly do so.

It’s been proven that it costs more to put a prisoner to death by death penalty than letting them sit in jail for the rest of their life. The death penalty is funded by the taxes we pay to the government. As a taxpayer, i don’t want to spend extra money that i make to put a murdered etc. to death when they could sit in jail for the rest of their life and this is just as much punishment for them. They have time to think about their actions and hopefully get their mind right, get some help, and get right with God or whatever faith they believe in if they do. Some cases may be acceptable for the death penalty, but it should be the absolute worse ones, or if the prisoner breaks out as stated before.

Capital Punishment Essay for Students and Children

500+ words essay on capital punishment.

Every one of us is familiar with the term punishment. But Capital Punishment is something very few people understand. Capital punishment is a legal death penalty ordered by the court against the violation of criminal laws. In addition, the method of punishment varies from country to country. Where some countries hung the culprits until death and some shoot or give them a lethal injection.

Types of Capital Punishments

In this topic, we are going to discuss the various methods of punishment that are used in different countries. But, before that let’s talk about the capital punishments that people used in the past. Earlier, the capital punishments are more like torture rather than a death penalty. They used to strain and punish the body of the culprit to the extreme that he/she dies because of the pain and fear of torture.

Besides, modern methods are quicker and less painful than traditional methods.

Electrocution – In this method, the criminal is tied to a chair and a high voltage current that can kill a man easily is passed through the body. In addition, it causes organ failure (especially heart).
Tranquilization – This method gives the person a slow but painless death as the toxin injections are injected into his body that takes up to several hours for the criminal to die.
Beheading – Generally, the Arab and Gulf countries use this method. Where they decide the death sentence by the crime of the person. Furthermore, in this method, they simply cut the person’s head apart from the body.
Stoning – In this the criminal is beaten till death. Also, it is the most painful method of execution.
Shooting – The criminal is either shoot in the head or in his/her chest in this method.
Hanging – This method simply involves the hanging of culprit till death.

Get the huge list of more than 500 Essay Topics and Ideas

Advantages and Disadvantages of Capital Punishments

Although many people think that it’s a violation of human rights and the Human Rights Commission strongly opposes capital punishment still many countries continue this practice.

The advantages of capital punishment are that they give people an idea of what the law is capable of doing and the criminal can never escape from the punishment no matter who he/she is.

In addition, anyone who is thinking about committing a crime will think twice before committing a crime. Furthermore, a criminal that is in prison for his crime cannot harm anyone of the outside world.

The disadvantages are that we do not give the person a second chance to change. Besides, many times the real criminal escape the trial and the innocent soul of the prosecution claimed to guilty by false claims. Also, many punishments are painful and make a mess of the body of the criminal.

To conclude, we can say that capital punishment is the harsh reality of our world. Also, on one hand, it decreases the crime rate and on the other violates many human rights.

Besides, all these types of punishment are not justifiable and the court and administrative bodies should try to find an alternative for it.

FAQs about Capital Punishment

Q.1 What is the difference between the death penalty and capital punishment?

A.1 For many people the term death penalty and capital punishment is the same thing but there is a minute difference between them. The implementation of the death penalty is not death but capital punishment itself means execution.

Q.2 Does capital punishment decrease the rate of crime?

A.2 There is no solid proof related to this but scientists think that reduces the chances of major crimes to a certain level.

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Capital punishment
Capital punishment - Arguments, Pros/Cons: Capital punishment has long engendered considerable debate about both its morality and its effect on criminal behaviour. Contemporary arguments for and against capital punishment fall under three general headings: moral, utilitarian, and practical. Supporters of the death penalty believe that those who commit murder, because they have taken the life ...
Should the Death Penalty Be Abolished?
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:
Top 10 Pro & Con Arguments
Top 10 Pro & Con Arguments. 1. Legality. The United States is one of 55 countries globally with a legal death penalty, according to Amnesty International. As of Mar. 24, 2021, within the US, 27 states had a legal death penalty (though 3 of those states had a moratorium on the punishment's use).
Arguments for and Against the Death Penalty
The death penalty deters future murders. Agree. Society has always used punishment to discourage would-be criminals from unlawful action. Since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder, and that is the death penalty.
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An essay on capital punishment may be a challenging assignment because students should know much about the subject. Do not worry, we have got you covered! ... Capital punishment essay: Arguments against death penalty; The legal and ethical implications of capital punishment; Capital punishment should be forbidden: Anti-death penalty arguments ...
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5 Death Penalty Essays Everyone Should Know. Capital punishment is an ancient practice. It's one that human rights defenders strongly oppose and consider as inhumane and cruel. In 2019, Amnesty International reported the lowest number of executions in about a decade. Most executions occurred in China, Iran, Saudi Arabia, Iraq, and Egypt.
The Case Against the Death Penalty
The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. "Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without ...
Capital punishment
capital punishment, execution of an offender sentenced to death after conviction by a court of law of a criminal offense. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law.The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution (even when ...
Arguments against capital punishment
The most common and most cogent argument against capital punishment is that sooner or later, innocent people will get killed, because of mistakes or flaws in the justice system. Witnesses, (where ...
Capital Punishment: Pros and Cons of the Death Penalty
The death penalty, also known as capital punishment, is the lawful imposition of death as punishment for a crime. In 2004 four (China, Iran, Vietnam, and the US) accounted for 97% of all global executions. On average, every 9-10 days a government in the United States executes a prisoner. It is the Eighth Amendment, the constitutional clause ...
Pros and Cons of the Death Penalty and Capital Punishment
Quotations from Both Sides. Arguing against capital punishment, Amnesty International believes: "The death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state in the name of justice. It violates the right to life...It is the ultimate cruel, inhuman and degrading punishment.
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.
Death Penalty: Utilitarian View on Capital Punishment
Introduction. The death penalty is arguably the most controversial legal punishment imposed by the Criminal Justice System of our country. This form of punishment stands out from the rest due to its harshness and severity. There is general agreement that capital punishment is the most severe punishment that a judge can give an offender.
A Factful Perspective on Capital Punishment
Abstract. Substantial progress has been made towards worldwide abolition of capital punishment, and there are good reasons to believe that more progress is possible. Since 2000, the pace of abolition has slowed, but by several measures the number of executions in the world has continued to decline. Several causes help explain the decline ...
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*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 ...
The research on capital punishment: Recent scholarship and unresolved
Finally, there has been growing support for taping interrogations of suspects in capital cases, so as to guard against the phenomenon of false confessions. Related reading: For an international perspective on capital punishment, see Amnesty International's 2013 report ; for more information on the evolution of U.S. public opinion on the death ...
An Inquiry into the Ethics of Capital Punishment
In addition, many express a belief that capital punishment is an offense against the community, or that it is unfairly harmful to the person delegated to carry out the sentence. The conviction that the taking of life is wrong is heightened by - or in some cases replaced with - concerns that the punishment does not achieve its stated goals ...
Against Capital Punishment Argumentative Essay Examples
One definition of morality is "The quality of being in accord with standards of right or good conduct" (thefreedictionary). The decency of capital punishment is a largely disputed subject and one that tends to polarise people's views. However, in 2012 and in a leading civilised nation such as the U.S. it is arguable that there can be no ...
The Ethics of Capital Punishment and a Law of Affective Enchantment
This paper re-reads American Appellate and Supreme Court rulings about the constitutionality of execution by electrocution from the perspective of new materialism. Using the case of Provenzano v. Moore, this paper highlights how the existing jurisprudence develops a notion of cruelty that deliberately avoids the sensual and affective dimensions ...
Arguments For and Against Capital Punishment
Arguments for. Amongst the most powerful arguments made by death penalty supporters postulates that it is a unique and effective deterrent against murder. Although killing is generally immoral, certain kinds of murders are justifiable. These include killing in self-defense and in defense of other members of the society.
Essay: Arguments against the Death Penalty
The racial and economic bias is not a valid argument against the death penalty. It is an argument against the courts and their unfair system of sentencing. The third argument is actually a rebuttal to a claim made by some supporters of the death penalty. The claim is that the threat of capital punishment reduces violent crimes.
Essay Against Capital Punishment
Persuasive Essay Against Capital Punishment. Persuasive Essay Against Capital Punishment "Kill. (Verb) To make someone or something die." Does anyone really think they have the right to take another person's life? Apparently yes. Perhaps we should give the judge a knife and tell her that if she has decided that the accused is ...
Capital Punishment Essay for Students and Children
500+ Words Essay on Capital Punishment. Every one of us is familiar with the term punishment. But Capital Punishment is something very few people understand. Capital punishment is a legal death penalty ordered by the court against the violation of criminal laws. In addition, the method of punishment varies from country to country.
To Kill or Not to Kill: Capital Punishment in America and ...
According to the Death Penalty Information Center, 70 percent of the world's nations have abolished the death penalty for various reasons, though the most common reason why nations decide to forbid its use is the belief that capital punishment is a human rights violation.But when it comes to the United States, not only is it allowed, but in some regions, it is strongly encouraged.

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Syracuse Journal of Law & Civic Engagement

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Against Capital Punishment Argumentative Essay Examples

A particularly contested area of capital punishment regards the sentencing of individuals with learning disabilities.

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Author: William Anderson (Schoolworkhelper Editorial Team)

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Capital Punishment Essay for Students and Children

Types of Capital Punishments

Advantages and Disadvantages of Capital Punishments

FAQs about Capital Punishment

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