death sentence arguments against

10 Reasons Why The Death Penalty is Wrong

The death penalty is wrong because it disproportionately affects certain groups, inflicts physical and psychological torment, burdens taxpayers, and doesn’t deter or resolve the root causes of crime.

Over 70% of the countries in the world have abolished the death penalty , but it’s still used in places like China, Japan, Saudi Arabia, and the United States. Public opinion is divided, but over the years, support for the death penalty has waned. Supporters say it’s a valuable crime deterrent while opponents argue it fails in this purpose. In this article, we’ll explore these claims, as well as other reasons why the death penalty is wrong.

#1. It’s inhumane #2. It inflicts psychological torment #3. It burdens taxpayers #4. It doesn’t deter crime #5. It doesn’t address the root causes of crime #6. It’s biased against people experiencing poverty #7. It’s disproportionately hurts people with disabilities #8. It has a racial bias #9. It’s used as a tool of authoritarianism #10. It’s irreversible

#1. It’s inhumane

Content warning: This paragraph includes descriptions of a botched execution

Methods of execution have included firing squads, hanging, the electric chair, and lethal injections. Are these punishments inhumane? Death penalty critics look to The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , which is an international treaty intended to prevent actions considered inhumane. While the Convention doesn’t take a clear stance on the death penalty, many believe executions should be classified as cruel and inhumane. For those who believe executions can be performed “humanely,” there’s still the problem of botched executions. Research shows that 3% of executions between 1890-2010 in the US were botched. Lethal injection has the highest rate of error despite being the most common execution option. When injections go wrong, it can take a long time for a prisoner to die.

In 2014 in Oklahoma, Clayton Lockett was subjected to a botched execution. Things started poorly while the execution team hunted for a viable vein and realized they didn’t have the right needles . Then, it took at least 16 pokes to get an IV inserted. Lockett was in clear distress as the drugs began to enter his body, and the execution was halted. Lockett died of a heart attack 43 minutes after the first drug – midazolam – was administered. While it’s not clear if the drug can be blamed in Lockett’s case, sedatives like midazolam have played a role in several botched executions. Given these facts, the death penalty can easily be considered inhumane.

#2. It inflicts psychological torment

While the death penalty can cause severe physical pain, the time spent on death row can inflict psychological torment, as well. According to The Death Penalty Information Center, death-row prisoners in the United States typically spend over a decade waiting for their execution dates or for their death sentences to be overturned. During those agonizing years, prisoners are isolated, excluded from any employment or educational programs, and restricted from exercise or visitation. This can cause what some experts call “death row syndrome,” which makes prisoners suicidal and delusional. The prisoner is essentially tortured while on death row.

The death penalty doesn’t only affect death-row prisoners. Those working on death row suffer, too. In 2022, NPR released an investigation where they spoke with current and former executioners, lawyers, wardens, and other workers who had been involved with more than 200 executions. They reported “serious mental and physical repercussions.” Nearly everyone NPR spoke with no longer supported the death penalty. While some may still believe death is an appropriate punishment for certain crimes, society needs to consider the health of those tasked with carrying out that punishment.

#3. It burdens taxpayers with high costs

States use taxpayer money to fund executions. You may think death penalty sentences cost less than life imprisonment, but research shows that’s not true. According to data collected by Amnesty International, Kansas paid 70% more for a death penalty case than a comparable non-death penalty case. The median cost of a non-death penalty case (through the end of incarceration) is $740,000 while the median cost of a death penalty case through execution is a striking $1.26 billion. Why is the death penalty so expensive? Legal and pre-trial fees, as well as the length of death penalty trials, the cost of appeals, and heightened security on death row all cost more than non-death penalty cases.

Many taxpayers have moral qualms about their taxes going to the death penalty, but there are tangible consequences, too. The money used for death penalty cases is being diverted from other measures such as mental health treatment, victim services, drug treatment programs, and more. Most people would prefer their taxes to pay for these types of services rather than long trials, appeals, and other death-penalty case activities.

#3. It doesn’t deter crime

Many people can admit the death penalty is not a perfect system, but if it deters crime, isn’t it worth keeping? That statement contains a big “if.” The Death Penalty Information Center has information showing that states without the death penalty have a consistently lower murder rate than states with the death penalty. Since 1990, the gap has increased. A 2020 analysis found that 9 out of 10 states with the highest pandemic murder rates were states with the death penalty. 8 out of the 11 states with the lowest pandemic murder rates had abolished the death penalty. Data like this suggests that the death penalty does not deter murder.

Why isn’t the threat of death enough to dissuade people from committing murder? The answer may lie in human psychology and the minds of those committing crimes. According to an article in Psychology Today, most offenders don’t behave rationally during a crime. Poor mental health is a common trigger. According to research, 43% of those in state prisons have a diagnosed mental disorder. When it comes to what’s known as “expressive crimes,” which are crimes driven by rage, depression, and drug or alcohol use, people are not thinking about the consequences they might face. The death penalty doesn’t factor into their decision-making.

#4. It doesn’t address the root causes of crime

The causes of crime are complex, but there’s little doubt that the death penalty fails to address them. Consider the United States, which experienced a post-2020 increase in violence. According to the Brennan Center for Justice, gun violence was a major contributor. The FBI found that guns were responsible for 77% of murders nationwide in 2020. In the same report, COVID-19 was frequently referenced as a factor as more people experienced disruptions to their jobs and social lives. Americans’ mental health suffered, as well, and while people with mental illness are more likely to be the victims of crime rather than perpetrators, certain illnesses (and a lack of treatment) are linked to criminal behavior.

The death penalty doesn’t address any of the possible roots of violent crime, including socioeconomic disruptions and mental health. Considering the cost of death penalty cases and their effect on the mental health of all those involved, one could argue that the death penalty contributes to conditions that lead to crime.

Want to learn more about the death penalty? Check out these articles .

#6. It’s biased against people experiencing poverty

The death penalty is not applied equally based on the crimes people commit. Certain groups are much more likely than others to receive a sentence. According to The International Federation of Human Rights, 95% of prisoners on death row in the United States come from “underprivileged backgrounds. ” This doesn’t mean people experiencing poverty have an inherent urge to commit crimes. The criminalization of poverty increases a person’s risk for arrest, while the high cost of education, mental health treatment, substance abuse treatment, and other assistance can push people into crime.

Once in the criminal justice system, those with money can pay for private lawyers, investigations, appeals, and other actions that help them avoid the death penalty. Those experiencing poverty have to rely on underfunded public defenders. Rather than punishing those who’ve committed the most severe crimes, the system punishes those with the fewest resources. If the death penalty disproportionately affects people experiencing poverty, it’s a deeply unfair and unjust system.

#7. It’s disproportionately hurting people with intellectual disabilities

People with intellectual disabilities face increased discrimination in the criminal justice system. They’re more likely to falsely confess to a crime , less equipped to work with lawyers, and more likely to experience harsh and violent treatment in prison. In the United States, jurisdictions using capital punishment are required to make sure that people with intellectual disabilities are not sentenced to death or executed. However, the standards for this determination are not consistent. According to The Innocence Project, at least 12 states use IQ scores to determine intellectual disability , a method many experts find problematic. Certain states also require clear evidence, while others only ask for a “preponderance of evidence.” This means a person could be considered intellectually disabled in one state and not in another.

Even if a person with intellectual disabilities is not ultimately killed by the state, the road to a new sentence is brutal. Raymond Riles, who was sent to death row in 1976, remained there for more than 45 years despite being repeatedly deemed mentally incompetent. In 2021, his death sentence was finally tossed and he was sentenced to life in prison. Riles’ story is just one of many where a person with intellectual disabilities is mistreated or executed.

What factor influences your opinion on the death penalty the most?

• Whether or not it deters crime
• Whether or not it causes physical or emotional pain
• Whether or not it’s a waste of money
• Whether or not it discriminates against certain groups
• Whether or not it’s exploited by the state

View Results

#8. It has a racial bias

In the United States, racial discrepancies are the biggest concern for many death penalty critics. According to research, 35% of people executed in the last 40 years have been Black, despite the fact Black Americans only make up 13% of the general population. When researchers take a closer look, they discover patterns of discrimination based on race. Virginia in particular has been scrutinized for its history, which has roots in early capital punishment laws. White defendants could only be executed for first-degree murder, while a variety of non-homicide crimes could get enslaved Black defendants executed. Between 1900-1969, Virginia executed 73 Black men for non-homicide crimes , while 185 were executed for murder. In that same time frame, no white person was executed for a non-homicide crime while 46 were executed for murder. In 2021, Virginia abolished the death penalty, citing the state’s history of racial disparities.

There’s also racial bias regarding what crimes receive death penalty sentences. According to a 2003 study, prosecutors were more likely to seek the death penalty when the victim was white , while they were less likely to pursue that verdict if the victim was Black. Another study, this one from 2007, reflected similar findings. Nationally, mountains of research show racial bias in how the death penalty is applied.

#9. It’s used as a tool of authoritarianism 

In theory, the death penalty is only meant to punish the most serious crimes, like murder. However, in places around the world, governments use executions freely and for non-lethal crimes. According to Amnesty International, recorded executions in 2022 hit their highest figure in five years . 883 people (which does not count the thousands possibly executed in China) were killed across 20 countries, which represents a 53% rise since 2021. Amnesty’s Secretary General says almost 40% of all known executions are for drug-related offenses, while in Iran, people were executed for protesting the regime. Because the governments still using the death penalty often hide their numbers, there are likely more executions not on the record.

It’s clear many governments inflicting the death penalty are not interested in justice, but rather in suppression and control. By using the death penalty arbitrarily, authorities set shifting definitions for what’s “unacceptable” in society and what’s an appropriate punishment. It makes citizens fearful and violates their human rights. As long the death penalty is legal, it has the potential to be abused for a government’s own purposes.

#10. It can’t be reversed in light of new evidence or errors

What makes the death penalty distinct from life in prison is that the judgment can’t be reversed if new evidence is discovered. It’s a disturbingly frequent occurrence. In 2000, Professor James Liebman from Columbia Law School released a study examining every capital conviction and appeal between 1973-1995. More than 90% of the states that gave death sentences had overall error rates of 52% or higher. 85% of states had error rates of 60% or higher. A more recent analysis from 2014 collected data from all death sentences between 1973-2004. They estimated that around 1 in 25 of those given a death sentence had likely been incorrectly convicted. While most of those who receive a death penalty sentence are eventually removed from death row to serve life imprisonment, innocent prisoners are never freed.

The Death Penalty Information Center maintains a database of exonerations , which means the person was acquitted or the charges were dismissed completely. Reasons include false confessions, insufficient evidence, perjury, official misconduct, and inadequate legal defense. Data like this exposes how flawed the criminal justice system is and how frequent errors are. It’s not a system we should trust with people’s lives.

The death penalty: a reading list 

Interested in learning more about the death penalty? Here’s where to start:

Just Mercy: A Story of Justice and Redemption | Bryan Stevenson

This 2015 book (also made into a film) follows Bryan Stevenson as he establishes the Equal Justice Initiative. The book mostly focuses on Stevenson’s work for Water McMillian, a Black man sentenced to death for a crime he didn’t commit.

Dead Man Walking: The Eyewitness Account of the Death Penalty That Sparked a National Debate | Helen Prejean

Written in 1994, this book follows a Roman Catholic nun as she learns about the death penalty in America, gets to know everyone touched by the system, and works through her beliefs.

Let the Lord Sort Them: The Rise and Fall of the Death Penalty | Maurice Chammah

In this award-winning 2022 book, Maurice Chammah tracks the story of capital punishment through stories of those with personal experience, like a prosecutor turned judge, a lawyer, executioners, and the prisoners living on death row. Chammah is a journalist and staff writer for The Marshall Project.

Right Here, Right Now: Life Stories from America’s Death Row | Ed. Lynden Harris

A collection of 99 first-person, anonymous accounts of men on death row in the United States, this 2021 book shines a light on the humanity of the people who’ve been sentenced to death. The book is organized into eight life stages from early childhood right to the moment a man faces his execution.

You may also like

15 Great Charities to Donate to in 2024

15 Quotes Exposing Injustice in Society

14 Trusted Charities Helping Civilians in Palestine

The Great Migration: History, Causes and Facts

Social Change 101: Meaning, Examples, Learning Opportunities

Rosa Parks: Biography, Quotes, Impact

Top 20 Issues Women Are Facing Today

Top 20 Issues Children Are Facing Today

15 Root Causes of Climate Change

15 Facts about Rosa Parks

Abolitionist Movement: History, Main Ideas, and Activism Today

The Biggest 15 NGOs in the UK

About the author, emmaline soken-huberty.

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

Arguments for and Against the Death Penalty

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

The death penalty deters future murders.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Full text can be found at PBS.org .

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

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

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

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

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

The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states….

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

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

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

Click here for the full text from the ACLU website.

Retribution

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

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

Retribution has its basis in religious values, which have historically maintained that it is proper to take an “eye for an eye” and a life for a life.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The entire speech by Justice Kogan is available here.

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

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

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

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

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

Full text can be found here.

Arbitrariness & Discrimination

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The entire decision can be found here.

Pros & Cons of the Death Penalty

Plus Lists of Where It's Practiced and Banned

• Liberal Voices and Events
• The U. S. Government
• U.S. Foreign Policy
• U.S. Conservative Politics
• Women's Issues
• Civil Liberties
• The Middle East
• Race Relations
• Immigration
• Crime & Punishment
• Canadian Government
• Understanding Types of Government
• M.B.A., California State University, Long Beach
• B.A., Journalism and Nonfiction Writing, University of California, Los Angeles

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

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

Quotations from Both Sides

Arguing against capital punishment, Amnesty International believes:

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

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

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

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

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

Death Penalty in the United States

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

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

Latest Developments

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

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

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

Executions in 2017, by Country

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

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

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

Executions from 1976–October 2018, by State

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

Source: Death Penalty Information Center  

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

The Moral Conflict: Tookie Williams

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

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

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

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

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

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

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

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

Exorbitant Costs

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

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

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

Arguments For and Against

Arguments commonly made for supporting the death penalty are:

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

Arguments commonly made to abolish the death penalty are:

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

Countries that Retain the Death Penalty 

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

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

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

Countries That Abolished the Death Penalty

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

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

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

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

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

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

“ State by State .”  Death Penalty Information Center .

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

• New Challenges to the Death Penalty
• Pros & Cons of Embryonic Stem Cell Research
• Top 10 Must-Reads for Liberals
• The Top 3 Arguments for Gun Control
• The 7 Most Liberal Supreme Court Justices in American History
• Pros and Cons of Government Healthcare
• Biography of Joe Biden, 46th President of the United States
• Biography of Elizabeth Warren, Senator and Scholar
• Barack Obama's Inspiring 2004 Democratic Convention Speech
• What Is Gun Ownership Like State by State
• Congress Members Who Voted Against the 2002 Iraq War
• 5 Reasons Why Obama Won the 2008 U.S. Presidential Election
• President Obama's Domestic Agenda
• Biography of Elizabeth Vargas, ABC News Journalist
• Top 10 Classic Films With a Social Message
• History of the North American Free Trade Agreements

• Share full article

Advertisement

Supported by

student opinion

Should the Death Penalty Be Abolished?

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

By Nicole Daniels

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

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

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

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

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

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

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

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

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

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

Students, read the entire article , then tell us:

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

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

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

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

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

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

About Student Opinion

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

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

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

The Case Against the Death Penalty

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

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

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

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

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

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

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

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

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

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

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

ACLU OBJECTIONS TO THE DEATH PENALTY

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

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

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

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

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

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

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

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

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

CAPITAL PUNISHMENT IS NOT A DETERRENT TO CAPITAL CRIMES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CAPITAL PUNISHMENT IS UNFAIR

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

Racial Bias in Death Sentencing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Failure of Safeguards

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

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

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

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

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

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

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

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

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

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

CAPITAL PUNISHMENT IS IRREVERSIBLE

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

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

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

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

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

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

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

CAPITAL PUNISHMENT IS BARBARIC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Botched Lethal Injections

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

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

Lethal Injection Protocol Issues

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

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

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

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

Witnessing the Execution

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

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

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

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

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

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

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

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

Death Row Syndrome

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

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

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

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

CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION

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

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

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

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

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

Murder Victims Families Oppose the Death Penalty

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

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

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

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

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

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

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

CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION

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

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

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

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

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

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

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

CAPITAL PUNISHMENT IS LESS POPULAR THAN THE ALTERNATIVES

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

INTERNATIONALLY, CAPITAL PUNISHMENT IS WIDELY VIEWED AS INHUMANE AND ANACHRONISTIC

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

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

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

International Law

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

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

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

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

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

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

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

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

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

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

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

[4] See id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[20] Pelofsky, supra note 14.

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

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

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

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

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

[26] See id.

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

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

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

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

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

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

[33] Id. at 239.

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

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

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

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

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

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

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

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

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

Related Issues

• Capital Punishment

Stay Informed

Every month, you'll receive regular roundups of the most important civil rights and civil liberties developments. Remember: a well-informed citizenry is the best defense against tyranny.

By completing this form, I agree to receive occasional emails per the terms of the ACLU’s privacy statement.

Sociologists Test Six Arguments For and Against Capital Punishment

The sociologists Michael Radlet and Marian Borg test out six arguments for and against capital punishment.

This week, the state of Georgia executed Warren Hill, an inmate who was declared to be mentally impaired by all seven medical experts who assessed him. Many have argued that the execution was unconstitutional, particularly in the light of a 2002 supreme court ruling against executing people with intellectual disabilities. Whatever the facts of this particular case, it is sure to reignite once again the wider debate over capital punishment. But what does the evidence say?

In a useful review article , the sociologists Michael Radlet and Marian Borg set out six arguments for and against the death penalty. The first is the issue of deterrence . Radlet and Borg cite a number of surveys showing that experts generally believe that the death penalty does not constitute an additional deterrent above and beyond life imprisonment. Experts can be wrong of course. But perhaps the most comprehensive review of the evidence to date, published by the National Research Council, concluded that it is simply impossible to say whether or not capital punishment has any effect on homicide rates, given that no studies have been able to compare the effect of capital punishment to a life sentence. Indeed a Gallup poll from 2014 found that just 6% of death-penalty supporters cite deterrence as the reason for their view, down from 13% in 1991.

Incapacitation – “well, they won’t do it again” – seems a somewhat strange argument to make, given the alternative possibility of life imprisonment. Perhaps the 7% of death-penalty supporters who cite this reason (down from 19% in 1991) are concerned about the possibility of lifers escaping, or attacking their guards or fellow inmates. If so, these concerns are probably misplaced. Radlet and Borg cite a study of prisoners whose death sentences were commuted in 1972, which found that only around 1% went on to kill again. That said, although it is unwise to draw conclusions from a single case, particularly when mental impairment is involved, the crime for which Warren Hill was executed was the murder of a fellow inmate, while on a life sentence for a previous murder.

When many states reintroduced capital punishment in the 1970s, an argument made at the time was that imposing the death penalty for particular offences would avoid the racial and class biases associated with sentencing. In other words, the death penalty was supposed to address the issue of poor black defendants receiving harsher sentences than rich white defendants. It is difficult to argue that the reintroduction of capital punishment has solved this problem. A number of experimental mock jury studies have found that black defendants are more likely than white defendants to receive a death sentence in otherwise-identical trials, particularly when jurors struggle to understand the judge’s instructions.

Perhaps surprisingly, saving taxpayers’ money (i.e., on prison costs) is the second-most-cited reason given by supporters of the death penalty (mentioned by 14% of all supporters in the 2014 poll). In fact, many studies, summarized here by Amnesty International , have found out that, overall, death-penalty cases cost far more than non-death-penalty cases; partly because of the extended appeals process, but more because trials in which the prosecution is seeking the death penalty are longer and more expensive in the first place.

The fact that miscarriages of justice cannot be reversed is an argument that is frequently made against the death penalty, and the second most popular reason listed by its opponents, on 17% (the most popular is that it is “Wrong to take a life” on 40%). Radlet and Borg note that miscarriages of justice include not only the well-publicized cases where a defendant was entirely innocent, but also cases where he is guilty of a lesser crime such as second-degree murder or manslaughter. Still, not everyone agrees that miscarriages of justice constitute a knock-down argument against capital punishment. For example, in a Stanford Law Review article , Cass Sunstein and Adrian Vermeule argue that “the standard moral objections to capital punishment apply even more powerfully to the murders prevented by capital punishment”. Yes, they argue, capital punishment is irreversible and subject to racial bias, but then so is murder. Executing a murderer saves more irreversible and racially-skewed deaths than it causes. However, as we saw earlier, it is far from clear that the claim upon which their argument hinges – that executions save lives by deterrence and/or incapacitation – is true.

This brings us to the final argument in favor of capital punishment: retribution . Radlet and Borg note that this is both by far the most popular argument made by death-penalty supporters (35% in the 2014 Gallup poll; down from 50% in 1991), and the one that is most difficult to address scientifically. All of the other arguments considered above – the death penalty is a deterrent, incapacitates would-be killers, is subject to racial biases, leads to serious miscarriages of justice – are empirical ones; arguments that could be definitively settled with data, if only we had enough of it and knew what to do with it. The argument that killers deserve to die (“An eye for an eye”) cannot be settled in this way.

One question that we can hope to answer with more confidence is that of what the future holds for the death penalty in the US. Although it is often claimed that the vast majority of the public support capital punishment, the most recent figure – 63% – represents a significant drop from a high of 80% in the mid 1990s. What is more, if offered the chance to impose “life imprisonment with absolutely no possibility of parole”, this option (45%) loses out to the death penalty (50%) by only the narrowest of margins (with the remaining 5% offering no opinion). The likelihood is, then, that at some point or other, the US will fall into line with most of the developed world and end capital punishment.

Editor’s note: A journal article cited in an earlier version of this article is no longer available for free on JSTOR .

JSTOR is a digital library for scholars, researchers, and students. JSTOR Daily readers can access the original research behind our articles for free on JSTOR.

Get Our Newsletter

Get your fix of JSTOR Daily’s best stories in your inbox each Thursday.

Privacy Policy   Contact Us You may unsubscribe at any time by clicking on the provided link on any marketing message.

More Stories

• Confucius in the European Enlightenment

• Watching an Eclipse from Prison

The Alpaca Racket

Make Your Own Poetry Anthology

Recent posts.

• Beryl Markham, Warrior of the Skies
• Fencer, Violinist, Composer: The Life of Joseph Bologne
• The Legal Struggles of the LGBTQIA+ Community in India

Support JSTOR Daily

Faculty Scholarship

‌the end of the death penalty.

‌‘Unintended consequences’ and the legacy of Furman v. Georgia

More than 50 years ago, the U.S. Supreme Court held in Furman v. Georgia that the death penalty was an unconstitutional violation of the Eighth Amendment ban against cruel and unusual punishment. With that, 629 people on death row nationwide had their capital sentences commuted, and the death penalty disappeared overnight.

“Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact.” Carol Steiker

But Furman didn’t abolish capital punishment for very long. Four years later, Gregg v. Georgia and several companion cases made clear that governments could impose capital punishment under certain conditions. Those decisions were a response to the backlash sparked by Furman , which appeared to revive support for a practice that had been in sharp decline for years. Today, 27 states in the U.S., as well as the federal government, retain the death penalty, and as of April 2022, one source reported that there were 2,414 people on death row across the country. Despite what many would have predicted in 1972, when the Furman decision suggested the U.S. would become an international leader in eliminating the death penalty, today it’s the only Western democracy that still imposes it. 

Still, while the death penalty persists in the U.S., it’s not exactly thriving. Indeed, it’s once again “withering” across the country, says Carol S. Steiker ’86 , the Henry J. Friendly Professor of Law at Harvard Law School, who has taught Capital Punishment in America at the school since 1993. Though Furman (and its subsequent overruling) helped fuel the death penalty’s revival, it also set in motion a long series of events that may ultimately eliminate capital punishment in the United States, Steiker says.

“ Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact,” says Steiker, who is co-author, with her brother, Jordan Steiker ’88, of “Courting Death: The Supreme Court and Capital Punishment” (Harvard University Press, 2016) and co-editor, also with him, of “Comparative Capital Punishment” (Edward Elgar, 2019).

“ Furman was a remarkable intervention,” says Jordan Steiker, a professor at the law school at the University of Texas at Austin and co-director of its Capital Punishment Center. “Even though it was quite short-lived in suspending the death penalty in the U.S., it completely changed its course because it essentially inspired or required states to rethink how they were doing capital punishment. And ultimately, the practice of the death penalty changed substantially over time.”

Given the greatly heightened public attention to the power of the Supreme Court today, the 50th anniversary of Furman is an opportunity to reexamine not just the history of the death penalty but the appropriate role of the Court in American life, Carol Steiker and others believe.

“Right now a lot of people are wondering how much of a role we want the courts to play in deciding what rights are guaranteed by the Constitution, and Furman v. Georgia is a unique example of when the Court struck down a policy that was widely prevalent throughout the states for violating the Constitution,” says Gene Young Chang ’24, who has been studying the death penalty with Steiker since he was a freshman in her Harvard College course The American Death Penalty: Morality, Law, and Politics. Furman , he says, “teaches us things about the role of the courts in a democratic society, the scope of constitutional rights, and the proper method for defining those rights.” 

Categorical abolition of the death penalty across the nation is unlikely without another Furman v. Georgia , “what you might call Furman II, which is obviously not forthcoming from this Court or anytime in the foreseeable future,” Carol Steiker says. Instead, the future of the death penalty, she says, is being played out at the local level, in “a kind of guerrilla war going on county by county, state by state, with the election of progressive prosecutors who do not seek the death penalty, state legislative activity, and state constitutional litigation under state constitutions.”

The final death knell for capital punishment will likely depend on a very different Supreme Court from the one we have today, she says. “But at that point,” given other trends in the country, “it may be more like a coup de grâce rather than what it was at the time of Furman .”

History of a ‘remarkable intervention’

In the 1960s, due to a campaign by the NAACP Legal Defense and Educational Fund to challenge its constitutionality in cases across the country, capital punishment was in decline. Indeed, no one was executed in the five years before Furman , as states waited to see what the high court would rule. In 1971, the Supreme Court rejected a due process challenge to capital punishment. But Furman , argued a year later, relied on the Eighth Amendment: The LDF team argued that the arbitrary application of capital punishment — jurors, often with no guidance, had complete discretion on when to impose it — was a cruel and unusual punishment.

”The Supreme Court intervention [in Furman] not only didn’t kill the death penalty but actually made it stronger when it was reinstated.” Carol Steiker

The Supreme Court agreed, 5-4, although the justices issued nine separate opinions, which was very unusual, as Carol Steiker notes. Justice Thurgood Marshall (for whom both Steikers later clerked) and Justice William J. Brennan Jr. LL.B. ’31 maintained that the death penalty was unconstitutional per se. Justice William O. Douglas was troubled by its discriminatory application, given overwhelming evidence that it was more often imposed on Black defendants, the poor, and the politically unpopular. Justices Potter Stewart and Byron White were troubled by its arbitrary application under state statutes, with Justice Stewart famously writing, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” He concluded that the Constitution could not “permit this unique penalty to be so wantonly and so freakishly imposed.” 

But abolitionists’ hopes didn’t last long. Soon after Furman, 35 states rewrote their laws to try to comply with the Court’s ruling. In 1976, in a group of consolidated cases known as Gregg v. Georgia , the Supreme Court held that the death penalty was not per se unconstitutional. It ruled the punishment could be revived if state laws provided an objective process for deciding when to apply it and gave sufficient discretion to juries to determine whether it was appropriate. However, mandatory death penalties were unconstitutional, it held, even though some states believed that mandatory penalties were necessary to eliminate sentencing discretion.

Furman created an enormous backlash, the Steikers explain, so that capital punishment — which was becoming less and less popular in public opinion — resurged. It became “more of a wedge issue, part of the tough-on-crime political strategy of [President Richard] Nixon, and political entrepreneurs exploited the resentment at the Supreme Court’s intervention in the death penalty,” says Jordan Steiker, who has frequently taught at Harvard Law School, most recently in 2018 as the Touroff-Glueck Visiting Professor of Law and Psychiatry. “In the short term, the death penalty became more vigorous, there were more death sentences, and by the 1990s, there were many more executions than we were having pre- Furman .”

At least initially, then, “the Supreme Court intervention [in Furman ] not only didn’t kill the death penalty but actually made it stronger when it was reinstated,” says Carol Steiker, something she sees as an “unintended and unforeseen consequence” of the case.

Birth of the capital defense bar

But there was another unforeseen consequence of Furman , one that Jordan Steiker describes as “probably more important and long-lasting” — the birth of a large and highly skilled capital defense bar. 

With the resurrection of the death penalty, new, sophisticated institutions were created and staffed by passionate and skilled anti-capital lawyers: state offices for capital representation at the trial, appellate, and post-conviction levels; capital habeas corpus units within state and federal public defenders’ offices; and numerous non-governmental nonprofits, such as Bryan Stevenson ’85’s Equal Justice Initiative. Today, “we have a whole legion of much more focused and talented advocates working on behalf of people facing capital charges or sentenced to death,” says Jordan Steiker.

Capital litigation has become far more complex, and the costs have soared. This has helped persuade many local prosecutors to avoid seeking the death penalty.

With these developments, as well as the Supreme Court’s imposition of special procedural requirements for cases involving the death penalty, capital litigation has become far more complex, and the costs have soared. “The constitutional decisions post- Furman have not imposed the most rigorous scrutiny of capital practices,” says Jordan Steiker, “but they have produced institutional actors who have made the death penalty much less attractive as a practical matter because to do it reasonably well is just exorbitantly expensive.” This has helped persuade many local prosecutors to avoid seeking the death penalty and has led to an “extraordinary decline in capital proceedings,” he says.

The current Supreme Court has signaled greater willingness to affirm capital sentences than in the recent past, says Jordan Steiker, and some jurisdictions have embraced that signal. The Oklahoma Court of Criminal Appeals had scheduled nearly one execution a month between 2022 and 2024 (although at the request of the new attorney general, the pace has now been slowed to no more than one every 60 days). In Texas, on the other hand, two death sentences were imposed in 2022, which contrasts starkly with the 1990s, when Texas juries were handing out more than 40 a year, Jordan Steiker says. “The practice on the ground is withering in part because of the institutions built in response to Furman ,” he says.

Local prosecutors and state courts take over

Other factors besides cost have decreased the public’s appetite for the death penalty, including media attention to, and public awareness of, the number of innocent people sentenced to death. Since 1973, at least 190 people who were wrongly convicted and sentenced to death have been exonerated, according to the Death Penalty Information Center. For that and other reasons, including declining crime rates, there has been a dramatic decline in public support for the death penalty over the past 20 years. Though the 2021 Gallup poll found that 54% of respondents continued to support it, that is the lowest number in the annual poll since 1972. 

Erica Medley LL.M. ’22 was a prosecutor in the U.S. Air Force before matriculating at HLS. When she was a schoolgirl, in Oregon, two of her friends were raped and murdered by a neighbor, Ward Weaver III. When Weaver received two life sentences, “It made no sense,” Medley recalls. “I thought he should have gotten the death penalty.” When Medley enrolled in Carol Steiker’s class on capital punishment in fall 2021, she was among the very few students who supported the death penalty, according to an informal online class poll. 

But before the first class, Medley did a complete reversal sparked by reading the course materials. “I was so overwhelmed reading everything that I did a 180. It was that fast,” says Medley, who was persuaded by the evidence of the racially disparate impact of the death penalty, its exorbitant expense compared with that of prison sentences, the number of people on death row who turn out to be innocent, and the fact that no other peer nations still impose the penalty.

The shifting demographics of urban counties are also having an effect on the use of the death penalty across the country since such counties are often the only places that can afford to prosecute many capital cases, says Jordan Steiker. As these counties become less politically conservative, they are increasingly controlled by “less zealous prosecutors,” he says. Harris County, Texas, which includes Houston, and Dallas County were “longstanding conservative-controlled political entities, and now they’re not. Now many prosecutors run not on the death penalty but away from the death penalty. That’s a very significant shift.” 

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate.” Jordan Steiker

And, just as the resurgence of the death penalty in the 1980s and ’90s paralleled public reaction to a crime surge, a drop in death penalty cases mirrors what has generally been a long-term decline in the homicide rate, as well as public concerns about mass incarceration and racial inequities in the criminal justice system, says Carol Steiker, faculty sponsor of the Capital Punishment Clinic, through which Harvard Law students are placed in externships at capital defense organizations around the country.

And the past 16 years have seen a growing legislative trend toward abolishing the death penalty. In 2007, 38 states retained it; today, there are only 27. In 2021, Virginia, which has executed more people than any other state, became the first Southern state to abolish capital punishment. It was preceded by legislative repeals in Colorado, New Jersey, Illinois, and Connecticut, among other states. In Washington state, the Supreme Court found the death penalty unconstitutional under the state constitution because it was used in an arbitrary and racially biased manner. 

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate,” says Jordan Steiker. 

“I think in the short term we’ll end up having more executions because of the Supreme Court’s reluctance to impede them, even though executions have been in as much of a decline as death sentences,” he adds. But with fewer capital sentences taking place, “death row has been shrinking considerably, and at some point we’ll have a death row that seems inconsequential as part of our criminal justice system.” 

Furman’s ultimate impact?

In the end, then, was Furman a victory for those who brought the case? “That’s a good question,” says Jordan Steiker. “There’s one point of view that I’m sympathetic to, that says that Furman revived a practice that was dying on the ground, and had there been no intervention, we might not have had a revival and then a second decline.”

On the other hand, when Michael Meltsner, one of the lawyers on the LDF team who brought Furman , speaks to Carol Steiker’s capital punishment class each year, he emphasizes that there were 629 people on death row in 1972 whose lives were saved by Furman.

“So in that sense, it was a tremendous victory,” says Carol Steiker. “It was a reset moment.”

Modal Gallery

Gallery block modal gallery.

Find anything you save across the site in your account

A Strong Argument Against Capital Punishment

By Lincoln Caplan

When the Connecticut Supreme Court ruled yesterday that the death penalty is unconstitutional in the state, it reckoned squarely with the kind of questions that citizens often ask and that legal cases seldom answer: Is capital punishment moral? Is it necessary?

By 4–3, the court held that “capital punishment has become incompatible with contemporary standards of decency in Connecticut and, therefore, now violates the state constitutional prohibition against excessive and disproportionate punishments.” It also held that “the death penalty now fails to satisfy any legitimate penological purpose and is unconstitutionally excessive on that basis as well.” Justice Richard N. Palmer , a moderate liberal who has been on the court for twenty-two years, wrote the opinion.

In reaching the result it did, the court was dramatically divided: in addition to the majority opinion, there are two concurrences , agreeing on the majority’s reasoning but emphasizing reasons of their own, and three different dissents . But the clarity, thoroughness, and persuasiveness of the majority opinion indicate that this landmark decision will likely be remembered not for the divisions among the Justices but for where the majority came out. The 2003 ruling of the Massachusetts Supreme Judicial Court in the Goodridge case is a fair comparison: it is remembered not as a 4–3 decision, but as the first by an American court to legalize same-sex marriage.

The Connecticut decision drew on history:

[T]he acceptability of imposing death as a form of judicial punishment has declined steadily over Connecticut’s nearly 400 year history. Secularization, evolving moral standards, new constitutional and procedural protections, and the availability of incarceration as a viable alternative to execution have resulted in capital punishment being available for far fewer crimes and criminals, and being imposed far less frequently, with a concomitant deterioration in public acceptance.

It confronted a long, consistent record of unfairness:

[W]hat has not changed is that, throughout every period of our state’s history, the death penalty has been imposed disproportionately on those whom society has marginalized socially, politically, and economically: people of color, the poor and uneducated, and unpopular immigrant and ethnic groups. It always has been easier for us to execute those we see as inferior or less intrinsically worthy.

And it explained why the death penalty is unnecessary as a punishment:

[T]he legislature necessarily has made a determination that he who lives by the sword need not die by it; that life imprisonment without the possibility of release is an adequate and sufficient penalty even for the most horrific of crimes; and that we can express our moral outrage, mete out justice, bring some measure of solace to the families of the victims, and purge the blemish of murder on our community whilst the offender yet lives. If this is true, then, although the death penalty still might serve some minimal retributive function in Connecticut, it lacks any retributive justification .

The Connecticut Legislature seemed to make these issues superfluous when it repealed the state’s death penalty, in 2012, but that law, identified as Public Act 12–5, contained a prominent exemption: it did not apply to the eleven men then on the state’s death row, or to anyone who had committed a capital felony before the law was enacted. Two of the death-row inmates had been sentenced to death for killing a woman and her two daughters five years earlier, in an infamous crime known as the Cheshire home-invasion murders, and the repeal law seemed to support both the abolition of the death sentence going forward and the holdover of capital punishment for those men. Governor Dannel Malloy described the signing of the law as “a moment for sober reflection, not celebration.” He signed it, he went on, because, as a former prosecutor, he understood that “our system of justice is very imperfect” and because of the “unworkability” of Connecticut’s previous death-penalty law.

A scholarly study of every murder case in the state from 1973—when Connecticut enacted a new death-penalty law to comply with the Supreme Court’s ruling that the penalty had previously been applied arbitrarily nationwide and was thus unconstitutional—until 2007 found that the state was still applying capital punishment arbitrarily. The crimes committed by defendants sentenced to death were no more egregious than those by defendants sentenced to life in prison with no chance of parole. A minority defendant who killed a white person was six times as likely to receive a death sentence as a white defendant whose victim was white. A murderer charged and convicted in the city of Waterbury whose crime made him eligible for capital punishment was at least seven times as likely to receive a death sentence as someone whose case was prosecuted elsewhere in the state.

As the Connecticut Supreme Court ruled, Public Act 12–5

held a mirror up to Connecticut’s long, troubled history with capital punishment: the steady replacement by more progressive forms of punishment; the increasing inability to achieve legitimate penological purposes; the freakishness with which the sentence of death is imposed; the rarity with which it is carried out; and the racial, ethnic, and socio-economic biases that likely are inherent in any discretionary death penalty system.

The court interpreted the state constitution, so its ruling can neither be appealed to the U.S. Supreme Court nor serve as a binding precedent on any court outside Connecticut. But, in explaining why it is time for the demise of the death penalty in Connecticut, the court has a lot to say about why it is time for the penalty’s demise throughout the country. The resolve and the reasoning of the Connecticut Supreme Court’s ruling make it far more important than simply a declaration by one more state that capital punishment is cruel and unusual and must be ended.

By signing up, you agree to our User Agreement and Privacy Policy & Cookie Statement . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

By Rachel Aviv

By David Cole

By Rivka Galchen

• International edition
• Australia edition
• Europe edition

America’s death penalty divide: why capital punishment is getting better, and worse

This year the US saw the fewest executions since 1988, but those states sticking with judicial killings are displaying grotesque aberrations

More than half the states in the US have either abolished the death penalty or have formal suspensions in place, as the country’s use of the brutal punishment continues to wither on the vine.

When Virginia became the first southern state to scrap capital punishment in March, it raised to 23 the number of states that have abolished the practice outright. In a further three states, governors have imposed a moratorium on executions.

Virginia’s seismic shift away from judicial killings has created a death penalty-free zone on the north-east seaboard of the US that runs from Maine’s border with Canada down to the edge of the Carolinas. A similar zone now runs all the way down the west coast of the US.

The growing block of states where capital punishment is no longer welcome is one of the headline findings of the annual review of the Death Penalty Information Center (DPIC). The report contains nuggets that will make an abolitionist’s heart soar, including a record low number of new death sentences in 2021 (18) and the fewest executions carried out since 1988 (11).

But there is a powerful sting in the tail. As the fondness for judicial killings generally recedes, those states that are sticking with capital punishment are displaying grotesque aberrations in its application.

“The handful of states that continue to push for capital punishment are outliers that often disregard due process, botch executions, and dwell in the shadows of long histories of racism and a biased criminal legal system,” said DPIC’s executive director Robert Dunham.

Five states, together with the US government, judicially killed prisoners this year. Seven imposed new death sentences.

Three states have the dubious distinction of standing out in this year’s review – Alabama, Oklahoma and Texas. Between them they accounted for half of all death sentences and most of the 11 executions.

Oklahoma botched its first execution in six years, that of John Grant, who was observed convulsing and vomiting on the gurney. The Guardian revealed that another death penalty state, Arizona, spent thousands of dollars obtaining hydrogen cyanide for its gas chamber, the same lethal chemical used by the Nazis in Auschwitz.

Racism continues to leap out of the statistics, as it has since the early days of US capital punishment with its roots in slavery and racial terror lynchings . Ten of the 18 (56%) new death sentences were meted out to prisoners of colour, while the same percentage of death row inmates who were executed (six out of 11) were African American.

Reflecting a centuries-old distortion, more than three out of every four of the victims of this year’s murders ending in new death sentences were white. No non-white victim was involved in any case leading to a white person being condemned to death.

Horrors abound in other aspects of the behaviour of the rump of death penalty states. This was a year in which the callous disregard for the mental impairments of those prisoners put to death was on visceral display.

As Ngozi Ndulue, DPIC’s deputy director, pointed out, all but one prisoner executed this year had serious impairments, including brain injury or damage, mental illness and intellectual disabilities, or had histories of gruesome childhood neglect and abuse.

“We are seeing fewer and fewer executions, but those that do occur demonstrate that the death penalty is not reserved for the worst of the worst, but the most vulnerable of the vulnerable,” she said.

Perhaps the most powerful argument of all against the death penalty is that it runs the risk of killing innocent people, and there was plenty of food for thought in that regard in 2021. Two death-row inmates were exonerated during the year, taking the total number of prisoners in the modern era who had been awaiting execution only to be found innocent to a staggering 186.

DPIC points out that the figure is equivalent to one exoneration for every eight executions that have been carried out in the past 50 years. Both this year’s exonerees, Eddie Lee Howard and Sherwood Brown , were from Mississippi and were cleared with the help of DNA testing after both had been on death row for 26 years.

The annual record for 2021 contains a hangover from an earlier era, in the form of the federal government’s flurry of executions in the dying days of the Trump administration. Three people on federal death row were killed in less than 10 days before Joe Biden’s inauguration, as part of Donald Trump’s rush to carry out 13 executions in six months.

Those who died in 2021 at the hands of the Trump administration were Lisa Montgomery , a profoundly mentally ill woman who had suffered a lifetime of abuse tantamount to torture; Corey Johnson , who was severely intellectually disabled; and Dustin Higgs , who indisputably did not kill anybody.

Since Biden took office in January there have been no further federal executions, and in June the US attorney general Merrick Garland announced a formal pause to give the Department of Justice time to review its policies.

Anti-death penalty campaigners have been hoping the Biden administration would end the federal death penalty and commute sentences of the remaining 45 federal death row inmates to life imprisonment. So far, there has been no sign of that happening.

• Capital punishment
• US politics

Most viewed

Read our research on: Gun Policy | International Conflict | Election 2024

Regions & Countries

Most americans favor the death penalty despite concerns about its administration, 78% say there is some risk of innocent people being put to death.

Pew Research Center conducted this study to better understand Americans’ views about the death penalty. For this analysis, we surveyed 5,109 U.S. adults from April 5 to 11, 2021. Everyone who took part in this 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 for the report, along with responses, and its methodology .

The use of the death penalty is gradually disappearing in the United States. Last year, in part because of the coronavirus outbreak, fewer people were executed than in any year in nearly three decades .

Yet the death penalty for people convicted of murder continues to draw support from a majority of Americans despite widespread doubts about its administration, fairness and whether it deters serious crimes.

More Americans favor than oppose the death penalty: 60% of U.S. adults favor the death penalty for people convicted of murder, including 27% who strongly favor it. About four-in-ten (39%) oppose the death penalty, with 15% strongly opposed, according to a new Pew Research Center survey.

The survey, conducted April 5-11 among 5,109 U.S. adults on the Center’s American Trends Panel, finds that support for the death penalty is 5 percentage points lower than it was in August 2020, when 65% said they favored the death penalty for people convicted of murder.

While public support for the death penalty has changed only modestly in recent years, support for the death penalty declined substantially between the late 1990s and the 2010s. (See “Death penalty draws more Americans’ support online than in telephone surveys” for more on long-term measures and the challenge of comparing views across different survey modes.)

Large shares of Americans express concerns over how the death penalty is administered and are skeptical about whether it deters people from committing serious crimes.

Nearly eight-in-ten (78%) say there is some risk that an innocent person will be put to death, while only 21% think there are adequate safeguards in place to prevent that from happening. Only 30% of death penalty supporters – and just 6% of opponents – say adequate safeguards exist to prevent innocent people from being executed.

A majority of Americans (56%) say Black people are more likely than White people to be sentenced to the death penalty for being convicted of serious crimes. This view is particularly widespread among Black adults: 85% of Black adults say Black people are more likely than Whites to receive the death penalty for being convicted of similar crimes (61% of Hispanic adults and 49% of White adults say this).

Moreover, more than six-in-ten Americans (63%), including about half of death penalty supporters (48%), say the death penalty does not deter people from committing serious crimes.

Yet support for the death penalty is strongly associated with a belief that when someone commits murder, the death penalty is morally justified. Among the public overall, 64% say the death penalty is morally justified in cases of murder, while 33% say it is not justified. An overwhelming share of death penalty supporters (90%) say it is morally justified under such circumstances, compared with 25% of death penalty opponents.

The data in the most recent survey, collected from Pew Research Center’s online American Trends Panel (ATP) , finds that 60% of Americans favor the death penalty for persons convicted of murder. Over four ATP surveys conducted since September 2019, there have been relatively modest shifts in these views – from a low of 60% seen in the most recent survey to a high of 65% seen in September 2019 and August 2020.

In Pew Research Center phone surveys conducted between September 2019 and August 2020 (with field periods nearly identical to the online surveys), support for the death penalty was significantly lower: 55% favored the death penalty in September 2019, 53% in January 2020 and 52% in August 2020. The consistency of this difference points to substantial mode effects on this question. As a result, survey results from recent online surveys are not directly comparable with past years’ telephone survey trends. A post accompanying this report provides further detail and analysis of the mode differences seen on this question. And for more on mode effects and the transition from telephone surveys to online panel surveys, see “What our transition to online polling means for decades of phone survey trends” and “Trends are a cornerstone of public opinion research. How do we continue to track changes in public opinion when there’s a shift in survey mode?”

Partisanship continues to be a major factor in support for the death penalty and opinions about its administration. Just over three-quarters of Republicans and independents who lean toward the Republican Party (77%) say they favor the death penalty for persons convicted of murder, including 40% who strongly favor it.

Democrats and Democratic leaners are more divided on this issue: 46% favor the death penalty, while 53% are opposed. About a quarter of Democrats (23%) strongly oppose the death penalty, compared with 17% who strongly favor it.

Over the past two years, the share of Republicans who say they favor the death penalty for persons convicted of murder has decreased slightly – by 7 percentage points – while the share of Democrats who say this is essentially unchanged (46% today vs. 49% in 2019).

Republicans and Democrats also differ over whether the death penalty is morally justified, whether it acts as a deterrent to serious crime and whether adequate safeguards exist to ensure that no innocent person is put to death. Republicans are 29 percentage points more likely than Democrats to say the death penalty is morally justified, 28 points more likely to say it deters serious crimes, and 19 points more likely to say that adequate safeguards exist.

But the widest partisan divide – wider than differences in opinions about the death penalty itself – is over whether White people and Black people are equally likely to be sentenced to the death penalty for committing similar crimes.

About seven-in-ten Republicans (72%) say that White people and Black people are equally likely to be sentenced to death for the same types of crimes. Only 15% of Democrats say this. More than eight-in-ten Democrats (83%) instead say that Black people are more likely than White people to be sentenced to the death penalty for committing similar crimes.

Differing views of death penalty by race and ethnicity, education, ideology

There are wide ideological differences within both parties on this issue. Among Democrats, a 55% majority of conservatives and moderates favor the death penalty, a position held by just 36% of liberal Democrats (64% of liberal Democrats oppose the death penalty). A third of liberal Democrats strongly oppose the death penalty, compared with just 14% of conservatives and moderates.

While conservative Republicans are more likely to express support for the death penalty than moderate and liberal Republicans, clear majorities of both groups favor the death penalty (82% of conservative Republicans and 68% of moderate and liberal Republicans).

As in the past, support for the death penalty differs across racial and ethnic groups. Majorities of White (63%), Asian (63%) and Hispanic adults (56%) favor the death penalty for persons convicted of murder. Black adults are evenly divided: 49% favor the death penalty, while an identical share oppose it.

Support for the death penalty also varies across age groups. About half of those ages 18 to 29 (51%) favor the death penalty, compared with about six-in-ten adults ages 30 to 49 (58%) and those 65 and older (60%). Adults ages 50 to 64 are most supportive of the death penalty, with 69% in favor.

There are differences in attitudes by education, as well. Nearly seven-in-ten adults (68%) who have not attended college favor the death penalty, as do 63% of those who have some college experience but no degree.

About half of those with four-year undergraduate degrees but no postgraduate experience (49%) support the death penalty. Among those with postgraduate degrees, a larger share say they oppose (55%) than favor (44%) the death penalty.

The divide in support for the death penalty between those with and without college degrees is seen across racial and ethnic groups, though the size of this gap varies. A large majority of White adults without college degrees (72%) favor the death penalty, compared with about half (47%) of White adults who have degrees. Among Black adults, 53% of those without college degrees favor the death penalty, compared with 34% of those with college degrees. And while a majority of Hispanic adults without college degrees (58%) say they favor the death penalty, a smaller share (47%) of those with college degrees say this.

Intraparty differences in support for the death penalty

Republicans are consistently more likely than Democrats to favor the death penalty, though there are divisions within each party by age as well as by race and ethnicity.

Republicans ages 18 to 34 are less likely than other Republicans to say they favor the death penalty. Just over six-in-ten Republicans in this age group (64%) say this, compared with about eight-in-ten Republicans ages 35 and older.

Among Democrats, adults ages 50 to 64 are much more likely than adults in other age groups to favor the death penalty. A 58% majority of 50- to 64-year-old Democrats favor the death penalty, compared with 47% of those ages 35 to 49 and about four-in-ten Democrats who are 18 to 34 or 65 and older.

Overall, White adults are more likely to favor the death penalty than Black or Hispanic adults, while White and Asian American adults are equally likely to favor the death penalty. However, White Democrats are less likely to favor the death penalty than Black, Hispanic or Asian Democrats. About half of Hispanic (53%), Asian (53%) and Black (48%) Democrats favor the death penalty, compared with 42% of White Democrats.

About eight-in-ten White Republicans favor the death penalty, as do about seven-in-ten Hispanic Republicans (69%).

Differences by race and ethnicity, education over whether there are racial disparities in death penalty sentencing

There are substantial demographic differences in views of whether death sentencing is applied fairly across racial groups. While 85% of Black adults say Black people are more likely than White people to be sentenced to death for committing similar crimes, a narrower majority of Hispanic adults (61%) and about half of White adults (49%) say the same. People with four-year college degrees (68%) also are more likely than those who have not completed college (50%) to say that Black people and White people are treated differently when it comes to the death penalty.

About eight-in-ten Democrats (83%), including fully 94% of liberal Democrats and three-quarters of conservative and moderate Democrats, say Black people are more likely than White people to be sentenced to death for committing the same type of crime – a view shared by just 25% of Republicans (18% of conservative Republicans and 38% of moderate and liberal Republicans).

Across educational and racial or ethnic groups, majorities say that the death penalty does not deter serious crimes, although there are differences in how widely this view is held. About seven-in-ten (69%) of those with college degrees say this, as do about six-in-ten (59%) of those without college degrees. About seven-in-ten Black adults (72%) and narrower majorities of White (62%) and Hispanic (63%) adults say the same. Asian American adults are more divided, with half saying the death penalty deters serious crimes and a similar share (49%) saying it does not.

Among Republicans, a narrow majority of conservative Republicans (56%) say the death penalty does deter serious crimes, while a similar share of moderate and liberal Republicans (57%) say it does not.

A large majority of liberal Democrats (82%) and a smaller, though still substantial, majority of conservative and moderate Democrats (70%) say the death penalty does not deter serious crimes. But Democrats are divided over whether the death penalty is morally justified. A majority of conservative and moderate Democrats (57%) say that a death sentence is morally justified when someone commits a crime like murder, compared with fewer than half of liberal Democrats (44%).

There is widespread agreement on one topic related to the death penalty: Nearly eight-in-ten (78%) say that there is some risk an innocent person will be put to death, including large majorities among various racial or ethnic, educational, and even ideological groups. For example, about two-thirds of conservative Republicans (65%) say this – compared with 34% who say there are adequate safeguards to ensure that no innocent person will be executed – despite conservative Republicans expressing quite favorable attitudes toward the death penalty on other questions.

Overwhelming share of death penalty supporters say it is morally justified

Those who favor the death penalty consistently express more favorable attitudes regarding specific aspects of the death penalty than those who oppose it.

For instance, nine-in-ten of those who favor the death penalty also say that the death penalty is morally justified when someone commits a crime like murder. Just 25% of those who oppose the death penalty say it is morally justified.

This relationship holds among members of each party. Among Republicans and Republican leaners who favor the death penalty, 94% say it is morally justified; 86% of Democrats and Democratic leaners who favor the death penalty also say this.

By comparison, just 35% of Republicans and 21% of Democrats who oppose the death penalty say it is morally justified.

Similarly, those who favor the death penalty are more likely to say it deters people from committing serious crimes. Half of those who favor the death penalty say this, compared with 13% of those who oppose it. And even though large majorities of both groups say there is some risk an innocent person will be put to death, members of the public who favor the death penalty are 24 percentage points more likely to say that there are adequate safeguards to prevent this than Americans who oppose the death penalty.

On the question of whether Black people and White people are equally likely to be sentenced to death for committing similar crimes, partisanship is more strongly associated with these views than one’s overall support for the death penalty: Republicans who oppose the death penalty are more likely than Democrats who favor it to say White people and Black people are equally likely to be sentenced to death.

Among Republicans who favor the death penalty, 78% say that Black and White people are equally likely to receive this sentence. Among Republicans who oppose the death penalty, about half (53%) say this. However, just 26% of Democrats who favor the death penalty say that Black and White people are equally likely to receive this sentence, and only 6% of Democrats who oppose the death penalty say this.

CORRECTION (July 13, 2021): The following sentence was updated to reflect the correct timespan: “Last year, in part because of the coronavirus outbreak, fewer people were executed than in any year in nearly three decades.” The changes did not affect the report’s substantive findings.

Add Pew Research Center to your Alexa

Say “Alexa, enable the Pew Research Center flash briefing”

Report Materials

Table of contents, 10 facts about the death penalty in the u.s., death penalty draws more americans’ support online than in telephone surveys, california is one of 11 states that have the death penalty but haven’t used it in more than a decade, public support for the death penalty ticks up, most popular.

About Pew Research Center Pew Research Center is a nonpartisan fact tank that informs the public about the issues, attitudes and trends shaping the world. It conducts public opinion polling, demographic research, media content analysis and other empirical social science research. Pew Research Center does not take policy positions. It is a subsidiary of The Pew Charitable Trusts .

University of Notre Dame

Notre Dame Philosophical Reviews

• Home ›
• Reviews ›

Against Capital Punishment

Benjamin S. Yost, Against Capital Punishment , Oxford University Press, 2019, 280pp., $74.00 (hbk), ISBN 9780190901165.

Reviewed by Jeffrey W. Howard, University College London

Benjamin S. Yost has written a meticulously researched and tightly argued treatment of the morality of execution. The standard argument for abolishing the death penalty holds that even when moral agents have culpably perpetrated heinous wrongs, executing them is an unacceptable attack on their dignity, something that even they do not deserve to suffer. Yost is unconvinced by this strategy, which entails, implausibly, that we would wrong the likes of Hitler and Pol Pot by subjecting them to capital sentences. Instead Yost seeks to put the argument for abolition on more secure footing. On his view, what makes execution wrong is, first, the fact that it is irrevocable. While prisoners discovered to be innocent can be freed and compensated, we cannot resurrect the unjustly executed from the grave. But this insight is not enough to vindicate the proceduralist case. The argument requires a further premise, which Yost's book specifies and defends: "the principle of remedy," a fundamental tenet of liberal political morality enjoining political institutions to fix their mistakes. A commitment to this principle militates against execution, Yost argues, since wrongful executions cannot be remedied.

This initial description does not do justice to the exhaustive character of the book. Yost's extended analysis offers rich insights into the principle of lex talionis , the nature of dignity and the right to life, the penal philosophy of Immanuel Kant, the distinction between compensation for punishment and genuine remedy, the nature of irrevocability, the relative disvalue of under-punishment as contrasted with over-punishment, and the nature of uncertainty in legal decision-making -- among many other topics. The argument is systematically prosecuted, with detailed defenses of each premise. The analysis is painstaking, but the reading experience is utterly painless, in light of Yost's elegant writing, which somehow manages to be simultaneously rigorous and relaxed. It is a wonderful read -- and undoubtedly required reading for anyone working on this topic in the future.

Yost's view is not intended to be ecumenical toward all factions in the philosophy of punishment. The central addressees of the argument are retributivists, themselves divided on whether execution is ever justified. Yost himself endorses the claim that there are plausible pro tanto reasons in favor of retaining the death penalty from a retributivist perspective, such that abolition would involve a genuine moral cost: depriving those who deserve execution of their just deserts. This, then, motivates the question: given that there are positive reasons to execute, can these reasons be defeated by countervailing (proceduralist) considerations? Chapters 1 and 2 have the main job of setting out what these pro tanto reasons to execute are. Chapter 3 then defends the claim that execution really is irrevocable. Chapter 4 specifies the central argument for abolition, hinging on the aforementioned principle of remedy and a complementary asymmetry principle (which tells us it's better to risk under-punishment than over-punishment). And Chapter 5 chiefly serves to explore how this argument bests other abolitionist attempts in the literature.

What, exactly, are the reasons in favor of execution? (I will linger on these before proceeding to discuss the proceduralist case that outweighs them.) In Chapter 1, Yost argues that executing killers can be justified as a proportionate punishment (where proportionality is understood in cardinal, rather than ordinal, terms). He defends a particular conception of cardinal proportionality by appealing to the principle of lex talionis, which requires that a punishment "share some of the wrong-making features of the crime it sanctions" (p. 49). Yost argues that we can (and should) endorse this principle without embracing the "clearly impermissible" proposal that we must punish torturers with torture and rapists with rape (p. 48). This is, in part, because we can "abstract from" the grisly details of physical torture and impose non-physically-torturous punishments on torturers that nevertheless are cardinally proportionate (say, a devastating prison sentence); yet when it comes to murder, this crime has a distinctive wrong-making feature -- the removal of life -- that simply cannot be replicated in a non-lethal sentence (p. 57). After defending this position from the objections that execution affronts dignity or otherwise violates the right to life, Yost concludes that retributivist defenders of cardinal proportionality should recognize that execution can indeed be a proportionate punishment.

In Chapter 2, Yost offers a systematic reconstruction of Matthew Kramer's purgative theory of capital punishment, which holds that "defilingly evil" offenders must be executed by a political community (rather than being kept alive by that community) lest it fail to maintain morally proper relations with all of humanity. He proclaims that "Kramer's account is one of the most powerful defenses of capital punishment available" (p. 92), but he also identifies significant vulnerabilities in Kramer's theory -- doubting, for example, that it even can justify its central claim (pp. 89-92). This struck me as a tad discordant, precisely because Yost's objections to Kramer were so convincing. So I am left doubting whether Yost thinks Kramer's view furnishes a genuine pro tanto reason in favor of execution or not. (Yost's concluding discussion here suggests that the purgative theory is better read as a way of explaining why execution can be cardinally proportionate with regard to certain offenders [pp. 92-96] -- but if this is right, then Kramer's view is a way of explicating the previous lex talionis argument from Chapter 1, not furnishing a new reason.) In any case, even if Yost is on the fence about the purgative theory, the discussion here is the most incisive meditation on Kramer's groundbreaking view that I have seen in the literature.

Yost proceeds to shift register, engaging in Kantian exegesis to uncover further putative reasons to execute. He identifies (at least) two reasons in Kant's legal and political thought that militate in favor of retribution. The first is an argument about the importance of punishing in strict accordance with lex talionis ( ius talionis for Kant) in high-stakes cases of serious crime, since this putatively helps avoid the risk of punishing incorrectly. The second is an argument about honor. Yost interprets Kant as holding that a fully rational agent would be dishonored by his decision to murder, where honor is a matter of "self-esteem in relation to the moral law" (p. 112). That is because murder is uniquely horrific -- "as close as someone can come to pure evil" (p. 113) -- as it "eliminates freedom with a finality that other crimes cannot achieve" (p. 114). And "by continuing to live with this stain, rather than be put to death, the honorable man is dishonored " (p. 113). As he would rather die than continue to live with that stain, "he welcomes the state's removing the stain on his dignity by taking his life" (p. 115). (Yost casts this argument as showing that punishment is permissible [pp. 111, 116], though this struck me as in tension with his claim that we have a duty to presume that offenders are honorable [pp. 119-120]. If Kant thinks honorable offenders would want to die rather than live on, and if we have a duty to treat them as if they were honorable, a moral imperative to execute plausibly follows.)

So, what should we make of Yost's crucial claim that there is, in fact, a strong retributivist case in favor of execution? It's an important claim, since it motivates his whole argument. While impressed at all turns by his insights here, I was left with mixed feelings. The first point he identifies -- that execution for murderers is cardinally proportionate -- struck me as convincing within a retributivist framework. But the other reasons to execute that Yost canvasses, while wholly intelligible, struck me as difficult to accept. In Kramer's case, this is because of Yost's own criticisms. And in the case of Kant, while Yost's interpretation struck me as both exegetically sound and marvelously interesting, his arguments left me cold. (Consider the second, honor-focused view. Imagine someone you knew engaged in murder, and then, horrified at what she had done, became convinced getting the state to kill her was the right way to make amends. Wouldn't we think she was making a mistake?)

Perhaps I am unconvinced simply because I'm not a retributivist, thanks to the raft of criticisms that have been advanced against retributivism in the literature (e.g., Tadros 2011). Indeed, if Yost is right that there is a powerful retributivist case for execution -- a penalty I intuitively find repellent -- I think this should dispose us to be even more hostile to retributivism. That's not necessarily an objection to Yost, since the world is, alas, filled with retributivists. But the philosophical community is also filled with anti-retributivists, which led me to wonder why Yost was so intent on restricting his audience in the way he does. The condensed discussion on deterrence theory (pp. 33ff) was excellent -- prompting me to want to hear more. For example, Yost avows that deterrence theorists "do not adhere to the principle of remedy" and "scoff at the asymmetry principle" (p. 17) (more on these in a moment) -- and of course that's true for wholehearted consequentialists. But consider Victor Tadros's widely discussed deontological deterrence theory, according to which offenders are liable to suffer punitive harms for the sake of providing security for their victims and others via the mechanism of general deterrence (2011). Tadros's theory takes moral rights seriously -- e.g., fully embracing proportionality limits on punishment (2011, pp. 345ff). But it is ardently non-retributivist (i.e., it is not a "mixed theory" of the kind that Yost mentions on p. 16, which aims at deterrence but wheels in retributivism ad hoc to justify various constraints). It seems plausible that Tadros's theory -- the most significant deterrence theory on the market for deontologists -- could and indeed should embrace the principle of remedy and the asymmetry principle. Were Yost to show us how this were so, this would expand the reach of his core argument -- a victory for his proceduralist cause.

Onto that proceduralist argument. Having identified putative reasons to execute, Yost searches for countervailing considerations. That begins with establishing the irrevocability of execution, the task of Chapter 3. Yost takes seriously the contention that "the death penalty is not irrevocable . . . because the state can compensate wrongly executed people by posthumously advancing their interests" (p. 124). Yost convincingly establishes that this claim is false: to revoke punishment, compensation is not enough. (As Yost notes, the state could incarcerate a citizen unjustly and compensate her handsomely for this fact while continuing to keep her imprisoned [p. 146].) Revocation, crucially, requires the citizen to regain control of her life, so that she is free to pursue her conception of the good. That cannot happen from the grave.

But this inspires an objection. Suppose someone is unjustly incarcerated for a period of time and dies during that period. Isn't revocation impossible here, too? Yes, Yost admits, but only in a weak sense. If someone has a heart attack during his prison sentence, and then the injustice of his conviction is later discovered, the punishment is irrevocable. But the punishment did not, by its nature, cause this to be the case. (Imagine a week- long prison sentence; is this irrevocable, and so impermissible, simply because a heart attack is possible within that week?) Intriguingly, Yost concedes that some other punishments might be irrevocable in a strong, causal sense -- e.g., "Someone who undergoes extended periods of solitary confinement interrupted only by torture and a minimum of sustenance may suffer so much psychological damage that he cannot go on in any self-directed way" (p. 153). Yost thinks this is a feature, not a bug, of his view, since he sees torturous punishments as impermissible. This is slipped in as a caveat, but it struck me as a deep insight. Given the devastatingly brutal form of incarceration that prevails in the U.S. and many other countries -- one that can make it extraordinarily difficult for prisoners to regain a sense of self-determination once on the outside -- I suspect Yost's argument has much more radical implications for carceral reform than he lets on. Indeed, his perhaps undue concern with showing that his argument only condemns execution may have led him to overlook this point.

The crown jewel of the book is Chapter 4, where the core proceduralist case is advanced. (Chapter 5, which is well worth one's time but which I will not address here, diligently explores distinct abolitionist arguments in the literature, which Yost believes prove either too little -- e.g., calling only for a moratorium on execution, say, until its racist tendencies can be eliminated -- or too much -- e.g., calling for the abolition of all punishments in light of authorities' fallibility.) The argumentative case of Chapter 4 is scrupulously prosecuted and highly persuasive. As I have mentioned, the central principle defended here is the principle of remedy, which Yost also terms the "get it right or fix your mistake" principle (p. 164). This principle flows from a basic assumption: "If a liberal state must abstain from unjust coercion" -- as it surely must -- "it must also endeavor to alleviate all those illicit burdens it does impose . . . To fail to try to put things aright evinces a callousness to injustice that, if not equivalent in countenancing the original wrongful act, stands in close proximity" (p. 160). This principle, Yost shows, is rightly embedded in our political and legal practice.

But to arrive at an all-things-considered condemnation of execution, the principle of remedy is not enough. Because of the existence of moral reasons to execute, we need to show that it is worth the price of abolition to deprive those who do deserve execution of their just deserts. Thus Yost sets out to show why we should prefer under-punishment rather than over-punishment. More precisely: "It is better to risk underpunishment of P by n units than to risk the overpunishment of P by n units and the failure to remedy P for such overpunishment" (p. 171). The bulk of this chapter makes the case for this claim (first in an approximated form, and finally in a more refined form cashed out in terms of risk). Yost first explores the idea that under-punishment is better than over-punishment because under-punishment is a "free-floating" wrong, whereas over-punishment is both a wrong to the offender and a harm (p. 190), and so is worse. Yost grants that this view rests on controversial assumptions, so he proceeds to supplement it with a view he prefers, which is tethered to a convincing "minimal invasion principle", according to which authorities must always pursue the least invasive of all available techniques for pursuing a legitimate state aim (p. 193). In a nutshell (though this skates over some details): when faced with the choice between risking under-punishing and risking over-punishing, the former is less invasive. This supplies a decisive moral reason to prefer the former to the latter.

There are many other steps in this intricate argument. For example, Yost confronts "the prospect of occasions when sentencers are, with good reason, supremely confident that the defendant is guilty of a defilingly evil offense" (p. 208). In response, Yost goes to great lengths to show how "every capital proceeding [is] marked by higher-order uncertainty" (p. 219), which is "constituted by our inability to distinguish between cases in which first-order uncertainty" (e.g., whether we can trust the results from the crime lab) "is present, and those in which it is not" (p. 209). This seemed like a stretch; had Hitler been apprehended and tried, it does not seem plausible that the trial would have been afflicted with higher-order uncertainty. Accordingly, Yost's closing sentiments in this chapter seem to me to be more convincing: "proceduralist arguments are tailored to the world we inhabit, not near-ideal worlds orbiting thought experiments" (p. 222). The fact that nearly all trials are suffused with higher-order uncertainty is enough to justify a rule of regulation forbidding capital sentences (especially since the mere existence of capital punishment as a legal option to be reserved for those rare justified cases will surely increase its unjustified use).

In closing, I want to sketch a worry: that the argument proves too much. Yost justifies his principle of remedy by appealing to the fundamental principle that the state should refrain from unjust coercion -- and so be ready and willing to remedy its mistakes when it does engage in unjust coercion. By executing people who might be innocent, the state rules out that possibility. This principle applies most clearly to decisions by legal institutions, but this is only one application. Consider an active shooter situation in which it is reported that a gunman is running amok at a local mall, in a jurisdiction with many gun owners. The police show up on the scene. They identify the person they think is the shooter, whom (they think) is liable to be shot in virtue of forfeiting his rights through an unjust attack. But alas: they mistakenly shoot the wrong person. Perhaps the mistake was even subjectively justified. Still, surely the state owes a remedy; imagine, after all, if the mistaken police victim had lived. But alas: it's not possible, as he has died. Does Yost thereby condemn the use of lethal defensive force by state agents -- either in police or military settings -- since these occasions are often suffused with uncertainty? His brief comments that relate to this topic (pp. 60-61) suggest he countenances the possibility of justified killing in self-defense and war. But why, when remedy for mistakes is ruled impossible?

Yost's book is the most powerful treatment of the procedural argument against execution in the scholarly literature. Its intricate arguments richly repay close study. In light of the injustice of capital punishment, we can only hope that Yost's arguments will serve as potent intellectual ammunition for the righteous citizens fighting tirelessly for abolition. I recommend the book wholeheartedly.

Tadros, V. 2011. The Ends of Harm: The Moral Foundations of Criminal Law . Oxford: Oxford University Press.

• Student Life

• Editor's Picks

The Death Penalty Debate: Arguments For and Against Capital Punishment

The debate around the Death Penalty has been argued many times over, with the practice continuing to divide opinion. Many nations continue to impose the death penalty on criminals, while other nations have outlawed the punishment.

Several organisations also exist that attempt to fight against the death penalty. We now take a look at both sides of the argument.

We also have a viewer poll below, to gauge the opinion of our great readers! We would love you to take part below.

To begin with, the Death Penalty is mainly known as Capital Punishment. Capital Punishment refers to the practice where a person is killed by a State as a punishment for a crime. Instead of serving a lifelong custodial sentence, the criminal will wait on ‘death row’, eventually being executed.

There are many different ways that the death penalty may be carried out. Hanging, firing squad and lethal injection are the most common, though it differs from territory to territory.

Offences that merit a death sentence typically include crimes against humanity, murder or espionage – again, the precise crimes that justify capital punishment will be different from nation to nation.

At the time of writing, 56 countries continue to legalise capital punishment. Notable countries include China, Iran, Saudi Arabia, the United States, Somalia and Afghanistan. Over 60% of the world’s population live in countries where the death penalty is a form of punishment. The topic has proven highly controversial.

Arguments For the Death Penalty

There are several arguments that support the use of capital punishment:

• The Death Penalty provides retribution, and is a just response to a horrific crime – such as a mass killing or terrorism. If a punishment should ‘fit the crime’, then sometimes the death penalty can be merited, e.g. if someone murders another human, they too should face murder as a punishment.
• Re-offending statistics are worrying, with several offenders who get released from Prison going on to re-offend. Capital Punishment stops this from happening.
• The Death Penalty has been described in the past as “a filter which selects the worst of the worst”. In the vast majority of cases, only extreme crimes lead to the death penalty.
• Many have suggested that the death penalty is in direct violation of Human Rights. Yet it could be argued that when someone acts in a heinous way to others, that in doing so, they forfeit their human rights.
• The Death Penalty may be viewed as being proportionate to a criminal’s crimes.
• It can be argued that the death penalty deters crime. In the case of premeditated crime, a person will need to think about the possible repercussions of the crime they are thinking of committing.
• Keeping multiple prisoners in a prison can be very costly. By sentencing more people to death, it lowers the economic cost involved in corrections.
• Some suggest that the death penalty “isn’t right, but is needed”. Without it, there wouldn’t be a just punishment for crimes.
• When the death penalty is legal, prosecutors and crime agencies can use the threat of death in plea bargaining. This is helpful in securing a worthwhile sentence for a criminal.
• In some cases, the Death Penalty can provide closure for the families of victims.

Arguments Against the Death Penalty

While the arguments put forward above are compelling, there are also many arguments against the use of the death penalty.

• Many people see the Death Penalty as a violation of Human Rights. Amnesty International states that Capital Punishment is “the ultimate irreversible denial of Human Rights”.
• One of the biggest problems with the Death Penalty is when an innocent person faces the punishment. Many people have been shown to be innocent despite being on death row. The Innocence Project is an example of an organisation that has helped overturn dozens of wrongful convictions – many of which were facing the death penalty.
• Those who actually take part in the execution – such as soldiers in a firing squad, or a person delivering the lethal injection – may develop psychological trauma in the aftermath.
• While the death penalty is seen as a deterrent, there is no study or report that has confirmed this. As many crimes take place in the heat of a moment, there isn’t a chance to think about the consequences.
• Ultimately, two wrongs don’t make a right. Executing the criminal won’t change the fact that their crime has taken place.
• While in many countries, the wait for an execution is long, in others, a criminal is executed within days. If this happens, it doesn’t give the criminal a chance to reform or reflect on the pain and misery they have caused. Sometimes, a lengthy prison sentence does this. When the punishment is carried out within days, it doesn’t provide a sufficient length of time for a person to be tried for their crime.
• In some countries, the sentence received is heavily dependent on the quality of lawyer/attorney. When an individual cannot afford a high-quality lawter, it is likely they will receive sub-standard care and attention, meaning they are at a disadvantage when compared to richer criminals.
• Many laud the death penalty as being quick. However, in some cases there can be complications during the execution, which causes a painful death.
• Campaigners have suggested that when criminals have to wait long periods on death row, with uncertainty over the date of their execution, that it is bad for their mental health.

The Takeaway

As seen, the death penalty is a highly-controversial practice, and one that has many arguments both for and against its use. It will continue to be something that is scrutinised for many years to come.

Feel free to vote in our poll below, and cast your vote on this issue – and see how everyone else who has read this article feels about this case.

Do you support the Death Penalty?

No account? Register here

Forgot password

OTHER DEBATES

Death Penalty Debate

Drone Strikes Debate

Edward Snowden: Hero or Traitor Debate

Gun Control Laws Debate

Lindsay Sandiford Drug Smuggling Case Debate

Water Fluoridation Debate

RELATED ARTICLES MORE FROM AUTHOR

How To Start a Paper-Shredding Business in 2024: A Step-by-Step Guide

Was Madeleine McCann’s Father Gerry McCann in the Red Shoe Club?

The Tragic Case of Enzo Parissot: What Happened?

About The Famous Sani Pass in South Africa and Lesotho

What Happened in the Division of Korea?

About India’s Taj Mahal: Information, History and its Origins

Wikipedia is Now a Woke, Left-Wing Propaganda Tool

The Evolution of the Gaming Controller: Innovations and New Designs

What is Charbu Darbu? What Does it Mean? Israel’s Popular Song

Co-Op Food Announces It Will No Longer Offer TOTUM Student Discounts

What Happened to Eva Helgetun? Why is the Media Silent?

Who Are Israel’s Top 10 Allies?

Trending now.

7 Times Vince McMahon Humiliated Jim Ross in WWE

What is a Hail Mary Text? Should You Do It?

The Apprentice: Where Are All of The Previous Winners Now?

Tumbleweed Tales: The Portal by Lee Weaver

Why Do Seventh-Day Adventists Worship on a Saturday?

What Happened to The Apprentice’s Stella English? Where is She Now?

Social Media Influencer Naim Darrechi Supports the Pro-Life Movement

Students That Rejected Oxford University: Which University Did They Go To?

Jose Mourinho Explains What He Said To Pep Guardiola In Iconic...

ALSO POPULAR

The Infamous Colindale Flat: Yes, It’s Real…

What is Emotional Quota? How is it Different to IQ?

The War Against White Men Continues: Sky’s Woke Hiring Agenda

Will Sneaky Pete Season 4 Ever Happen? Why Was It Cancelled?

What is the “Oreo Test” When Toothbrushing? Does it work?

Alliance Defending Freedom’s Viewpoint Diversity Score Shows Worrying Results

The 10 Types of People You’ll Meet In A Group Project

What is the Greeter’s Guild? Is it a Real Thing?!

What Happened To “The Lost City of Z” and Percy Fawcett?

Does Dua Lipa Bully Donald Trump? The Hypocrisy of her Views...

BrewDog Co-Founder Calls 70million Trump Supporters “Not Right-Minded”

Every Person in the Chaotic Handforth Parish Council Meeting Analysed

How Are Chelsea FC Not Breaching FFP? Are Chelsea Using a...

How Did Donald Trump Help to Convict Jeffrey Epstein?

10 Examples of a Microaggression

• Privacy Policy
• Terms of Use
• Clarifications

The Case Against the Death Penalty

Plus: Why do sports matter?

This is an edition of Up for Debate, a newsletter by Conor Friedersdorf. On Wednesdays, he rounds up timely conversations and solicits reader responses to one thought-provoking question. Later, he publishes some thoughtful replies. Sign up for the newsletter here.

Question of the Week

What role should sports play in society, and/or what’s your assessment of the role they play in ours? Feel free to comment on professional, recreational, or youth sports; on team, individual, or extreme sports; on playing, watching, or boycotting sports; or anything else on this subject.

Send your responses to [email protected] or simply reply to this email.

Conversations of Note

This newsletter usually highlights stand-alone articles, but my colleague Elizabeth Bruenig’s exemplary case against the death penalty is best understood by perusing her body of work over time.

Begin with “ Not That Innocent ,” where the premise is that “most people on death row are guilty” but “that doesn’t mean they deserve their fate.” In her assessment of the condemned, “innocence cases indicate that some capital sentences are unfair,” but failing to look beyond those cases can obscure the evidence that “a fair capital sentence is virtually impossible,” as suggested by “decades of studies on death-qualified juries; race, gender, and immigration-status bias among jurors; law enforcement and prosecutorial misconduct; weak forensic science and poor representation at trial.” For opponents of the death penalty, “the fight should be waged not against particular injustices,” she argues, “but against the unjust system itself.”

Subsequent articles highlight concerning aspects of that system.

In “ The State of Texas v. Jesus Christ ,” Bruenig highlighted an effort to deny a pastor the ability to pray aloud and lay hands on a condemned man during his execution. Her assessment of that legal fight:

A pastor praying aloud, holding a dying man’s hand, would bring too much flesh, too much humanity, into the thing. Execution theater is all about maintaining the illusion of mechanism. And if the [Supreme] Court rules that the state’s preference for executions with the aesthetic aspirations of a medical procedure outweighs Ramirez’s desire for a Baptist pastor to lay hands on and pray over him as he is killed, it is precisely that fleshly, embodied, humane tradition of accompaniment—even for scoundrels—in Christianity that the Court will deny by the letter of the law.

Redirecting her attention to a neighboring state in “ Oklahoma Tortured John Grant to Death Because He Wouldn’t Commit Suicide ,” Bruenig highlighted the jarring practice of states asking death-row inmates to name the method by which they want to be killed, and how that approach came about:

Since the Supreme Court’s strange and consequential opinion in the 2015 case of Glossip v. Gross , in which Justice Samuel Alito wrote that “because capital punishment is constitutional, there must be a constitutional means of carrying it out,” death-row prisoners who challenge their states’ methods of execution have been tasked with producing a suitable alternative … The Eighth Amendment, which theoretically bars cruel and unusual punishment, ought to—at least, per the interpretation of the Supreme Court—move the country ever further toward humane and civilized justice. Yet challenges to methods of execution that have produced clearly cruel deaths—such as that of John Grant (and others before him, including Clayton Lockett , also of Oklahoma)—have resulted in a freakishly sadistic execution schema in which people aren’t just killed by the state but are also recruited as participants in their own demise, in clear violation of their religious principles and despite the obvious psychological terror such a regime inflicts.

In “ A Good Man, at One Time ,” she writes about David Neal Cox, a Mississippi man who committed horrific crimes and became an advocate for his own execution. The essay defies easy summary, except to say that it probes a case as friendly to the perspective of death-row supporters as can be imagined and bites associated bullets, yet still finds striking moral complexity. (Bruenig gamely grapples with another tough case in “ Should the Parkland Shooter Die? ”)

Most recently, in a series that includes “ Can America Kill Its Prisoners Kindly? ,” “ Two Executions on a Thursday in America ,” “ Dead to Rights ,” and “ Dead Man Living ,” Bruenig bears witness to executions. In effect, she convinced me of an argument she makes in the first of those pieces:

Among all the amendments in the Bill of Rights, the Eighth may be the noblest, because it ensures the protection of condemned criminals, the most friendless and vulnerable people. And it should be vindicated, not only for their sake—though mainly so—but also for our own.

In any of the executions described in those pieces, consider the psychic costs that state killing imposes on the judges, the executioners, the families of the condemned, and the witnesses, as well as the many millions of Americans who are troubled by killing done in their name.

Read: 21 reader views on the masculinity crisis

Great-Power Struggle

Jonathan Last argues in his Bulwark newsletter, The Triad, that the Biden administration has stymied China’s power in a significant and underappreciated way with the new export controls that it announced last week. Last explains:

Making computer chips requires a lot of advanced equipment. Much of that advanced equipment is made by American companies. The new rules from the Biden administration make it so that any company, anywhere in the world, using certain advanced American equipment to make chips can’t sell those chips to Chinese-controlled companies … At the stroke of a pen, China is getting cut off from the kind of advanced chips it can’t manufacture on its own. Which will cripple both military progress and tech-sector progress, too.

Sports and Gender

Today’s “question of the week” about sports was inspired by an emailer who wrote this during our discussion on what ails men and boys:

I wonder about the effect on males of zero-sum competition and “hero” worship inherent in organized sports. If it’s impossible for the vast majority of men to be winners, they must either identify as losers or subsume their own value to that of the winner they’ve chosen. That pervasive, hypercompetitive model of being seems fundamentally flawed.

Reflecting on my years playing various competitive youth sports––soccer, basketball, and tennis most of all––it seems to me that among the most valuable things it taught me was how to lose well and that one can enjoy competing at many things without being the very best at them.

For a thought-provoking essay from a different perspective, see “ Nike’s End of Men ” by Ethan Strauss, which probes the relationship between pro sports, sports marketing, and gender.

Learning Your Limits

At Persuasion, Freddie deBoer makes the case that failure is an important but underappreciated part of higher education:

Recently, an adjunct professor at New York University was fired. Once a celebrated tenured chemistry professor at Princeton, Maitland Jones Jr.’s employment at NYU was cut short because of a student petition . The students complained of an imperious attitude and lack of flexibility, but the fundamental issue was that Jones’s Organic Chemistry course was simply too hard—too many students failed, and too many students who were used to receiving As received Cs. It was a direct conflict between Jones’s standards and his students’ expectations of their own success. This firing over a question of educational rigor has inspired a lot of concern, including from me . Of course, as this is a culture war issue, some have taken to the ramparts to insist that the fired professor must have been a bad teacher if so many students rebelled … Whatever the case, I want to suggest that the students who launched the petition were denying themselves a central element of education: figuring out what you’re not good at. Failing. Trying to learn, and failing to do so. This is an element of education as vital as learning what you’re good at, the act of self-discovery of one’s own lack of ability. All of us have limits, natural limits on what we can learn and do in academic fields. Some exceedingly rare individuals appear to be brilliant at everything, but for the rest of us, there’s a whole suite of topics and skills that we will never perform with any facility. And if colleges insist on reducing rigor to the point that learning those limits becomes impossible, something will have been lost.

Columbus Day versus Indigenous Peoples’ Day

I’d thought that every angle in this annual debate had been exhaustively aired years ago, but Scott Alexander managed to break new ground in a delightfully dialogic post over at Astral Codex Ten.

Overwhelmed by the Culture

That’s how the essayist, podcaster, and longtime cultural critic Meghan Daum is feeling for reasons that she explains at The Unspeakable:

Once upon a time I might have been described as someone who “inhaled culture.” In my twenties, as the internet was just beginning to peek out over the horizon, I had a pretty solid grasp on the “arts scene,” as we called it … I knew what films were in theaters … what important novels had just come out, what shows were worth watching on television, what venues my favorite musicians were playing, what big shows were at the big museums and even what was being performed on Broadway or at the Metropolitan Opera—not that I ever went. Back then, I went to the movies at least twice a week … One of the great pleasures of my filmgoing was rereading the reviews after having seen the movie … Suddenly you understood the big picture. You knew what everyone was talking about. Somewhere in the mid to late aughts, it stopped being possible to know what everyone was talking about. For at least the last decade I haven’t known what anyone is talking about and for the last several years I haven’t really cared.

There is, indeed, a torrent of content out there––amid it all, thank you for choosing to read Up for Debate.

Ask Me Anything

As an experiment, I’ll be trying to incorporate some of the questions you ask me into the newsletter. Reflecting on proposals to get more men into caregiving professions and more women into STEM, Brian, a reader, expresses support for both goals but discomfort with one way of achieving them.

I am super wary of so-called positive discrimination, and I therefore feel very conflicted about Richard Reeves’s proposal that we provide scholarships to men to move them into HEAL [health, education, administration, and literacy] subjects and offer funds to HEAL employers to encourage them to hire more men. I see the benefits, and I agree that there appears to be a need for doing it. But I still have a hard time getting past the discriminatory approach. Likewise, while it seems clear that scholarships have moved more women into STEM positions, efforts to increase representation have also been found to be discriminatory against men. My feelings about such practices, and whether or not they’re fair and/or justified, are very mixed. How would you respond to the argument that both STEM scholarships for women and HEAL scholarships for men discriminate based on sex? I mean, clearly they do. But is it justified? When is positive discrimination acceptable, and when is it unacceptable?

There are at least two distinctions that inform how I think about these cases. One concerns the reason for seeking greater sex parity in a field. Is it because, as in early-childhood education, proponents believe that having more men or women will improve how well the job gets done? If so, that strikes me as a stronger case for affirmative action than instances where the driving force is a desire for sex parity as an end in itself, and would strengthen the case for something like privately funded sex-specific scholarships. The other distinction concerns method. Is the approach to attract a more sex-diverse applicant pool and fill openings in a nondiscriminatory manner, or are individual job candidates discriminated against? I tend to favor efforts to diversify hiring pools and oppose sex discrimination against individuals.

Read: The trouble with boys and men

Provocation of the Week

Esau McCaulley, a professor at Wheaton College, cares deeply about how ideas are presented to his children at school, but cautions against focusing on what material is taught. Instead, he counsels, consider whether students are given permission to think about whatever is taught:

How do we order society in such a way that increases human flourishing and limits suffering? What is the good, the true and the beautiful? How do we make sense of the sins of the past and the way the legacies of those failures follow us to the present? What is justice? What is love and why does it hurt us so? What is the good life? Is there a God who orders the galaxies, or did we come from chaos, destined only to return to it? The answers to those questions that I received from my teachers varied. I do not judge the worth of my former educators by whether I agreed with them. I value those who made me think and did not punish me when I diverged from them … If parents and politicians truly care about their children’s education, they should not only ask what a teacher said about a controversial issue, they should also ask how the teacher said it, and whether students were assessed based on the quality of their work rather than conformity to a particular ideological perspective. This ability to hold fair and stirring conversation is the gift that all great teachers have. It is impossible to legislate. This is a gift that can either be honed or ground to rubble by unrelenting competing agendas. We must protect teachers who do it well and do not so overburden and underpay them that they despair of their vocation.

This perspective dovetails nicely with the educator Erin McLaughlin’s advocacy for a viewpoint-diversity curriculum .

California Prosecutor Seeks Sentence Reductions for Death Row Inmates. Other Prosecutors Should Follow Suit

Last week, Jeff Rosen, the District Attorney in California’s Santa Clara County, asked the superior court to resentence all of the people from his county who are now on the state’s death row. This request is a genuinely unprecedented and important step in the ongoing fight against capital punishment in the United States.

Prosecutors, who play a critical role as gatekeepers in the death penalty system, generally try to put people on death row rather than take them off it. According to the Los Angeles Times , Rosen is “the only prosecutor in California to have made such a blanket request.”

As the Times said, “[W]hile many prosecutors around the state in the nation have stopped the use of the death penalty moving forward, Rosen is the first to look back and answer the question—with collective action—if it isn’t fair now, how could have been fair then?”

Other prosecutors in California and around the nation should ask themselves that question and follow Rosen’s example.

Prosecutors set the tone for the way the death penalty is or is not used in the jurisdictions where they serve. As the Death Penalty Information Center said in 2013, “Each decision to seek the death penalty is made by a single county district attorney, who is answerable only to the voters of that county.”

As the DPIC noted, the way prosecutors have used that discretion meant:

Only 2% of the counties in the U.S. have been responsible for the majority of cases leading to executions since 1976. Likewise, only 2% of the counties are responsible for the majority of today’s death row population and recent death sentences. To put it another way, all of the state executions since the death penalty was reinstated stem from cases in just 15% of the counties in the U.S. All of the 3,125 inmates on death row as of January 1, 2013 came from just 20% of the counties.

For a long time, Philadelphia, Pennsylvania, was one of those counties . It offers a stark example of the difference a single prosecutor can make in the world of the death penalty.

Lynne Abraham, who served as Philadelphia District Attorney from 1991 to 2010, earned the title of one of the “deadliest DAs” in the United States for her enthusiastic pursuit of death sentences. As the Philly Voice put it , “While in office, Abraham obtained 108 death sentences.”

Under her leadership, about 40% of murder convictions in Philadelphia started as death cases, and a disproportionate number of the people for whom she sought such a sentence were Black.

At various times Abraham described herself as a “passionate” supporter of capital punishment and that she felt “nothing” about pursuing it.

Abraham was not alone. An article in The Intercept says that “The annals of the American death penalty are riddled with such prosecutors.”

The Intercept singles out prosecutors like “‘Cowboy’ Bob Macy, who spent 21 years as the district attorney in Oklahoma County, Oklahoma, and personally secured 54 death sentences, kept a personalized set of baseball cards on his desk that featured his ‘accomplishments’” and “Donald Myers, who secured 39 death sentences over a 40-year career as the top prosecutor in Lexington County, South Carolina, [and] was known as ‘Doctor Death.’”

Looking again at Philadelphia shows how changing the DA can dramatically change the death penalty.

Fast forward to 2017. Seth Williams, who was then DA, sought a death sentence in only 12% of murder cases.

Williams’s successor, Larry Krasner has gone much further. He promised during his first campaign for DA that he would never seek the death penalty.

Not only has he made good on that promise, but in 2019 Kasner asked Pennsylvania’s Supreme Court to declare capital punishment unconstitutional. He called it “unreliable and arbitrary because it has historically, and unevenly, targeted men of color.”

As The Intercept reports:

To come to that conclusion, his office had studied 155 death sentences handed down in Philadelphia between 1978 and the end of 2017…. The results were dismal: A majority of the defendants were poor and had received deficient legal representation. Seventy-two percent of the cases were eventually overturned, the majority resulting in a lesser sentence.

Throughout his time as Philadelphia DA, Krasner has been very open about saying that the death penalty “really is not about the worst offenders. It really is about poverty. It really is about race.”

Krasner is a leading reform prosecutor, and he is one among many in that group who have come out against the death penalty. In 2022, as NBC News reported , “Fifty-six elected prosecutors from 26 states pledged to work to effectively end the death penalty, including by refusing to support the execution of people with intellectual disabilities, seeking commutations, and helping to overturn sentences in cases of racial bias, negligent defense counsel or other misconduct.”

Santa Clara Country’s Jeff Rosen is not one of them. In fact, he once supported the death penalty.

But, in some ways, what he is doing is even more consequential than what someone like Krasner has done. He is confessing error and trying to right wrongs that may have been done to those prosecuted and sentenced to death in the past.

As Rosen explained in his request for the court to resentence the 14 death row inmates from Santa Clara County , “We are not confident that these sentences were attained without racial bias. We cannot defend the sentences and we believe that implicit bias and structural racism some role in the death sentence.”

Rosen told the Los Angeles Times that his request for resentencing does not mean that things “are as bad today as they were 50 years ago. I completely reject that idea. But,” Rosen observed, “I also trusted that as a society we could ensure fundamental fairness of the legal process for all people. With every exoneration, with every story racial injustice, becomes clear to me that this is not the world we live in.”

Rosen believes that because of this country’s changing death penalty attitudes, “many of the crimes that led to the death penalty decades ago would not have garnered the same punishment today. Some of the perpetrators were convicted as teenagers, some were accessories to the crime at a time when laws made fewer distinctions. Many have been in prison for more than 30 years. Some had unfair trials.”

What Rosen is hoping to accomplish by reopening old cases is to right wrongs and make the past accountable to the present. His effort is a reminder that doing justice, and ensuring that justice is done, has no statute of limitations.

It is a lesson that other prosecutors should learn.

Posted in: Criminal Law

Tags: California , capital punishment , Death Penalty

Comments are closed.

Watch CBS News

Oklahoma executes Michael Dewayne Smith, convicted of killing 2 people in 2002

By Emily Mae Czachor

Updated on: April 4, 2024 / 2:05 PM EDT / CBS News

A man convicted of killing two people in Oklahoma more than two decades ago was executed Thursday, marking the state's first execution of the year.  Michael Dewayne Smith received a lethal injection at the Oklahoma State Penitentiary in McAlester and was pronounced dead at 10:20 a.m., the Department of Corrections confirmed to CBS News.

The execution followed the state's controversial decision to restore capital punishment in 2021 after bungled executions called its protocols into question. 

When asked if he had any last words, Smith responded, "Nah, I'm good," according to the Associated Press.  

Smith, 41, was sentenced to death in Oklahoma after his convictions two decades ago in the murders of Janet Moore, a 41-year-old mother, and Sharath Pulluru, a 22-year-old store clerk. The shootings that killed them were carried out separately on Feb. 22, 2002, while Smith was already on the run in the wake of a prior killing, authorities have said.

Oklahoma's execution process lasted just over 10 minutes on Thursday after beginning at 10:09 a.m., said the state prisons director, Steven Harpe, in a statement obtained by CBS News. Smith was declared unconscious at 10:14 a.m., according to that statement. A spiritual adviser joined Smith in the death chamber at his request, the director said. The inmate did not request a last meal.

"Today's event and the circumstances that led to it have affected many people — especially the family and friends of victims Janet Moore and Sharath Pulluru," Harpe said. "As an agency, we carried out the court's orders according to our high standards of professionalism and respect for those in our custody, ensuring dignity for everyone involved in the process."

Smith tried to appeal his sentence  multiple times throughout most of his imprisonment, records show. Among other arguments made in his defense, Smith and his legal team have insisted that he is not responsible for either of the murders for which he was convicted, despite his previous confession to both crimes. They pushed for clemency on the grounds of an apparent former substance abuse problem and intellectual disability, since a U.S. Supreme Court decision on the latter would prevent Oklahoma from executing him. None of Smith's appeals were successful in court.

Ahead of a hearing in March that sealed Smith's fate, Oklahoma Attorney General Gentner Drummond put out a formal request to the state's Pardon and Parole Board, asking them to deny his plea for clemency.

"Michael Smith's outrageous claims of innocence have been repeatedly rejected in court," Drummond said in a statement. "He is a ruthless killer who has confessed to his crimes on multiple occasions. There is no doubt in my mind that his request for clemency should be denied."

Drummond alleged that evidence found at the scenes of both murders corroborated Smith's confession. He also dismissed the inmate's plea for lenience based on a supposed intellectual disability and noted that Smith's IQ scores rendered that claim "statutorily ineligible."

At the hearing, Smith denied his involvement in the murders but shared his "deepest apologies and deepest sorrows to the families" of the victims, the  Associated Press reported.

"I didn't commit these crimes. I didn't kill these people," Smith said in emotional remarks. "I was high on drugs. I don't even remember getting arrested."

The parole board ultimately denied Smith's clemency petition in a 4-1 vote, and  his execution was scheduled  to move forward.

The Oklahoma Court of Criminal Appeals also rejected an emergency stay of execution for Smith earlier this week, CBS affiliate  KOTV reported. His third and final emergency plea to the criminal appeals court came on the heels of others in recent months that were denied, including one motion that sought post-conviction DNA testing, according to the station.

The court said in its opinion that conducting more tests would not change the validity of Smith's conviction, KOTV reported, noting the appeals court's references to "a very detailed, highly corroborated confession" that Smith gave to police, which was allegedly supported by other confessions and crime scene evidence.

CBS News contacted the Oklahoma Department of Corrections for comment but did not receive an immediate reply.

Smith was among 43 prisoners on death row in Oklahoma. He was the first executed there this year, and the twelfth since the state resumed capital punishments after a seven-year break in 2021. That hiatus came in response to a string of botched lethal injections in 2014 and 2015, particularly the bungled execution of Charles Warner, a former death row inmate who witnesses said suffered excessively in the death chamber. It was later discovered that Oklahoma had used an incorrect and unauthorized drug in the lethal injection cocktail used for Warner's execution.

Oklahoma agreed to pause executions as investigations into what went wrong got underway. But the state went on to resume an execution schedule in late 2021, months before a federal trial was set to examine its lethal injection protocol. The state botched its first execution, of former inmate John Grant, by lethal injection upon its return to the schedule.

Oklahoma adopted its own state policy authorizing capital punishment in 1976, according to the Death Penalty Information Center . The first execution did not happen until 1990, and the state has put 123 prisoners to death since then. One federal execution has also been carried out in Oklahoma.

Another Oklahoma death row inmate, 60-year-old Richard Glossip, is currently trying to appeal his sentence and has so far gained more headway with state officials, including the attorney general, who have openly argued his innocence. The Supreme Court agreed in January to hear Glossip's case after Drummond claimed issues with his trial should invalidate the prisoner's conviction and sentence.

• Death Penalty

Emily Mae Czachor is a reporter and news editor at CBSNews.com. She covers breaking news, often focusing on crime and extreme weather. Emily Mae has previously written for outlets including the Los Angeles Times, BuzzFeed and Newsweek.

More from CBS News

British man claims the crown of the world's oldest man at age 111

3 dead after shooting inside Las Vegas law office, police say

Ferry sinks off Mozambique, leaving more than 90 dead and dozens missing

Mortality gap widens between urban and rural communities

Uganda’s Constitutional Court on Wednesday upheld most provisions of controversial legislation that imposes a sentence of death by hanging against individuals convicted of “aggravated homosexuality.”

In upholding the Anti-Homosexuality Act, the court maintained that though the country’s penal code is “undoubtedly … considered to be a relic from the country’s colonial past,” the bill’s overwhelming parliamentary and public support made clear it encapsulated the zeitgeist.

And in doing so, the Constitutional Court cited the US Supreme Court decision Dobbs v. Jackson Women’s Health Organization — the ruling that overturned the reproductive rights enshrined in Roe v. Wade .

How will the Constitutional Court judgment affect Uganda’s beleaguered LGBTQ+ population? Why is homophobia so widespread in the country? And what do US reproductive rights have to do with any of this? In this explainer, we will explore these questions and more.

What is the background of the Anti-Homosexuality Act, 2023?

The Anti-Homosexuality Act, 2023 is not Uganda’s first foray into anti-gay legislation. The country’s Anti-Homosexuality Bill, 2009 sought to impose the death penalty for certain homosexual acts but was ultimately derailed by Western pressure. Uganda’s Anti-Homosexuality Bill of 2014 softened the punitive structure, swapping out the death sentence for life in prison, but was ultimately struck down by the Constitutional Court on procedural grounds.

In 2023, lawmakers tried again, purportedly spurred on by societal fervor and the alleged “forced recruitment of children into homosexual acts.” The new law, which re-established the death penalty option, earned presidential assent on May 26, 2023. Critics turned to the Constitutional Court, asserting that the law contravened human rights and fundamental freedoms guaranteed by Uganda’s constitution .

What same-sex activities are criminalized under the Anti-Homosexuality Act, 2023?

Homosexuality was already criminalized under the Ugandan penal code, which authorizes  sentences of life imprisonment for sexual acts that are “against the order of nature.” The newest anti-gay legislation simply expands the scope of homosexual activities that can be prosecuted and increases punitive measures.

Most controversially, the new law imposes the death penalty in cases of “aggravated homosexuality,” the sprawling definition of which includes, among other offenses, pedophilia, incest, the spread of terminal illness, and acts where “the offender is a serial offender.” Included among the “aggravated” offenses are sexual acts committed with disabled people, which Human Rights Watch (HRW) has described as discriminatory toward gay people with disabilities.

The court upheld most of the substantive aspects of the law, with the exceptions of provisions criminalizing the rental of premises for “homosexual purposes,” the failure to report homosexual activities to the police, and engagement in homosexual acts by people with terminal illnesses.

How prevalent is homophobic sentiment in Uganda?

In justifying its decision to uphold the bulk of the restrictive Anti-Homosexuality Act , the court leaned on widespread anti-gay sentiment in Uganda, which it described as a: “public outcry, social and broadcast media discussions[,] and homosexuality victims’ ‘painful and grueling’ stories of children and families that were ‘dying in silence’ from the psychological trauma of forced recruitment of children into homosexual acts.”

Indeed, homophobic sentiment is rife in Uganda. A 2023 study by the organization Afrobarometer found that 94 percent of Ugandan citizens would “dislike” having a homosexual neighbor.

Notably, the study showed that Ugandans were far more averse to homosexuality than they were to other areas assessed for public tolerance. Though a staggering majority voiced repulsion at the thought of having gay neighbors, the majority were open to neighbors from different countries (74 percent), with different political (79 percent) and religious views (93 percent), or of different ethnic backgrounds (85 percent).

Researchers and advocacy groups have long linked Ugandan homophobia with the influence of socially conservative US Christian Evangelical groups in the country. In particular, this theory holds that homosexuality is framed as a Western import, thus fueling its rejection with a post-colonial repulsion to external influence. A 2009 report for Political Research Associates described the phenomenon:

If they had faced strong opposition, U.S. conservatives might not have been so successful in promoting their homophobic politics. Traditionally, evangelical African churches have been biblically and doctrinally orthodox but socially progressive on such issues as national liberation and poverty, making them natural partners of the politically liberal western churches. But their religious orthodoxy also provides the U.S. Right with an opportunity. Africans resonate with the denunciation of homosexuality as a postcolonial plot; their homophobia is as much an expression of resistance to the West as it is a statement about human sexuality.

A 2020 openDemocracy investigation revealed that upwards of 20 Christian groups from the US had poured at least $54 million into conservative social causes in Africa since 2007. One group in particular — the Fellowship Foundation, which reportedly played a role in drafting earlier anti-gay legislation in Uganda — spent more than $20 million in Uganda between 2008 and 2018.

Afrobarometer also reported that Uganda was the least tolerant toward same-sex relationships of 37 African countries surveyed between 2021 and 2022. That said, anti-gay sentiment has been on the rise in other African countries as well. In December 2023, Burundi President Evariste Ndayishimiye said in a quote carried by the New York Times : “I think that if we find [LGBTQ+] people in Burundi, it is better to take them to a stadium and stone them.” Last month, Ghana passed a law that would impose a three-year prison sentence for merely identifying as a gay person. Across the continent, 31 countries criminalize same-sex relationships and activities, according to Amnesty International.

What does any of this have to do with US reproductive rights?

The Constitutional Court cited Dobbs in response to criticism that the law compromised the autonomy of LGBTQ+ people by failing to adequately distinguish between criminal sexual behavior and private sexual acts between consenting adults. The court wrote:

In [Dobbs], the US Supreme Court considered the nation’s history and traditions, as well as the dictates of democracy and rule of law, to overrule the broader right to autonomy. The court considered the implications of upholding the right to autonomy under the guise of personal dignity … and held that it was time to return the permissibility of abortion and the limitations thereon to the people’s elected representatives as demanded by the Constitution and the rule of law. This is precisely what was done with the issue of homosexuality in Uganda.

The US decision was thus illustrative in the court’s determination that matters of personal autonomy are not absolute and can be balanced against a country’s history and traditions.

Senate approves purchase of Alaska

On April 9, 1867, the U.S. Senate voted to ratify the Treaty with Russia for the Purchase of Alaska and thereby approve the purchase of the territory from Russia for $7.2 million . Initially, the purchase was made to keep Alaska away from the British. It was politically unpopular with many Americans who denounced it is "Seward's Folly", after U.S. Secretary of State William Seward, who had lobbied for the purchase. Seward was later vindicated by the discovery of gold and oil in Alaska. Learn more about the Alaska Purchase from the U.S. State Department.

Last beheading in England

On April 9, 1747, Simon Fraser, Lord Lovat, became the last man to be beheaded in England when he was executed on Tower Hill for his part in the Highland rising of 1745. Learn more about the legal history and practice of beheading .

Jury now selected: What to expect from Chad Daybell's death penalty trial

By emily ashcraft, ksl.com | posted - april 8, 2024 at 12:37 p.m., john prior speaks with chad daybell during a hearing in august 2020. testimony in the murder trial for chad daybell is starting wednesday morning. (john roark).

Estimated read time: 7-8 minutes

BOISE — Almost a year after Lori Vallow Daybell was tried and convicted of murdering her children, the Boise courthouse and people around the country are now braced for the trial of her husband, Chad Daybell.

Testimony in the trial is scheduled to begin Wednesday morning after a final jury of 10 men and eight women was selected Monday. The trial will be streamed live on KSL.com.

Lori and Chad Daybell were indicted by a grand jury in May 2021 on multiple counts of first-degree murder and conspiracy to commit murder in the deaths of her children, JJ Vallow, 7, and Tylee Ryan, 16; and Daybell's first wife, Tammy Daybell, who was 49. Chad Daybell is also charged with two counts of insurance fraud in relation to Tammy Daybell's life insurance policies.

Lori Daybell's trial lasted six weeks, and she was ultimately found guilty and was ordered to serve five life sentences without the possibility of parole.

Because the death penalty is a possibility for Chad Daybell, his trial could last even longer. Jury selection began April 1 and the trial could last until May 31.

JJ Vallow's grandparents, Larry and Kay Woodcock, told KSL-TV they plan to attend every day of Chad Daybell's trial — just like they did for Lori Daybell's trial last year.

"We know it's going to be hard again. It's going to be difficult. It's going to be tiring," Larry Woodcock said. He said he is praying for the jurors, many of whom will be hearing about the case and its graphic details for the first time.

Kay Woodcock is the sister of Charles Vallow, Lori Daybell's previous husband, whom she is also charged with murdering. Lori and Charles Vallow adopted JJ from his grandparents.

A case that gripped the nation

In November 2019, the concern of the Woodcocks for their grandson led to an investigation after they used login information shared by Charles Vallow to find an Idaho address on an Amazon order made by Lori Daybell. It had already been months since they had heard from their grandson after then-Lori Vallow moved to Idaho.

It took over six months for police to locate the bodies of JJ and Tylee in Chad Daybell's backyard in Salem, Idaho. Evidence from Lori Daybell's jury trial showed JJ and Tylee were murdered weeks apart in September 2019.

In October 2019, Chad Daybell's wife was killed in her sleep by what investigators said was asphyxiation, though at the time officials said she died of natural causes. Just two weeks later, Lori Vallow married Chad Daybell on a beach in Hawaii.

On Dec. 11, Tammy Daybell's body was exhumed in Springville after authorities determined her death may have been suspicious.

Lori and Chad Daybell were in Hawaii on a trip that began shortly after police showed up at her home looking for her children and Lori Daybell was arrested on Feb. 20, 2020. She was initially arrested for failing to comply with a court order requiring her to produce her children, and was charged with desertion and nonsupport of dependent children.

Chad Daybell was not arrested, however, until June 9, 2020 when the children's bodies were found in his backyard. Tylee's remains were so mutilated that authorities were unable to determine the cause of her death. And JJ, who was found bound with duct tape and a plastic bag, was killed by asphyxiation.

Potential for new evidence

Although much of the evidence in the case already became public during Lori Daybell's trial , Chad Daybell's trial could produce new evidence.

He is charged with murdering Tammy Daybell. Lori Daybell was convicted of conspiracy to commit her murder, as she was in Hawaii when the death occurred. Additional evidence surrounding Tammy Daybell's death could be presented.

Specifically, there was no testimony in Lori Daybell's trial from Chad Daybell's children about their mother's death, or their response to her body being exhumed.

During Lori Daybell's trial, the court heard testimony regarding comments she made from jail to her older son, Colby Ryan , and her sister, Summer Shiflet . There was also testimony from some of Lori Daybell's friends, who testified to changes in her religious beliefs and attitudes and about her suspicious responses and reactions after her children disappeared.

Chad Daybell's trial could include similar testimony from his friends and family members that has not been heard yet about his character, or changes in his attitude shortly before and after the children and Tammy Daybell died, and before he was arrested.

There will likely be a lot of testimony that overlaps, including the investigation into Lori and Chad Daybell's relationship, and police testimony from when they were searching for the children's bodies and investigating the case.

Lori Daybell was also found guilty of grand theft for taking Social Security benefits owed to her children, and continuing to take Social Security child care benefits after their deaths. Evidence associated with Lori Daybell and her children's bank accounts do not apply as directly to Chad Daybell's charges.

However, there may be more evidence presented regarding Tammy Daybell's life insurance in an attempt to prove the charges against Chad Daybell for insurance fraud.

Lori Daybell's trial also had testimony from officers in Arizona who responded when her then-husband Charles Vallow was shot and killed by Lori Daybell's brother, Alex Cox. The incident was initially determined to be self-defense, but witnesses at her trial revealed evidence pointing to the possibility of murder.

Cox was never charged in the case, and died the day after Tammy Daybell's body was exhumed. Investigators said he died of natural causes. In Lori Daybell's jury trial, Cox's name came up frequently regarding information surrounding the deaths of Tylee and JJ, as well as Tammy Daybell.

Lori Daybell is currently incarcerated in Arizona where she is facing two counts of conspiracy to commit murder in relation to the death of Charles Vallow and her former nephew-in-law, Brandon Boudreaux. Her Arizona trial is scheduled for Aug. 1 , but the judge said that may not be realistic.

She is already facing multiple life sentences for her convictions in Idaho last year.

The death penalty possibility

Because this is a death penalty case for Chad Daybell, there could be two phases of the trial. If he is found guilty, a second penalty phase would follow the regular trial.

John Thomas, one of the attorneys for Lori Daybell during her trial, told East Idaho News the attorneys will need to go into the trial ready for the sentencing phase with experts and witnesses to explain why Chad Daybell might have acted as he did.

In a death penalty case, the same jury that deliberates whether a person is guilty or innocent would then deliberate in a sentencing phase if the defendant is found guilty. Jurors would need to come to a second unanimous verdict over whether the person should be put to death or not.

Thomas said for a death penalty trial the goal is still acquittal, but some could still consider it a win if jurors issued a sentence of life in prison without parole instead of the death penalty if a guilty verdict was reached. He said he prepared for Lori Daybell's trial like a death penalty case, but the death penalty had been taken off the table shortly before the trial began.

"Death is different. … You get a lot more leeway … in your defense, you can ask a lot more questions, you can put on a lot more witnesses. Everything is on the table in a death penalty case," he said.

Idaho's law says the jury should decide in favor of the death penalty if it finds there were aggravating circumstances — like it being an especially heinous or atrocious crime or risk was created to multiple people — and that no mitigating circumstances make imposing the death penalty unjust.

KSL will have reporters in court throughout the trial and will stream Chad Daybell's trial live each day on KSL.com.

Most recent Police & Courts stories

Tribal coalition announces new statewide domestic, sexual violence hotline for native americans, man tortured in sandy apartment for hours, police say.

• Man killed along I-15 had come from Venezuela in search of 'a better life'

Related topics

More stories you may be interested in

• Teen wanted in shooting at South Salt Lake TRAX station surrenders

Not just online predators: Utah teens also dealing with cyberbullying, defamation

Most viewed.

• National Park Service being sued for switching to cashless entry
• Morgan Wallen has been arrested after police say he threw a chair off of the roof of a 6-story bar
• Eagle Mountain woman charged with torturing dog
• West Valley man fired 15 shots into bedroom wall of sleeping roommate, police say
• Jury now selected: What to expect from Chad Daybell's death penalty trial
• Body found in Garden City identified as previously missing man
• A total solar eclipse races across North America as clouds part along totality
• Could Kentucky alum Mark Pope spin BYU around coaching carousel?

STAY IN THE KNOW

KSL Weather Forecast

Andre Gordon Jr: PA prosecutors seek death penalty for homeless man accused of triple homicide since state's last execution in 1999

Warning: This article contains a recollection of crime and can be triggering to some, readers' discretion advised.

LEVITTOWN, PENNSYLVANIA: Andre Gordon Jr , the homeless man accused in the brutal triple homicide last month faces the grim possibility of the death penalty.

His alleged actions resulted in the deaths of his stepmother, teen sister, and the mother of his children on March 16.

DA seeks death penalty for Andre Gordon Jr

In a somber courtroom scene on Wednesday, April 3, Pennsylvania District Attorney Jennifer Schorn made the solemn announcement, declaring her intent to seek the ultimate punishment against Gordon who said he could only "pray to God" after his initial court appearance.

"We had an opportunity to speak to the family and get their position," Schorn revealed to reporters outside the courthouse. "Time will tell ultimately how this case unfolds. But we had to certify before formal arraignment," reported the New York Post .

Andre Gordon Jr believed to have known all his victims

Gordon, 26, facing murder charges stands accused of perpetrating a horrifying crime spree that spanned two states. From the carjacking in Trenton, New Jersey, he proceeded to drive across the Pennsylvania border. It was there the suspect allegedly perpetrated the fatal shootings of his stepmother, Karen Gordon, 52, and his 13-year-old sister, Kera Gordon, inside a Levittown residence.

Subsequently, he proceeded to another residence within the same town, where law enforcement officials reported that he allegedly murdered Taylor Daniel, a 25-year-old mother of his two children, and also assaulted the children's grandmother with a rifle, causing her injuries. Police stated that the two children were present during the incident.

Pennsylvania governor's stand against executions

Afterward, he commandeered another vehicle and swiftly fled back to New Jersey before being apprehended by authorities. Earlier on Wednesday, he waived extradition back to Pennsylvania and was detained. Despite the swift pursuit of justice, questions regarding Gordon's intention behind committing such heinous acts remain unanswered. 

Although Schorn is seeking the death penalty, Governor Josh Shapiro has affirmed that executions will not occur in the state during his tenure. Notably, the state hasn't executed a convicted murderer since 1999.