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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

About The Death Penalty

Arguments for and Against the Death Penalty

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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 .

Hugo Adam Bedau (deceased) Austin Fletcher Professor of Philosophy, Tufts University Excerpts from “The Case Against The Death Penalty” (Copyright 1997, American Civil Liberties Union)

“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.

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….

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.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For further reading:

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

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

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

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

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

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

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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 that prohibits "cruel and unusual" punishment, which is at the center of the debate about capital punishment in America. Although most Americans support capital punishment under some circumstances, according to Gallup support for capital punishment has dropped dramatically from a high of 80% in 1994 to about 60% today.

Facts and Figures

Red state executions per million population are an order of magnitude greater than blue state executions (46.4 v 4.5). Blacks are executed at a rate significantly disproportionate to their share of the overall population.

Based on 2000 data , Texas ranked 13th in the country in violent crime and 17th in murders per 100,000 citizens. However, Texas leads the nation in death penalty convictions and executions.

Since the 1976 Supreme Court decision that reinstated the death penalty in the United States, the governments of the United States had executed 1,136, as of December 2008. The 1,000th execution, North Carolina's Kenneth Boyd, occurred in December 2005. There were 42 executions in 2007 .

More than 3,300 prisoners were serving death-row sentences in the US in December 2008. Nationwide, juries are delivering fewer death sentences: since the late 1990s, they have dropped 50%. The violent crime rate has also dropped dramatically since the mid-90s, reaching the lowest level ever recorded in 2005.

Latest Developments

In 2007, the Death Penalty Information Center released a report, “ A Crisis of Confidence: Americans’ Doubts About the Death Penalty .”

The Supreme Court has ruled that the death penalty should reflect the "conscience of the community," and that its application should be measured against society's "evolving standards of decency. This latest report suggests that 60% of Americans do not believe that the death penalty is a deterrent to murder. Moreover, almost 40% believe that their moral beliefs would disqualify them from serving on a capital case.

And when asked whether they prefer the death penalty or life in prison without parole as punishment for murder, the respondents were split: 47% death penalty, 43% prison, 10% unsure. Interestingly, 75% believe that a "higher degree of proof" is required in a capital case than in a "prison as punishment" case. (poll margin of error +/- ~3%)

In addition, since 1973 more than 120 people have had their death row convictions overturned. DNA testing has resulted in 200 non-capital cases to be overturned since 1989. Mistakes like these shake public confidence in the capital punishment system. Perhaps it is not surprising, then, that almost 60% of those polled—including almost 60% of the southerners—in this study believe that the United States should impose a moratorium on the death penalty.

An ad hoc moratorium is almost in place. After the 1,000th execution in December 2005, there were almost no executions in 2006 or the first five months of 2007.

Executions as a form of punishment date to at least the 18th century BC. In America, Captain George Kendall was executed in 1608 in the Jamestown Colony of Virginia; he was accused of being a spy for Spain. In 1612, Virginia's death penalty violations included what modern citizens would consider minor violations: stealing grapes, killing chickens and trading with Indigenous peoples.

In the 1800s, abolitionists took up the cause of capital punishment, relying in part on Cesare Beccaria's 1767 essay, On Crimes and Punishment .

From the 1920s-1940s, criminologists argued that the death penalty was a necessary and preventative social measure. The 1930s, also marked by the Depression, saw more executions than any other decade in our history.

From the 1950s-1960s, public sentiment turned against capital punishment , and the number executed plummeted. In 1958, the Supreme Court ruled in Trop v. Dulles that the Eighth Amendment contained an "evolving standard of decency that marked the progress of a maturing society." And according to Gallup, public support reached an all-time low of 42% in 1966.

Two 1968 cases caused the nation to rethink its capital punishment law. In U.S. v. Jackson , the Supreme Court ruled that requiring that the death penalty be imposed only upon recommendation of a jury was unconstitutional because it encouraged defendants to plead guilty to avoid trial. In Witherspoon v. Illinois , the Court ruled on juror selection; having a "reservation" was insufficient cause for dismissal in a capital case.

In June 1972, the Supreme Court (5 to 4) effectively voided death penalty statutes in 40 states and commuted the sentences of 629 death row inmates. In Furman v. Georgia , the Supreme Court ruled that capital punishment with sentencing discretion was "cruel and unusual" and thus violated the Eighth Amendment of the U.S. Constitution.

In 1976, the Court ruled that capital punishment itself was constitutional while holding that new death penalty laws in Florida, Georgia and Texas—which included sentencing guidelines, bifurcated trials, and automatic appellate review—were constitutional.

A ten-year moratorium on executions that had begun with the Jackson and Witherspoon ended on 17 January 1977 with the execution of Gary Gilmore by firing squad in Utah.

There are two common arguments in support of capital punishment : that of deterrence and that of retribution.

According to Gallup, most Americans believe that the death penalty is a deterrent to homicide, which helps them justify their support for capital punishment. Other Gallup research suggests that most Americans would not support capital punishment if it did not deter murder.

Does capital punishment deter violent crimes? In other words, will a potential murderer consider the possibility that they might be convicted and face the death penalty before committing murder? The answer appears to be "no."

Social scientists have mined empirical data searching for the definitive answer on deterrence since the early 20th century. And "most deterrence research has found that the death penalty has virtually the same effect as long imprisonment on homicide rates." Studies suggesting otherwise (notably, writings of Isaac Ehrlich from the 1970s) have been, in general, criticized for methodological errors. Ehrlich's work was also criticized by the National Academy of Sciences - but it is still cited as a rationale for deterrence.

A 1995 survey of police chiefs and country sheriffs found that most ranked the death penalty last in a list of six options that might deter violent crime. Their top two picks? Reducing drug abuse and fostering an economy that provides more jobs.

Data on murder rates seem to discredit the deterrence theory as well. The region of the county with the greatest number of executions—the South—is the region with the largest murder rates. For 2007, the average murder rate in states with the death penalty was 5.5; the average murder rate of the 14 states without the death penalty was 3.1. Thus deterrence, which is offered as a reason to support capital punishment ("pro"), doesn't wash.

Retribution

In Gregg v Georgia , the Supreme Court wrote that "[t]he instinct for retribution is part of the nature of man..." The theory of retribution rests, in part, on the Old Testament and its call for "an eye for an eye." Proponents of retribution argue that "the punishment must fit the crime." According to The New American : "Punishment—sometimes called retribution—is the main reason for imposing the death penalty."

Opponents of retribution theory believe in the sanctity of life and often argue that it is just as wrong for society to kill as it is for an individual to kill. Others argue that what drives American support for capital punishment is the " impermanent emotion of outrage ." Certainly, emotion not reason seems to be the key behind support for capital punishment.

Some supporters of the death penalty also contend it is less expensive than a life sentence. Nevertheless, at least 47 states do have life sentences without the possibility of parole. Of those, at least 18 have no possibility of parole. And according to the ACLU :

The most comprehensive death penalty study in the country found that the death penalty costs North Carolina $2.16 million more per execution than a non-death penalty murder case with a sentence of life imprisonment (Duke University, May 1993). In its review of death penalty expenses, the State of Kansas concluded that capital cases are 70% more expensive than comparable non-death penalty cases.

More than 1000 religious leaders  have written an open letter to America and its leaders:

We join with many Americans in questioning the need for the death penalty in our modern society and in challenging the effectiveness of this punishment, which has consistently been shown to be ineffective, unfair, and inaccurate... With the prosecution of even a single capital case costing millions of dollars, the cost of executing 1,000 people has easily risen to billions of dollars. In light of the serious economic challenges that our country faces today, the valuable resources that are expended to carry out death sentences would be better spent investing in programs that work to prevent crime, such as improving education, providing services to those with mental illness, and putting more law enforcement officers on our streets. We should make sure that money is spent to improve life, not destroy it... As people of faith, we take this opportunity to reaffirm our opposition to the death penalty and to express our belief in the sacredness of human life and in the human capacity for change.

In 2005, Congress considered the Streamlined Procedures Act (SPA), which would have amended the Anti-Terrorism and Effective Death Penalty Act (AEDPA). AEDPA placed restrictions on the power of federal courts to grant writs of habeas corpus to state prisoners. The SPA would have imposed additional limits on the ability of state inmates to challenge the constitutionality of their imprisonment through habeas corpus.

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