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Is the Death Penalty Justified or Should It Be Abolished?

is the death penalty justified or should it be abolished?

*Updated 2022

Throughout history, societies around the world have used the death penalty as a way to punish the most heinous crimes. while capital punishment is still practiced today, many countries have since abolished it. in fact, in 2019, california’s governor put a moratorium on the death penalty , stopping it indefinitely. in early 2022, he took further steps and ordered the dismantling of the state’s death row. given the moral complexities and depth of emotions involved, the death penalty remains a controversial debate the world over., the following are three arguments in support of the death penalty and three against it., arguments supporting the death penalty.

Prevents convicted killers from killing again

The death penalty guarantees that convicted murderers will never kill again. There have been countless cases where convicts sentenced to life in prison have murdered other inmates and/or prison guards. Convicts have also been known to successfully arrange murders from within prison, the most famous case being mobster Whitey Bulger , who apparently was killed by fellow inmates while incarcerated. There are also cases where convicts who have been released for parole after serving only part of their sentences – even life sentences – have murdered again after returning to society. A death sentence is the only irrevocable penalty that protects innocent lives.

Maintains justice

For most people, life is sacred, and innocent lives should be valued over the lives of killers. Innocent victims who have been murdered – and in some cases, tortured beforehand – had no choice in their untimely and cruel death or any opportunity to say goodbye to friends and family, prepare wills, or enjoy their last moments of life. Meanwhile, convicted murderers sentenced to life in prison – and even those on death row – are still able to learn, read, write , paint, find religion, watch TV, listen to music, maintain relationships, and even appeal their sentences.

To many, capital punishment symbolizes justice and is the only way to adequately express society’s revulsion of the murder of innocent lives. According to a 2021 Pew Research Center Poll, the majority of US adults ( 60% ) think that legal executions fit the crime of what convicted killers deserve. The death penalty is a way to restore society’s balance of justice – by showing that the most severe crimes are intolerable and will be punished in kind

Historically recognized

Historians and constitutional lawyers seem to agree that by the time the Founding Fathers wrote and signed the U.S. Constitution in 1787, and when the Bill of Rights were ratified and added in 1791, the death penalty was an acceptable and permissible form of punishment for premeditated murder. The Constitution’s 8 th and 14 th Amendments recognize the death penalty BUT under due process of the law. This means that certain legal requirements must first be fulfilled before any state executions can be legally carried out – even when pertaining to the cruelest, most cold-blooded murderer . While interpretations of the amendments pertaining to the death penalty have changed over the years, the Founding Fathers intended to allow for the death penalty from the very beginning and put in place a legal system to ensure due process.

Arguments against the Death Penalty

Not proven to deter crime

There’s no concrete evidence showing that the death penalty actually deters crime. Various studies comparing crime and murder rates in U.S. states that have the death penalty versus those that don’t found that the murder rate in non-death-penalty states has actually remained consistently lower over the years than in those states that have the death penalty. These findings suggest that capital punishment may not actually be a deterrent for crime.

The winds may be shifting regarding the public’s opinion about the death penalty. This is evident by the recent decision of a non-unanimous Florida jury to sentence the Parkland High School shooter to life in prison without parole instead of the death penalty . While the verdict shocked many, it also revealed mixed feelings about the death penalty, including among the families of the 17 Parkland victims and families of victims from other mass shootings.

More expensive than imprisonment

Contrary to popular belief, the death penalty is actually more expensive than keeping an inmate in prison, even for life. While the cost of the actual execution may be minimal, the overall costs surrounding a capital case (where the death penalty is a potential punishment) are enormously high. Sources say that defending a death penalty case can cost around four times higher than defending a case not seeking death. Even in cases where a guilty plea cancels out the need for a trial, seeking the death penalty costs almost twice as much as cases that don’t. And this is before factoring in appeals, which are more time-consuming and therefore cost more than life-sentence appeals, as well as higher prison costs for death-row inmates.

Does not bring closure

It seems logical that punishing a murderer, especially a mass murderer, or terrorist with the most severe punishment would bring closure and relief to victims’ families. However, the opposite may be true. Studies show that capital punishment does not bring comfort to those affected by violent and fatal crimes. In fact, punishing the perpetrator has been shown to make victims feel worse , as it forces them to think about the offender and the incident even more. Also, as capital cases can drag on for years due to endless court appeals, it can be difficult for victims’ families to heal, thus delaying closure.

The Bottom Line: The death penalty has been used to maintain the balance of justice throughout history, punishing violent criminals in the severest way to ensure they won’t kill again. On the other hand, with inconclusive evidence as to its deterrence of crime, the higher costs involved in pursuing capital cases, and the lack of relief and closure it brings to victims’ families, the death penalty is not justified. Where do you stand on this controversial issue?

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the death penalty debate

Death penalty: is capital punishment morally justified?

Lecturer in Political Philosophy, University of Essex

Disclosure statement

Jeffrey Howard receives funding from the British Academy.

University of Essex provides funding as a member of The Conversation UK.

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The execution, by hanging, of Yakub Memon for his part in the 2003 Mumbai bombings invites us to revisit the vexed issue of capital punishment. Few topics incite such moral passion and controversy.

The world’s religious communities are divided on the death penalty. Despite a seemingly unambiguous commitment to non-violence (or “Ahimsa”) in both Hinduism and Buddhism, scholars within those traditions continue to debate the permissibility of lethal punishment. The Old Testament enjoins us to take an “eye for an eye” – the principle of lex talionis – while the New Testament exhorts us to “turn the other cheek”. And while Islam is generally regarded as compatible with the death penalty, the Qur'an’s emphasis on forgiveness suggests that Muslims should sometimes respond to evil with mercy, not retaliation.

While many European countries urge an ethic of rehabilitation in their criminal justice systems, many jurisdictions in the United States stand firmly in favour of capital punishment for serious crimes. Even a federal jury in Massachusetts, a liberal bastion, recently doled out the death penalty to the sole surviving perpetrator of the Boston marathon bombing. And while the United Kingdom abandoned the death penalty in 1964 – the year of the last executions – nearly half of the British public favours a reintroduction of it (though that figure has been dropping steadily).

We will not make progress in the public debate about the death penalty unless we realise that it is only one element in a much bigger controversy: about the point of punishment itself. As The Conversation invites us to rethink the death penalty over the next few weeks, we must not conduct this discussion in a vacuum. Before you ask yourself whether we should have the death penalty, consider: why hand out any punishments at all? Considering the three main families in the philosophy of punishment can help us organise our conversation.

Retribution

“Bad guys deserve to suffer.” This is a blunt slogan, but it captures the essence of a deeply familiar notion: people who have committed culpable wrongs deserve their lives to go worse as a result. Why do they deserve it? Perhaps because it’s not fair for the lives of wrongdoers to go well when the lives of the innocent have gone poorly – punishment levels the playing field. Whatever the reason, “retributivists” – those who believe in retribution – argue that the punishment of criminals is intrinsically valuable; it is valuable in and of itself, rather than valuable because of its good consequences (for example, preventing future crime).

Even if punishing murderers and thieves had no effect on reducing the overall crime rate, retributivists tend to think it’s still the right thing to do. Retributivists also think that the severity of punishment should match the severity of the crime. So, just as it is wrong to over-punish someone (executing someone for stealing a pair of shoes), it can be wrong to under-punish someone (giving him a community service order for murder).

If you are a retributivist, you might support the death penalty because you think that certain or all murderers (and perhaps other criminals) deserve to suffer death for their crimes. Depending on how you think about death, however, you might oppose the death penalty on the grounds that it is disproportionately harsh – perhaps you think that no matter what someone has done, she does not deserve to die for it.

On the other hand you might oppose the death penalty on the grounds that it is disproportionately light. Many people who opposed the recent death sentence for the Boston bomber did so on the grounds that life in a maximum-security prison would be a worse punishment – and so more fitting – than death.

“Criminals should be punished so that they and others will be less likely to commit crime in the future, making everybody safer.” Many people criticise retributivism on the grounds that it is nothing but a pointless quest for barbaric revenge.

Inflicting suffering on human beings, if it is to be morally justified, must instead have a forward-looking purpose: protecting the innocent from harm. If this sounds sensible to you, you probably believe the point of punishment is not retribution, but rather deterrence.

The idea here is familiar enough: people face temptations to break just laws; the demands of morality and the demands of rational self-interest sometimes seem to diverge. Threats of punishment realign those demands by making it irrational for self-interested individuals to break the law.

If you are a defender of deterrence, you must answer two questions about capital punishment before determining where you stand. The first is empirical: a question about real-world facts. Does the threat of the death penalty actually deter people from committing heinous crimes to a greater extent than the threat of life imprisonment?

The second question is moral. Even if the death penalty deterred crime more successfully than life imprisonment, that doesn’t necessarily mean it would be justified. After all, imagine if we threatened execution for all crimes, including minor traffic violations, theft, and tax fraud.

Doing so would surely slash the crime rate, yet most people would judge it to be wrong. Deterrence theorists tend to defend some upper limit on the harshness of punishment – and it may be that death simply goes beyond what the government is ever permitted to threaten.

“Punishment communicates to criminals that what they have done is wrong, and gives them an opportunity to apologise and reform.” There are many different variants of this view : educative, communicative, rehabilitative – and there are important differences between them. But the basic idea is that punishment should make the wrongdoer understand what he or she has done wrong and inspire her to repent and reform.

Whatever version of this view one supports, its implication for the death penalty is reasonably clear. What is the point of a criminal reforming herself as she prepares for the execution chamber?

To be sure, many people try to mix and match different elements of these three broad views, though such mixed theories tend to be unhelpfully ad hoc and can offer conflicting guidance. Far better, to my mind, to plant one’s flag clearly and answer the question: which view should have priority in our thinking about punishment?

Then, and only then, can we proceed to think about the justice (or lack thereof) of governments who kill their citizens.

This article is part of a series on capital punishment that The Conversation is publishing. Click here to read more.

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Arguments for and Against the Death Penalty

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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.

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.

Capital Punishment: Our Duty or Our Doom?
Markkula Center for Applied Ethics
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Capital Punishment:Our Duty or Our Doom?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For further reading:

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

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

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

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

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

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

Republican presidential candidate former President Donald Trump, left, moderated by ABC's Rachel Scott, speaks at the National Association of Black Journalists convention, July 31, 2024, in Chicago.

At the NABJ convention in Chicago on July 31st, Donald Trump Asked Rachel Scott To Define DEI. She Should Have.

Pro Palestine protest and encampment in White Memorial Plaza in Stanford University in late April 2024, during the Israeli Hamas War. Photos taken on April 28th 2024 Suiren2022, CC BY 4.0 via Wikimedia Commons

While free speech is a right that has been embraced in the United States for several centuries, ethical issues about the process and limitations of free speech and protest behavior, like some of those seen on college campuses this Spring, are in question and are debatable.

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Stockholders pay the price when executives and directors choose profits over ethics.

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Federal Death Penalty

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).

Proponents of the death penalty being legal argue that such a harsh penalty is needed for criminals who have committed the worst crimes, that the punishment deters crime, and that the US Supreme Court has upheld the death penalty as constitutional.

Opponents of the death penalty being legal argue that the punishment is cruel and unusual, and, thus, unconstitutional, that innocent people are put to death for crimes they did not commit, and that the penalty is disproportionately applied to people of color.

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The Death Penalty – Your Questions Answered

Does the death penalty stop crime does it give victims justice is there a humane way to execute get your facts straight about the death penalty with amnesty’s top 10 faqs on capital punishment., 1. why does amnesty international oppose the death penalty.

The death penalty violates the most fundamental human right – the right to life. It is the ultimate cruel, inhuman and degrading punishment .

The death penalty is discriminatory. It is often used against the most vulnerable in society, including the poor, ethnic and religious minorities, and people with mental disabilities. Some governments use it to silence their opponents. Where justice systems are flawed and unfair trials rife, the risk of executing an innocent person is ever present.

When the death penalty is carried out, it is final. Mistakes that are made cannot be unmade. An innocent person may be released from prison for a crime they did not commit, but an execution can never be reversed .

2. Don’t victims of violent crime and their families have a right to justice?

They do. Those who have lost loved ones in terrible crimes have a right to see the person responsible held to account in a fair trial without recourse to the death penalty. In opposing the death penalty, we are not trying to minimize or condone crime. But as many families who have lost loved ones have said, the death penalty cannot genuinely relieve their suffering. It just extends that suffering to the family of the condemned person.

Revenge is not the answer. The answer lies in reducing violence, not causing more death. Marie Deans, whose mother-in-law was murdered in 1972

3. If you kill someone else, don’t you deserve to die, too – “an eye for an eye”?

No. Executing someone because they’ve taken someone’s life is revenge, not justice.

An execution – or the threat of one –inflicts terrible physical and psychological cruelty. Any society which executes offenders is committing the same violence it condemns .

4. Doesn’t the death penalty prevent crime?

Not according to the research. There is no credible evidence that the death penalty deters crime more effectively than a prison term. In fact, crime figures from countries which have banned the death penalty have not risen. In some cases they have actually gone down . In Canada, the murder rate in 2008 was less than half that in 1976 when the death penalty was abolished there.

5. What about capital punishment for terrorists?

Governments often resort to the death penalty in the aftermath of violent attacks, to demonstrate they are doing something to “protect” national security. But the threat of execution is unlikely to stop men and women prepared to die for their beliefs – for example, suicide bombers. Executions are just as likely to create martyrs whose memory becomes a rallying point for their organizations.

People accused of “terrorism” are especially likely to be sentenced to death after unfair trials . Many are condemned on the basis of “confessions” extracted through torture . In some cases, special or military courts set up through counterterrorism laws have sentenced civilians to death, undermining international standards.

[The death penalty] is a cheap way for politically inclined people to pretend to their fearful constituencies that something is being done to combat crime. Jan van Rooyen, South African law professor

6. Isn’t it better to execute someone than to lock them up forever?

Every day, men, women, even children, await execution on death row. Whatever their crime, whether they are guilty or innocent, their lives are claimed by a system of justice that values retribution over rehabilitation. As long as a prisoner remains alive, he or she can hope for rehabilitation, or to be exonerated if they are later found to be innocent .

7. Is there a humane and painless way to execute a person?

Any form of execution is inhumane. The lethal injection is often touted as somehow more humane because, on the surface at least, it appears less grotesque and barbaric than other forms of execution such as beheading, electrocution, gassing and hanging.

But the search for a “humane” way to kill people should be seen for what it really is – an attempt to make executions more palatable to the public in whose name they are being carried out, and to make the governments that execute appear less like killers themselves.

8. What business is it of Amnesty’s if different societies want to use the death penalty?

Human rights – including the most basic right to life – are universal and endorsed by the vast majority of countries in the world. Our call to end the death penalty is consistent with the mercy, compassion and forgiveness that all major world religions emphasize. To date, 140 countries have abolished the death penalty in law or in practice, demonstrating that the desire to end capital punishment is shared by cultures and societies in almost every region in the world.

Human rights apply to the best of us – and the worst of us. Amnesty International

9. What if public opinion is in favour of the death penalty?

Strong public support for the death penalty often goes hand in hand with a lack of reliable information about it – most often the mistaken belief that it will reduce crime. Many governments are quick to promote this erroneous belief even though there is no evidence to support it. Crucial factors that underlie how the death penalty is applied are often not understood. These include the risk of executing an innocent person, the unfairness of trials, and the discriminatory nature of the death penalty – all of which contribute to a fully informed view of capital punishment.

We believe governments need to be open about this information, while promoting respect for human rights through public education programmes. Only then can there be meaningful debate on the death penalty.

Still the decision to execute someone cannot be decided by public opinion. Governments must lead the way.

10. Is the battle to abolish the death penalty being won?

Yes. Today, two-thirds of countries in the world have either abolished the death penalty outright, or no longer use it in practice. Although there have been a few steps backwards , these must be weighed up against the clear worldwide trend towards abolition. In 2015 alone, Fiji, Madagascar and Suriname all turned their backs on the death penalty once and for all. Burkina Faso, Mongolia and South Korea are on their way to doing the same. Europe remains virtually free of the death penalty. And the USA, historically one of the nations most reluctant to give up the death penalty, is slowly turning against capital punishment.

The Death Penalty

The “death chamber” at the Texas Department of Criminal Justice Huntsville Unit.

Author: Benjamin S. Yost Category: Ethics , Social and Political Philosophy Word Count: 992

The death penalty—executing criminals, usually murderers—is more controversial than imprisonment because it inflicts a more significant injury, perhaps the most serious injury, and its effects are irreversible. [1]

Some advocates of the death penalty, or capital punishment , argue that it is justified because murder is so bad that death is the only appropriate response. Others defend capital punishment on the grounds that it has important benefits for society.

This essay surveys both types of arguments and critical responses.

1. Deontological Justifications

Deontological defenses of capital punishment see execution as a morally “fitting” response to murderers’ horrible deeds. [2] There are two main varieties.

1.1. Retributivist Justifications

The idea that punishments should be equal in severity to their crimes underlies retributivist defenses of capital punishment. Retributivists argue that execution is justified because it matches the badness or wrongness of murder—i.e., it is a proportionate punishment for murder. [3]

How is proportionality established? “Eye for an eye” principles suggest that execution is proportional to murder because it involves the same kind of act (killing). [4] More sophisticated approaches begin with the idea that life is uniquely valuable: it is the precondition of everything else good for someone. Because being murdered prevents the victim from having any valuable experiences, murderers are punished too lightly if they can enjoy even the limited goods life in prison allows. [5]

1.2. Purgative Justifications

Some argue for a duty to purge exceptionally evil offenders from society by executing them. [6] On this view, the continued existence of such offenders morally stains society: by expending resources on them, society takes on responsibility for their violation of human dignity. Execution dissolves that responsibility. [7]

2. Consequentialist Justifications

Many defend the death penalty not as a response to criminals for their past evil deeds, but by arguing that executing murderers produces better overall social consequences than not doing so. [8] Two consequences are frequently discussed.

2.1. Deterrence

Common sense suggests that the fear of being executed prevents, or deters , potential murderers from killing. For deterrent justifications of capital punishment, the beneficial consequences of executions—innocent lives saved—outweigh the costs to the legal system and the executed person. [9]

2.2. Incapacitation

Deterrence is about reducing murder rates overall. Incapacitation aims at preventing specific offenders from reoffending: some murderers might be so dangerous, only death ensures they won’t kill again. [10]

3. Criticisms of Deontological Justifications

Let’s consider some objections to the above arguments.

“Eye for an eye” retributivism seems to mandate immoral punishments like raping rapists or torturing torturers.

Proportionality-based retributivism also faces challenges. Capital punishment is sometimes judged to be disproportionately harsh because murderers suffer from prison time, from knowing their execution date, and from losing their lives, whereas murder victims only lose their lives. [11] More often, critics argue that life in prison, the longest sentence possible, is just as proportionate as execution and less morally controversial. [12]

4. Criticisms of Consequentialist Justifications

Deterrence theorists presume that execution is more “persuasive” than imprisonment. But researchers have found no evidence of execution’s marginal deterrent effect—i.e., a deterrent impact on murder rates exceeding that of imprisonment . [13] It is not enough for proponents to show that execution deters murder. Execution must deter murder better than imprisonment for its costs to be justified. [14]

An objection to both theories is that they permit punishing people for actions they didn’t perform. [15] Most believe that only those guilty of criminal acts should be punished. But deterrence theories could allow executing the innocent: if executing an innocent person would prevent future murders and authorities could keep her innocence secret, the benefits would plausibly outweigh the costs and deterrence theories would support killing her. [16] And incapacitation theories punish offenders for what they might do in the future, rather than any wrongs actually committed. [17]

5. General Objections to Capital Punishment

Death penalty abolitionists raise a number of general objections to capital punishment.

5.1. The Right to Life

Abolitionists argue that execution violates murderers’ inviolable right to life.

Advocates respond that offenders forfeit their right to life by committing murder. And assertions of an absolute right to life have the implausible consequence of prohibiting killing in justified self-defense.

5.2. Dignity

Dignity arguments against capital punishment focus on whatever basic human capacity (e.g., rationality) imparts dignity , that in virtue of which persons are owed respect. Actions that violate dignity, like torture, are widely condemned. Abolitionists argue that because execution destroys the capacity for dignity, it violates dignity and is thus immoral.

Advocates question whether eliminating the condition of some valuable feature actually offends against that feature: e.g., killing people annihilates their ability to practice religion, yet it’s odd to characterize execution as violating religious freedom.

5.3. Procedural Problems

Capital punishment is often rejected on account of flaws in the legal procedures leading to death sentences. Some reject the death penalty in practice for these procedural reasons, even though they believe it is justified in theory .

5.3.1. Arbitrariness

In the U.S., capital juries may sentence a convicted murderer to life in prison, instead of execution, for almost any reason whatsoever. There is little consistency in who is sentenced to death and who is sent to prison, and so the death penalty is condemned as being intolerably arbitrary. [18]

5.3.2. Discrimination

One pattern in capital sentencing is that those who murder white people are more likely to be sentenced to death than those who murder black people (blacks who murder whites are the most likely to face execution). [19] It can seem deeply unfair, if not racist, for the likelihood of a death sentence to depend on racial factors. [20]

Death penalty advocates respond by insisting that what an individual murderer deserves is unaffected by how other murderers are treated. They add that arbitrariness and discrimination are reasons to reform , not abolish, sentencing procedures.

5.3.3. Irrevocability

If someone is wrongly executed—either because she is innocent, or subject to procedural injustice at trial—there is no way to right the wrong. Some abolitionists argue that because a just state is obliged to undo its serious mistakes, it mustn’t impose irrevocable punishments like the death penalty. [21], [22]

6. Conclusion

Retributivist justifications dominate contemporary politics, but have recently suffered some legislative defeats to proceduralist arguments. [23] Determining whether practical worries about capital punishment trump concerns about potentially treating murders too leniently is thus of great legal and moral significance.

[1] For a general introduction to the debates about what justifies punishments in general and what makes particular punishments appropriate, see Theories of Punishment by Travis Joseph Rodgers.

In the U.S., twenty-nine states, the federal government, and the military allow for the death penalty. State and federal death rows are populated solely by murderers and accomplices to murder. Some states and the federal government permit execution for treason and other crimes, but these laws have never been tested in court.

Fifty-five other countries permit capital punishment, while more than one hundred nations have abolished it or no longer use it. In countries with an active death penalty, death-eligible crimes include kidnapping, drug trafficking, treason, and sexual immorality. For detailed information on capital punishment by U.S. state and country , see the Death Penalty Information Center .

[2] Deontologists see murder as the only crime for which capital punishment is appropriate, because murder is uniquely bad, and so only murderers deserve death.

[3] Proportionality is sometimes called commensurability . Some retributivists claim that proportionate punishments are justified because they give wrongdoers what they deserve.

[4] The “eye for an eye” principle is called the lex talionis. The most famous lex talionis defense of the death penalty can be found in Immanuel Kant’s Metaphysics of Morals, vi: 332–333. For more on Kant’s view, see Yost (2010). For an introduction to Kant’s ethics see Deontology: Kantian Ethics by Andrew Chapman.

[5] Sorell (1993).

[6] The purgative rationale applies only to extraordinarily evil offenders, not to garden-variety first-degree murderers (Kramer 2011). That is, it applies only to people like Adam Lanza, the Sandy Hook Elementary School shooter, who in 2012 shot to death twenty six- and seven-year old students and six school staff.

[7] These purgative theorists regard executing evil offenders as morally obligatory , whereas retributivists typically consider it merely permissible .

[8] See Shane Gronholz’s Consequentialism for discussion of the ethical theory known as “consequentialism” that these arguments often depend on.

[9] John Stuart Mill defends capital punishment in these terms (1868).

[10] This rationale best applies to countries other than the U.S., which has invested in technologically advanced maximum-security prison divisions, where inmates are (inhumanely) restricted to solitary confinement and under constant supervision.

[11] Camus (1963).

[12] Bedau (2002); Finkelstein (2002). Critics of retributivism as a general theory of punishment often raise a related objection: it is hard to know how much punishment to assign to a given offense. Does armed robbery merit a year in jail? A year and a month? A year and one hundred days?

[13] State of the art research neither establishes nor disproves a marginal deterrent effect; see Nagin and Pepper (2012).

[14] Although the cost varies from state to state, the price for executing a murderer in the U.S. is always higher than keeping him in prison for life.

[15] Pure deterrence theories can be contrasted with two-level theories. Two-level theories of punishment endorse deterrence as the general justifying aim of punishment, but maintain that the determination of who and how much to punish is governed by retributive principles (see, e.g., Hart 1968). These views sidestep the innocence objection, but inherit the problems of deontological approaches.

[16] A related worry is that deterrence theories condone execution for crimes far less serious than murder: if executing one or two burglars would eliminate property crimes, deterrence rationales might allow such a punishment.

[17] See, e.g., Nadelhoffer, et al . (2012).

[18] See Justice Blackmun’s dissent in Callins v. Collins . For a more philosophical approach, see Nathanson (2001).

[19] Poor people are more likely to be executed than well-off people, though the research on this comparison is scant. But when we consider that litigating capital cases is difficult and time-consuming, and poor defendants must rely on overworked public defenders, many of whom have no experience with capital trials, the consequences seem clear. For harrowing stories of how bad lawyering leads to death sentences, see Bright (1994).

[20] Cholbi (2006).

[21] Yost (2019).

[22] The irrevocability of execution is, however, philosophically controversial. Davis argues that authorities can compensate a wrongly executed person by advancing her interests or values (1984). For example, the state could send her son to college or donate five million dollars to her favorite charity. Davis concludes that compensation of this sort counts as revoking the wrongful execution.

[23] For example, in 2018 the Washington Supreme Court struck down the death penalty , citing its arbitrary and discriminatory nature.

Callins v . Collins . 510 U.S. 1141. U.S. Supreme Court, 1994.

Bedau, Hugo (2002). “The Minimal Invasion Argument against the Death Penalty.” Criminal Justice Ethics 21 (2): 3-8.

Bright, Steven (1994). “Council for the Poor: the Death Penalty Not for the Worst Crime but for the Worst Lawyer.” Yale Law Journal 103 (7): 1835-83.

Camus, Albert (1963). “Reflections on the Guillotine.” Resistance, Rebellion, and Death. New York: Modern Library.

Cholbi, Michael (2006). “Race, Capital Punishment, and the Cost of Murder.” Philosophical Studies 127: 255-282.

Davis, Michael (1984). “Is the Death Penalty Irrevocable?” Social Theory and Practice 10 (2): 143-156.

Finkelstein, Claire (2002). “Death and Retribution.” Criminal Justice Ethics 21 (2): 12-21.

Hart, H.L.A. (1968). Punishment and Responsibility: Essays in Legal Philosophy. Oxford: Oxford University Press.

Kramer, Matthew (2011). The Ethics of Capital Punishment: A Philosophical Investigation of Evil and Its Consequences. Oxford: Oxford University Press.

Mill, John Stuart (1868). “Speech in Favor of Capital Punishment.”

Nagin, Daniel, and John Pepper (2012). “Deterrence and the Death Penalty.” National Research Council. Washington, D.C.: The National Academies Press.

Nadelhoffer, Thomas, et al. (2012). “Neuroprediction, Violence, and the Law: Setting the Stage.” Neuroethics 5 (1): 67-99.

Nathanson, Stephen (2001). An Eye for an Eye : The Immorality of Punishing by Death. Lanham, MD: Rowman & Littlefield.

Sorell, Tom (1993). “Aggravated Murder and Capital Punishment.” Journal of Applied Philosophy 10 (2): 201-213.

Yost, Benjamin S. (2010). “Kant’s Justification of the Death Penalty Reconsidered.” Kantian Review 15 (2): 1-27.

Yost, Benjamin S. (2019). Against Capital Punishment. New York: Oxford University Press.

For Further Reading

Hoag, Robert. “Capital Punishment.” Internet Encyclopedia of Philosophy .

Related Essays

Theories of Punishment by Travis Joseph Rodgers

Is Death Bad? Epicurus and Lucretius on the Fear of Death by Frederik Kaufman

Deontology: Kantian Ethics by Andrew Chapman

Consequentialism by Shane Gronholz

Philosophy and Race: An Introduction to Philosophy of Race by Thomas Metcalf

Philosophy of Law: An Overview by Mark Satta

Moral Luck by Jonathan Spelman

Hell and Universalism by A.G. Holdier

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About the Author

Benjamin S. Yost is Professor of Philosophy at Providence College and Adjunct Professor of Philosophy at Cornell University. His specializations include the philosophy of punishment and Kant’s practical philosophy. His book Against Capital Punishment was published by Oxford University Press (2019), and he has a co-edited volume titled The Movement for Black Lives: Philosophical Perspectives forthcoming from Oxford. His papers appear in journals such as Utilitas, Journal of the American Philosophical Association, Kantian Review, and Continental Philosophy Review . www.benjaminsyost.net

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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.

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Introduction

Historical considerations

Moral arguments
Utilitarian arguments
Practical arguments
The abolition movement
Capital punishment in the early 21st century

capital punishment

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

Recent News

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 it is upheld on appeal), because of the possibility of commutation to life imprisonment.

Capital punishment for murder , treason , arson , and rape was widely employed in ancient Greece under the laws of Draco (fl. 7th century bce ), though Plato argued that it should be used only for the incorrigible . The Romans also used it for a wide range of offenses, though citizens were exempted for a short time during the republic. It also has been sanctioned at one time or another by most of the world’s major religions. Followers of Judaism and Christianity, for example, have claimed to find justification for capital punishment in the biblical passage “Whosoever sheddeth man’s blood, by man shall his blood be shed” ( Genesis 9:6). Yet capital punishment has been prescribed for many crimes not involving loss of life, including adultery and blasphemy . The ancient legal principle Lex talionis ( talion )—“an eye for an eye , a tooth for a tooth, a life for a life”—which appears in the Babylonian Code of Hammurabi , was invoked in some societies to ensure that capital punishment was not disproportionately applied.

The prevalence of capital punishment in ancient times is difficult to ascertain precisely, but it seems likely that it was often avoided, sometimes by the alternative of banishment and sometimes by payment of compensation . For example, it was customary during Japan’s peaceful Heian period (794–1185) for the emperor to commute every death sentence and replace it with deportation to a remote area, though executions were reinstated once civil war broke out in the mid-11th century.

In Islamic law , as expressed in the Qurʾān , capital punishment is condoned . Although the Qurʾān prescribes the death penalty for several ḥadd (fixed) crimes—including robbery, adultery, and apostasy of Islam —murder is not among them. Instead, murder is treated as a civil crime and is covered by the law of qiṣās (retaliation), whereby the relatives of the victim decide whether the offender is punished with death by the authorities or made to pay diyah (wergild) as compensation.

Death was formerly the penalty for a large number of offenses in England during the 17th and 18th centuries, but it was never applied as widely as the law provided. As in other countries, many offenders who committed capital crimes escaped the death penalty, either because juries or courts would not convict them or because they were pardoned, usually on condition that they agreed to banishment; some were sentenced to the lesser punishment of transportation to the then American colonies and later to Australia. Beginning in the Middle Ages, it was possible for offenders guilty of capital offenses to receive benefit of clergy , by which those who could prove that they were ordained priests (clerks in Holy Orders) as well as secular clerks who assisted in divine service (or, from 1547, a peer of the realm) were allowed to go free, though it remained within the judge’s power to sentence them to prison for up to a year, or from 1717 onward to transportation for seven years. Because during medieval times the only proof of ordination was literacy, it became customary between the 15th and 18th centuries to allow anyone convicted of a felony to escape the death sentence by proving that he (the privilege was extended to women in 1629) could read. Until 1705, all he had to do was read (or recite) the first verse from Psalm 51 of the Bible—“Have mercy on me, O God, according to your steadfast love; according to your abundant mercy blot out my transgressions”—which came to be known as the “ neck verse” (for its power to save one’s neck). To ensure that an offender could escape death only once through benefit of clergy, he was branded on the brawn of the thumb ( M for murder or T for theft). Branding was abolished in 1779, and benefit of clergy ceased in 1827.

From ancient times until well into the 19th century, many societies administered exceptionally cruel forms of capital punishment. In Rome the condemned were hurled from the Tarpeian Rock ( see Tarpeia ); for parricide they were drowned in a sealed bag with a dog, cock, ape, and viper; and still others were executed by forced gladiatorial combat or by crucifixion . Executions in ancient China were carried out by many painful methods, such as sawing the condemned in half, flaying him while still alive, and boiling . Cruel forms of execution in Europe included “breaking” on the wheel, boiling in oil, burning at the stake , decapitation by the guillotine or an axe, hanging , drawing and quartering , and drowning. Although by the end of the 20th century many jurisdictions (e.g., nearly every U.S. state that employs the death penalty, Guatemala, the Philippines , Taiwan , and some Chinese provinces) had adopted lethal injection , offenders continued to be beheaded in Saudi Arabia and occasionally stoned to death (for adultery) in Iran and Sudan . Other methods of execution were electrocution , gassing, and the firing squad.

Historically, executions were public events, attended by large crowds, and the mutilated bodies were often displayed until they rotted. Public executions were banned in England in 1868, though they continued to take place in parts of the United States until the 1930s. In the last half of the 20th century, there was considerable debate regarding whether executions should be broadcast on television, as has occurred in Guatemala. Since the mid-1990s public executions have taken place in some 20 countries, including Iran, Saudi Arabia, and Nigeria , though the practice has been condemned by the United Nations Human Rights Committee as “incompatible with human dignity.”

In many countries death sentences are not carried out immediately after they are imposed; there is often a long period of uncertainty for the convicted while their cases are appealed. Inmates awaiting execution live on what has been called “ death row ”; in the United States and Japan, some prisoners have been executed more than 15 years after their convictions . The European Union regards this phenomenon as so inhumane that, on the basis of a binding ruling by the European Court of Human Rights (1989), EU countries may extradite an offender accused of a capital crime to a country that practices capital punishment only if a guarantee is given that the death penalty will not be sought.

Internet Encyclopedia of Philosophy

Capital punishment.

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

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

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

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

1. Context and Basic Concepts

A. historical practices.

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

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

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

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

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

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

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

b. Philosophic Frameworks and Approaches

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

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

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

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

2. Retributivist Approaches

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

a. Classic Retributivism: Kant and lex talionis

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

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

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

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

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

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

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

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

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

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

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

b. Lex talionis as a Principle of Proportionality

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

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

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

c. Retributivism and the Right to Life

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

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

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

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

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

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

d. Retributivism and Fairness

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

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

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

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

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

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

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

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

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

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

e. Challenges to Retributivism

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

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

3. Utilitarian Approaches

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

a. Classic Utilitarian Approaches: Bentham, Beccaria, Mill

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

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

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

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

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

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

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

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

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

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

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

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

b. Empirical Considerations: Incapacitation, Deterrence

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

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

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

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

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

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

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

d. Challenges to Utilitarianism

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

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

e. Other Consequential Considerations

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

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

4. Capital Punishment as Communication

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

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

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

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

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

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

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

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

5. The Institution of Capital Punishment

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

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

a. Procedural Issues: Imperfect Justice

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

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

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

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

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

b. Discrimination: Race, Class

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

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

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

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

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

c. Medicine and the Death Penalty

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

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

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

d. Costs: Economic Issues

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

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

6. State Authority and Capital Punishment

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

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

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

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

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

7. References and Further Reading

A. primary sources.

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

b. Secondary Sources

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

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

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The Death Penalty Can Ensure ‘Justice Is Being Done’

A top Justice Department official says for many Americans the death penalty is a difficult issue on moral, religious and policy grounds. But as a legal issue, it is straightforward.

By Jeffrey A. Rosen

Mr. Rosen is the deputy attorney general.

This month, for the first time in 17 years , the United States resumed carrying out death sentences for federal crimes.

On July 14, Daniel Lewis Lee was executed for the 1996 murder of a family, including an 8-year-old girl, by suffocating and drowning them in the Illinois Bayou after robbing them to fund a white-supremacist organization. On July 16, Wesley Purkey was executed for the 1998 murder of a teenage girl, whom he kidnapped, raped, killed, dismembered and discarded in a septic pond. The next day, Dustin Honken was executed for five murders committed in 1993, including the execution-style shooting of two young girls, their mother, and two prospective witnesses against him in a federal prosecution for methamphetamine trafficking.

The death penalty is a difficult issue for many Americans on moral, religious and policy grounds. But as a legal issue, it is straightforward. The United States Constitution expressly contemplates “capital” crimes, and Congress has authorized the death penalty for serious federal offenses since President George Washington signed the Crimes Act of 1790. The American people have repeatedly ratified that decision, including through the Federal Death Penalty Act of 1994 signed by President Bill Clinton, the federal execution of Timothy McVeigh under President George W. Bush and the decision by President Barack Obama’s Justice Department to seek the death penalty against the Boston Marathon bomber and Dylann Roof .

The recent executions reflect that consensus, as the Justice Department has an obligation to carry out the law. The decision to seek the death penalty against Mr. Lee was made by Attorney General Janet Reno (who said she personally opposed the death penalty but was bound by the law) and reaffirmed by Deputy Attorney General Eric Holder.

Mr. Purkey was prosecuted during the George W. Bush administration, and his conviction and sentence were vigorously defended throughout the Obama administration. The judge who imposed the death sentence on Mr. Honken, Mark Bennett, said that while he generally opposed the death penalty, he would not lose any sleep over Mr. Honken’s execution.

In a New York Times Op-Ed essay published on July 17 , two of Mr. Lee’s lawyers criticized the execution of their client, which they contend was carried out in a “shameful rush.” That objection overlooks that Mr. Lee was sentenced more than 20 years ago, and his appeals and other permissible challenges failed, up to and including the day of his execution.

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Home — Essay Samples — Social Issues — Death Penalty — Different Arguments on Whether Capital Punishment Can Be Justified

Different Arguments on Whether Capital Punishment Can Be Justified

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Moral arguments, utilitarian arguments, practical arguments.

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Death Penalty: Utilitarian View on Capital Punishment

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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.

Death Penalty: James a Inciardi Perspective
Arguments in Favor and Against the Death Penalty
Wrongful Death: How to Prove Legally That Death Was Wrongful
The Purpose of Prisons Overview
Death Penalty: Every For and Against
Capital Punishment: Advantages and Disadvantages
The Death Penalty in the Modern Society
Death Penalty for Young People
Capital Punishment as an Option in Maryland
Debates on Death Penalty in the United States
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IvyPanda. (2019, January 17). 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 , 17 Jan. 2019, ivypanda.com/essays/a-utilitarian-approach-to-the-death-penalty/.

IvyPanda . (2019) 'Death Penalty: Utilitarian View on Capital Punishment'. 17 January.

IvyPanda . 2019. "Death Penalty: Utilitarian View on Capital Punishment." January 17, 2019. https://ivypanda.com/essays/a-utilitarian-approach-to-the-death-penalty/.

1. IvyPanda . "Death Penalty: Utilitarian View on Capital Punishment." January 17, 2019. https://ivypanda.com/essays/a-utilitarian-approach-to-the-death-penalty/.

Bibliography

IvyPanda . "Death Penalty: Utilitarian View on Capital Punishment." January 17, 2019. https://ivypanda.com/essays/a-utilitarian-approach-to-the-death-penalty/.

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Is the death penalty a justified form of punishment

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10 facts about the death penalty in the U.S.

Most U.S. adults support the death penalty for people convicted of murder, according to an April 2021 Pew Research Center survey . At the same time, majorities believe the death penalty is not applied in a racially neutral way, does not deter people from committing serious crimes and does not have enough safeguards to prevent an innocent person from being executed.

Use of the death penalty has gradually declined in the United States in recent decades. A growing number of states have abolished it, and death sentences and executions have become less common. But the story is not one of continuous decline across all levels of government. While state-level executions have decreased, the federal government put more prisoners to death under President Donald Trump than at any point since the U.S. Supreme Court reinstated capital punishment in 1976.

As debates over the death penalty continue in the U.S. , here’s a closer look at public opinion on the issue, as well as key facts about the nation’s use of capital punishment.

This Pew Research Center analysis examines public opinion about the death penalty in the United States and explores how the nation has used capital punishment in recent decades.

The public opinion findings cited here are based primarily on a Pew Research Center survey of 5,109 U.S. adults, conducted from April 5 to 11, 2021. Everyone who took part in the survey is a member of the Center’s American Trends Panel (ATP), an online survey panel that is recruited through national, random sampling of residential addresses. This way nearly all U.S. adults have a chance of selection. The survey is weighted to be representative of the U.S. adult population by gender, race, ethnicity, partisan affiliation, education and other categories. Read more about the ATP’s methodology . Here are the questions used from this survey, along with responses, and its methodology .

Findings about the administration of the death penalty – including the number of states with and without capital punishment, the annual number of death sentences and executions, the demographics of those on death row and the average amount of time spent on death row – come from the Death Penalty Information Center and the Bureau of Justice Statistics.

Six-in-ten U.S. adults strongly or somewhat favor the death penalty for convicted murderers, according to the April 2021 survey. A similar share (64%) say the death penalty is morally justified when someone commits a crime like murder.

A bar chart showing that the majority of Americans favor the death penalty, but nearly eight-in-ten see ‘some risk’ of executing the innocent

Support for capital punishment is strongly associated with the view that it is morally justified in certain cases. Nine-in-ten of those who favor the death penalty say it is morally justified when someone commits a crime like murder; only a quarter of those who oppose capital punishment see it as morally justified.

A majority of Americans have concerns about the fairness of the death penalty and whether it serves as a deterrent against serious crime. More than half of U.S. adults (56%) say Black people are more likely than White people to be sentenced to death for committing similar crimes. About six-in-ten (63%) say the death penalty does not deter people from committing serious crimes, and nearly eight-in-ten (78%) say there is some risk that an innocent person will be executed.

Opinions about the death penalty vary by party, education and race and ethnicity. Republicans and Republican-leaning independents are much more likely than Democrats and Democratic leaners to favor the death penalty for convicted murderers (77% vs. 46%). Those with less formal education are also more likely to support it: Around two-thirds of those with a high school diploma or less (68%) favor the death penalty, compared with 63% of those with some college education, 49% of those with a bachelor’s degree and 44% of those with a postgraduate degree. Majorities of White (63%), Asian (63%) and Hispanic adults (56%) support the death penalty, but Black adults are evenly divided, with 49% in favor and 49% opposed.

Views of the death penalty differ by religious affiliation . Around two-thirds of Protestants in the U.S. (66%) favor capital punishment, though support is much higher among White evangelical Protestants (75%) and White non-evangelical Protestants (73%) than it is among Black Protestants (50%). Around six-in-ten Catholics (58%) also support capital punishment, a figure that includes 61% of Hispanic Catholics and 56% of White Catholics.

Atheists oppose the death penalty about as strongly as Protestants favor it

Opposition to the death penalty also varies among the religiously unaffiliated. Around two-thirds of atheists (65%) oppose it, as do more than half of agnostics (57%). Among those who say their religion is “nothing in particular,” 63% support capital punishment.

Support for the death penalty is consistently higher in online polls than in phone polls. Survey respondents sometimes give different answers depending on how a poll is conducted. In a series of contemporaneous Pew Research Center surveys fielded online and on the phone between September 2019 and August 2020, Americans consistently expressed more support for the death penalty in a self-administered online format than in a survey administered on the phone by a live interviewer. This pattern was more pronounced among Democrats and Democratic-leaning independents than among Republicans and GOP leaners, according to an analysis of the survey results .

Phone polls have shown a long-term decline in public support for the death penalty. In phone surveys conducted by Pew Research Center between 1996 and 2020, the share of U.S. adults who favor the death penalty fell from 78% to 52%, while the share of Americans expressing opposition rose from 18% to 44%. Phone surveys conducted by Gallup found a similar decrease in support for capital punishment during this time span.

A majority of states have the death penalty, but far fewer use it regularly. As of July 2021, the death penalty is authorized by 27 states and the federal government – including the U.S. Department of Justice and the U.S. military – and prohibited in 23 states and the District of Columbia, according to the Death Penalty Information Center . But even in many of the jurisdictions that authorize the death penalty, executions are rare: 13 of these states, along with the U.S. military, haven’t carried out an execution in a decade or more. That includes three states – California , Oregon and Pennsylvania – where governors have imposed formal moratoriums on executions.

A map showing that most states have the death penalty, but significantly fewer use it regularly

A growing number of states have done away with the death penalty in recent years, either through legislation or a court ruling. Virginia, which has carried out more executions than any state except Texas since 1976, abolished capital punishment in 2021. It followed Colorado (2020), New Hampshire (2019), Washington (2018), Delaware (2016), Maryland (2013), Connecticut (2012), Illinois (2011), New Mexico (2009), New Jersey (2007) and New York (2004).

Death sentences have steadily decreased in recent decades. There were 2,570 people on death row in the U.S. at the end of 2019, down 29% from a peak of 3,601 at the end of 2000, according to the Bureau of Justice Statistics (BJS). New death sentences have also declined sharply: 31 people were sentenced to death in 2019, far below the more than 320 who received death sentences each year between 1994 and 1996. In recent years, prosecutors in some U.S. cities – including Orlando and Philadelphia – have vowed not to seek the death penalty, citing concerns over its application.

Nearly all (98%) of the people who were on death row at the end of 2019 were men. Both the mean and median age of the nation’s death row population was 51. Black prisoners accounted for 41% of death row inmates, far higher than their 13% share of the nation’s adult population that year. White prisoners accounted for 56%, compared with their 77% share of the adult population. (For both Black and White Americans, these figures include those who identify as Hispanic. Overall, about 15% of death row prisoners in 2019 identified as Hispanic, according to BJS.)

A line graph showing that death sentences, executions have trended downward in U.S. since late 1990s

Annual executions are far below their peak level. Nationally, 17 people were put to death in 2020, the fewest since 1991 and far below the modern peak of 98 in 1999, according to BJS and the Death Penalty Information Center. The COVID-19 outbreak disrupted legal proceedings in much of the country in 2020, causing some executions to be postponed .

Even as the overall number of executions in the U.S. fell to a 29-year low in 2020, the federal government ramped up its use of the death penalty. The Trump administration executed 10 prisoners in 2020 and another three in January 2021; prior to 2020, the federal government had carried out a total of three executions since 1976.

The Biden administration has taken a different approach from its predecessor. In July 2021, Attorney General Merrick Garland ordered a halt in federal executions while the Justice Department reviews its policies and procedures.

A line graph showing that prisoners executed in 2019 spent an average of 22 years on death row

The average time between sentencing and execution in the U.S. has increased sharply since the 1980s. In 1984, the average time between sentencing and execution was 74 months, or a little over six years, according to BJS . By 2019, that figure had more than tripled to 264 months, or 22 years. The average prisoner awaiting execution at the end of 2019, meanwhile, had spent nearly 19 years on death row.

A variety of factors explain the increase in time spent on death row, including lengthy legal appeals by those sentenced to death and challenges to the way states and the federal government carry out executions, including the drugs used in lethal injections. In California, more death row inmates have died from natural causes or suicide than from executions since 1978, according to the state’s Department of Corrections and Rehabilitation .

Note: This is an update to a post originally published May 28, 2015.

Criminal Justice
Death Penalty

John Gramlich is an associate director at Pew Research Center .

Most Black Americans Believe U.S. Institutions Were Designed To Hold Black People Back

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ABOUT PEW RESEARCH CENTER Pew Research Center is a nonpartisan, nonadvocacy fact tank that informs the public about the issues, attitudes and trends shaping the world. It does not take policy positions. The Center conducts public opinion polling, demographic research, computational social science research and other data-driven research. Pew Research Center is a subsidiary of The Pew Charitable Trusts , its primary funder.

Death Penalty - Justified Essay

3 Works Cited

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

“The death penalty makes would be capital offenders think about weather committing a crime is really worth their lives” (Studyworld 3). Hence, capital punishment is the best solution to the increase in murder problem. Capital punishment is the best solution to the problem of overcrowded jails because all “lifers” would be sent to death row and executed. These “lifers” would no longer require a cell or take up space in an already crowded jail. This removal of “lifers” helps alleviate the congestion in jails because it creates vacancies in cells for convicts serving lighter sentences. For example, a federal penitentiary can accommodate on average 300 hardened criminals. If all convicts with life sentences, 50, were to be removed, a more manageable 250 convicts would remain in a less congested penitentiary. Clearly, the death penalty is the best way to eliminate overcrowded jails. In addition to eliminating overcrowded jails, Capital punishment is also the best way to keep tax payers content. The death penalty satisfies tax payers because it is a very cost

Glossip Vs Gross

The death penalty wastes the money of the tax payers and is ineffective in stopping crime (Delcour). The cost that it takes to maintain the death penalty could be used for much more important statewide matters. Many law enforcement officials in states with the death penalty claim the money used toward the death penalty is a complete waste of tax dollars (Delcour). An example being, the opinion of law enforcement in states with the death penalty, “The cost of one execution is significantly higher than life imprisonment without parole. At a time when state budgets are slim and cutbacks are the norm, Delcour maintains that the high cost of the death penalty system makes little sense—especially when so many law enforcement officials consider it an ineffective deterrent against homicides and the least efficient use of taxpayer dollars” (Delcour). There are much less expensive ways to punish an inmate that will have a better effect on crime in those states, and cost less. There are greater causes that the money used on the death penalty can be used for. Education is one of the main things that the millions spent on capital punishment could be used for productively. The needs of millions of people in a state are far more important than the execution of a extremely small amount of people. A life-without-parole system would be much better than the current execution system (Delcour). The small amount of

The Effects Of Capital Punishment : The Pros And Cons Of The Death Penalty?

The first established death penalty laws date back to Ancient Babylon. Their tyrannical ruler Hammurabi established The code of Hammurabi most known to the laws an “eye for an eye and “tooth for a tooth”. Throughout the past this was the correct way of life, on the other hand the question is risen today, is the death penalty still reasonable? Coming to the question of bringing what makes our system better if we kill those who kill? The very idea of the state putting individuals to death is too much to endure. Capital punishment brings no benefits, undermining the constitution for reasons such as flawed executions, racism, innocents being framed, bias, revenge cost, and other critical reasoning. It is not only impractical, but it also does not prevent crime. Death row fails to recognize that people who are found guilty throughout the system have the potential to change, but how can they do that if they are denied the right to regain redemption in society. Nevertheless, the Death penalty should be eradicated based on the unlawful justice and its incapability to serve as a deterrent.

Why Is The Death Penalty Bad

In my opinion the death penalty truly does help to eliminate the problem of overpopulation in prisons. When prisons become overpopulated more money is needed to pay for supplies for inmates. Why should taxpayers have to pay for criminal that have murdered people? Murdering someone is honestly one of the worst things a person could ever do. Americans should not have to pay to provide inmates with television. The person that was murdered is not going to be able to watch television, so why should the killer be able too. Inmates just sit in jail watching television, doing crafts, playing sports, eating, working, and sleeping. Many people say life without parole is better than the death penalty. I strongly disagree with this statement, because life without parole allows a killer to keep living their life after they took the life of another person. Plus keeping everyone just in prison without parole goes back to the fact it is very costly to pay for prison inmates. Overpopulation in prisons can lead to many riots, injuries, and even deaths. These riots can be from the cause of not enough food or supplies in the prison. Many prisoners have been known to kill their fellow cellmates, but yet all they get is another life sentence for taking another life. I do not agree that life without parole is better than the death penalty. After learning what talks place with killers in prison and

Capital Punishment : The United States Legal System

As it is beneficial for society as a whole, provides a strong deterrence against future crime, and because it protects the rights of victims of high crime, capital punishment is a legal and appropriate measure in the United States legal system. Capital punishment is the best way to set an example for would be criminals so they will see the punishment if they commit a capital crime. This is also a way to cut down on the jail population, and is rising, which means that jails are becoming over crowed and

The Ethics of Capital Punishment Essay

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While criminals must be punished for their criminal actions, “legalized murder”, as author Coretta Scott King put it, is immoral. The death penalty is legalizing the very thing that many on death row are charged for, murder. There is a multitude of lawful alternatives, to the death penalty, of reestablishing a better reputation for the criminals. The Constitution has no true right to allow such a felonious form of rehabilitation.

Synthesis Essay On Capital Punishment

After that it's important to consider prison overpopulation when looking at another reason why capital punishment could be necessary. In Source B, it should a graph of the prison population from the 60’s to 2008. The population has skyrocketed from less than a half million to almost two and half a million people. Many inmates are serving life sentences, and have no chance of parole, according to Source H. “What about people already sentenced to life in prison. What's to stop them from murdering people constantly while in prison? What are they going to do--extend their sentences?” This is really showing how need Capital Punishment is, to ensure not only the safety of innocent people, but the safety of the people that are in prison as well.

The Pros And Cons Of Corporal Punishment

Most death penalty cases involve the execution of murderers although capital punishment can also be applied for treason, espionage, and other crimes. The death penalty gives justice to the murder victim’s families, it also brings relief because now they can rest without worry knowing that the killer is dead. The death penalty should be utilized for the serious crimes (Jost 2). The Death penalty can be useful because by killing off the criminals the jail space can be decreased because it's not holding barbaric animals. The criminals are just waste of life pieces of trash that need to put into the incinerator. These facts make it evident that the death penalty is greatly needed.

Capital Punishment : A Cruel And Violent Process

This form of punishment costs thousands of dollars per case, one can see how tax dollars are adding up only to harm humanity. Abolishing Capital punishment is the solution. According to Joe Messerli, in long trial cases taxpayers end up paying for ¨Judges, attorneys, court reporters, clerks, and court facilities¨ during a capital case. All theses extra things that need to be paid for are all paid by the state 's taxpayers, very unfair to society just to take the life away from one. In California taxpayers pay $90,000 more per inmate on death row than regular prisoners housed in jail (¨10 Reasons¨). The Death Penalty costs today 's society 's taxpayers unreasonable amounts of money for the cases. Undoubtedly, the extra tax dollars being spent on these cases will negatively affect society, and removing Capital punishment will only improve the issue.

Capital Punishment Is A Deterrent To Crime Essay

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Capital Punishment has ended the lives of criminals for centuries. People have debated whether the government should have the power to decide one person’s life. On one side, people think the government does not have the right to play God as well as believe that the death penalty is simply unethical. Forty-eight percent of a half sample survey stated that life imprisonment was a better punishment for murder while forty-seven percent stated that capital punishment was a better punishment (Newport). However, capital punishment should be enforced throughout the country to help deter crime, benefit the economy, and ensures retribution.

The Death Penalty Should Be Abolished

Research has found that capital punishment does not deter violent crime, and is a sufficient way to reduce crime (Bedau, 2012). Supporters of the death penalty believe it may deter potential criminals. The FBI has found states who are supporters of the death penalty have the highest murder rates, and the capital punishment is mostly given to poor and uneducated minorities who living in a geographic area (Bedau, 2012). Therefore, the death penalty is ranked the least effective way to control crime. It is considered counterproductive because limited funding, which can be used for other things, is used. The death penalty does not prevent nor solve a crime.

Capital Punishment Is No Longer Necessary

Capital punishment, or execution, or death penalty, or sentence to death has always been the best answer for criminals with unforgivable crimes such as murder or child-rape , almost 61% of Americans unanimously agree so, as reported by the Gallup Poll in August 1997. Gradually, however, the American’s opinions have been shifted. In September 2014, the Gallup Poll asked “Which do you think is the better penalty for murder - the death penalty or life imprisonment?” Nearly 45 percent of respondents answer life imprisonment. The societal shift occurs due to the exposure of the excess expense of capital cases, the acknowledgement of the inevitable judicial mistakes, and some other reasons. The writing below is determined to provide detailed reasons why capital punishment is no longer necessary, and why it is time for Americans to consider new and viable options such as life without parole.

Essay about Capital Punishment

     If citizens implement the usage of the death penalty in all 50 states and eventually all over the world, crime and murder rates will drop. Death clearly incapacitates the criminal and prevents them from committing any other offenses. Life without parole cannot prevent or deter offenders from killing prison staff or other inmates. It also cannot deter them from taking hostages to further an escape because they would have nothing else to lose. Even in high security prisons there is always someone who tries to escape and occasionally is successful. If people have endless time to plan an escape and everything to gain by doing so, it is a strong incentive. Capital punishment permanently removes the worst criminals from society and is safer for the rest of us than long term or permanent incarceration. It is self evident that dead criminals can not commit any further crimes. Also, research shows that the murder rate in the United States dropped from 24,562 in 1993 to 18,209 in 1997, the lowest in years. All

Capital Punishment And Its Effect On Society

Capital Punishment has been a topic of debate since it was reinstated in 1976. Some say that in a free society, capital punishment is an unnecessary form of cruel and unusual punishment in violation of our constitution. Others claim that capital punishment serves the primary purpose of deterring crime and punishing society’s most homicidal offenders. The biggest question when it comes to capital punishment is, is it worth it? Does Capital punishment have a deterrent effect on society? Or does it hurt more than help society? An over whelming majority of researchers have found that the death penalty not only has an effect on society but also a huge effect on the justice system. In past years research has shown that capital punishment has

Death Penalty Is The Last Legal Resource Of Justice

Death penalty reduce effectively spent unnecessary money from the taxpayers to house murderers in detention centers. Those centers are now like a vacation for prisoners, some are even allow to marry, have access to internet, and spend the weekend with their spouse. They have a

Pros And Cons Of The Death Penalty

The death penalty may seem like a good idea, but did you know it's only available in 31 states ? The killing of criminals is something allowed by the government and that is a good thing. An eye for an eye a tooth for a tooth , the death penalty should not be banned because it brings closure to the victims families and justice is better served.

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The Death Penalty – Your Questions Answered

2. Don’t victims of violent crime and their families have a right to justice?

3. If you kill someone else, don’t you deserve to die, too – “an eye for an eye”?

4. Doesn’t the death penalty prevent crime?

5. What about capital punishment for terrorists?

6. Isn’t it better to execute someone than to lock them up forever?

7. Is there a humane and painless way to execute a person?

8. What business is it of Amnesty’s if different societies want to use the death penalty?

9. What if public opinion is in favour of the death penalty?

10. Is the battle to abolish the death penalty being won?

Further reading

The Death Penalty

1. Deontological Justifications

1.1. Retributivist Justifications

1.2. Purgative Justifications

2. Consequentialist Justifications

2.1. Deterrence

2.2. Incapacitation

3. Criticisms of Deontological Justifications

4. Criticisms of Consequentialist Justifications

5. General Objections to Capital Punishment

5.1. The Right to Life

5.2. Dignity

5.3. Procedural Problems

5.3.1. Arbitrariness

5.3.2. Discrimination

5.3.3. Irrevocability

6. Conclusion

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