Should the Death Penalty Be Abolished?

Few areas of criminal justice have sparked as much debate as the death penalty. The public strongly supports the death penalty even though there are strong arguments suggesting that it should be abolished.

Capital punishment should be abolished

Critics of capital punishment put forward several arguments.

  1. The application of the death penalty is so arbitrary that it violates the Eighth Amendment's prohibition against cruel and unusual punishment. Justice Harry Blackmun claims there is an irreconcilable conflict between two requirements in capital sentencing. On the one hand, the Eighth Amendment demands that sentencing discretion in capital cases be structured according to fixed, objective standards to eliminate arbitrariness and discrimination. On the other hand, there is a humanitarian requirement that sentencing discretion be flexible enough to permit sentencers to individualize justice by taking mitigating circumstances into account that might justify a sentence less than death.

  2. The death penalty discriminates against racial minorities and the poor. Statistics show that the death penalty is administered in a selective and racially discriminatory manner.

  3. The death penalty doesn't deter crime.

  4. The death penalty costs taxpayers more than life imprisonment.

  5. The inevitability of factual, legal, and moral errors results in a system that must wrongly kill some innocent defendants.

  6. Public support for the death penalty diminishes substantially when the public is fully informed about the penalty, the alternative of life imprisonment without parole, and the consequences of the death penalty.

Capital punishment should not be abolished

Proponents of the death penalty make arguments centering around the justifications of fairness, retribution, deterrence, economy, and popularity.

  1. The death penalty isn't arbitrary. In Gregg v. Georgia (1976), the Supreme Court ruled that the death penalty isn't cruel and unusual punishment and that a two‐part proceeding — one for determining innocence or guilt and one for determining the sentence — is constitutional. Any conflicts between eliminating arbitrariness and allowing sentencers to individualize justice can be resolved, according to Justice Scalia, by dispensing with the requirement that sentencers consider an array of mitigating circumstances.

  2. The death penalty isn't discriminatory. In McCleskey v. Kemp (1987), the Court held that statistical evidence of racial discrimination in death sentencing can't establish a violation of the Eighth or Fourteenth Amendments. To win an appeal under the equal protection clause of the Fourteenth Amendment, the Court requires an appellant to prove the decision makers in his or her case acted with intent to discriminate.

  3. Executions deter would‐be criminals from committing crimes.

  4. It is cheaper for the government to kill murderers than to keep them in prison for the duration of their lives.

  5. The few mistakes that are made in carrying out the death penalty are offset by its crime prevention and economic benefits.

  6. Polls show the vast majority of Americans favor the death penalty for murderers.

  7. Society has a moral right to punish the most violent criminals by taking their lives. Some violent criminals are vile, wicked persons who deserve to die.

Evaluating the debate over capital punishment

A substantial body of empirical studies shows that the administration of capital punishment is arbitrary, that the costs of trials and multiple appeals make the death penalty more expensive than housing an offender in prison for life, that the death penalty does not deter violent crime, and that during the twentieth century more than 400 people were erroneously convicted in capital cases.

Although the Supreme Court denied the racial discrimination argument in McCleskey v. Kemp, statistical evidence supports the claim that the burden of capital punishment falls upon the poor and the underprivileged. Studies show that a disproportionate number of individuals sentenced to death are members of minority groups and that nearly all individuals on death row are indigents.

The argument that the death penalty should be retained because the majority of the people in the United States want it, equates the numbers in support of a position with the correctness of it. The rightness or wrongness of the death penalty logically is neither helped nor hindered by the numbers in support. Opinions don't logically equate to factual knowledge.

Deciding whether or not society has a moral right to take the lives of murderers and other violent criminals requires a value judgment. In support of their position, proponents of the death penalty cite the Judeo‐Christian tradition of “eye for eye, tooth for tooth.” Opponents counter by emphasizing New Testament admonitions to “turn the other cheek” and “to love thy neighbor.”