position paper about death penalty disagree

• Archive Issues

Journal of Practical Ethics

A journal of philosophy, applied to the real world.

The Death Penalty Debate: Four Problems and New Philosophical Perspectives

Masaki Ichinose

The University of Tokyo

This paper aims at bringing a new philosophical perspective to the current debate on the death penalty through a discussion of peculiar kinds of uncertainties that surround the death penalty. I focus on laying out the philosophical argument, with the aim of stimulating and restructuring the death penalty debate.

I will begin by describing views about punishment that argue in favour of either retaining the death penalty (‘retentionism’) or abolishing it (‘abolitionism’). I will then argue that we should not ignore the so-called “whom-question”, i.e. “To whom should we justify the system of punishment?” I identify three distinct chronological stages to address this problem, namely, “the Harm Stage”, “the Blame Stage”, and “the Danger Stage”.

I will also identify four problems arising from specific kinds of uncertainties present in current death penalty debates: (1) uncertainty in harm, (2) uncertainty in blame, (3) uncertainty in rights, and (4) uncertainty in causal consequences. In the course of examining these four problems, I will propose an ‘impossibilist’ position towards the death penalty, according to which the notion of the death penalty is inherently contradictory.

Finally, I will suggest that it may be possible to apply this philosophical perspective to the justice system more broadly, in particular to the maximalist approach to restorative justice.

1. To whom should punishment be justified?

What, exactly, are we doing when we justify a system of punishment? The process of justifying something is intrinsically connected with the process of persuading someone to accept it. When we justify a certain belief, our aim is to demonstrate reasonable grounds for people to believe it. Likewise, when we justify a system of taxation, we intend to demonstrate the necessity and fairness of the system to taxpayers.

What, then, are we justifying when we justify a system of punishment? To whom should we provide legitimate reasons for the system? It is easy to understand to whom we justify punishment when that punishment is administered by, for example, charging a fine. In this case, we persuade violators to pay the fine by bringing to their attention the harm that they have caused, harm which needs to be compensated. (Please note that I am only mentioning the primitive basis of the process of justification.) While we often generalise this process to include people in general or society as a whole, the process of justification would not work without convincing the people who are directly concerned (in this case, violators), at least theoretically, that this is a justified punishment, despite their subjective objections or psychological opposition. We could paraphrase this point per Scanlon’s ‘idea of a justification which it would be unreasonable to reject’ (1982, p.117). That is to say, in justifying the application of the system of punishment, we should satisfy the condition that each person concerned (especially the violator) is aware of having no grounds to reasonably reject the application of the system, even if they do in fact reject it from their personal, self-interested point of view.

In fact, if the violator is not theoretically persuaded at all in any sense—that is, if they cannot understand the justification as a justification—we must consider the possibility that they suffer some disorder or disability that affects their criminal responsibility.

We should also take into account the case of some extreme and fanatical terrorists. They might not understand the physical treatment inflicted on them in the name of punishment as a punishment at all. Rather, they might interpret their being physically harmed as an admirable result of their heroic behaviour. The notion of punishment is not easily applied to these cases, where the use of physical restraint is more like that applied to wild animals. Punishment can be successful only if those who are punished understand the event as punishment.

This line of argument entirely conforms to the traditional context in philosophy concerning the concept of a “person”, who is regarded as the moral and legal agent responsible for his or her actions, including crimes. John Locke, a 17th-century English philosopher, introduced and established this concept, basing it on ‘consciousness’. According to Locke, a person ‘is a thinking intelligent Being, that has reason and reflection, and can consider it self as it self, the same thinking thing in different times and places; which it does only by that consciousness’ (1975, Book 2, Chapter 27, Section 9). This suggests that moral or legal punishments for the person should be accompanied by consciousnesses (in a Lockean sense) of the agent. In other words, when punishment is legally imposed on someone, the person to be punished must be conscious of the punishment as a punishment; that is, the person should understand the event as a justified imposition of some harm. 1

However, there is a problem here, which arises in particular for the death penalty but not for other kinds of punishment. The question that I raise here is ‘to whom do we justify the death penalty?’ People might say it should be justified to society, as the death penalty is one of the social institutions to which we consent, whether explicitly or tacitly. This is true. However, if my claims above about justification are correct, the justification of the death penalty must involve the condemned convict coming to understand the justification at least at a theoretical level. Otherwise, to be executed would not be considered a punishment but rather something akin to the extermination of a dangerous animal. The question I want to focus on in particular is this: should this justification be provided before administering capital punishment or whilst administering capital punishment?

2. ‘Impossibilism’

Generally, in order for the justification of punishment to work, it is necessary for convicts to understand that this is a punishment before it is carried out and that they cannot reasonably reject the justification, regardless of any personal objection they may have. However, that is not sufficient, because if they do not understand at the moment of execution that something harmful being inflicted is a punishment, then its being inflicted would simply result in mere physical harm rather than an institutional response based on theoretical justification. The justification for punishment must be, at least theoretically, accepted both before and during its application. 2 This requirement can be achieved with regard to many types of punishment, such as fines or imprisonment. However, the situation is radically different in the case of the death penalty, for in this case, when it is carried out, the convict, by definition, disappears. During and (in the absence of an afterlife) after the punishment, the convict cannot understand the nature and justification of the punishment. Can we say then that this is a punishment? This is a question which deserves further thought.

On the one hand, the death penalty, once executed, logically implies the nonexistence of the person punished; therefore, by definition, that person will not be conscious of being punished at the moment of execution. However, punishment must be accompanied by the convict’s consciousness or understanding of the significance of the punishment, as far as we accept the traditional concept of the person as a moral and legal agent upon whom punishment could be imposed. It may be suggested that everything leading up to the execution—being on death row, entering the execution chamber, being strapped down—is a kind of punishment that the convict is conscious of and is qualitatively different from mere incarceration. However, those phases are factors merely concomitant with the death penalty. The core essence of being executed lies in being killed or dying. Therefore, if the phases of anticipation were to occur but finally the convict were not killed, the death penalty would not have been carried out. The death penalty logically results in the convict’s not being conscious of being executed, and yet, for it to be a punishment, the death penalty requires the convict to be conscious of being executed. We could notate this in the form of conjunction in the following way in order to make my point as clear as possible:

~ PCE & PCE

(PCE: ‘the person is conscious of being executed under the name of punishment’)

If this is correct, then we must conclude that the concept of the death penalty is a manifest contradiction in terms. In other words, the death penalty should be regarded as conceptually impossible, even before we take part in longstanding debates between retentionism and abolitionism. This purely philosophical view of the death penalty could be called ‘impossibilism’ (i.e. the death penalty is conceptually impossible), and could be classified as a third possible view on the death penalty, distinct from retentionism and abolitionism. A naïve objection against this impossibilist view might counter that the death penalty is actually carried out in some countries so that it is not impossible but obviously possible. The impossibilist answer to this objection is that, based on a coherent sense of what it means for a punishment to be justified, that execution in such countries is not the death penalty but rather unjustified lethal physical violence .

I am not entirely certain whether the ‘impossibilist’ view would truly make sense in the light of the contemporary debates on the death penalty. These debates take place between two camps as I referred to above:

Retentionism (the death penalty should be retained): generally argued with reference to victims’ feelings and the deterrence effects expected by execution.

Abolitionism (the death penalty should be abolished): generally argued through appeals to the cruelty of execution, the possibility of misjudgements in the trial etc.

The grounds mentioned by both camps are, theoretically speaking, applicable to punishment in general in addition to the death penalty specifically. I will mention those two camps later again in a more detailed way in order to make a contrast between standard debates and my own view. However, my argument above for ‘impossibilism’, does suggest that there is an uncertainty specific to the death penalty as opposed to other types of punishment. I believe that this uncertainty must be considered when we discuss the death penalty, at least from a philosophical perspective. Otherwise we may lose sight of what we are attempting to achieve.

A related idea to the ‘impossibilism’ of the death penalty may emerge, if we accept the fact that the death penalty is mainly imposed on those convicted of homicide. This idea is related to the understanding of death proposed by Epicurus, who provides the following argument (Diogenes Laertius 1925, p. 650-1):

Death, therefore, the most awful of evils, is nothing to us, seeing that, when we are, death is not come, and, when death is come, we are not. It is nothing, then, either to the living or to the dead, for with the living it is not and the dead exist no longer.

We can call this Epicurean view ‘the harmlessness theory of death’ (HTD). If we accept HTD, it follows, quite surprisingly, that there is no direct victim in the case of homicide insofar as we define ‘victim’ to be a person who suffers harm as a result of a crime. For according to HTD, people who have been killed and are now dead suffer nothing—neither benefits nor harms—because, as they do not exist, they cannot be victims. If this is true, there is no victim in the case of homicide, and it must be unreasonable to impose what is supposed to be the ultimate punishment 3 —that is, the death penalty—on those offenders who have killed others.

This argument might sound utterly absurd, particularly if it is extended beyond offenders and victims to people in general, as one merit of the death penalty seems to lie in reducing people’s fear of death by homicide. However, although this argument from HTD might sound bizarre and counterintuitive, we should accept it at the theoretical level, to the extent that we find HTD valid. 4 Clearly, this argument, which is based on the nonexistence of victims, could logically lead to another impossibilist argument concerning the death penalty.

There are many points to be more carefully examined regarding both types of ‘impossibilism’, which I will skip here. However, I must stop to ponder a natural reaction. My question above, ‘To whom do we justify?’, which introduced ‘impossibilism’, might sound eccentric, because, roughly speaking, theoretical arguments of justification are usually deployed in a generalised way and do not need to acknowledge who those arguments are directed at. Yet, I believe that this normal attitude towards justification is not always correct. Instead, our behaviour, when justifying something, focuses primarily on theoretically persuading those who are unwilling to accept the item being justified. If nobody refuses to accept it, then it is completely unnecessary to provide its justification. For instance, to use a common sense example, nobody doubts the existence of the earth. Therefore, nobody takes it to be necessary to justify the existence of the earth. Alternatively, a justification for keeping coal-fired power generation, the continued use of which is not universally accepted due to global warming, is deemed necessary. In other words, justification is not a procedure lacking a particular addressee, but an activity that addresses the particular person in a definite way, at least at first. In fact, it seems to me that the reason that current debates on the death penalty become deadlocked is that crucial distinctions are not appropriately made. I think that such a situation originates from not clearly asking to whom we are addressing our arguments, or whom we are discussing. As far as I know, there have been very few arguments within the death penalty debate that take into account the homicide victim, despite the victim’s unique status in the issue. This is one example where the debate can be accused of ignoring the ‘whom-question’, so I will clarify this issue by adopting a strategy in which this ‘whom-question’ is addressed.

3. Three chronological stages

Following my strategy, I will first introduce a distinction between three chronological stages in the death penalty. In order to make my argument as simple as possible, I will assume that the death penalty is imposed on those who have been convicted of homicide, although I acknowledge there are other crimes which could result in the death penalty. In that sense, the three stages of the death penalty correspond to the three distinct phases arising from homicide.

The first stage takes place at the time of killing; the fact that someone was killed must be highlighted. However, precisely what happened? If we accept the HTD, we should suppose that nothing harmful happened in the case of homicide. Although counterintuitive, let’s see where this argument leads. However, first, I will acknowledge that we cannot cover all contexts concerning the justification of the death penalty by discussing whether or not killing harms the killed victim. Even if we accept for argument’s sake that homicide does not harm the victim, that is only part of the issue. Other people, particularly the bereaved families of those killed, are seriously harmed by homicide. More generally, society as a whole is harmed, as the fear of homicide becomes more widespread in society.

Moreover, our basic premise, HTD, is controversial. Whether HTD is convincing remains an unanswered question. There is still a very real possibility that those who were killed do suffer harm in a straightforward sense, which conforms to most people’s strong intuition. In any event, we can call this first stage, the ‘Harm Stage’, because harm is what is most salient in this phase, either harm to the victims or others in society at large. If a justification for the death penalty is to take this Harm Stage seriously, the overwhelming focus must be on the direct victims themselves, who actually suffer the harm. This is the central core of the issue, as well as the starting point of all further problems.

The second stage appears after the killing. After a homicide, it is common to blame and to feel anger towards the perpetrator or perpetrators, and this can be described as a natural, moral, or emotional reaction. However, it is not proven that blaming or feeling angry is indeed natural, as it has not been proven that such feelings would arise irrespective of our cultural understanding of the social significance of killing. The phenomenon of blaming and the prevalence of anger when a homicide is committed could be a culture-laden phenomenon rather than a natural emotion. Nevertheless, many people actually do blame perpetrators or feel anger towards them for killing someone, and this is one of the basic ideas used to justify a system of ‘retributive justice’. The core of retributive justice is that punishment should be imposed on the offenders themselves (rather than other people, such as the offenders’ family). This retributive impulse seems to be the most fundamental basis of the system of punishment, even though we often also rely on some consequentialist justification favor punishment (e.g. preventing someone from repeating an offence). In addition, offenders are the recipients of blame or anger from society, which suggests that blaming or expressing anger has a crucial function in retributive justice. I will call this second phase the ‘Blame Stage’, which extends to the period of the execution. Actually, the act of blaming seems to delineate what needs to be resolved in this phase. Attempting to justify the death penalty by acknowledging this Blame Stage (or retributive justification) in terms of proportionality is the most common strategy. That is to say, lex talionis applies here—‘an eye for an eye’. This is the justification that not only considers people in general, including victims who blame perpetrators, but also attempts to persuade perpetrators that this is retribution resulting from their own harmful behaviours.

The final stage in the process concerning the death penalty appears after the execution; in this stage, what matters most is how beneficial the execution is to society. Any system in our society must be considered in the light of its cost-effectiveness. This extends even to cultural or artistic institutions, although at first glance they seem to be far from producing any practical effects. In this context, benefits are interpreted quite broadly; creating intellectual satisfaction, for example, is counted as a benefit. Clearly, this is a utilitarian standpoint. We can apply this view to the system of punishment, or the death penalty, if it is accepted. That is, the death penalty may be justified if its benefits to society are higher than its costs. What, then, are the costs, and what are the benefits? Obviously, we must consider basic expenses, such as the maintenance and labour costs of the institution keeping the prisoner on death row. However, in the case of the death penalty, there is a special cost to be considered, namely, the emotional reaction of people in society in response to killing humans, even when officially sanctioned as a punishment. Some feel that it is cruel to kill a person, regardless of the reason.

On the other hand, what is the expected benefit of the death penalty? The ‘deterrent effect’ is usually mentioned as a benefit that the death penalty can bring about in the future. In that case, what needs to be shown if we are to draw analogies with the previous two stages? When people try to justify the death penalty by mentioning its deterrent effect, they seem to be comparing a society without the death penalty to one with the death penalty. Then they argue that citizens in a society with the death penalty are at less risk of being killed or seriously victimised than those in a society without the death penalty. In other words, the death penalty could reduce the danger of being killed or seriously victimised in the future. Therefore, we could call this third phase the ‘Danger Stage’. In this stage, we focus on the danger that might affect people in the future, including future generations. This is a radically different circumstance from those of the previous two stages in that the Danger Stage targets people who have nothing to do with a particular homicide.

4. Analogy from natural disasters

The three chronological stages that I have presented in relation to the death penalty are found in other types of punishment as well. Initially, any punishment must stem from some level of harm (including harm to the law), and this is a sine qua non for the issue of punishment to arise. Blaming and its retributive reaction must follow that harm, and subsequently some social deterrent is expected to result. However, we should carefully distinguish between the death penalty and other forms of punishment. With other forms of punishment, direct victims undoubtedly exist, and those convicted of harming such victims are aware they are being punished. In addition, rehabilitating perpetrators in order for them to return to society—one aspect of the deterrent effect—can work in principle. However, this aspect of deterrence cannot apply to the death penalty because executed criminals cannot be aware of being punished by definition, and the notion of rehabilitation does not make sense by definition. Only this quite obvious observation can clarify that there is a crucial, intrinsic difference or distinction between the death penalty and other forms of punishment. Theories about the death penalty must seriously consider this difference; we cannot rely on theories that treat the death penalty on a par with other forms of punishment.

Moreover, the three chronological stages that have been introduced above are fundamentally different from each other. In reality, the subjects or people that we discuss and on whom we focus are different from stage to stage. In this respect, one of my points in this article is to underline the crucial need to discuss the issues of the death penalty by drawing a clear distinction between those stages. I am not claiming that only one of those stages is important. I am aware that each stage has its own significance; therefore, we should consider all three. However, we should be conscious of the distinctions when discussing the death penalty.

To make my point more understandable, I will suggest an analogy with natural disasters. Specifically, I will use as an analogy the biggest earthquake in Japan in the past millennium—the quake of 11 March 2011 (hereafter the 2011 quake). Of course, at first glance, earthquakes are substantially different from homicides. However, there is a close similarity between the 2011 quake and homicides, because although most of the harm that occurred was due to the earthquake and tsunami, in fact people were also harmed and killed during the 2011 quake at least partially due to human errors, such as the failure of the government’s policy on tsunamis and nuclear power plants. Thus, it is quite easy in the case of the 2011 quake to distinguish between three aspects, all of which are different from each other.

(1) We must recognise victims who were killed in the tsunami or suffered hardship at shelters. 5 This is the core as well as the starting point of all problems. What matters here is rescuing victims, and expressing our condolences.

(2) Then we will consider victims and people in general who hold the government and the nuclear power company responsible for political and technical mistakes. What usually matters here is the issue of responsibility and compensation.

(3) Finally, we can consider people’s interests in improving preventive measures taken to reduce damages by tsunami and nuclear-plant-related accidents in the future. What matters in this context is the reduction of danger in the future by learning from the 2011 quake.

Nobody will fail to notice that these three aspects are three completely different issues, which can be seen in exactly the same manner in the case of the death penalty. Aspects (1), (2), and (3) correspond respectively to the Harm Stage, the Blame Stage, and the Danger Stage. Undoubtedly, none of these three aspects should be ignored and they actually appear in a mutually intertwined manner: the more successful the preventive measures are, the fewer victims will be produced by tsunami and nuclear-plant accidents in the future. Those aspects affect each other. Likewise, we must consider each of the three stages regarding the death penalty.

5. Initial harm

The arguments thus far provide the basic standpoint that I want to propose concerning the debates on the death penalty. I want to investigate the issue of the death penalty by sharply distinguishing between these three stages and by simultaneously considering them all equally. By following this strategy, I will demonstrate that there are intrinsic uncertainties, and four problems resulting from those uncertainties, in the system of the death penalty. In so doing I will raise a novel objection to the contemporary debate over the death penalty.

Roughly speaking, as I have previously mentioned, the death penalty debate continues to involve the two opposing views of abolitionism and retentionism (or perhaps, in the case of abolitionist countries, revivalism). It seems that the main arguments to support or justify each of the two traditional views (which I have briefly described in section 2 above) have already been exhausted. What matters in this context is whether the death penalty can be justified, and then whether—if it is justifiable—it should be justified in terms of retributivism or utilitarianism. That is the standard way of the debate on the death penalty. For example, when the retributive standpoint is used to justify the death penalty, the notion of proportionality as an element of fairness or social justice might be relevant, apart from the issue of whether proportionality should be measured cardinally or ordinally (see von Hirsch 1993, pp. 6-19). In other words, if one person has killed another, then that person too ought to be killed—that is, executed—in order to achieve fairness. However, as other scholars such as Tonry (1994) have argued, it is rather problematic to apply the notion of proportionality to the practice of punishment because it seems that there is no objective measure of offence, culpability, or responsibility. Rather, the notion of parsimony 6 is often mentioned in these contexts as a more practical and fairer principle than the notion of proportionality.

However, according to my argument above, such debates are inadequate if they are simply applied to the case of the death penalty. Proportionality between which two things is being discussed? Most likely, what is considered here is the proportionality between harm by homicide (where the measured value of offence might be the maximum) and harm by execution. However, I want to reconfirm the essential point. What specifically is the harm of homicide? Whom are we talking about when we discuss the harm of homicide? As I previously argued, citing Epicurus and his HTD, there is a metaphysical doubt about whether we should regard death as harmful. If a person simply disappears when he or she dies and death is completely harmless as HTD claims, then it seems that the retributive justification for the death penalty in terms of proportionality must be nonsense, for nothing at all happens that should trigger the process of crime and punishment. Of course, following HTD, the execution should be similarly regarded as nonsensical. However, if that is the case, the entire institutional procedure, from the perpetrator’s arrest to his or her execution, must be considered a tremendous waste of time, labour, and money.

Some may think that these kinds of arguments are merely empty philosophical abstractions. That may be. However, it is not the case that there is nothing plausible to be considered in these arguments. Consider the issue of euthanasia. Why do people sometimes wish to be euthanised? It is because people can be relieved of a painful situation by dying. That is to say, people wishing to be euthanised take death to be painless, i.e. harmless, in the same manner as HTD. This idea embedded in the case of euthanasia is so understandable that the issue of euthanasia is one of the most popular topics in ethics; however, if so, Epicurus’s HTD should not be taken as nonsensical, for HTD holds in the same way as the idea embedded in the case of euthanasia that when we die, we have neither pain nor any other feeling. What I intend to highlight here is that we must be acutely aware that there is a fundamental problem concerning the notion of harm by homicide, if we want to be philosophically sincere and consistent 7 .

In other words, I assert that the contemporary debate over the death penalty tends to lack proper consideration for the Harm Stage in which victims themselves essentially matter, although that stage must be the very starting point of all issues. We must understand this pivotal role of the Harm Stage before intelligently discussing the death penalty. Of course, in practice, we can discuss the death penalty in a significant and refined manner without investigating the Harm Stage. For example, according to Goldman, one of the plausible positions regarding the justification for punishment in general is a position that combines both retributivism and utilitarianism. Mentioning John Rawls and H. L. A. Hart, Goldman writes (1995, p. 31):

Some philosophers have thought that objections to these two theories of punishment could be overcome by making both retributive and utilitarian criteria necessary for the justification of punishment. Utilitarian criteria could be used to justify the institution, and retributive to justify specific acts within it.

Goldman argues, however, that this mixed position could result in a paradox regarding how severe the punishment to be imposed on the guilty should be, even though this position avoids punishing the innocent (ibid., p.36):

While the mixed theory can avoid punishment of the innocent, it is doubtful that it can avoid excessive punishment of the guilty if it is to have sufficient effect to make the social cost worthwhile.

This argument is useful in providing a moral and legal warning to society not to punish offenders more severely than they deserve, even if that punishment is more effective in deterring future crimes. I frankly admit that Goldman’s suggestion goes to the essence of the concept of justice. However, I must also say that if his argument is applied to the death penalty, then it has not yet touched the fundamental question that forms the basis of the whole issue: whose harm should we discuss? Is it appropriate not to discuss the Harm Stage? Alternatively, I am raising the following question: who is the victim of homicide? At the very least, I think we should admit that this very question is the crucial one constituting the first problem on the death penalty, the Uncertainty of Harm.

6. Feeling of being victimised

Next, I will examine another kind of uncertainty that is specific to the Blame Stage; the idea of retribution matters here. As far as the Japanese context for the death penalty is concerned, according to statistical surveys of public opinion, people tend to strongly support the death penalty in the case of particularly violent homicides in which they are probably feeling particularly victimised. If the death penalty were abolished, it seems that the abolition would be extremely unfair to victims of homicide, as the rights of victims (i.e. rights of life, liberty, property, and so on) would be denied by being killed, whereas those of perpetrators would be excessively protected. Obviously, the notion of retributive proportionality or equilibrium is the basis for this argument. To put it another way, this logic of retribution aims at justifying the death penalty in terms of its achieving equilibrium between the violated rights of victims and the deprived rights of perpetrators in the name of punishment. Is this logic perfectly acceptable? Emotionally speaking, I want to say yes. We Japanese might even say that perpetrators should gallantly and bravely kill themselves to take responsibility for their actions, as we have a history of the samurai who were expected to conduct hara-kiri when they did something shameful. However, theoretically speaking, we cannot accept this logic immediately, because there are too many doubtful points. Those doubts as a whole constitute the second problem concerning the death penalty.

First, we must ask, as well as in the previous section, on the issue of feeling victimised, whom are we discussing? Whose feelings and whose rights matter? Direct victims in the case of homicide do not exist by definition. Then a question arises: why can substitutes (prosecutors and others) or the bereaved family ask for the death penalty based on their feelings rather than the direct victim’s feeling? How are they qualified to ask for such a stringent punishment when they were not the ones killed? The crucial point to be noted here is that the bereaved family is not identical with the direct victim. Second, even if it is admitted that the notion of the victim’s emotional harm are relevant to sentencing (and at least in the sense of emotional harm the bereaved family’s suffering I would agree that this makes them certainly the principal victims even if not the direct victim), it must be asked: can we justify an institution based on a feeling? This question is a part of the traditional debate concerning the moral sense theory. We have repeatedly asked whether social institutions can be based on moral sense or human feeling, when such sense or feeling cannot help but be arbitrary because those, after all, are subjective. The question is still unanswered. Third, if the feelings of being victimised justify the death penalty, then could an accidental killing or involuntary manslaughter be included in crimes that deserve the death penalty? Actually, the feelings of the bereaved family in the case of accidental killing could be qualitatively the same as in the case of voluntary homicide. However, even countries which adopt the death penalty do not usually prescribe that execution is warranted for accidental killing. Fourth, I wonder whether the bereaved family who feel victimised always desire the execution of the killer. It could be that they consider resuming their daily lives more important than advocating the execution of the murderer who killed their family member. As a matter of practical fact, executions of perpetrators need have nothing to do with supporting bereaved families. Fifth, if we accept the logic in which the death penalty is justified by the bereaved family’s feeling of being victimised, how should we deal with cases where the person who was killed was alone in the world, with no family? If there is no bereaved family, then no one feels victimised. Is the death penalty unwarranted in this case? In any case, as these questions suggest, we should be aware that retributive justification based upon the feeling of being victimised is not as acceptable as we initially expected. Once again, there is uncertainty here. Uncertainty of blame leads to the second problem concerning the death penalty.

7. Violation and forfeiture

Of course, the retributive justification for the death penalty does not have to depend upon the feeling of being victimised alone, even if the primitive basis for it might lie in human emotion. The theoretical terminology of human rights themselves (rather than emotional feeling based on the notion of rights) could be used as justification: if a person violates another’s rights (to property, freedom, a healthy life, etc.), then that person must forfeit his or her own rights in proportion to the violated rights. This can be regarded as a formulation of the system of punishment established in the modern era that is theoretically based upon the social contract theory. The next remark of Goldman confirms this point (1995, p.33):

If we are asked which rights are forfeited in violating the rights of others, it is plausible to answer just those rights that one violates (or an equivalent set). One continues to enjoy rights only as long as one respects those rights in others: violation constitutes forfeiture . . . Since deprivation of those particular rights violated is often impracticable, we are justified in depriving a wrongdoer of some equivalent set, or in inflicting harm equivalent to that which would be suffered in losing those same rights.

However, the situation is not so simple, particularly in connection with the death penalty. In order to clarify this point, we have to reflect, albeit briefly, on how the concept of human rights has been historically established. I will trace the origin of the concept of human rights by referring to Fagan’s overall explanation. According to Fagan (2016, Section 2):

Human rights rest upon moral universalism and the belief in the existence of a truly universal moral community comprising all human beings . . . The origins of moral universalism within Europe are typically associated with the writings of Aristotle and the Stoics.

Followed by the remark:

Aristotle unambiguously expounds an argument in support of the existence of a natural moral order. This natural order ought to provide the basis for all truly rational systems of justice . . . The Stoics thereby posited the existence of a universal moral community effected through our shared relationship with god. The belief in the existence of a universal moral community was maintained in Europe by Christianity over the ensuing centuries.

This classical idea was linked during the 17th and 18th centuries to the concept of ‘natural law’ including the notion of ‘natural rights’ that each human being possesses independently of society or policy. ‘The quintessential exponent of this position was John Locke . . . Locke argued that natural rights flowed from natural law. Natural law originated from God’ (ibid.). Fagan continues (ibid.):

Analyses of the historical predecessors of the contemporary theory of human rights typically accord a high degree of importance to Locke’s contribution. Certainly, Locke provided the precedent of establishing legitimate political authority upon a rights foundation. This is an undeniably essential component of human rights.

Although, of course, we should take post-Lockean improvement including Kantian ideas into account to fully understand contemporary concepts of human rights, we cannot deny that Locke’s philosophy ought to be considered first.

As is well known, Locke’s argument focuses on property rights. He put forth the idea that property rights were based on our labour. Thus, his theory is called ‘the labour theory of property rights’. Let me quote the famous passage I have in mind (Locke 1960, Second Treatise, Section 27):

Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Works of his Hands, we may say, are properly his.

This idea could cover any kind of human rights such as those for living a healthy life, liberty, and property, because human rights are supposed to be owned by us. For example, H. L.A. Hart once argued that legal rights are nothing but legal powers to require others to meet correlative obligations, and then pointed out that; ‘we also speak of the person who has the correlative right as possessing it or even owning it’ (Hart 1982, p.185). If this is the case, we can make property rights representative of all human rights.

However, if we follow Locke’s theory (and many countries, including Japan, still do), then it logically follows that what we cannot gain by our labour by definition cannot be objects of human rights. How does Locke’s idea apply to our life itself (rather than simply living a healthy life)? Are we able to acquire our life itself by our labour? No, we cannot. We can realise a healthy life by making an effort to be moderate, but we cannot create our lives. We are creatures or animals; therefore, our lives are not something that we ourselves made by our labour. Locke uses the concept of power (as Hart does) when he discusses various aspects of property rights. Among those, we should pay particular attention to the following (Locke 1960, Second Treatise, Section 23):

For a Man, not having the Power of his own life, cannot, by Compact, or his own Consent, enslave himself to any one, nor put himself under the Absolute, Arbitrary Power of another, to take away his Life, when he pleases.

Locke also wri tes (1960, Section 24):

No Man can, by agreement, pass over to another that which he hath not in himself, a Power over his own life.

Obviously, Locke assumes that we have no property rights over our own lives or bodies themselves, or more precisely, no property rights in controlling and destroying our own lives as a whole; therefore, we cannot alienate those rights to others. We cannot alienate or forfeit what we do not have. If this is the case and we presuppose the formulation of the system of punishment introduced above in terms of violation and forfeiture, what would result? The answer is clear. Our lives themselves are conceptually beyond the terminology of human rights, and thus, if the death penalty is defined as a punishment requiring the forfeiture of the perpetrator’s right to life, the death penalty should be regarded as conceptually contradictory or impossible. We cannot lose tails, as we do not have tails. Likewise, we cannot own our lives (i.e. we have no property rights in our life itself), so we cannot lose our lives, at least in such a sense as forfeiture of human rights. This is the third route to an ‘impossibilist’ view of the death penalty. This argument depends heavily on Locke’s original theory. Nevertheless, as long as we have to consider Locke’s classical view seriously in order to discuss the relation between punishment and human rights, we must be aware that we could be involved in theoretical uncertainty in justifying the death penalty through the notion of human rights in a retributivist flavour, as the argument thus far suggests. This is the very puzzle that I want to propose as the third problem concerning the death penalty debates.

Moreover, we must acknowledge that retributive ideas in the Blame Stage usually include a kind of evaluation of the psychological state of the agent’s behaviour at the time of the crime as a matter of legal fact. In other words, rationality, freedom, or mens rea are usually needed for agents to be judged guilty. However, from a strictly philosophical perspective, we should say that it is far from easy in principle to confirm those states in the past. Indeed, this psychological trend seems to cause controversy in court proceedings, as seen, for example, in the American context known as ‘battered-woman syndrome’. If a woman who has been routinely battered by her partner suddenly fights back and kills her partner, American courts often find her not guilty. People wonder whether such an evaluation concerning battered women could be correctly made without arbitrariness. Additionally, philosophical debates on free will and the development of the brain sciences must be considered. Some philosophers assert that we have no free will because our personality and actions are intrinsically governed by external factors, such as our environments or biological conditions, which are definitely beyond our control. This philosophical standpoint is often called ‘hard incompatibilism’ (see Strawson 2008). In this respect, my analogy to a natural disaster could be seen as appropriate, as our actions might be taken to be just natural phenomena at the end of the day. 8 Furthermore, brain sciences often provide shocking data to suggest that our will may be controlled by brain phenomena occurring prior to our consciousness, as shown by Benjamin Libet. In view of such contemporary arguments, we have little choice but to say that we cannot be perfectly certain whether a given perpetrator who committed homicide is truly guilty, as long as we adopt the present standard for judging the psychological states of offenders in court. To sum up, the third problem for the death penalty is the difficulty in knowing whether someone has property in their life itself as well as uncertainty about the mental state of the accused, this is the Uncertainty of Rights Violation.

8. The deterrent effect

Finally, I will examine some problems in the Danger Stage. What matters in this context is the utilitarian justification for the death penalty; I will focus on what is called the ‘deterrent effect’. Firstly, I would like to say that the death penalty undoubtedly has some deterrent effect. This is obvious if we imagine a society where violators of any laws, including minor infractions such as a parking ticket or public urination, must be sentenced to death. I believe that the number of all crimes would dramatically reduce in that society, although it would constitute a horrible dystopia. The argument for the deterrent effect of the death penalty probably arises from the same line of ‘common sense’ thinking. For example, Pojman says, ‘there is some non-statistical evidence based on common sense that gives credence to the hypothesis that the threat of the death penalty deters and that it does so better than long prison sentences’ (Pojman 1998, pp. 38-39). Specifically, this deterrent effect presupposes the utility calculus that a human being conducts, whether consciously or unconsciously, in terms of ‘weighing the subjective severity of perceived censure and the subjective probability of perceived censure against the magnitude of the desire to commit the offence and the subjective probability of fulfilling this desire by offending’ (Beyleveld 1979, p. 219). Therefore, if we presuppose the basic similarity of human conditions, it may be plausible to state the following about the deterrent effect of punishment: ‘this can be known a priori on the basis of an analysis of human action’ (ibid., p. 215). However, in fact, the death penalty in many countries is restricted to especially heinous crimes, such as consecutive homicides (although some countries apply the death penalty to a wider range of crimes), which suggests that we must conduct empirical studies, case by case, if we want to confirm the deterrent effect of the death penalty. Therefore, the question to be asked regarding the deterrent effect is not whether the death penalty is actually effective, but rather how effective it is in restricted categories of crimes. What matters is the degree.

There are many statistical surveys concerning this issue. In particular, an economic investigation by Ehrlich is often mentioned as a typical example. After examining detailed statistical data and taking into account various factors, such as race, heredity, education, and cultural patterns, Ehrlich suggest s (1975, p. 414):

An additional execution per year over the period in question [i.e., 1935-1969] may have resulted, on average, in 7 or 8 fewer murders.

Of course, this estimate includes too many factors and presumptions to be perfectly correct. Ehrlich himself is aware of this and thus says (ibid.):

It should be emphasized that the expected tradeoffs computed in the preceding illustration mainly serve a methodological purpose since their validity is conditional upon that of the entire set of assumptions underlying the econometric investigation … however … the tradeoffs between executions and murders implied by these elasticities are not negligible, especially when evaluated at relatively low levels of executions and relatively high level[s] of murder.

Ehrlich’s study drew considerable criticism, most of which pointed out deficiencies in his statistical methodology. Therefore, at this moment, we should say that we are able to infer nothing definite from Ehrlich’s study, although we must value the study as pioneering work.

Van den Haag proposes an interesting argument based upon uncertainty specific to the deterrent effect of the death penalty. He assumes two cases, namely, case (1), in which the death penalty exists, and case (2), in which the death penalty does not exist. In each case there is risk or uncertainty. On the one hand, in case (1), if there is no deterrent effect, the life of a murderer is lost in vain, whereas if there is a deterrent effect, the lives of some murderers and innocent victims will be saved in the future. On the other hand, in case (2), if there is no deterrent effect, the life of a convicted murderer is saved, whereas if there is a deterrent effect, the lives of some innocent victims will be lost in the future (Van den Haag 1995, pp. 133-134). Conway and Pojman explain this argument using the following table, ‘The Best Bet Argument’, which I have modified slightly, having DP stand for the death penalty, and DE the deterrent effect:

Following this table, Conway assumes (after Van den Haag’s suggestion that the life of a convicted murderer is not valued more highly than that of the unknown victims) numerical values about each case (each numerical number stands for not a number of people but a hypothetical value for a person to be saved or killed) :

a murderer saved +5

a murderer executed -5

an innocent saved +10

an innocent murdered -10

Moreover, he assumes that for each execution, only two innocent lives are spared (i.e. he assumes the deterrent effect to be almost the minimum). Then, consequently, executing convicted murderers turns out to be a good bet (Conway 1995, pp. 265-266; Pojman 1998, pp. 40-41).

9. Negative causation and where to give priority

Van den Haag’s ‘Best Bet Argument’ sounds quite interesting. However, Conway has already proposed a fundamental challenge to this argument: it mistakenly regards the actual death of convicted murderers as being on a par with the possible death of innocent victims in the future (Conway 1995, pp. 269-270). This is confusing or possibly a rhetorical sleight of hand. I think that Conway’s reaction to Van den Haag’s argument is a reasonable one.

As I approach my conclusion, I will propose two problems with Van den Haag’s argument. First, I want to acknowledge that any arguments, including Van den Haag’s, supporting the death penalty in terms of its deterrent effect seem to presuppose a causal relationship between the existence of the death penalty and people not killing others. For example, Pojman writes, ‘the repeated announcement and regular exercise of capital punishment may have deep causal influence’ (1998, p. 48). However, epistemologically speaking, that presupposition is extremely hard to confirm, because the effect of this causal relationship is not a positive, but rather a negative event, which is the event of not killing others. This has something to do with the philosophical problem of how to understand negative properties. By negative properties we mean that, for example, my room is not full of seawater; my room does not consist of paper; my room is not melting us, etc. Such descriptions by negative properties can be made almost endlessly. In other words, one identical event described by a positive property (e.g., this room is well lit) can be re-described in infinite ways in terms of negative properties. Take the example that I am now at my computer in Tokyo, writing a paper. This event can also be described as ‘I am not eating’, ‘I am not sleeping’, ‘I am not killing others’ (!), etc. The positive event, ‘I am writing a paper now’, can be understood through a causal relationship. The event was most likely caused by my intention to do so, which was caused by my sense of duty as a professor, etc. How, then, could we understand the negative description of my action, ‘I am not killing others’? Was this caused by the existence of the death penalty in Japan?

Perhaps I was completely unaware of the existence of the death penalty in Japan when I wrote a paper without killing others. Could the death penalty be its cause? Could the negative event ‘I am not killing others’ be an effect of the death penalty? It is hard to say so.

This problem is the same as the problem of ‘causation by absence’ or ‘omission-involving causation’. Generally, causation by absence is usually examined in the form of answering a question about whether nothingness can cause something. For example, David Lewis discusses a question about how a void (understood as being entirely empty or nothing at all, differing from a vacuum) is regarded as a cause of something (Lewis 2004). He says, ‘If you were cast into a void, it would cause you to die in just a few minutes. It would suck the air from your lungs. It would boil your blood. It would drain the warmth from your body. And it would inflate enclosures in your body until they burst’ (ibid., p.277). However, the problem is that the void is nothing. ‘When the void sucks away the air, it does not exert an attractive force on the air’ (ibid.). Furthermore, another, perhaps harder problem would arise. We can say, ‘If I defended you from being cast into a void, you would not die’. Namely, my omission to defend you would cause you to die. However, should only my omission matter? What of your brother’s omission to defend you? Or the Prime Minister of the UK’s omission to defend you? Are not all of those qualified to be the cause of your death, as least as long as we adopt a common-sense counterfactual analysis of causation? As this argument suggests, in the context of the current debate on this problem, the most troublesome phase is that ‘too many’ absences can be supposed to cause a particular effect. I quote Menzies, who says (2004, p.145):

I am writing this essay at my computer. If, however, there were nerve gas in the air, or I were attacked with flamethrowers, or struck by a meteor shower, I would not be writing the essay. But it is counterintuitive to say that the absence of nerve gas, flamethrower attack, and meteor strike are causes of my writing the essay.

This example takes the issue of absence as a cause, but simultaneously his example refers to the case of effect as absence (not writing the essay). As this shows, the current debate on the problem of causation by absence could extend to the case of effect as absence. In any case, what matters is a possibility that ‘too many’ absences can cause something, and something can cause ‘too many’ absences (Menzies calls this problem ‘the problem of profligate causation’ (ibid., pp.142-145). Then the deterrent effect of the death penalty is definitely classified as a case of absence as effect rather than cause. In other words, the absence of homicide (as effect) matters, whereas in this case execution (as cause) is presupposed to exist. It seems that the current debate on causation by absence is highly likely to contribute to discussing the problem of the deterrent effect.

Of course, someone may counter my argument by saying that what matters in this context is a statistical correlation between the number of executions and the number of homicides, which could be confirmed in an empirical way. I admit that the statistical correlation plays a crucial role here, even though we must simultaneously acknowledge that what is called ‘randomized controlled trial’, the most reliable, statistical methodology to confirm causal relations, is unfeasible due to the nature of the problem. Actually, this kind of correlation is too rough to predict the causal relationship between those, although the causation really matters. Causes of a reduction or increase in the number of homicides can be interpreted or estimated in various ways, considering confounding factors, such as education, economic situation, urban planning, and so on. Therefore, in principle, there always remains the possibility that the apparent correlation between the death penalty and the reduction of homicides is merely accidental. For example, there may be another, common cause, that brings about both people’s tendency to support the death penalty and the reduction of homicides 9 . We should recognise that there is intrinsic uncertainty here. These difficulties concerning causal relations give rise to a fourth problem related to the death penalty debates – the Uncertainty of Causal Consequences.

Incidentally, let me now return to my distinction of the three stages regarding the death penalty. Obviously, the issue of the deterrent effect belongs primarily to the Danger Stage. Yet it is vital to consider the Harm Stage. How can the deterrent effect affect the Harm Stage? I must say that the retentionist’s argument, in terms of the deterrent effect of the death penalty, completely dismisses this essential point. We need only recall the analogy of the 2011 quake in Japan. ‘Retentionism’ based upon the deterrent effect corresponds to aspect (3), where the improvement of the preventive system matters. This is important, of course, but cannot be a priority. Priority lies in the issues of how to deal with the actual harm that the victims have already suffered (specifically referring to the bereaved family or others in the case of homicide and the death penalty). Without consideration of how to cope with the harm, even if the theory seriously considers the innocent victims in the future, the retentionists’ theory can hardly be persuasive.

It is true that the retentionists’ theory based on the deterrent effect appropriately considers the person harmed in the process of punishment. For example, Walker considers such a phase in the process of punishment as one of the possible objections against retentionism based on the deterrent effect by saying: ‘if the benefit excludes the person harmed this too is nowadays regarded by many people as morally unacceptable’ (Walker 1980, p. 65). However, as the context clearly shows, by ‘the person harmed’ he means the person punished. He does not mention the initial harm suffered by victims. This problem is concerned with my previous claim; that is, we have to consider the ‘whom-question’ when we discuss the justification of punishment. Whom are we discussing? Whose benefit do we consider? In the face of victims before our eyes, can we emphasise only the improvement of preventive systems for the future? Evidently, actual victims are the first to be helped, although obviously it is not at all bad to simultaneously consider the preventive system in the future. It is necessary for us to respect basic human rights and the human dignity of perpetrators and innocent people in the future; however, that respect must be in conjunction with our first taking care of actual victims. We ought not to get our priorities wrong.

10. Prospects

I have indicated that the debates on the death penalty are inevitably surrounded by four problems over specific kinds of uncertainties: uncertainty concerning the victim of homicide, uncertainty in justifying the death penalty from the feeling of being victimised, uncertainty in justifying the death penalty on the basis of human rights, and uncertainty over negative causation. In the course of examining these problems, I have proposed the option of developing an ‘impossibilist’ position about the death penalty, which I am convinced, deserves further investigation. However, being surrounded by theoretical problems and uncertainties might be more or less true of any social institution. My aim is only to suggest how the death penalty should be understood as involving uncertainties from a philosophical perspective. Most likely, if there is something practical that I can suggest based on my argument, then what we might call a ‘Harm-Centred System’ may be introduced as a relatively promising option instead of, or in tandem with, the death penalty. What I mean by this is a system in which we establish as a priority redressing actual harm with regard to legal justice, where ‘actual harm’ only implies what the bereaved family suffer from, as the direct victims have already disappeared in the case of homicide. In other words, I think that something akin to the maximalist approach to restorative justice 10 or some hybrid of the traditional justice system and the restorative justice system should be seriously considered, although we cannot expect perfect solutions exempt from all of the above four problems. It is certainly worth considering whether some element of restorative justice can play a significant role in the best theory of punishment.

In any case, my argument is at most a philosophical attempt to address problems. How to apply it to the practice of the legal system is a question to be tackled in a future project.

Bazemore, G. and Walgrave, L. 1999 (1). ‘Introduction: Restorative Justice and the International Juvenile Justice Crisis’. In Restorative Juvenile Justice: Repairing the Harm of Youth Crime , eds. G. Bazemore and L. Walgrave, Criminal Justice Press, 1-13.

———. 1999 (2). ‘Restorative Juvenile Justice: In Search of Fundamentals and an Outline for System Reform’. In Restorative Juvenile Justice: Repairing the Harm of Youth Crime , eds. G. Bazemore and L. Walgrave, Criminal Justice Press, 45-74.

Beyleveld, D. 1979. ‘Identifying, Explaining and Predicting Deterrence’. British Journal of Criminology 19:3, 205–224.

Calvert, B. 1993. ‘Locke on Punishment and the Death Penalty’. Philosophy 68:264,, 211–229.

Collins, J., N. Hall, and L. A. Paul. 2004. Causation and Counterfactuals. MIT Press.

Conway, D. A. 1995 (originally 1974). ‘Capital Punishment and Deterrence: Some Considerations in Dialogue Form’. In Punishment: A Philosophy and Public Affairs Reader , eds. J. Simmons, M. Cohen, J. Cohen, and C. R. Beitz. Princeton University Press, 261–273.

Diogenes Laertius. 1925. Lives of Eminent Philosophers. Vol. 2. Trans. R. D. Hicks. Loeb Classical Library. William Heinemann Ltd.

Ehrlich, I. 1975. ‘The Deterrent Effect of Capital Punishment: A Question of Life and Death’. American Economic Review 65:3, 397–417.

Fagan, A. 2016. ‘Human Rights’. In Chase B. Wrenn, The Internet Encyclopedia of Philosophy, ISSN 2161-0002. Available from http://www.iep.utm.edu/hum-rts/#H2 [Accessed 12 June 2017]

Fischer, J. M., ed. 1993. The Metaphysics of Death . Stanford University Press.

Goldman, A. H. 1995 (originally 1979). ‘The Paradox of Punishment’. In Punishment: A Philosophy and Public Affairs Reader , eds. J. Simmons, M. Cohen, J. Cohen, and C. R. Beitz. Princeton University Press, 30–46.

Hart, H. L. A. 1982. Essays on Bentham: Jurisprudence and Political Theory . Oxford University Press.

Ichinose, M. 2013. ‘Hybrid Nature of Causation’. In T. Uehiro, Ethics for the Future of Life: Proceedings of the 2012 Uehiro-Carnegie-Oxford Ethics Conference , the Oxford Uehiro Center for Practical Ethics, University of Oxford, 60-80.

———. 2016. ‘A Philosophical Inquiry into the Confusion over the Radiation Exposure Problem’. Journal of Disaster Research 11: No.sp, 770-779.

Lewis, D. 2004. ‘Void and Object’. In J. Collins, N. Hall, and L. A. Paul, Causation and Counterfactuals . MIT Press, 277–290.

Locke, J. 1960. Two Treatises of Government , ed. P. Laslett, Cambridge University Press.

———. 1975. An Essay concerning Human Understanding , ed. P. H. Nidditch. Oxford University Press.

Menzies, P. 2004. ‘Difference-Making in Context’. In J. Collins, N. Hall, and L. A. Paul, Causation and Counterfactuals . MIT Press, 139–180.

Pojman, L. P., and J. Reiman. 1998. The Death Penalty: For and Against. Rowman &Littlefield Publishers, Inc.

Scanlon, T. M. 1982. ‘Contractualism and utilitarianism’. In A. Sen and B. Williams, Utilitarianism and Beyond . Cambridge University Press, 103-128.,

Simmons, A. J. 1994. ‘Locke on the Death Penalty’. Philosophy 69:270, 471–477.

Strawson, G. 2008. ‘The Impossibility of Ultimate Moral Responsibility’. In Real Materialism. Oxford University Press, 319–331.

Tonry, M. 1994. ‘Proportionality, Parsimony, and Interchangeability of Punishments’. In A Reader on Punishment , eds. A. Duff and D. Garland. Oxford University Press, 133–160.

Van den Faag, E. 1995 (originally 1969). ‘On Deterrence and the Death Penalty’. In Punishment and the Death Penalty: The Current Debate , eds. R. M. Baird and S. E. Rosenbaum. Prometheus Books.

Von Hirsch, A. 1993. Censure and Sanctions. Oxford University Press.

Walen, A, 2015. ‘Retributive Justice’. The Stanford Encyclopedia of Philosophy (Summer 2015 Edition), Edward N. Zalta (ed.). Available from http://plato.stanford.edu/archives/sum2015/entries/justice-retributive/ [Accessed 12 June 2017]

Walker, N. 1980. Punishment, Danger and Stigma: The Morality of Criminal Justice . Barnes & Noble Books.

1. Strangely, few Locke scholars have seriously tried to understand the Lockean meaning of punishment, which is developed in his Second Treatise ,(Locke 1960), in the light of his theory of personal identity based upon ‘consciousness’, which is discussed in his Essay Concerning Human Understanding . Taking into account the fact that ‘person’ appears as the key word in both works of Locke, we must bridge the gap between his two works by rethinking the universal significance of ‘person’ in his arguments. There were, however, some controversies concerning how Locke evaluates the death penalty. See Calvert (1993) and Simmons (1994).

2. There is an additional question about whether justification is needed after the execution when the convict is no longer around, in addition to ‘before’ and ‘during’. According to my understanding of justification, the process of justification must begin with making each person concerned understand what there is no reason to reject, but that is just a starting, necessary point. Justification must go beyond the initial phase to acquiring general consent from society. In this sense, justification seems to be needed even ‘after’ the execution. Actually, if there is no need for justification after the execution, that sounds less like punishment based on a system of justice than merely physical disposal.

3. Is it true that the death penalty is the ultimate punishment? Can we not suppose that the death penalty is less harmful than a life sentence or very lengthy incarceration? However, this view regarding the death penalty as less harmful than a lifelong sentence could lead to a paradox. If this order of severity as punishment is valid, it may be possible to reduce the lifelong sentence (due to an amnesty, some consideration on the prisoner’s rehabilitation, or something like that) to the death penalty. If this is the case, prisoners given the lifelong sentence will not make an effort at all to rehabilitate themselves, due to fear of the sentence being reduced to the death penalty. In addition, if a person is likely to be sentenced to death, the person might try to commit a more heinous crime, perhaps even in the court in order to be given a more severe sentence, i.e. a life sentence in prison. That is a paradox drawn from human nature.

4. On the current debates on ‘HTD’ of Epicurus, see Fischer (1993). Of course, there are lots of objections against the Epicurean view. The most typical objection is that death deprives people of their chance to enjoy life, and therefore death is harmful. However, it seems to me that “whom-question” must be raised again here. To whom is the deprivation of this chance harmful? In any case, the metaphysics of death is a popular topic in contemporary philosophy, which should involve not only metaphysical issues but also ethical and epistemological problems.

5. In fact, the hardships suffered by those forced to flee to shelters constituted the main problem resulting from the nuclear power plants accident. In general, radiation exposure is the most well-known problemarising from nuclear power plant accidents, but it is not always the case. In particular in the case of the Fukushima nuclear power plant accident in Japan, the overestimation of the danger of radiation exposure, and evacuation activities resulting from that overestimation, caused the biggest and the most serious problems including many of the deaths. We always have to take the risk-tradeoff into account. Radiation exposure is just one risk, and is not the only risk to be considered. See Ichinose (2016).

6. The notion of parsimony was newly offered to avoid a fundamental drawback of the standard retributive system, whether based on cardinal or ordinal proportionality: the standard system tends to inflict excessive, cruel punishment, as its criterion of measuring wrongness is not exempt from being arbitrary. In contrast, the newly offered system could hold inflicted punishment ‘as minimally as possible, consistent with the vague limits of cardinal desert’ (Walen 2015) in terms of introducing an idea of parsimony. The notion of parsimony could make the retributive system of punishment more reasonable and humane while retaining the idea of retribution.

7. Roger Crisp kindly pointed out that it is worth considering an institutional justification according to which punishment wouldn’t have to be tailored to a particular case. In this view, it is sufficient that death is generally bad for both victims and perpetrators. I do not deny the practical persuasiveness of this view. However, from a more philosophical point of view, we should propose a question ‘how can we know that death is generally bad for victims of homicide?’ Following HTD, which is certainly one possible philosophical view, death is not bad at all, regardless of whether we talk about general issues or particular cases, as an agent to whom something is bad or not disappears by dying by definition. Of course, as long as we exclusively focus upon harm which the bereaved family or the society in general suffer, the institutional justification could make good sense, although in that case the issue of direct victims killed would remain untouched.

8. Additionally, my analogy with natural disasters, particularly the case of the 2011 quake, could be re-confirmed to be appropriate in the sense of presenting a similar kind of uncertainty to the case of the death penalty. The danger of constant exposure to low doses of radiation for long periods involves some uncertainty, as far as we now know. Fortunately, however, the dose of radiation to which the people of Fukushima were exposed as a result of the 2011 quake, internally and externally, was low enough for us to be certain, based upon past epidemiological research, that no health problems will arise in the future. Regarding radiation exposure, everything depends upon the level of dose. The smaller the dose, the less dangerous it is.

9. On negative causation and the possibility of common cause, see Ichinose (2013). In particular, my argument on negative causation concerning the death penalty rests on my argument of Ichinose (2013).

10. According to Bazemore and Walgrave, ‘restorative justice is every action that is primarily oriented towards doing justice by repairing the harm that has been caused by a crime (Bazemore and Walgrave 1999 (2), p.48). Restorative justice, that is to say, is a justice system that mainly aims at restoring or repairing the harm of offences rather than punishing offenders as the retributive justice system does. Initially, restorative justice has been carried out by holding ‘a face-to-face meeting between the parties with a stake in the particular offense’ (ibid.) like victim, offenders, or victimised communities. However, this type of justice system works only in a complementary way to the traditional system of retributive justice. Then, the maximalist approach to restorative justice was proposed, which seeks to develop ‘restorative justice as a fully-fledged alternative’(Bazemore and Walgrave 1999 (1). Introduction. P.8) to retributive justice. This approach ‘will need to include the use of coercion and a formalization of both procedures and the relationship between communities and society’ (ibid., p.9.)

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.

You are using an outdated browser. Please upgrade your browser to improve your experience.

International law and the death penalty

• Professional Resources

The use of capital punishment has been an issue addressed by international human rights law since the earliest days of the United Nations. The Universal Declaration of Human Rights, adopted by the General Assembly in 1948, and an instrument widely recognised as the gold standard for human rights, affirms the right to life and the prohibition of torture and cruel, inhuman or degrading treatment or punishment.

The Death Penalty Project produced this resource on international law and the death penalty. Download or view the document online.

Related Resources

Stay up-to-date with our work

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.

Death Penalty - ACLU Position Paper

Related issues.

• Capital Punishment
• Mass Incarceration
• Smart Justice

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.

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 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

15 Biggest NGOs in Canada

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.

March 19, 2024

Evidence Does Not Support the Use of the Death Penalty

Capital punishment must come to an end. It does not deter crime, is not humane and has no moral or medical basis

By The Editors

A death penalty vigil, held in 2021 outside an Indiana penitentiary.

Bryan Woolston/Reuters/Redux

It is long past time to abolish the death penalty in the U.S.

Capital punishment was halted in the U.S. in 1972 but reinstated in 1976, and since then, nearly 1,600 people have been executed. To whose gain? Study after study shows that the death penalty does not deter crime, puts innocent people to death , is racially biased , and is cruel and inhumane. It is state-sanctioned homicide, wholly ineffective, often botched, and a much more expensive punishment than life imprisonment. There is no ethical, scientifically supported, medically acceptable or morally justifiable way to carry it out.

The recent execution of Kenneth Eugene Smith demonstrates this barbarity. After a failed attempt at lethal injection by prison officials seemingly inexperienced in the placement of an IV, the state of Alabama killed Smith in January using nitrogen gas . The Alabama attorney general claimed that this method of execution was fast and humane , despite no supporting evidence. Eyewitnesses recounted that Smith thrashed during the nitrogen administration and took more than 20 minutes to die.

On supporting science journalism

If you're enjoying this article, consider supporting our award-winning journalism by subscribing . By purchasing a subscription you are helping to ensure the future of impactful stories about the discoveries and ideas shaping our world today.

Opposition to the death penalty is growing among the American public , and the Biden administration must follow through on its promise to end this horror. The Department of Justice must heed its own admission that the death penalty doesn’t stop crime, and our legislators must continue to take up the issue on the congressional floor. The few states that still condemn people to death must follow the lead of states that have considered the evidence and rejected capital punishment.

Programs such as the Innocence Project have shown, over and over, that innocent people have been sentenced to death. Since 1973 nearly 200 people on death row have been exonerated, based on appeals, the reopening of cases, and the entrance of new and sometimes previously suppressed evidence. People have recanted testimony, and supposedly airtight cases have been poked full of evidentiary holes.

Through the death penalty, the criminal justice system has killed at least 20 people now believed to have been innocent and uncounted others whose cases have not been reexamined . Too many of these victims have been Black or Hispanic. This is not justice. These are state-sanctioned hate crimes.

Using rigorous statistical and experimental control methods, both economics and criminal justice studies have consistently found that there is no evidence for deterrence of violent crimes in states that allow capital punishment. One such study, a 2009 paper by criminology researchers at the University of Dallas, outlines experimental and statistical flaws in econometrics-based death penalty studies that claim to find a correlated reduction in violent crime. The death penalty does not stop people from killing. Executions don’t make us safer.

The methods used to kill prisoners are inhumane. Electrocution fails , causing significant pain and suffering. Joel Zivot, an anesthesiologist who criticizes the use of medicines in carrying out the death penalty, has found (at the request of lawyers of death row inmates) that the lungs of prisoners who were killed by lethal injection were often heavy with fluid and froth that suggested they were struggling to breathe and felt like they were drowning. Nitrogen gas is used in some veterinary euthanasia, but based in part on the behavior of rats in its presence, it is “unacceptable” for mammals , according to the American Veterinary Medical Association. This means that Smith, as his lawyers claimed in efforts to stop his execution, became a human subject in an immoral experiment.

Courts have often decided, against the abundant evidence, that these killings are constitutional and do not fall under the “cruel and unusual punishment” clause of the 8th Amendment or, in Smith’s appeal , both the 8th Amendment and the due process protection clause of the 14th amendment.

A small number of prosecutors and judges in a few states, mostly in the South, are responsible for most of the death sentences being handed down in the U.S. today. It’s a power they should not be able to wield. Smith was sentenced to life in prison by a jury before the judge in his case overruled the jury and gave him the death sentence.

A furious urge for vengeance against those who have done wrong—or those we think have done wrong—is the biggest motivation for the death penalty. But this desire for violent retribution is the very impulse that our criminal justice system is made to check, not abet. Elected officials need to reform this aspect of our justice system at both the state and federal levels. Capital punishment does not stop crime and mocks both justice and humanity. The death penalty in the U.S. must come to an end.

This is an opinion and analysis article, and the views expressed by the author or authors are not necessarily those of Scientific American .

Read our research on: Abortion | Podcasts | 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.

Sign up for our Politics newsletter

Sent weekly on Wednesday

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 .

The Philippines is one of 140 countries that have abolished the death penalty either in law or in practice, as part of a global trend away from capital punishment (Amnesty International, 2015, cited in “The Death Penalty Worldwide”). Yet there have been repeated calls for the Philippines to reinstate capital punishment, with current Philippine President Rodrigo Duterte wanting to restore it. (see Andolong, CNN Philippines, 2016).

We present the following arguments to support our position:

• Observations about the practice of capital punishment point to its discriminatory nature. In the Philippines, it is typically the poorer sector who get this ultimate penal sanction. The majority of those sentenced to die have incomes below minimum wage (FLAG, 2000), unable to afford the legal services to defend themselves in a long process (CHR, 2007). Poorer, less educated Filipinos would not have the intellectual preparedness to think through ways of defending themselves (Te, 1996). This places them at a serious disadvantage.
• Judicial flaws compromise the validity of the death penalty. These may include incompetent counsel, inadequate investigatory services, or even outright police and prosecutorial violations of judicial procedures. In the Philippines, torture or ill treatment of suspects to coerce confessions or to implicate others is commonplace. Victims often fail to lodge complaints against the police due to intimidation, fear of reprisals, and lack of funds (Amnesty International, 2002).
• History also points to gross misapplications of the death penalty law, with vulnerable individuals protected by Philippine law from capital punishment finding themselves on death row. In 2003, there were 7 children in death row along with adult convicts (Amnesty International, 2003). The year 2000 saw 5 persons aged 70 or over in death row (FLAG, 2000, cited in Amnesty International, 2002). These examples show that it is not always certain whether the right person is convicted and, in this light, the death penalty is too high a price to pay when innocent people are convicted.

The death penalty, and the legal proceedings leading up to it, could exact a huge toll on the psychological wellbeing of victims, offenders, and their families. Majority of those on death row in the Philippines have been convicted of rape, with incestuous rape as the most common form. Victims of incestuous rape rarely seek the death of their offender but simply desire cessation of abuse, re-establishment of safety, and rehabilitation of their family member. A possible death penalty sentence for these cases has been noted to keep victims from pursuing charges, and a death sentence for the offender can bring guilt to the victim, further sorrow, and conflict within affected families (Madrid et. al., 2001; People v Agbayani, 348 Phil. 368, 1998; Jamon and Bautista, 2016). In fact, majority of groups representing women and children in the Philippines, who are common victims of death penalty crimes, have taken a stance against capital punishment for rape and incest because they believe it would not solve the problem (Kandelia, 2006).

A common argument for the death penalty is that it brings closure to victims and their loved ones. Indeed, research shows that some families do experience relief or peace upon imposition of the death penalty on their offenders. Yet in significant number of cases, the death penalty did not bring healing or closure to the offended (Vollum and Longmire, 2007). Instead, what seem to be therapeutic for victims’ families are to make sense of what happened to their loved one, to make meanings out of their unpleasant experience, and to construct an empowering and restorative narrative (Armour and Umbreit, 2012).

The judicial system’s primary goals should be the rehabilitation of those who have erred and the restoration of a sense of dignity in those robbed of it. This is more in line with the human right to dignity and the absolute value of all human lives, including the lives of those who commit crimes. The PAP’s position on the death penalty is consistent with its Code of Ethics, particularly the principle of Respect for the Dignity of Persons and Peoples , consonant with the Universal Declaration of Human Rights (PAP, 2010).

Extending the human rights logic, the right to life prevails over the principle of lex talionis (i.e. an eye for an eye). Even retributive justice, which posits that offenders must be punished and that the degree of punishment should be proportionate to the seriousness of crime, does not automatically and necessarily indicate death as the ultimate penal sanction (Carlsmith, Darley, and Robinson, 2002), leaving a key question for research about the appropriate maximal penalty for the most serious crimes. Moral proportionality (Carlsmith et al., 2002) need not be deemed opposed to principles of restorative justice and therapeutic jurisprudence (see King, 2009). It is the task of research to help illumine how multiple perspectives representing both abstract principles and people’s everyday sense and decision-making (Carlsmith et al., 2002) could guide practices of prevention and rehabilitation.

Given all these, we oppose the reinstatement of the death penalty. Furthermore, we resolve to support efforts to:

• disseminate evidence-based information on capital punishment, especially its effects on psychological health;

• protect the rights and promote the welfare of vulnerable individuals especially against police and prosecutorial violations of judicial procedures;

• conduct psychological research on alternative maximal sanctions and therapeutic dimensions of judicial processes for victims, offenders, and their loved ones; and

• develop programs that aid in the redemptive rehabilitation of offenders, that support victims and their loved ones through and in the aftermath of judicial processes, and that foster the psychological wellbeing of these persons.

R EFERENCES

Amnesty International (2003). Something Hanging Over my Head: Child Offenders Under Sentence of Death. Retrieved from https://www.amnesty.org/en/documents/ASA35/014/2003/en/

Amnesty International (2002). Philippines: Death penalty briefing. Retrieved from ttps:// www.amnesty.org/download/Documents/116000/asa350102002en.pdf

Andolong, I. (2016). Duterte wants to restore death penalty by hanging. News report. CNN Philippines. Retrieved at http://cnnphilippines.com/news/2016/05/16/Duterte-death-penalty-by-hanging.html

Armour, M.P. and Umbreit, M.S. (2012). Assessing the impact of the ultimate penal sanction on homicide comparison: A two state comparison. Marquette law review, 96 (1) . Available at http://scholarship.law.marquette.edu/mulr/vol96/iss1/3

Carlsmith, K. M., Darley, J. M., & Robinson, P. H. (2002). Why do we punish?: Deterrence and just deserts as motives for punishment. Journal of personality and social psychology , 83 (2), 284.

Kandelia, S. (2006). Incestuous rape and the death penalty in the Philippines: Psychological and legal implications. Philippine law journal, 80, 697-710.

King, M. S. (2009). Restorative justice, therapeutic jurisprudence and the rise of emotionally intelligent justice. Monash University Faculty of Law Legal Studies Research Paper , (2009/11), 1096.

Madrid, B., H. Spader, R.Spiegel, A. Fernandez and V. Herrera (2001). Examining the mandatory death penalty for familial child perpetrators: An academic treatise for physicians.

No Author (n.d.). The death penalty worldwide. Retrieved from http://www.infoplease.com/ipa/A0777460.html

People v Agbayani (1998). Phil. 368.

Psychological Association of the Philippines Scientific and Professional Ethics Commitee. (2010). Code of ethics for Philippines psychologists. Philippine Journal of Psychology, 43 (2), 195-217.

Vollum, S., & Longmire, D. R. (2007). Co-victims of capital murder: Statements of victims' family members and friends made at the time of execution. Violence and victims , 22 (5), 601-619.

• [email protected]
• +632 8244-90-53
• +63 915 422 5189 - Globe
• +63 947 571 7629 - Smart
• Certified Specialists
• Special Awards and Grants
• Publications
• Registration

PUBLIC ADVISORY

Hi Members! , Kindly Note that the registration and login for www.pap.ph are now redirected to www.portal.pap.ph. For our valued members, please login your credentials like you would before and proceed to your account update.

If problems occur, please contact: [email protected] Thank you.

Please click "I have read and understood" to bring you to the login/registration page.

Advertisement

Supported by

Russia Has No Formal Death Penalty. Some Want to Change That.

Some prominent Russians are calling for the execution of those responsible for the massacre at a concert hall near Moscow, and an end to Russia’s 28-year moratorium on capital punishment.

• Share full article

By Valeriya Safronova

The attack at a concert hall just outside Moscow that killed 139 people last Friday has prompted some Russians to call for bringing back capital punishment in Russia, and to execute the assailants.

Through a combination of presidential action and court rulings, Russia has had a moratorium on the death penalty for 28 years. And yet capital punishment remains on the books — suspended but not abolished outright.

Russian officials disagree on whether and how it could be resurrected, and the country’s Constitutional Court said on Tuesday that it would look into the matter.

Here is a look at where the issue stands.

Who is advocating or opposing the death penalty?

A number of public figures have demanded execution of the concert hall attackers, described by officials as militant Islamists from Tajikistan, in Central Asia.

On Monday, Dmitri A. Medvedev, a former president and prime minister of Russia, wrote on Telegram : “Is it necessary to kill them? Necessary. And it will be done.”

He added that everyone who was involved in the attacks, including those who funded and supported them, should be killed.

Such calls have surfaced periodically, particularly after terrorist attacks, but it is not clear how widespread support for them is. And they have prominent opponents, too.

Lidia Mikheeva, the secretary of the Civic Chamber, a government advisory group, told the state news agency Tass that ending the death penalty was one of the most important accomplishments in modern Russian history. “If we don’t want to roll back to a time of savagery and barbarism, then we should all stop and think,” she said.

Where does Putin stand?

Nothing is likely to change without the say-so of Vladimir V. Putin, the autocratic president who largely controls the Parliament. He has publicly, repeatedly opposed the death penalty in years past.

Mr. Putin and his security apparatus have often been accused of killing or trying to kill his enemies, at home or abroad — journalists , political opponents , business leaders, former spies and others. The opposition leader Aleksei A. Navalny, who survived an assassination attempt with a nerve agent, died last month in a Russian prison system that his allies said had mistreated him and denied him medical care.

And yet in 2002, Mr. Putin said , “as long as it’s up to me, there will be no death penalty in Russia,” though he said reinstating it would be popular. In 2007, he said at a conference that formal capital punishment was “senseless and counterproductive,” according to Russian media reports . In 2022, he said his position “has not changed.”

As for the debate after the concert hall massacre, “We are not currently taking part in this discussion,” said Dmitri S. Peskov, the Kremlin spokesman, according to Tass .

How did the moratorium start, and how has it continued?

The Soviet Union was one of the world’s most frequent users of capital punishment, and after the country broke up, Russia continued to carry out executions.

But in 1996, to win admission to the Council of Europe, a human rights group, President Boris N. Yeltsin, Mr. Putin’s predecessor, agreed to place a moratorium on the death penalty and to completely abolish it within three years.

Russia’s Parliament did not go along with the plan. It did not ratify the European Convention on Human Rights, which Mr. Yeltsin’s government had signed, and it adopted a new criminal code that kept capital punishment as an option.

In 1999, the Constitutional Court stepped in, ruling that until jury trials were in place across Russia, the death penalty could not be used. In 2009, after jury trials had been instituted, the court ruled the moratorium would remain in effect, abiding by the Council of Europe’s rules, in part because more than a decade without capital punishment had given people an expectation that it would not be used.

“Stable guarantees of the human right not to be subjected to the death penalty have been formed and a constitutional and legal regime has emerged,” the court wrote .

What would be required to resume executions?

That is unclear.

After Russia invaded Ukraine in 2022, the Council of Europe expelled Russia , meaning Moscow was no longer considered a party to its human rights convention — the original basis for the moratorium.

At the time, Valeriy D. Zorkin, the head of the Constitutional Court, said that bringing back the death penalty back would be impossible without adopting a new Constitution.

“Despite the current extraordinary situation, I think it would be a big mistake to turn away from the path of humanization of legislative policy that we have generally followed in recent decades,” he said in a lecture at the St. Petersburg International Legal Forum. “And, in particular, a rejection of the moratorium on the death penalty in Russia, which some politicians are already calling for, would now be a very bad signal to society.”

But some politicians insisted that without the human rights convention as a barrier, capital punishment could be reinstated without any constitutional change.

That position voiced this week by Vyacheslav V. Volodin, speaker of the Duma, the lower house of Russia’s Parliament. The Constitutional Court, he said, could lift the moratorium.

“Me and you all, we left the Council of Europe, right? Right,” he said.