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The research on capital punishment: Recent scholarship and unresolved questions

2014 review of research on capital punishment, including studies that attempt to quantify rates of innocence and the potential deterrence effect on crime.

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by Alexandra Raphel and John Wihbey, The Journalist's Resource January 5, 2015

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Over the past year the death penalty has again come into focus as a major public policy and political issue, catalyzed by several high-profile events.

The botched execution of convicted murderer and rapist Clayton Lockett in Oklahoma in 2014 was seen as a potential turning point in the debate, bringing increased attention to the mechanisms by which persons are executed. That was followed by a number of other closely scrutinized cases, and the year ended with few executions relative to years past. On December 31, 2014, Maryland Gov. Martin O’Malley commuted the sentences of the remaining four prisoners on death row in that state. In 2013, Maryland became the 18th state to abolish the death penalty after Connecticut in 2012 and New Mexico in 2009.

Meanwhile, polling data suggests some softening of public attitudes, though the majority Americans continue to support capital punishment. Gallop noted in October 2014 that the level of public support (60%) is at its lowest in 40 years. A Washington Post -ABC News poll in mid-2014 found that more Americans support life sentences, rather than the death penalty, for convicted murderers. Further, recent polls from the Pew Research Center indicate that only a bare majority of Americans now support capital punishment, 55%, down from 78% in 1996.

Scholarly research sheds light on a number of important aspects of this issue:

False convictions

One key reason for the contentious debate is the concern that states are executing innocent people. How many people are unjustly facing the death penalty? By definition, it is difficult to obtain a reliable answer to this question. Presumably if judges, juries, and law enforcement were always able to conclusively determine who was innocent, those defendants would simply not be convicted in the first place. When capital punishment is the sentence, however, this issue takes on new importance.

Some believe that when it comes to death-penalty cases, this is not a huge cause for concern. In his concurrent opinion in the 2006 Supreme Court case Kansas v. Marsh , Justice Antonin Scalia suggested that the execution error rate was minimal, around 0.027%. However, a 2014 study in the Proceedings of the National Academy of Sciences suggests that the figure could be higher. Authors Samuel Gross (University of Michigan Law School), Barbara O’Brien (Michigan State University College of Law), Chen Hu (American College of Radiology) and Edward H. Kennedy (University of Pennsylvania School of Medicine) examine data from the Bureau of Justice Statistics and the Department of Justice relating to exonerations from 1973 to 2004 in an attempt to estimate the rate of false convictions among death row defendants. (Determining innocence with full certainty is an obvious challenge, so as a proxy they use exoneration — “an official determination that a convicted defendant is no longer legally culpable for the crime.”) In short, the researchers ask: If all death row prisoners were to remain under this sentence indefinitely, how many of them would have eventually been found innocent (exonerated)?

Interestingly, the authors also note that advances in DNA identification technology are unlikely to have a large impact on false conviction rates because DNA evidence is most often used in cases of rape rather than homicide. To date, only about 13% of death row exonerations were the result of DNA testing. The Innocence Project , a litigation and public policy organization founded in 1992, has been deeply involved in many such cases.

Death penalty deterrence effects: What do we know?

A chief way proponents of capital punishment defend the practice is the idea that the death penalty deters other people from committing future crimes. For example, research conducted by John J. Donohue III (Yale Law School) and Justin Wolfers (University of Pennsylvania) applies economic theory to the issue: If people act as rational maximizers of their profits or well-being, perhaps there is reason to believe that the most severe of punishments would serve as a deterrent. (The findings of their 2009 study on this issue, “Estimating the Impact of the Death Penalty on Murder,” are inconclusive.) In contrast, one could also imagine a scenario in which capital punishment leads to an increased homicide rate because of a broader perception that the state devalues human life. It could also be possible that the death penalty has no effect at all because information about executions is not diffused in a way that influences future behavior.

In 1978 — two years after the Supreme Court issued its decision reversing a previous ban on the death penalty ( Gregg v. Georgia ) — the National Research Council (NRC) published a comprehensive review of the current research on capital punishment to determine whether one of these hypotheses was more empirically supported than the others. The NRC concluded that “available studies provide no useful evidence on the deterrent effect of capital punishment.”

Researchers have subsequently used a number of methods in an effort to get closer to an accurate estimate of the deterrence effect of the death penalty. Many of the studies have reached conflicting conclusions, however. To conduct an updated review, the NRC formed the Committee on Deterrence and the Death Penalty, comprised of academics from economics departments and public policy schools from institutions around the country, including the Carnegie Mellon University, University of Chicago and Duke University.

In 2012, the Committee published an updated report that concluded that not much had changed in recent decades: “Research conducted in the 30 years since the earlier NRC report has not sufficiently advanced knowledge to allow a conclusion, however qualified, about the effect of the death penalty on homicide rates.” The report goes on to recommend that none of the reviewed reports be used to influence public policy decisions on the death penalty.

Why has the research not been able to provide any definitive answers about the impact of the death penalty? One general challenge is that when it comes to capital punishment, a counter-factual policy is simply not observable. You cannot simultaneously execute and not execute defendants, making it difficult to isolate the impact of the death penalty. The Committee also highlights a number of key flaws in the research designs:

• There are both capital and non-capital punishment options for people charged with serious crimes. So, the relevant question on the deterrent effect of capital punishment specifically “is the differential deterrent effect of execution in comparison with the deterrent effect of other available or commonly used penalties.” None of the studies reviewed by the Committee took into account these severe, but noncapital punishments, which could also have an effect on future behaviors and could confound the estimated deterrence effect of capital punishment.
• “They use incomplete or implausible models of potential murderers’ perceptions of and response to the capital punishment component of a sanction regime”
• “The existing studies use strong and unverifiable assumptions to identify the effects of capital punishment on homicides.”

In a 2012 study, “Deterrence and the Dealth Penalty: Partial Identificaiton Analysis Using Repeated Cross Sections,” authors Charles F. Manski (Northwestern University) and John V. Pepper (University of Virginia) focus on the third challenge. They note: “Data alone cannot reveal what the homicide rate in a state without (with) a death penalty would have been had the state (not) adopted a death penalty statute. Here, as always when analyzing treatment response, data must be combined with assumptions to enable inference on counterfactual outcomes.”

However, even though the authors do not arrive at a definitive conclusion, the National Research Council Committee notes that this type of research holds some value: “Rather than imposing the strong but unsupported assumptions required to identify the effect of capital punishment on homicides in a single model or an ad hoc set of similar models, approaches that explicitly account for model uncertainty may provide a constructive way for research to provide credible albeit incomplete answers.”

Another strategy researchers have taken is to limit the focus of studies on potential short-term effects of the death penalty. In a 2009 paper, “The Short-Term Effects of Executions on Homicides: Deterrence, Displacement, or Both?” authors Kenneth C. Land and Hui Zheng of Duke University, along with Raymond Teske Jr. of Sam Houston State University, examine monthly execution data (1980-2005) from Texas, “a state that has used the death penalty with sufficient frequency to make possible relatively stable estimates of the homicide response to executions.” They conclude that “evidence exists of modest, short-term reductions in the numbers of homicides in Texas in the months of or after executions.” Depending on which model they use, these deterrent effects range from 1.6 to 2.5 homicides.

The NRC’s Committee on Deterrence and the Death Penalty commented on the findings, explaining: “Land, Teske and Zheng (2009) should be commended for distinguishing between periods in Texas when the use of capital punishment appears to have been erratic and when it appears to have been systematic. But they fail to integrate this distinction into a coherently delineated behavioral model that incorporates sanctions regimes, salience, and deterrence. And, as explained above, their claims of evidence of deterrence in the systematic regime are flawed.”

A more recent paper (2012) from the three authors, “The Differential Short-Term Impacts of Executions on Felony and Non-Felony Homicides,” addresses some of these concerns. Published in Criminology and Public Policy , the paper reviews and updates some of their earlier findings by exploring “what information can be gained by disaggregating the homicide data into those homicides committed in the course of another felony crime, which are subject to capital punishment, and those committed otherwise.” The results produce a number of different findings and models, including that “the short-lived deterrence effect of executions is concentrated among non-felony-type homicides.”

Other factors to consider

The question of what kinds of “mitigating” factors should prevent the criminal justice system from moving forward with an execution remains hotly disputed. A 2014 paper published in the Hastings Law Journal , “The Failure of Mitigation?” by scholars at the University of North Carolina and DePaul University, investigates recent executions of persons with possible mental or intellectual disabilities. The authors reviewed 100 cases and conclude that the “overwhelming majority of executed offenders suffered from intellectual impairments, were barely into adulthood, wrestled with severe mental illness, or endured profound childhood trauma.”

Two significant recommendations for reforming the existing process also are supported by some academic research. A 2010 study by Pepperdine University School of Law published in Temple Law Review , “Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions,” surveyed the decision-making process among various state prosecutors. At the request of a state commission, the authors first surveyed California district attorneys; they also examined data from the other 36 states that have the death penalty. The authors found that prosecutors’ capital punishment filing decisions remain marked by local “idiosyncrasies,” meaning that “the very types of unfairness that the Supreme Court sought to eliminate” beginning in 1972 may still “infect capital cases.” They encourage “requiring prosecutors to adhere to an established set of guidelines.” Finally, there has been growing support for taping interrogations of suspects in capital cases, so as to guard against the phenomenon of false confessions .

Related reading: For an international perspective on capital punishment, see Amnesty International’s 2013 report ; for more information on the evolution of U.S. public opinion on the death penalty, see historical trends from Gallup .

Keywords: crime, prisons, death penalty, capital punishment

About the Authors

Alexandra Raphel

John Wihbey

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Article Contents

Imperatives, acknowledgements.

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A Factful Perspective on Capital Punishment

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David T Johnson, A Factful Perspective on Capital Punishment, Journal of Human Rights Practice , Volume 11, Issue 2, July 2019, Pages 334–345, https://doi.org/10.1093/jhuman/huz018

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Substantial progress has been made towards worldwide abolition of capital punishment, and there are good reasons to believe that more progress is possible. Since 2000, the pace of abolition has slowed, but by several measures the number of executions in the world has continued to decline. Several causes help explain the decline, including political leadership from the front and an increased tendency to regard capital punishment as a human rights issue rather than as a matter of domestic criminal justice policy. There are significant obstacles in the movement to eliminate state killing in the world, but some strategies could contribute to additional decline in the years to come.

People tend to notice the bad more than the good, and this ‘negativity instinct’ is apparent when it comes to capital punishment ( Rosling et al. 2018 : 48). For example, two decades ago, Leon Radzinowicz (1999 : 293), the founder of Cambridge University’s Institute of Criminology, declared that he ‘did not expect any substantial further decrease’ in the use of capital punishment because ‘most of the countries likely to embrace the abolitionist cause’ had already done so. In more recent years, other analysts have claimed that the human rights movement is in crisis, and that ‘nearly every country seems to be backsliding’ ( Moyn 2018 ). If this assessment is accurate, it should be cause for concern for opponents of capital punishment because a heightened regard for human rights is widely regarded as the key cause of abolition since the 1980s ( Hood and Hoyle 2009 ).

To be sure, everything is not fine with respect to capital punishment. Most notably, the pace of abolition has slowed in recent years, and executions have increased in several countries, including Iran and Taiwan (in the 2010s), Pakistan (2014–15), and Japan (2018). But too much negativity will not do. I adopt a factful perspective about the future of capital punishment: I see substantial progress toward worldwide abolition, and this gives me hope that further progress is possible ( Rosling et al. 2018 ).

This article builds on Roger Hood’s seminal study of the movement to abolish capital punishment, which found ‘a remarkable increase in the number of abolitionist countries’ in the 1980s and 1990s ( Hood 2001 : 331). It proceeds in four parts. Section 1 shows that in the two decades or so since 2000 the pace of abolition has slowed but not ceased, and the total number of executions in the world has continued to decline. Section 2 explains how death penalty declines have been achieved in recent years. Section 3 identifies obstacles in the movement toward elimination of state killing in the modern world. And Section 4 suggests some priorities and strategies that could contribute to additional decline in the death penalty in the third decade of the third millennium.

These examples exclude estimates for the People’s Republic of China, which does not disclose reliable death penalty figures, but which probably executes more people each year than the rest of the world combined.

Table 1 displays the number of countries with each of these four death penalty statuses in five years: 1988, 1995, 2000, 2007, and 2017. Overall, the percentage of countries to retain capital punishment has declined by half over that period, from 56 per cent in 1988 to 28 per cent in 2017. But Table 2 shows that the pace of abolition has slowed since the 1990s, when 37 countries abolished. By comparison, only 23 countries abolished in the 2000s, with 11 more countries abolishing in the first eight years of the 2010s. The pace of abolition has declined partly because much of the lowest hanging fruit has already been picked.

Number of abolitionist and retentionist countries, 1988–2017

Note : Figures in parentheses show the percentage of the total number of countries in the world in that year.

Sources : Hood 2001 : 334 (for 1988, 1995, and 2000); Amnesty International annual reports (for 2007 and 2017).

Number of Countries That Abolished the Death Penalty by Decade, 1980s – 2010s

Sources : Death Penalty Information Center; Amnesty International annual reports.

Table 3 uses Hood’s figures for 1980 to 1999 ( Hood 2001 : 335) and figures from Hands Off Cain and Amnesty International to report the estimated number of executions and death sentences worldwide from 1980 to 2017. Because several countries (including China, the world’s leading user of capital punishment) do not disclose reliable death penalty statistics, the figures in Table 3 cannot be considered precise measures of death sentencing and execution trends over time, but the numbers do suggest recent declines. For instance, the average number of death sentences per year in the 2010s (2,220) was less than half the annual average for the 2000s (4,576). Similarly, the average number of executions per year in the 2010s (867) was less than half the annual average for the 2000s (1,762). Moreover, while the average number of countries per year to impose a death sentence remained fairly flat in the four decades covered in Table 3 (58 countries in the 1980s, 68 in the 1990s, 56 in the 2000s, and 58 in the 2010s), the average number of countries per year which carried out an execution declined by about one-third, from averages of 37 countries in the 1980s and 35 countries in the 1990s, to 25 countries in the 2000s and 23 countries in the 2010s. In short, fewer countries are using capital punishment, and fewer people are being condemned to death and executed.

Number of death sentences and executions worldwide, 1980–2017

Notes : (a) The numbers of reported and recorded death sentences and executions are minimum figures, and the true totals are substantially higher. (b) In 2009, Amnesty International stopped publishing estimates of the minimum number of executions per year in China.

Sources : Hood 2001 : 335 (1980–1999); Hands Off Cain (2001); Amnesty International annual reports (2002–2017).

In 2001, Hood (2001 : 336) reported that 26 countries had executed at least 20 persons in the five-year period 1994–1998. Table 4 compares those figures with figures for the same 26 countries in 2013–2017, and it also presents the annual rate of execution per million population for each country (in parentheses). The main pattern is striking decline. In 2009, Amnesty International stopped publishing estimates of the minimum number of executions per year in the People’s Republic of China, so trend evidence from that source is unavailable, but other sources indicate that executions in China have declined dramatically in the past two decades, from 15,000 or more per year in the late 1990s and early 2000s ( Johnson and Zimring 2009 : 237), to approximately 2,400 in 2013 ( Grant 2014 ) and 2,000 or so in 2016. Of the other 25 countries in Hood’s list of heavy users of capital punishment in the 1990s, 11 saw executions disappear (Ukraine, Turkmenistan, Russia, Kazakhstan, Congo, Sierra Leone, Kyrgyzstan, South Korea, Libya, Rwanda, and Zimbabwe), eight had the execution rate decline by half or more (USA, Nigeria, Singapore, Belarus, Taiwan, Yemen, Jordan, Afghanistan), and two experienced more modest declines (Saudi Arabia and Egypt). Altogether, 22 of the 26 heavy users of capital punishment in the latter half of the 1990s have experienced major declines in executions. Of the remaining four countries, one (Japan) saw its execution rate remain stable until executions surged when 13 former members of Aum Shinrikyo were hanged in July 2018 (for murders and terrorist attacks committed in the mid-1990s), while three (Iran, Pakistan, and Viet Nam) experienced sizeable increases in both executions and execution rates.

Executions and execution rates by country, 1994–1998 and 2013–2017

a The figure of 429 executions for Viet Nam is for the three years from August 2013 to July 2016.

Notes: Countries reported to have executed at least 20 persons in 1994–1998, and execution figures for the same countries in 2013–2017 (with annual rates of execution per million population for both periods in parentheses).

As explained in the text, in addition to the 26 countries that appeared in Table 3 of Hood (2001 : 336), India had at least 24 judicial executions in 1994–1998, Indonesia had four, and Iraq had an unknown number. The comparable figures for these countries in 2013–2017 (with the execution rate per million population in parentheses) are India = 2 (0.0003), Indonesia = 23 (0.09), and Iraq = 469 (2.78).

Sources : Hood 2001 : 336 (1994–1998); Amnesty International (2013–2017); the Death Penalty Database of the Cornell Center on the Death Penalty Worldwide (for India, Indonesia, and Iraq); Johnson and Zimring 2009 : 430 (for India 1994–1998).

The execution rate increases in Table 4 are striking but exceptional. In Iran, the fourfold increase in the execution rate gives it the highest per capita execution rate in the world for 2013–2017, with 6.68 executions per million population per year. This is approximately four times higher than the estimated execution rate for China (1.5) in the same period. The increase in Viet Nam is also fourfold, from 0.38 executions per million population per year to 1.5, while the increase in Pakistan is tenfold, from 0.05 to 0.49. Nonetheless, Viet Nam’s substantially increased execution rate in the 2010s would not have ranked it among the top ten executing nations in the 1990s, while Pakistan’s increased rate in the 2010s would not have ranked it among the top 15 nations in the 1990s. Even among the heaviest users of capital punishment, times have changed.

At least two countries that did not appear on Hood’s heavy user list for the 1990s executed more than 20 people in 2013–2017. The most notable newcomer is Iraq, which executed at least 469 persons in this five-year period, with an execution rate of 2.78 per million population per year. And then there is Indonesia. In the five years from 1994 to 1998, this country (with the world’s largest Muslim population) executed a total of four people, while in 2013–2017 the number increased to 23, giving it an execution rate of 0.09 per year per million population—about the same as the (low) execution rates in Japan and Taiwan.

When Iraq and Indonesia are added to the heavy user list for 2013–2017, only five countries out of 28 have execution rates that exceed one execution per year per million population, giving them death penalty systems that can be deemed ‘operational’ in the sense that ‘judicial executions are a recurrent and important part’ of their criminal justice systems ( Johnson and Zimring 2009 : 22). By contrast, in 1994–1998, 14 of these 28 countries had death penalty systems that were ‘operational’.

India is a country with a large population that does not appear on the frequent executing list for either the 1990s or the 2010s. In 2013–2017, this country of 1.3 billion people executed only two people, giving it what is probably the lowest execution rate (0.0003) among the 56 countries that currently retain capital punishment. India has long used judicial execution infrequently, but its police and security forces continue to kill in large numbers. In the 22 years from 1996 through 2017, India’s legal system hanged only four people, giving it an annual rate of execution that is around 1/25,000th the rate of executions in China. But over the same period, India’s police and security forces have killed thousands illegally and extrajudicially, many in ‘encounters’ that officials try to justify with the lie that the bad guy fired first.

Two fundamental forces have been driving the death penalty down in recent decades ( Johnson and Zimring 2009 : 290–304). First, while prosperity is neither a necessary nor a sufficient condition for abolition, economic development does tend to encourage declines in judicial execution and steps toward the cessation of capital punishment. Second, the general political orientation of government often has a strong influence on death penalty policy, at both ends of the execution spectrum. High-execution rate nations tend to be authoritarian, as in China, Viet Nam, North Korea, Singapore, Saudi Arabia, Iran, and Iraq. Conversely, low-execution rate nations tend to be democracies with institutionalized limits on governmental power, as in most of the countries of Europe and in Australia, New Zealand, Canada, South Korea, and India. Of course, these are tendencies, not natural laws. Exceptions exist, including the USA at the high end of the execution spectrum, and Myanmar and Nepal at the low end.

In addition to economic development and democratization, concerns about wrongful convictions and the execution of innocents have made some governments more cautious about capital punishment. In the USA, for example, the discovery of innocence has led to historic shifts in public opinion and to sharp declines in the use of capital punishment by prosecutors and juries across the country ( Baumgartner et al. 2008 ; Garrett 2017 ). In China, too, wrongful convictions and executions help explain both declines in the use of capital punishment and legal reforms of the institution ( He 2016 ).

The question of capital punishment is fundamentally a matter of human rights, not an isolated issue of criminal justice policy.

Death penalty policy should not be governed by national priorities but by adherence to international human rights standards.

Since capital punishment is never justified, a national government may demand that other nations’ governments end executions. ( Zimring 2003 : 27)

As the third premise of this orthodoxy suggests, political pressure has contributed to the decline of capital punishment. This influence has been especially striking in Europe, where abolition of capital punishment is an explicit and absolute condition for becoming a member of the European Union. In other countries, too, from Singapore and South Korea to Rwanda and Sierra Leone, the missionary zeal of European governments committed to abolition has led to the elimination of capital punishment or to major declines in its usage.

Political leadership has also fostered the death penalty’s decline. There are few iron rules of abolition, but one seems to be that when the death penalty is eliminated, it invariably happens despite the fact of majority public support for the institution at the time of abolition. This—‘leadership from the front’—is such a common pattern, and public resistance to abolition is so stubborn, that some analysts believe ‘the straightest road to abolition involves bypassing public opinion entirely’ ( Hammel 2010 : 236). There appear to be at least two political circumstances in which the likelihood of leadership from the front rises and the use of capital punishment falls ( Zimring 2003 : 22): after the collapse of an authoritarian government, when new leaders aim to distance themselves from the repressive practices of the previous regime (as in West Germany, Italy, Portugal, Spain, Romania, Cambodia, and Timor Leste); and after a left-liberal party gains control of government (as in Austria, Great Britain, France, South Korea, and Taiwan).

Although use of the death penalty continues to decline, there are countervailing forces that continue to present obstacles to abolition, as they have for decades. First and foremost, there is an argument about national sovereignty made by many states, that death penalty policy and practice are not human rights issues but rather matters of criminal justice policy that should be decided domestically, according to the values and traditions of each individual country. There is the role of religion—especially Islamic beliefs, where in some countries and cultures it is held that capital punishment must not be opposed because it has been divinely ordained. There are claims that capital punishment deters criminal behaviour and drug trafficking, though there is little evidence to support this view ( National Research Council 2012 ; Muramatsu et al. 2018 ). And there is the continued use of capital punishment in the USA, which helps to legitimate capital punishment in other countries ( Hood 2001 : 339–44).

The death penalty also survives in some places because it performs welcome functions for some interests. For instance, following the Arab Spring movements of 2010–2012, Egypt and other Middle Eastern governments employed capital punishment against many anti-government demonstrators and dissenters. In other retentionist countries, capital punishment has little to do with its instrumental value for government and crime control and much to do with the fact that it is ‘productive, performative, and generative—that it makes things happen—even if much of what happens is in the cultural realm of death penalty discourse rather than the biological realm of life and death’ or the penological realms of retribution and deterrence ( Garland 2010 : 285). For elected officials, the death penalty is a political token to be used in electoral contests. For prosecutors and judges, it is a practical instrument that enables them to harness the rhetorical power of death in the pursuit of professional objectives. For the mass media, it is an arena in which dramas can be narrated about the human condition. And for the onlooking public, it is a vehicle for moral outrage and an opportunity for prurient entertainment.

In addition to these long-standing obstacles to abolition, several other impediments have emerged in recent years. Most notably, as populism spreads ( Luce 2017 ) and democracy declines in many parts of the world ( Levitsky and Ziblatt 2018 ), an ‘anti-human rights agenda’ is forcing human rights proponents to rethink their assumptions and re-evaluate their strategies ( Alston 2017 ). Much of the new populist threat to democracy is linked to post-9/11 concerns about terrorism, which have been exploited to justify trade-offs between democracy and security. Of course, we are not actually living in a new age of terrorism. If anything, we have experienced a decline in terrorism from the decades in which it was less of a big deal in our collective consciousness ( Pinker 2011 : 353). But emotionally and rhetorically, terrorism is very much a big deal in the present moment, and the cockeyed ratio of fear to harm that is fostered by its mediated representations has been used to buttress support for capital punishment in many countries, including the USA (the Oklahoma City bombings in 1995), Japan (the sarin gas attacks of 1994 and 1995), China (in Xinjiang and Tibet), India (the Mumbai attacks of 1993 and 2008 and the 2001 attack on the Parliament in New Delhi), and Iraq (where executions surged after the post-9/11 invasion by the USA, and where most persons executed have been convicted of terrorism). More broadly, the present political resonance of terrorism has resulted in some abolitionist states assisting with the use of capital punishment in retentionist nations ( Malkani 2013 ).

Some analysts believe that the ‘abolition of capital punishment in all countries of the world will ensure that the killing of citizens by the state will no longer have any legitimacy and so even more marginalize and stigmatize extra-judicial executions’ ( Hood and Hoyle 2008 : 6). Others claim that the abolition of capital punishment is ‘one of the great, albeit unfinished, triumphs of the post-Second World War human rights movement’ ( Hodgkinson 2004 : 1). But states kill extrajudicially too, and sometimes the scale so far exceeds the number of judicial executions that death penalty reductions and abolitions seem like small potatoes. The most striking example is occurring under President Rodrigo Duterte in the Philippines: thousands of extrajudicial executions in a country that abolished capital punishment (for the second time!) in 2006.The case of the Philippines illustrates a pattern that has been seen before and will be seen again in polities with weak law, strong executives, and fearful and frustrated citizens ( Johnson and Fernquest 2018 ). State killing often survives and sometimes thrives after capital punishment is abolished (as in Mexico, Brazil, Nepal, and Cambodia, among other countries). And in countries where capital punishment has not been abolished, extrajudicial executions are frequently carried out even after the number of judicial executions has fallen to near zero (as in Bangladesh, India, Indonesia, and Thailand).

Despite these obstacles to abolition, the decline of capital punishment seems likely to continue in the years to come. The trajectory of this institution is shaped by political and cultural processes over which human rights practices have little influence ( Garland 2010 : Chapter 5), but priorities and strategies do matter. In this section I suggest five imperatives for the future.

First, opponents of capital punishment should recognize the limited importance of public opinion and the generally disappointing results of public education campaigns. There is in fact ‘no real evidence of a public relations campaign ever having had a significant, sustained effect on mass public opinion on capital punishment’ ( Hammel 2010 : 39). Such campaigns are not useless ( Singer 2016 ), but when they make a difference they usually do so by influencing the views of elites. To put the point a little differently, cultural change can stimulate death penalty reform, but the cultural shifts that matter most are those that operate ‘on and through state actors’ ( Garland 2010 : 143). This is where abolitionists should focus their efforts at persuasion.

Second, legal challenges to capital punishment should continue, for they have been effective in Africa, the former British colonies of the Caribbean, the USA, and many other countries (see the Death Penalty Project, https://www.deathpenaltyproject.org ). Moreover, legal challenges tend to be most effective when they come not from individual attorneys but from teams of attorneys and their non-attorney allies—social workers, scholars, mitigation investigators, and the like ( Garrett 2017 : Chapters 5–6). The basic strategy of successful teams is to ‘Make the law do what it promises. Make it be perfect’ ( Von Drehle 2006 : 196). One result is the growing recognition that state killing is incompatible with legal values. Another is a shift in focus from what the death penalty does for people to what it does to them. The evidence of the death penalty’s decline summarized in the first section of this article suggests that country after country has realized that retaining capital punishment breeds disrespect for law by exposing many of its shortcomings ( Sarat 2001 ). In some contexts, this recognition is best cultivated not by invoking ‘human rights’ as a ‘rhetorical ornament’ for anti-death penalty claims ( Dudai 2017 : 18), but simply by concentrating on what domestic law promises—and what it fails to deliver.

Third, research has contributed to the decline of capital punishment, both by undermining claims about its purported deterrent effects and by documenting flaws in its administration. In these ways, a growing empirical literature highlights ‘the lack of benefits associated with capital punishment and the burgeoning list of problems with its use’ ( Donohue 2016 : 53). Unfortunately, much of the available research concentrates on capital punishment in one country—the USA—which provides ‘a rather distorted and partial view of the death penalty’ worldwide ( Hood and Hoyle 2015 : 3). Going forward, scholars should explore questions about capital punishment in the many under-researched retentionist nations of Asia and the Middle East, and they should focus their dissemination efforts on the legal teams and governmental elites that have the capacity to challenge and change death penalty policy and practice, as described above in the first and second imperatives.

Fourth, abolition alone is not enough, in two senses. For one, it is not acceptable to replace capital punishment with a sentence of life without parole which is itself a cruel punishment that represents ‘life without hope’ and disrespect for human rights and human dignity ( Hood 2001 : 346). Moreover, when life without parole sentences are established, far more offenders tend to receive them than the number of offenders actually condemned to death. Overall, the advent of life without parole sometimes results in small to modest reductions in execution, but its main effect on the criminal process is ‘penal inflation’ ( Zimring and Johnson 2012 ). For most human rights practitioners, this is hardly a desirable set of outcomes. In addition, abolition is a hollow victory when extrajudicial executions continue or increase afterwards, yet this occurs often. The nexus between judicial and extrajudicial executions is poorly understood and much in need of further study, but the available evidence from countries such as Mexico and the Philippines suggests that ending judicial executions may do little to diminish state killing. In the light of this legal realism, a single-issue stress on abolishing capital punishment because it is inconsistent with human rights might well be considered more spectacle than substance ( Nagaraj 2017 : 23).

Finally, while the present moment is in some ways an ‘extraordinarily dangerous time’ for human rights advocates ( Alston 2017 : 14), there is room for optimism that the death penalty may be nearing the ‘end of its rope’ ( Garrett 2017 ). Overall, a factful consideration of contemporary capital punishment suggests that the situation in the world today is both bad and better ( Rothman 2018 ). A factful perspective on capital punishment also makes it reasonable to be a ‘possibilist’ about the future of this form of state killing ( Rosling et al. 2018 : 69). Substantial progress has been made toward worldwide abolition, and there are good reasons to believe that more progress is possible.

Special thanks to Professor Roger Hood for his foundational studies of the death penalty worldwide.

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Garrett B. L. 2017 . End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice . Cambridge, MA : Harvard University Press .

Grant M. 2014 . China Executed 2,400 Prisoners Last Year Says Human Rights Group. Newsweek . 21 October. https://www.newsweek.com/china-executed-2400-prisoners-2013-says-human-rights-group-278733 (referenced 29 May 2019).

Hammel A. 2010 . Ending the Death Penalty: The European Experience in Global Perspective . Palgrave Macmillan .

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Hodgkinson P. 2004 . Capital Punishment: Improve It or Remove It? In Hodgkinson P. , A. Schabas W. (eds), Capital Punishment: Strategies for Abolition , pp. 1 – 35 . New York : Cambridge University Press .

Hood R. 2001 . Capital Punishment: A Global Perspective . Punishment & Society 3 ( 3 ): 331 – 54 .

Hood R. , Hoyle C. . 2008 . The Death Penalty: A Worldwide Perspective (4th ed.). New York : Oxford University Press .

Hood R. , Hoyle C. . 2009 . Abolishing the Death Penalty Worldwide: The Impact of a ‘New Dynamic’ . Crime and Justice 38 ( 1 ): 1 – 63 .

Hood R. , Hoyle C. . 2015 . The Death Penalty: A Worldwide Perspective (5th ed.). New York : Oxford University Press .

Johnson D. T. , Fernquest J. . 2018 . Governing through Killing: The War on Drugs in the Philippines . Asian Journal of Law & Society 5 ( 2 ): 359 – 90 .

Johnson D. T. , Zimring F. E. . 2009 . The Next Frontier: National Development, Political Change, and the Death Penalty in Asia . New York : Oxford University Press .

Levitsky S. , Ziblatt D. . 2018 . How Democracies Die . New York : Crown .

Luce E. 2017 . The Retreat of Western Liberalism . New York : Atlantic Monthly Press .

Malkani B. 2013 . The Obligation to Refrain from Assisting the Use of the Death Penalty . International & Comparative Law Quarterly 62 ( 3 ): 523 – 56 .

Moyn S. 2018 . How the Human Rights Movement Failed. New York Times . 23 April.

Muramatsu K. , Johnson D. T. , Yano K. . 2018 . The Death Penalty and Homicide Deterrence in Japan . Punishment & Society 20 ( 4 ): 432 – 57 .

Nagaraj V. K. 2017 . Human Rights and Populism: Some More Questions in Response to Philip Alston . Journal of Human Rights Practice 9 ( 1 ): 22 – 4 .

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Pinker S. 2011 . The Better Angels of Our Nature: Why Violence Has Declined . New York : Viking .

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Rosling H. , Rosling O. , Rosling Ronnlund A. . 2018 . Factfulness: Ten Reasons We’re Wrong about the World—and Why Things Are Better than You Think . New York : Flatiron Books .

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Zimring F. E. , Johnson D. T. . 2012 . The Dark at the Top of the Stairs: Four Destructive Influences of Capital Punishment on American Criminal Justice. In Peterselia J. , R. Reitz K. (eds), The Oxford Handbook of Sentencing and Corrections , pp. 737 – 52 . New York : Oxford University Press .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Criminal Justice
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John Gramlich is an associate director at Pew Research Center .

What the data says about crime in the U.S.

8 facts about black lives matter, #blacklivesmatter turns 10, support for the black lives matter movement has dropped considerably from its peak in 2020, fewer than 1% of federal criminal defendants were acquitted in 2022, most popular.

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Syracuse Journal of Law & Civic Engagement

An inquiry into the ethics of capital punishment.

D. Alicia Hickok , Partner at Drinker Biddle & member of the American Bar Association’s Steering Committee of the Death Penalty Representation Project , & J.J. Williamson , Associate in the Drinker Biddle’s Litigation Group

The word “ethic” is derived from the Greek “ethos,” which itself has taken on multiple meanings. In the traditional Greek, it is used by Aristotle to describe the apparent character of the speaker. The Oxford English Dictionary recognizes that its origin relates to nature or disposition, but instead defines “ethos” as “[t]he characteristic spirit of a culture, era, or community as manifested in its attitudes and aspirations” or “the character of an individual as represented by his or her values or beliefs.” [1] Regardless of the definition, it is apparent that ethical behavior is necessarily an individual action and portrayal in relation to a community – although Aristotle’s definition is more susceptible to an absolute source of such “right behavior” or “moral action” than the Oxford English Dictionary’s.

The United States Supreme Court has certainly recognized that current community values are critical to an analysis regarding whether capital punishment violates the Eighth and Fourteenth Amendments to the United States Constitution. [2] But it has also recognized that an examination of those values must be tempered with respect for the “dignity of man” such that punishment must not be excessive, either through “the unnecessary and wanton infliction of pain” or by being “grossly out of proportion to the severity of the crime.” [3] These “natural law” values correspond in many instances to moral views set forth in ancient and sacred writing. Any analysis of the ethics of capital punishment thus need to echo the Supreme Court’s recognition of the possibility that something that has become “accepted” in society may nonetheless be “immoral.”

The response to an “immoral” but “accepted” practice represents an ethical choice. Indeed, many people have explored the dilemmas that arise when a community – either through its laws or practices – mandates or prohibits a course of action that is fundamentally at odds with what a person recognizes as an ultimate moral code. This is seen in Judeo-Christian scripture at least as early as Daniel 6, when King Darius was beguiled into signing a law that forbade prayer to any but him. Daniel was a slave who had become a trusted advisor to the king. He continued with his duties, but also continued to pray to God at home daily; the legal consequence of which was that Darius was compelled to throw Daniel into a lions’ den (from which, Daniel 6 explains, God delivered him, thus honoring Daniel’s adherence to the conduct dictated by his faith rather than the law created by the king).

In examining the ethics of capital punishment, then, this article will address three questions: Is there an absolute position on the death penalty that renders it immoral in all circumstances? What does the law permit, command, or prohibit? Does the practice accord with these permissions, commands, and prohibitions – and is the perception that it does? The answer to those questions then prompts a fourth: how is a lawyer in today’s legal system to act ethically in a state that authorizes capital punishment?

I. Is Capital Punishment Wrong According to Traditional Moral Measures?

One might perhaps think that the answer to any question of the ethics of capital punishment begins and ends with moral law. To be sure, in Gregg v. Georgia , [4] the Supreme Court recognized that right and wrong can transcends the laws on the books at any given moment. It certainly is the case that for some religious groups, any notion of capital punishment is contrary to fundamental beliefs. But it is equally the case that not all persons within those religious traditions – and not all religions – condemn capital punishment.

It is beyond the scope of this article to explore the full range of religious responses, which range from a conviction that the taking of a life can be compensated for only by another life to a belief that the sacredness of life can never justify condoning of the taking of another’s life, and include everything in between.

A brief overview of a couple of religious perspectives may, however, give a flavor of the moral reasoning undergirding religious responses. Those who favor the death penalty often cite both to the religious admonitions to honor civil law and to the recognition in Exodus 21 that injury is to be recompensed in kind, admonishing Israel to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.” [5]

On the other hand, of those who are fundamentally opposed to capital punishment, most believe that taking of the life of another is wrong even for the state to do. In addition, many express a belief that capital punishment is an offense against the community, or that it is unfairly harmful to the person delegated to carry out the sentence. The conviction that the taking of life is wrong is heightened by – or in some cases replaced with – concerns that the punishment does not achieve its stated goals and is too fraught with uncertainty to be a viable sentence, even if there is a theoretical authority for a state to take a life.

Thus, for example, the Green Country Society of Friends spoke out about Oklahoma’s death penalty statute in 1996 by first recognizing that people “have the need and the right to seek safety and order for themselves and their communities” but rejecting capital punishment as a means to achieve that because (1) it does not respect the Spirit of God that they believe dwells in each person; (2) it “magnifies the tragedy of a lost life by killing again, ignoring the human capacity for change, quenching forever the possibility of redemption and renewed contribution”; (3) because it harms the community by giving violence a “legitimate status as a way to resolve problems”, sanctioning vengeance as an acceptable response to harm, shifting the focus from healing and help to victims, offenders, and affected families and communities, and because it is possible that an innocent person is being executed; (4) because those persons to whom the task of execution is delegated are at “moral and psychological peril to themselves.” [6] In 1999, the United States Conference of Catholic Bishops, observing that it had been opposed to the death penalty for over twenty-five years, stated:

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.

We are painfully aware of the increased rate of executions in many states. Since the death penalty was reinstituted in 1976, more than 500 executions have taken place, while there have been seventy-four death-row reversals late in the process. Throughout the states, more than 3,500 prisoners await their deaths. These numbers are deeply troubling. The pace of executions is numbing. The discovery of people on death row who are innocent is frightening. [7]

After Timothy McVeigh, a Catholic, was executed in Indiana, John and Lauren McBride authored an article in the Saint Anthony Messenger, a paper in the area, [8] reflecting on the execution and on a commencement address that Sister Helen Prejean gave at St. Mary of the Woods College in 2001. Sister Helen Prejean had said that that the death penalty was imploding because it “has always been unfair,” remarking on the expense, the lack of deterrence, and the irreversible and irremediable character of the penalty. Quoting Matthew 25, the authors of the article contended that when Jesus taught that what was done to the least of his brothers was done to him, and linked that to Sister Helen’s admonition that scripture teaches not to return hate with hate or violence with violence. The author also quoted Archbishop Daniel M. Buechlein of the Indianapolis Archdiocese (which includes Terre Haute), who wrote that the “death penalty ‘feeds a frenzy for revenge… [which] neither liberates the families of victims nor ennobles the victims of crime. Only forgiveness liberates.’” [9] In conclusion, the authors reflected on a movement in churches across the nation to ring their bells whenever an execution takes place, remembering John Donne’s statement that “any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.” [10] The author also interviewed others who were not opposed to the death penalty per se but nonetheless expressed concerns that the process needed reform and decried the racial and economic disparities in its application.

These concerns are echoed in Jewish law, which did not proscribe capital punishment, but which did define strict parameters within which it could be applied. The Talmud Sanhedrin, in exchanging views on the Mosaic law from the third to the fifth centuries C.E., stressed the need for procedural protections before a person could be sentenced to death for treason, discussing the scriptural requirement that there be two witnesses. [11] If one witness was disqualified, the evidence of the others was invalid. Witnesses were sequestered and examined and cross-examined, with accusing witnesses permitted to retract testimony but defending witnesses not. Inconsistencies – even as to time or day – disqualified witnesses. These protections were both to “ensure reliability of outcome and to enhance the possibility of acquittal in a capital case.” [12]

A Talmudic brief was submitted as an amicus in Bryan v. Moore . [13] The authors of the brief were addressing only whether electrocution was cruel and unusual. In their analysis, they recognized that from ancient times, rabbis have been divided whether capital punishment could ever be imposed. Even those that sanctioned it required strict standards of proof (before a court of at least 23 judges), and when execution was carried out, the law required a means to be chosen that prevented unnecessary pain and avoided mutilation or dismemberment. Indeed, any in favor point to sacred writings that stress the authority to enforce justice and protect a community but also stress the exceptional nature of the punishment. [14]

These historic and faith-based perspectives, taken together, have led many persons – and an increasing number of states – to conclude that even if it is theoretically possible to have a crime that warrants a sentence of death, the cost (both economically and morally) is too high, the risk of inaccuracy is too great, and the procedural protections are not strict enough.

But many others, including many with deeply-held religious convictions, affirm the decisions of the Supreme Court, Congress, and the legislatures and high courts of many other states that continue to uphold and enforce the death penalty. That said, the law enunciated by the United States Supreme Court has not stagnated over time. Instead, the United States Supreme Court has narrowed the classes of persons who can be subject to the death penalty and has fleshed out the characteristics that need to accompany any capital sentencing scheme in order for it to satisfy the requirements of the United States Constitution.

II. What Does the Law Permit, Command, or Prohibit?

Because statutes ultimately must conform to the Constitution, the starting point for this analysis are the determinations of the United States Supreme Court in holding that capital punishment was not absolutely proscribed by the Constitution. Two days before the bicentennial, on July 2, 1976, the United States Supreme Court issued five opinions, three affirming the constitutionality of state capital sentencing schemes, and two striking down other such schemes as unconstitutional. In Gregg , the Court explained that in an Eighth Amendment analysis of a statute, there is a presumption that a statute is valid, in part because legislative judgment “weighs heavily in ascertaining [contemporary] standards” and to “respond to the will and consequently the moral values of the people.” [15] After tracing the history of capital punishment in this country, the Court found that the “relative infrequency” with which juries imposed capital sentences did not reflect a “rejection of capital punishment per se” but the belief that the “most irrevocable of sanctions should be reserved for a small number of extreme cases.” [16] The Court also recognized both the retributive and deterrent effects of the death penalty. [17]

But while a state has the right to impose the death penalty, it cannot do so arbitrarily or capriciously, and it must ensure that the sentencer’s discretion is guided and informed. [18] In looking at Georgia’s statutory scheme in particular, the Supreme Court observed that the Georgia Supreme Court was required to “review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and ‘[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’” [19] Thus, each instance in which a death sentence is imposed will receive the direct attention of the justices of the state’s Supreme Court, and they will address directly some of the criteria that the United States Supreme Court found needed to be present in a capital sentencing scheme to render it constitutional. [20]

Particularly troubling is that the shortcomings of the Georgia Supreme Court’s review are not unique to this case. In the years immediately following Gregg , it was that court’s regular practice to include in its review cases that did not result in a death sentence. The Supreme Court later clarified in Pulley v. Harris that a comparative proportionality review was not demanded for every capital sentence. [21] More recently, however, the Court explained that it had intended only to “convey our recognition of differences among the States’ capital schemes and the fact that we consider statutes as we find them” – not to undermine the Court’s prior conclusions that “such review is an important component of the Georgia scheme.” [22] As shown in the attached chart, it appears that currently there are at least nine states that have no provision for proportionality review in their state statutes.

In Proffitt v. Florida , [23] the sentencing findings of the jury were advisory only; the actual sentence was determined by the trial judge, but “‘[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ. [24] The Supreme Court found that jury sentencing was not constitutionally mandated. [25] Likewise, in Jurek v. Texas , [26] the Court upheld Texas’s capital sentencing scheme, concluding that Texas’s narrowing of death-eligible crimes to a limited category of murders served the same function as aggravating factors did in Georgia and Florida. [27] But the Court was careful to say that it would not be enough to limit the evidence relevant to why a death penalty should be imposed; there must also be consideration of evidence why the death penalty should not be imposed. In other words, a capital sentencing system must: “guide[] and focus[] the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.” [28] “What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.” [29] Finally, “[b]y providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law.” [30]

In contrast, in Woodson v. North Carolina , [31] the Supreme Court rejected the North Carolina statutory scheme, because North Carolina mandated a sentence of death for first-degree murder – in part because the Court construed such statutes as “simply paper[ing] over the problem of unguided and unchecked jury discretion.” [32] The Court explained what it meant to have a jury consider evidence in mitigation:

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death. This Court has previously recognized that “[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. [33]

Although Louisiana’s statute used “a different and somewhat narrower” definition of death-worthy murder than North Carolina, it was also mandatory, and the Supreme Court found it likewise unconstitutional in Roberts v. Louisiana . [34] In so holding, the Supreme Court reiterated that mandatory sentences simply could not be upheld, because society has “reject[ed] the belief that ‘every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.’” [35] The Court was also troubled that in order to provide an opportunity to sentence a defendant to less than death, juries were instructed on lesser offenses, regardless of the evidence, which the Court found “plainly invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate – a result that contained an unacceptable “element of capriciousness.” [36]

Through a series of opinions, the Supreme Court would later clarify that a jury cannot sentence a defendant to death without being allowed to consider mitigating evidence; indeed, “when the jury is not permitted to give meaningful effect or a ‘reasoned moral response’ to a defendant’s mitigating evidence – because it is forbidden from doing so by statute or a judicial interpretation of a statute – the sentencing process is fatally flawed.” [37] And, of course, a jury cannot consider evidence in mitigation that counsel fails to uncover, apprehend, pursue, and present. Accordingly, counsel cannot competently represent a capital defendant without developing sufficient evidence about his or her background to make a reasonable strategic decision about what evidence to present in mitigation. [38]

Of course, evidence may not be put in front of a jury because it was never produced to the defense. The role of prosecutors to ensure a fair trial predates AEDPA by decades.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. [39]

These principles have given rise to a series of decisions, beginning with Brady v. Maryland , [40] in which the Supreme Court has articulated the constitutional obligation of the prosecution to provide the defense with exculpatory and impeachment evidence. Claims involving the obligations of the attorneys in a case (so-called Strickland (ineffectiveness) or Brady (withholding of evidence)) are the primary claims raised in collateral changes to capital convictions.

In addition, in recent years, certain classes of persons have been determined incapable of being sentenced to death, including persons who are mentally retarded (in Atkins v. Virginia ) [41] and juveniles ( Roper v. Simmons ). [42] In extending the rationale of Atkins to juveniles, the Supreme Court found that there were three characteristics of juveniles that rendered the death penalty inappropriate: (1) the lack of maturity and “underdeveloped sense of responsibility;” (2) a heightened susceptibility to “negative influences and outside pressures;” (3) and a less “well formed” character. [43] The Supreme Court concluded that:

These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. [44]

There are also constraints upon the execution [45] and trial of persons who are mentally incompetent, [46] but these constraints have not led to a blanket prohibition against capital sentences for persons with specific mental illnesses – or to a suspension of all proceedings while a person is incompetent. [47]

There is one more factor that has not yet been addressed specifically by the United States Supreme Court but that bears on the reliability of the verdict and the information that is in front of sentencers to consider. There is wide variation in the statutory (or rules) requirements for notice of intent to seek the death penalty by the prosecution, with most states requiring notice at some point after arraignment (typically sixty days or less), but others requiring notice only at a certain point before trial . Indeed, in Alabama, the death penalty may be sought in any case in which a district attorney has charged a defendant with capital murder, with no notice other than the charge itself required. [48] And in New Hampshire, the only requirement is that notice occur before trial or acceptance of a guilty plea. South Carolina and Tennessee require notice only thirty days prior to trial. [49] If a defendant is provided with ample resources to prepare for a capital penalty phase – whether or not it is to occur – notice may not be problematic. But where resources are limited, it appears unreasonable to ask a lawyer – or for that matter, a trial court – to authorize extensive resources to prepare for a case in mitigation that may or may not be a part of the trial. And yet, mitigation preparation – with its requisite investigation and consultation of experts – cannot be authorized and carried out in only a month without seriously undermining the reliability of the information that is placed before the sentencer.

At the moment then, a capital sentence can be upheld by the Supreme Court as constitutional only if there is a trial in which the community can have confidence. That, in turn, requires a competent defendant represented by counsel who has the resources, time, and skill to present a sentencer with evidence in mitigation that informs the sentencer’s decision whether to impose death for the narrow class of the most serious crimes by making a non-arbitrary, non-capricious, guided decision.

The standards that are applied to evaluate the fairness of the capital process are increasingly narrowed, however. On the one hand, state and federal law permit collateral attacks on allegedly unfair processes, through state and federal habeas or other post-conviction relief mechanisms. But on the other hand, such attacks are subject to significantly heightened levels of deference and narrowed bases for challenge, some statutory (such as that imposed by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”)), and others by the standard recognition that the presumption of the finality of a judgment increases with each level of review. In collateral review, traditional criminal precepts in multiple contexts (including ineffective assistance and non-disclosure of evidence) require a showing of prejudice that is defined, not by “whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” [50] This concept is notoriously subjective and uneven in its application, thereby undermining the confidence that is the stated goal.

More fundamentally, the Court has grappled – beginning with Woodson – with the recognition that fair procedures and reliability are more essential in the capital sentencing context than in any other, because death is different in kind, and not merely in degree – indeed “[d]eath in its finality differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” [51] And yet, in a system in which the focus – and expenditures of money – increase disproportionately at the very stages when the standard of review becomes the hardest to satisfy, the public message is that procedures are not fair, sentences of death are not reliable, and verdicts are not worthy of confidence.

III.       What is the Community Practice?

Because the United States Supreme Court has determined that capital punishment is not absolutely proscribed by the Constitution, current practice has largely been placed into the hands of the states, and more specifically the state legislatures, to determine how such a process will function, as well as to define its limits. Eighteen states, as well as the District of Columbia, have chosen to abolish the death penalty outright: Michigan was the first in 1846, and Maryland the most recent in 2013. Most recently, Governor Tom Wolf of Pennsylvania imposed a moratorium on the Commonwealth’s execution of individuals pending a review of a forthcoming report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment. [52] The death penalty, then, remains a viable form of punishment for thirty-two states, as well as the federal government and the U.S. military, though the exact contours of the implementation of this ultimate type of punishment varies widely by jurisdiction.

One area in which the states that continue to employ the death penalty differ is in the qualification standards each state has set (or not set) for the lawyers who represent capital-eligible defendants at the trial level. The idea of standards for capital counsel is not new; in fact, suggested qualifications have been published since 1989, when the American Bar Association (“ABA”) published the Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. [53] A little over ten years later, the campaign to implement capital counsel qualifications began anew when, in 2001, the ABA commissioned the Death Penalty Representation Project to revise the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (the “ABA Guidelines”). [54] The revised ABA Guidelines were subsequently adopted on February 10, 2003 by the ABA House of Delegates, intended to “set forth a national standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death sentence by any jurisdiction.” [55] Interestingly, the scope of the ABA Guidelines was purposefully broad, and meant to

apply from the moment the client is taken into custody and extend to all states of every case in which the jurisdiction may be entitled to seek the death penalty, including initial and ongoing investigation, pretrial proceedings, trial post-convocation review, clemency, and any connected litigation. [56]

In setting qualifications for capital defense counsel, ABA Guideline 5.1 lists several factors that a state agency establishing such qualifications should consider, including whether counsel has:

• a license to practice in the jurisdiction;
• demonstrated commitment to zealous advocacy and high quality legal representation in the defense of capital cases;
• a completion of suggested training requirements;
• substantial knowledge of relevant federal and state law governing capital cases;
• skill in oral advocacy;
• skill in investigation, preparation, and presentation of evidence bearing on mental status;
• skill in investigation, preparation, and presentation of mitigating evidence;
• skill in the elements of trial advocacy, including jury selection, cross-examination of witness, and opening statements and closing arguments.

The ABA Guidelines also call for such measures as a monitoring of capital counsel’s workload, in order that the lawyer will “provide each client with high quality legal representation in accordance with [the ABA Guidelines].” [57] Additionally, capital counsel is to create a defense team that includes persons such as a mitigation specialist, mental health specialist, and other such specialists or persons as may be needed to bring a high level of legal representation on behalf of the client. [58] The ABA Guidelines do not address, however, how such a high caliber team should be funded, suggesting only that counsel should be compensated “for actual time and service performed at an hourly rate commensurate with the prevailing rates for similar services performed by retained counsel in the jurisdiction, with no distinction between rates for services performed in or out of court.” [59] While most of the guidelines speak to lawyer behavior, funding does not. In most instances, it is the state that funds capital defense, and it is the responsibility of the electorate to hold legislators accountable for ensuring sufficient funds to attract dedicated counsel and to provide them with sufficient resources to provide a thorough defense.

Since their revision, the ABA Guidelines have received some traction among both state and federal courts. [60] These qualification standards set forth by the ABA, however, are merely suggestions; the adoption of the ABA Guidelines, or the development and implementation of a separate code, is ultimately left to the States. This was emphasized by the Supreme Court in Bobby v. Van Hook , a per curiam decision that highlighted the notion that the ABA Guidelines are “‘only guides’ to what reasonableness [in the context of attorney representation] means, not its definition.” [61] So long as capital counsel make objectively reasonable choices in the course of representation, the “states are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented[.]” [62]

As the chart below illustrates, states have implemented capital counsel qualification standards in various degrees. For example, in 2005 Alabama adopted the ABA Guidelines as its code for capital counsel qualifications, noting, however, that the adoption of said Guidelines was “not to be considered a rule or requirement but only a recommendation.” [63] Texas has adopted a set of guidelines very similar to those promulgated by the ABA, which it calls the Guidelines and Standards for Texas Capital Counsel. [64] Like the ABA Guidelines, Texas requires defense teams to include a mitigation specialist and the lawyers on the team must complete a comprehensive training program in death penalty cases. [65]

Several states have taken some aspects of the ABA Guidelines a step further, requiring counsel to meet quantifiable benchmarks before being accepted—whether formally or informally—into the capital counsel bar. Arkansas requires its capital counsel attorneys to have at least three years of criminal defense experience, as well as having served as lead or co-counsel at least five capital trials. [66] Additionally, it also imposes an additional requirement of six hours of continuing legal education in the field of capital defense within the year leading up to the capital case. [67] California requires its capital counsel to have at least ten years of litigation experience in the field of criminal law, including ten serious or violent crime jury trials, at least two of which were for murder. [68] Like Arkansas, a CLE requirement (a requirement common to almost all states with capital counsel qualifications) is imposed, requiring fifteen hours of training in capital defense within the prior two years. [69]

Most states have crafted requirements that fall somewhere in between the Arkansas and California requirements, but not all. Colorado, for example, imposes qualifications upon capital counsel, but only at the post-conviction stage of proceedings. [70] And New Hampshire does not have any policies regarding qualification standards for capital defense counsel – although it is worth noting that New Hampshire has not executed anyone since 1939, despite the death penalty remaining in state law. [71]

Although the qualification standards discussed above pertain primarily to trial counsel, the only federal “stick” that is used to ensure the quality of representation is directed not at trial counsel but at post-conviction counsel. Sections 2261 and 2265 of title 28 of the United States Code (part of the Antiterrorism and Effective Death Penalty Act, “AEDPA”) “provide[] for an expedited review procedure by which state courts are given more deference in the federal habeas review process,” only if certain requirements are satisfied by the states. [72] But both provisions place requirements on the appointment of counsel at the post-conviction stage of the proceedings, i.e ., after a capital punishment sentence has already been imposed by the trial court and affirmed on direct appeal. The deference the state court adjudications receive, then, is based not on the quality of representation when the matter was tried before a finder of fact but the quality of representation in post-conviction collateral attacks – and those state-level collateral attacks are themselves entitled to a deference that a court on direct appeal does not employ.

Two states – Utah and Pennsylvania – do not even fund capital defense at the state level. [73] It is a sobering statistic that Philadelphia’s compensation for court-appointed trial lawyers has been among the lowest of any major metropolitan area in the country – and that of the 100-plus inmates sentenced to death in Pennsylvania since 1978, almost all had their appeals overturned on collateral review. [74] Given the costs associated with post-conviction and habeas appeals, one cannot help but wonder whether the Supreme Court’s requirement of a verdict worthy of confidence needs to be the primary focus of funding for all jurisdictions that choose to maintain the death penalty, and whether, at some point, the Supreme Court will find that a right to a fair trial means that the structure that needs to be in place to ensure a fair trial has to precede trial.

It can thus be argued—as this article does—that the AEDPA statute places its emphasis on the wrong stage of the proceedings – and that creating an incentive to expend large sums of money, employ significant teams of lawyers, and retain multiple experts at the two levels of collateral attack – state and federal – at which the greatest degrees of deference are owed to the state court judgment is not only a poor allocation of resources but a trigger for tension between the bench and bar that ultimately can only harm the interests of the capital defendant.

This tension is a product of an appellate system that, on the one hand, accords deference to the fact-finding of judges and juries – and to the discretion of a trial court to manage the conduct of a trial and the evidence and witnesses that may be considered. That deference extends to the reasonable, strategic decision of a lawyer. On the other hand, habeas counsel and others are required to look at the trial through a prism of standards and scopes of review; even though they see in hindsight defenses that could have been raised, experts that could have been proffered, and mitigation that could have been presented to a jury. As will be seen at greater length below, the more convinced that those not a part of the trial become that capital trials are unfair, the further they push the envelope to force a new trial – and the more entrenched the perspective that all death sentences should be overturned, and the more strident and less respectful the call for that relief, the greater a gulf is placed between the bench and the bar.

The parameters that the United States Supreme Court have articulated for state statutory schemes – trials in which the community can have confidence at which sentencers who are fully apprised of the evidence, including evidence in mitigation, render rational and non-arbitrary sentences – are not advanced by comparing lawyers who are frequently poorly paid and who have to seek court approval for any appointed expert or testing to be measured against what sometimes appears to be unlimited resources and an unlimited appetite for flyspecking a trial in hindsight. It is at least an understandable (and perhaps a natural) reaction to say – as numerous opinions on ineffective assistance do – that the right to effective counsel is not the right to perfect or ideal counsel. [75] Or, as a recent Pennsylvania Supreme Court opinion explained, “a defendant’s competency to stand trial must be evaluated at the time of trial” – and contrary evidence produced in hindsight “overlooks this requirement.” [76]  But although the response of courts is natural, so is the unease reflected in the public’s reaction to a denial of relief in the face of new information by experts and others.

IV. What is the Ethical Response?

In a provocative article, Fred Zacharias and Bruce Green explain that the nineteenth century debate about what defines a lawyer’s ethical role – that of a lawyer’s ethical responsibility being to his or her client and that of a lawyer beholden to his or her own conscience – creates a false dichotomy. [77] Instead, they posit that a coherent ethic is found in Rush v. Cavenaugh , [78] which said, inter alia , that a lawyer “is expressly bound by his official oath to behave himself in his office of attorney with all due fidelity to the court as well as the client; and he violates it when he consciously presses for an unjust judgment: much more so when he presses for the conviction of an innocent man.” Thus, they conclude, there is a professional conscience that co-exists with a personal conscience and that together set limits on what a lawyer can do in advocating for a client. [79] In this way, “lawyers’ obligations are distinguished from those of other agents because of their office, which imposes countervailing obligations to the court to which the lawyer owes fidelity.” [80]

On this view, there are obligations of professional conscience that transcend the obligations set forth expressly in rules of professional conduct (those being prohibitions against knowingly participating in illegality or fraud, filing frivolous claims, or failing to be candid with a court). [81] In addressing the unwritten obligations, a lawyer must exercise judgment in determining “the legal and systemic considerations that are familiar to lawyers” and weighing those against the client’s interests and the dictates of personal conscience. [82] The challenge here is that in most instances a person presumes that his moral convictions alone will dictate ethical choices and actions. But the legal profession – and particularly in Green’s and Zacharias’s view – requires one’s morality to inform and be informed by one’s obligations to the court and one’s duties to his or her client. This has significant implications for litigating capital cases, and particularly for collateral proceedings, because the goal cannot be to avoid the carrying out of a death sentence; it must instead be to vindicate a particular individual’s right to a fair trial, developed within the (a) law – either as it exists or as extended in good faith; (b) facts and procedural history of the case; and (c) rules of the court and professional conduct.

In 1982, the Honorable Ruggero Aldisert used the positioning of competence as first in the then-new Model Rules of Professional Conduct to discuss the responsibility a lawyer has “to his client, the courts, and the development of the law” – a responsibility that was greater than that imposed by other jurisdictions. [83] Focusing on appellate lawyers, he stressed that American lawyers need to be cognizant of their responsibility not only to the client “but also to the court in its law-making function.” [84] He then analyzed what in his mind makes an appellate lawyer competent, stating, inter alia , that the first argument in an appellate brief should be the one most likely to persuade the court and that the brief should set forth “only those arguments which have the capacity to persuade” – and he suggested that no brief should exceed five points and preferably should not have more than three. [85] This message of his – that winnowing is essential to a good appeal – is widely held among judges.

But in representing a capital defendant, this view is in tension not only with the requirement of exhaustion but with the uncertainty that a defendant will be able to avail himself or herself of developing jurisprudence without arguing for it. In Teague v. Lane , the United States Supreme Court determined that most new rules of criminal procedure – unless they came within certain narrow exceptions [86] – could not be applied retroactively. In O’Dell v. Netherland , the United States Supreme Court applied Teague to deny relief to a capital defendant, finding that the rule enunciated in Simmons v. South Carolina , 512 U.S. 154 (1994) – that a defendant must be permitted to inform his sentencing jury that he is parole-ineligible if the prosecution argues that he presents a future danger – was a new rule of criminal procedure and not a watershed one that “implicat[ed] the fundamental fairness and accuracy of the criminal proceeding.” [87] Likewise, in Beard v. Banks , the United States Supreme Court found that the invalidation of capital sentencing schemes that required jurors to disregard mitigation that was not found unanimously was a new rule that did not come within either exception. [88]

The response of a zealous advocate is to argue for good-faith extensions of the law – and to try to anticipate any such changes that might be on the horizon. But doing so is inconsistent with the premise with which Judge Aldisert and others begin – that only the strongest ( i.e ., the most likely to persuade a court) arguments should be in a brief. The ABA as well has said that given the legal climate, a lawyer has a responsibility to raise all arguments potentially available. [89] The resultant long briefs, filled with issues and sub-issues, some only partially developed, has led to frustrations by the bench at the time it takes to review (or ferret out) arguments and address them carefully, and a sense that the briefing and other tactics are placing personal agendas above the ethical obligation to the courts.

In the concurrence of Commonwealth v. Eichinger , for example, a Pennsylvania Supreme Court justice quoted the post-conviction trial court, which had had to reallocate its other cases to senior judges to handle a single post-conviction petition.

A lawyer has a sacred duty to defend his or her client. Our codes of professional responsibility additionally call upon lawyers to serve as guardians of the law, to play a vital role in the preservation of society, and to adhere to the highest standards of ethical and moral conduct. Simply stated, we are all called upon to promote respect for the law, our profession, and to do public good. …. This case has caused me to reasonably question where the line exists between a zealous defense and an agenda-driven litigation strategy, such as the budget-breaking resource-breaking strategy on display in this case. Here, the cost to the people and to the trial Court was very high. [90]

Another justice, also concurring, expressed his frustration this way:

Simply put, those who oppose the death penalty should address their concerns to the legislature. Using the court system as a way to delay, obstruct, and thus, by implication invalidate a law passed by duly elected senators and representatives cannot be characterized as proper, zealous advocacy. That is to say, “the gravity of a capital case does not relieve counsel of their obligation under Rule 3.1 of the Rules of Professional Conduct not to raise frivolous claims. . . . While an attorney may have an ethical obligation to be a zealous advocate, he has a duty not to pester the courts with frivolous arguments. In fact, an attorney does his client a disservice by failing to winnow out the weaker arguments and focusing on central, key issues, upon which his client might be granted relief. Adding weaker, particularly frivolous arguments, dilutes the force of the stronger ones and makes it difficult for a court to focus on those issues which are deserving of attention, i.e., those which are non-frivolous. Common sense dictates that, when an attorney raises an excessive number of issues, as occurred in this PCRA case, the motivation for so doing is to paralyze the court system to further political views. It is not hard to discern that, in such cases, the strategy of PCRA capital counsel is not necessarily to put forth the best legal arguments upon which the client may be granted relief, but rather, the strategy is to keep, at all costs, his client from suffering the ultimate penalty proscribed by law. Appellant as PCRA counsel have the duty, like any attorney, to raise and pursue viable claims, and they must do so within the ethical limits which govern all Pennsylvania. [91]

In other words, collateral capital litigation in Pennsylvania and elsewhere demonstrates the divide between those who advocate loyalty to the court and to jurisprudential principles and practices and those who seek to overturn death sentences through whatever procedural or legal means are available or are perceived as potentially available. Those who see the practices as disloyal to the courts also see them as divorced from a lawyer’s loyalty to his client. Those involved adamantly disagree, believing that saving or extending a life is in the best interests of the client.

The ramifications of the dilemma posed by this tension are not merely theoretical, or even philosophical. As the Supreme Court of Pennsylvania explained, its recent movement to strict word limits and other briefing parameters in all appeals was in response to what it perceived as briefing abuses in capital post-conviction briefing in that Court. [92] Similarly, while Pennsylvania has refused to find waiver for claims of incompetency that are raised for the first time in collateral proceedings, the Pennsylvania Supreme Court’s perception that such claims are being abused has led to an increasing number of justices expressing a willingness to overrule the preservation exception. [93] Said differently, what may extend the time that a defendant is alive may come at the cost of credibility and worse, not just for the defendant or petitioner in a given case but for all parties in all criminal – and, often, civil – cases. That is a high price to pay in response to a system that, if it is to work at all, must provide a cost-effective, reliable, non-arbitrary process for determining whether a defendant is death-worthy.

Moreover, when there is a lack of congruence between morality and ethics, those outside the profession question the efficacy of the system itself. Many people decry capital punishment as “too costly” or, at least more costly than life in prison – and empirically, that is true. [94] Some use that costliness as an additional reason that the death penalty should be abolished. Others decry the expense as wasteful and agenda-driven, and call for changes to the system to make it more “efficient.” [95] Part of the reason that the expense is as high as it is is attributable to the resources that are devoted to multiple rounds of review – direct appeal, followed by post-conviction trial court practice and appellate review, followed by federal habeas trial court practice and appellate review – with the potential for seeking a writ of certiorari after each round. And that may be repeated if, for example, claims in federal court are found unexhausted and a defendant is permitted to return to state court to exhaust them. The only way to lessen the costs on the “back end” of state and federal collateral review is to ensure that there are adequate resources at the front end – at the trial that is the focus of the constitutional assurances that a sentence of death can be carried out.

For states that have a death penalty on the books, the statutes and schemes must provide for verdicts in which a community can have confidence. That means that resources – mitigation specialists, mental health and other experts, and well-trained and fairly-compensated lawyers should represent defendants at trial and on direct appeal. Post-conviction proceedings and federal habeas proceedings should not be the primary stage at which the fairness of a trial is litigated. In order for that to happen, there needs to be changes, which in some cases or in some states may be radical ones.

First , as the law changes, it should change for all who were convicted under the old system. When Ring v. Arizona was decided, there were 30 resentencings on remand. [96] Until the bar has confidence that defendants will get the benefit of evolving law, lawyers will be unable to avoid arguing for extensions of the law in any way they perceive applicable to the defendants they represent.

Second , those firms and private donors that are assisting on the “back end” – at federal habeas or in state post-conviction proceedings – should help instead to fund trial-level resources, whether retaining and presenting experts, funding mitigation specialists, or donating funds to help pay for sufficient adequately compensated counsel.

Third , federal deference should be determined by how well a state ensures verdicts worthy of confidence, not by how well it structures post-conviction relief.

This article has explored several inverted incentives that call into question whether the constitutional scheme that the United States Supreme Court envisioned can be achieved – and that at the least shows that it is not there now. As lawyers, the authors of this article adhere strongly to the conviction that a lawyer may exercise zealous advocacy and personal belief only within the confines of our duties to the courts in which we practice – and, as Judge Aldisert suggested – to the law itself. In that spirit, we offer the following thoughts:

At the end of the day – whether because one cannot countenance any taking of life or because one believes that it is not possible to create a system worthy of confidence when it comes to a sentence of death, there will be some who will say that none of this matters: that no matter how a capital sentencing scheme is structured or what protections are in place, it is wrong to execute persons at all. There are two vehicles for the expression of that ethical choice: the legislatures, state and federal, which enact the laws defining or abolishing the death penalty; and the views of the community, which the United States Supreme Court has said is critical to an Eighth Amendment analysis. But for those struggling to respond to capital punishment as lawyers, all three duties of loyalty must be kept in balance: to one’s client, to one’s own conscience; and to the jurisprudential system – both the development of the law and the individual tribunal before which one appears. Daniel prayed before an open window, but he also continued to serve the king.

[1] “ethos.” Oxford English Dictionary. 2014. http://www.oed.com/viewdictionaryentry/Entry/64840 (18 Apr. 2015).

[2] Gregg v. Georgia , 428 U.S. 153, 173 (1976).

[4] Gregg v. Georgia , 428 U.S. at 183-84.

[5] Exodus 21:23-25.

[6] Minute of the Green Country Monthly Meeting of the Religious Society of Friends, on Capital Punishment (May 12, 1996) available at http://www.qis.net/~daruma/cap-pun2.html.

[7] Statement of the Administrative Committee of the United States Conference of Catholic Bishops, on Ending the Death Penalty (Mar. 24, 1999).

[8] John and Laura McBride, We’d Like To Say: Capital Punishment is Not the Answer , St. Anthony Messenger (Jan. 2002), http://www.americancatholic.org/Messenger/Jan2002/feature3.asp.

[9] John and Laura McBride, We’d Like To Say: Capital Punishment is Not the Answer , St. Anthony Messenger (Jan. 2002), http://www.americancatholic.org/Messenger/Jan2002/feature3.asp .

[11] Sheldon M. Finkelstein, A Tale of Two Witnesses: The Constitution’s Two-Witness Rule and the Talmud Sanhedrin , 43 Litigation 4 (Summer 2010).

[12] Id . at 17.

[13] Bryan v. Moore , 528 U.S. 1133 (2000) (dismissing as improvidently granted a challenge to electrocution because Florida’s law changed in the interim to permit execution by lethal injection).

[14] E.g., Qur’an 6:151 (“Take not life, which God has made sacred, except by way of justice and law. Thus does He command you, so that you may learn wisdom.”).

[15] Gregg , 428 U.S. at 175-76.

[16] Id. at 181-82.

[18] Gregg , 428 U.S. at 189, 194-95.

[19] Id . at 204.

[21] Pulley v. Harris , 465 U.S. 37 (1984).

[22] Walker v. Georgia , 555 U.S. 979, 983-84 (2008).

[23] Proffitt v. Florida , 428 U.S. 242 (1976).

[24] Id . at 208 (quoting Tedder v. State , 322 So. 2d 908, 910 (Fla. 1975)).

[25] Id . at 252.

[26] Jurek v. Texas , 428 U.S. 262 (1976).

[27] Id. at 271.

[28] Id . at 274.

[29] Id . at 276.

[31] Woodson v. North Carolina , 428 U.S. 280 (1976).

[32] Id. at 302.

[33] Id . at 304 (citations omitted).

[34] Roberts v. Louisiana, 428 U.S. 325 (1976).

[35] Id . at 333.

[36] Id . at 335.

[37] Abdul-Kabir v. Quarterman , 550 U.S. 233, 264 (2007).

[38] E.g., Wiggins v. Smith , 539 U.S. 510, 535-36 (2003). The first case to define a constitutional right to counsel as a right to effective counsel is Strickland v. Washington , 466 U.S. 668 (1984).

[39] Berger v. United States , 295 U.S. 78, 88 (1935). See also Mooney v. Holohan , 294 U.S. 103, 112 (1935) (rejecting the Attorney General’s contention that a prosecutor’s obligation extends only to evidence in possession of the defendant).

[40] Brady v. Maryland, 373 U.S. 83 (1963).

[41] Atkins v. Virginia , 536 U.S. 304 (2002).

[42] Roper v. Simmons , 543 U.S. 551 (2005).

[43] Id . at 569.

[44] Id . at 570 (citations and internal quotations omitted).

[45] Ford v. Wainwright , 477 U.S. 399, 401 (1986) (“For centuries no jurisdiction has countenanced the execution of the insane, yet this Court has never decided whether the Constitution forbids the practice. Today we keep faith with our common-law heritage in holding that it does.”).

[46] Drope v. Missouri , 420 U.S. 162, 172 (1975) (recognizing that it violates due process to fail “to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial.”).

[47] E.g ., Ryan v. Gonzales , 133 S. Ct. 696 (2013) (finding no statutory right to a suspension of habeas proceedings during the pendency of petitioner’s incompetence).

[48] Ala. Code § 13A-5-40.

[49] South Carolina Statutes, § 16-3-26; Tennessee Rule of Criminal Procedure 12.3(b)(1) (“When the indictment or presentment charges a capital offense and the district attorney general intends to ask for the death penalty, he or she shall file notice of this intention not less than thirty (30) days before trial. If the notice is untimely, the trial judge shall grant the defendant, on motion, a reasonable continuance of the trial.”).

[50] Kyles v. Whitley , 514 U.S. 419, 434 (1995) (emphasis added).

[51] Lankford v. Idaho , 500 U.S. 110, 125-26 & nn. 20, 21 (1991).

[52] See Governor Tom Wolf, Memorandum, Death Penalty Moratorium Declaration, available at http://www.pa.gov/Pages/NewsDetails.aspx?agency=PAGovNews&item=16512.

[53] ABA Resolution, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989), www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/1989guidelines.authcheckdam.pdf .

[54] ABA Resolution, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003), www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/2003guidelines.authcheckdam.pdf .

[55] ABA Guideline 1.1(A).

[56] ABA Guideline 1.1 (B).

[57] ABA Guideline 6.1.

[58] ABA Guideline 10.4. In 2008, the ABA published the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (the “Supplementary Guidelines”). The objective of the Supplementary Guidelines is to “summarize prevailing professional norms for mitigation investigation, development and presentation by capital defense teams, in order to ensure high quality representation for all persons facing the possible imposition or execution of a death sentence in any jurisdiction.”

[59] ABA Guideline 9.1.

[60] See, e.g ., Littlejohn v. Trammell , 704 F.3d 817 (10th Cir. 2013); Link v. Luebbers , 830 F. Supp. 2d 729 (E.D. Mo. 2011); State v. Hunder , 960 N.E.2d 95 (Ohio 2011).

[61] Bobby v. Van Hook , 558 U.S. 4, 8 (2009).

[62] Id . at 9.

[63] Alabama Circuit Judge’s Association Resolution (Jan. 21, 2005), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/Alabama_Resolution_for_ABA_Guidelines_Aug_2007.authcheckdam.pdf .

[64] Guidelines and Standards for Texas Capital Counsel, State Bar of Texas , 69 Tex. Bar J. 10, 966-982 (Nov. 2006), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/TX_Bar_Association_adopted_version_of_ABA_Guidelines.authcheckdam.pdf .

[66] Alabama Circuit Judge’s Association Resolution (Jan. 21, 2005), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/Alabama_Resolution_for_ABA_Guidelines_Aug_2007.authcheckdam.pdf .

[67] Public Defender Commission, State of Arkansas, available at http://www.arkansas.gov/apdc/news/qualifications.html#Cases.

[68] Cal. Rules of Court, R. 4.117.

[70] C.R.S.A. § 16-12-205.

[71] National Center for State Courts, Indigent Defense State Links, available at http://www.ncsc.org/Topics/Access-and-Fairness/Indigent-Defense/State-Links.aspx?cat=Capital%20Case%20Representation#New Hampshire.

[72] Wright v. Angelone , 644 F. Supp. 460, 462 (E.D.Va. 1996) (citing 28 U.S.C. §§ 2261, 2265).

[73] Daniel Silverman, Death Penalty System Broken, Philadelphia Inquirer, Feb. 5, 2015, available at http:/qqq/philly/com/philly/opinion/inquirer/20150105_Death-penatly_system_broker.html.

[75] E.g ., Yarborough v. Gentry , 540 U.S. 1, 8 (2003) (“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”)

[76] Commonwealth v. Bomar , 2014 Pa. LEXIS 3078 at *33.

[77] Fred C. Zacharias & Bruce A. Green, Reconceptualizing Advocacy Ethics , 74 Geo. Wash. L. Rev. 1 (November 2005).

[78] Id . at 8, quoting Rush v. Cavenaugh , 2 Pa. 187, 189, 1845 Pa. LEXIS 306 (1845).

[79] In tracing the disappearance of this concept, they observe that Henry S. Drinker, in Legal Ethics at 145 & n.32 (1953) was the last treatise author to cite to Rush – and he did so as support for his conclusion that “[a] lawyer is not bound to give his client a moral lecture. He should advise what the law requires, but should not further any of the client’s unjust schemes, and should refuse to become a party to them.” Id .

[80] Zacharias and Green at 34.

[81] Id . at 51.

[82] Id . at 52-53.

[83] 11 Cap. U. L. Rev. 446 (1981-82).

[84] Id . at 454.

[85] Teague v. Lane , 489 U.S. 288, 407 (1989).

[86] Teague recognized exceptions for “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” and “watershed rules of criminal procedure.” O’Dell v. Netherland , 521 U.S. 151, 311 (1997).

[87] O’Dell , 521 U.S. at 167.

[88] Beard v. Banks , 542 U.S. 406 (2004).

[89] See ABA Guideline 10.8 (stating that lawyer has duty to “consider all legal claims potentially available” in addition to “supplementing claims previously made with additional factual or legal information”); see also ABA Guideline 10.15.1 (stating that post-conviction counsel should “seek to litigate all issues, whether or not previously presented, that are arguably meritorious under the standards applicable to high quality capital defense representation, including challenges to any overly restrictive procedural rules”).

[90] 2014 Pa. LEXIS 3558 at *68-69.

[91] Id . at *83-85.

[92] See Commonwealth v. Spotz , 99 A.3d 866, 916 (Pa. 2014) (post-decisional single justice opinion).

[93] While only one justice called for overruling the exception in Commonwealth v. Bomar , 2014 Pa. LEXIS 3078 (Nov. 21, 2014), three did so in Commonwealth v. Blakeney , 2014 Pa. LEXIS 3517 (Pa. Dec. 29, 2014),

[94] See Senator Caroly McGinn, “Death Penalty Too Costly,” The Witchita Eagle , March 1, 2009, available at http://www.deathpenaltyinfo.org/new-voices-republican-senator-says-kansas-death-penalty-too-costly; Logan Carver, “Death Penalty Cases More Expensive than Lifetime Imprisonment, But Local CDA Says Cost Never a Consideration,” Lubbock Avalance-Journal, available at http://lubbockonline.com/stories/121309/loc_535156806.shtml .

[95] Arit John, A Botched Lethal Injection Won’t Change Anyone’s Mind About Capital Punishment (posted July 24, 2014), http://www.thewire.com/politics/2014/07/a-botched-lethal-injection-wont-change-anyones-mind-about-capital-punishment/375022 (discussing Chief Judge Alex Kozinski’s argument that to prevent executions from being cruel and unusual, a more efficient form of capital punishment, such as firing squads, should be employed).

[96] 536 U.S. 584 (2002)

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Capital Punishment Research Paper

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Throughout the world, from earliest recorded times, the death penalty has played a prominent role in social control. Abolition of the death penalty became a matter for political discussion in Europe and America beginning in 1764, when the young Italian jurist Cesare Beccaria (1738–1794) published his little book, On Crimes and Punishments . Beccaria’s criticism of torture and the death penalty typified the Enlightenment zeal for rational reform of prevailing social practices. Beccaria’s alternative to the death penalty was life in prison at hard labor. In short order Catherine of Russia decreed an end to the death penalty, and so did Emperor Leopold in the province of Tuscany in the Austro-Hungarian Empire. Maximilien Robespierre, a powerful leader in the French Revolution, attacked the death penalty as murder. In England, by the end of the eighteenth century, Parliament was being petitioned to reduce the number of capital felonies, which numbered in the hundreds; complete abolition was never a serious prospect.

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Get 10% off with 24start discount code, capital punishment in america, 1793–1982.

During the seventeenth century, the criminal justice systems in the American colonies took their main features from the mother country. A mandatory hanging carried out in public after conviction in a jury trial was the widely used punishment for murder and other traditional felonies (arson, rape, robbery, burglary). In the new nation, the first significant step toward reform of the death penalty was taken in Pennsylvania in 1793, when the legislature created ‘‘degrees’’ of murder and confined the death penalty to offenders convicted of murder in the ‘‘first-degree’’—willful, deliberate, and premeditated murder and felony murder (any homicide committed in the course of arson, rape, robbery, and burglary). By the middle of the nineteenth century many states had adopted this reform as a more precise conception of what ought to count as criminal homicide deserving the death penalty.

During the nineteenth century, state legislatures from Maine to Pennsylvania regularly received petitions from religious groups, notably the Society of Friends (Quakers), in favor of complete abolition. During this period two important further reforms were initiated. One ended public executions, thus confining the hangman and his necessary but sordid duties to the relative privacy of the prison yard. (Debauchery among the onlookers at public executions was widely regarded in this country and in England as a disgrace that needlessly fueled demands for abolition.) The other reform abandoned the mandatory death sentence upon a conviction of a capital felony in favor of giving the trial jury the power to choose between a death sentence and ‘‘mercy,’’ in the form of a long prison term. A third trend— statutory abolition of all death penalties— advanced, stumbled, and by the Civil War vanished. Nevertheless, between 1847 (when Michigan abolished the death penalty for murder, though not for treason) and 1887 (when Maine abolished the death penalty), several states experimented with complete abolition.

With the advent of the Progressive Era, nine states across the nation, from Tennessee to Washington, repealed all their capital statutes; all but two (Minnesota and North Dakota) restored it within a few years, as public reaction to the experiment in most states brought it to an end. Execution by lethal gas chamber was first used in Nevada in 1923 and within a few years was adopted in many other states as a method superior in its humanity both to hanging and to electrocution.

During the Depression and World War II, agitation for abolition in the state legislatures came to a virtual halt. In 1958 the first prominent interest in evaluating and abolishing the death penalty occurred in Delaware, when the legislature (under the influence of local political leadership and the pathbreaking Report of the Royal Commission on Capital Punishment in England in 1953) repealed all that state’s death penalty statutes. Influenced by the example of Delaware, several other states in the 1960s debated whether to abolish the death penalty; abolition efforts were successful in Vermont, West Virginia, and Iowa. No doubt the highpoint of the mid-century abolition movement occurred in 1964 in Oregon, when in a popular referendum the public voted to repeal the state constitutional provision for the death penalty.

Beginning in 1967, a new strategy to abolish the death penalty nationwide began to unfold, directed by the NAACP Legal Defense and Educational Fund (LDF) in New York. Mindful of the way in which African American defendants were especially vulnerable to the death penalty, and the way the administration of the death penalty was both highly discriminatory and in general arbitrarily imposed, the LDF decided to attack it nationwide, not in the legislatures but in the federal courts, and on federal constitutional grounds. LDF attorneys argued that the evidence showed the death penalty in the United States violated ‘‘equal protection of the laws’’ and ‘‘due process of law,’’ and that it was a ‘‘cruel and unusual punishment’’—not in this or that case, not just in the South as part of the legacy of slavery and Jim Crow, but uniformly and generally across the nation. This strategy, inspired by the Civil Rights movement of the early 1960s, led to a moratorium on executions (though not on death sentences) as the Supreme Court debated the constitutional status of the death penalty.

In 1972, the Court held that the death penalty was unconstitutional as administered, because of its arbitrary and discriminatory application ( Furman v. Georgia ). Many state legislatures promptly revised and reenacted their death penalty statutes, hoping they would pass constitutional muster. Four years later the Court held that several varieties of these new capital statutes had indeed cured the problems of the prior statutes and that, in any case, the death penalty as such was not unconstitutional; more precisely, the death penalty did not violate the constitutional prohibition against ‘‘cruel and unusual punishment’’ ( Gregg v. Georgia ). In 1977, after the moratorium had lasted nearly a decade, executions resumed, first in Utah and then across the nation. During this period a new method of execution found increasing favor across the land: death by lethal injection. First adopted, in Oklahoma, in 1977, lethal injection was first used in Texas in 1982.

Current Status of Capital Punishment

As of 1998, Amnesty International reported that some sixty nations worldwide (including all western European countries) counted as ‘‘abolitionist for all crimes.’’ Another fifteen countries were listed as ‘‘abolitionist for ordinary crimes only,’’ that is, these countries retained the death penalty only for ‘‘exceptional crimes’’ such as those provided by military law. Another twenty-eight countries were listed as ‘‘abolitionist de facto,’’ because although their statutes still authorized the death penalty in certain cases, no executions had been carried out for at least a decade. Finally, ninety-four countries—mostly in Africa, the Middle East, and Asia—were listed as retaining and using the death penalty for murder and other felonies. Interpreters of the international scene have insisted that there is a slow but steady rejection of the death penalty worldwide, a trend that isolates the United States and conspicuously prevents it from exercising international leadership in protecting human rights, as these rights are increasingly defined under international human rights law.

By 1998, in the United States, thirteen states (and the District of Columbia) had abolished the death penalty: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Mexico, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin. Since 1977 each of thirty states has carried out at least one execution.

Among the death penalty states (and the federal government), thirty-two use lethal injection to carry out the death penalty, eleven use the electric chair, seven use the gas chamber, four use hanging, and three use firing squad. Fourteen of these jurisdictions give the prisoner a choice between death by lethal injection and one of the other four methods.

Early in 1999 the LDF reported a total of 3,565 persons under death sentence in thirty-seven states (twenty-nine of these prisoners were awaiting execution under federal law, including eight under military law). By race, whites constituted 56 percent of the total, African Americans 35 percent; other nonwhites (American Indians, Asians, Hispanics) totaled 9 percent. The vast majority (99 percent) were male. The U.S. Bureau of Justice Statistics reported that as of the end of 1998, 65 percent of the nation’s death row population were recidivist felons with a prior criminal record, including 9 percent who had a conviction of some form of criminal homicide. During the 1990s, the nation’s death row population grew on the average at a rate of about 250 prisoners per year. The average length of time spent under death sentence prior to execution was about ten years. Of the 6,424 persons sentenced to death between 1973 and 1998, more than a third (38 percent) were not executed; some died awaiting execution, others committed suicide, and still others were commuted or resentenced by court order.

Executions in the 1990s went from a low of fourteen in 1991 to a high of seventy-four in 1997, for an annual average of about forty. The nation’s high-point in executions during the twentieth century was reached in 1935, however, when 199 offenders were executed. During the 1930s the percentage of convicted murderers executed was far higher than in the 1990s.

Capital Crimes

Historically, a wide variety of crimes have been punishable by death. As recently as 1965 in the United States one or more jurisdictions authorized the death penalty not only for murder, but also for kidnapping, treason, rape, carnal knowledge, armed robbery, perjury in a capital case, assault by a life-term prisoner, burglary, arson, train wrecking, sabotage, and desecration of a grave, to mention only a dozen. Executions for these crimes, except for rape, were rare. Supreme Court decisions in the 1970s, however, rejected mandatory death penalties (even for murder by a prisoner serving a life term for murder), and the death penalty for such nonhomicidal crimes as rape and kidnapping. In subsequent years, Congress has enacted statutes punishing several nonhomicidal crimes with death (notably, the crime of trafficking in large quantities of drugs). Whether the Supreme Court will sustain or reject the death penalty for such crimes remains to be seen.

In other countries murder is by no means the only capital crime. In Egypt and Algeria, terrorists are subject to the death penalty. Rebellion and obdurate apostasy are subject to the death penalty in Saudi Arabia and Yemen. Threats of a coup d’etat in Sierra Leone led to summary executions in 1992. Certain drug offenses in Malaysia and Indonesia carry a death penalty. In 1992, China added more than two dozen new capital crimes to its penal code. Although virtually all of western European nations have abolished the death penalty for all crimes, it retains popular and governmental support in much of Asia, Africa, and the Middle East.

Public Opinion on Capital Punishment

American public opinion appears to support the death penalty for murder and has done so throughout the twentieth century, except for a brief period in the mid-1960s. In the 1990s, nearly 80 percent of the public approved of capital punishment; about 5 percent were undecided and the rest opposed it. However, more careful investigations of public attitudes have shown that given the option of life imprisonment without the possibility of parole (LWOP), the public support for the death penalty drops by a significant amount, in some cases by half (from 80 percent to 40 percent). This research supports the view that while the public generally accepts the death penalty for murderers, it prefers their long-term imprisonment. And capital trial juries, all of them vetted to exclude anyone strongly opposed to the death penalty, coupled with plea bargaining practices, produce death sentences in only about 10 percent of the murder cases where it might be issued. Understandably, opponents of the death penalty view public support of executions as ‘‘a mile wide but only an inch deep.’’

No doubt public support for the death penalty is a powerful political factor in explaining the decline of executive clemency in capital cases and the willingness of most legislatures, state and federal, to expand the list of capital crimes. (Executive clemency in capital cases dropped from an annual average of twenty-two in the 1960s to two in the 1990s.) In Europe, however, despite popular majorities in many countries that have supported the death penalty for decades, parliaments have not only abolished it, they have gone further and made abolition a condition of entry into the Council of Europe.

Administration

In 1997 the House of Delegates of the American Bar Association called for a nationwide moratorium on executions, pending fundamental improvements in its administration. Salient problems affecting the fairness of the death penalty included failure to provide adequate trial counsel for the defendant, inadequate resources for counsel to investigate the crime and locate witnesses, and inadequate resources to verify alibi testimony and retain expert witnesses. Several other investigative bodies in the 1990s, notably the International Commission of Jurists (1996) and the UN Commission on Human Rights (1999), went further and called for the United States to abolish the death penalty entirely, on the ground that the record to date showed that these administrative problems were beyond remedy.

During the 1990s the Capital Jury Project, funded by the National Science Foundation, studied the behavior of jurors and juries in capital cases. Over a thousand juror interviews were conducted in more than a dozen death penalty states. Research found that trial jurors do not adequately understand the judge’s instructions designed to guide them in deciding whether to sentence the defendant to death, and that even where they do understand these instructions, they often ignore them.

By far the most prominent worry has been prompted by perceived racial disparities in death sentences and executions. For decades, the men and women on American death rows have been disproportionately nonwhite when measured against their proportion of the total population. (The numbers have not been so disproportionate when measured against the racial distribution of all persons in prison.) In the early 1970s, research on the death penalty for rape showed a powerful race-of-victim effect: virtually no one was sentenced to death for the rape of a nonwhite woman, and a black man accused of raping a white woman was ten times as likely to be convicted, sentenced to death, and executed as a white man charged with the same crime.

In the early 1980s a massive research project was launched in order to determine whether much the same pattern could be found in the death penalty for murder. The results of this research, conducted by David Baldus and his associates for the appellant’s argument in McCleskey v. Kemp (1987) and later published in their book as Equal Justice and the Death Penalty (1990), showed that ‘‘defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks’’ (p. 401). Nevertheless, the Supreme Court, by a vote of 5 to 4, refused to order revision or nullification of any death penalty statutes or procedures, arguing that this research failed to ‘‘prove that the decisionmakers in [McCleskey’s] case acted with discriminatory purpose.’’ Efforts in subsequent years to persuade Congress to enact a Racial Justice Act (designed to permit a challenge to any death sentence believed to be based on racial grounds and to require the government to rebut the challenge, if possible, with appropriate evidence to the contrary) were unsuccessful. Meanwhile, a 1990 report on racial disparities in death sentencing conducted by the U.S. General Accounting Office confirmed the ‘‘race of victim influence . . . at all stages of the criminal justice system process’’ (p. 5).

Miscarriages of Justice

Of all the worries associated with the death penalty, probably none is more potent than the horrifying thought that an innocent person might be executed. Western civilization itself could be said to rest on two cases of execution of the innocent: the death of Socrates in Athens in 399 B.C. and the death of Jesus of Nazareth in Jerusalem in A.D. 33. Death for witches is the most extreme case, for if witchcraft is impossible (even though belief in its efficacy remains widespread to this day in various parts of the world), then everyone burned at the stake or hanged for this crime was innocent.

There is no doubt, however, that scores of innocent defendants have been arrested, tried, convicted, and sentenced to death—only to be saved (often literally at the last minute) because new evidence was discovered that persuaded an appellate court to overturn the sentence or convinced a governor to extend clemency. Virtually every American death penalty jurisdiction has at least one sobering story of this sort to tell. And there are scattered cases from the nineteenth century in which the state government, in the twentieth century, admitted to carrying out a wrongful execution. The Haymarket anarchists in Chicago a century ago was one such case; Governor John Peter Altgelt spared the lives of the three surviving defendants in 1893. The most recent, widely publicized, and flagrant example of this problem appeared in Illinois late in 1998: Between 1977 and 1988 in Illinois, almost as many death row inmates were released on grounds of their innocence (ten) as were executed (eleven).

Arguments for and Against Capital Punishment

Arguments in defense and criticism of the death penalty can take any of several forms: secular versus religious, and empirical versus a priori.

Religious Arguments

Jews, Christians, and Muslims have often defended the death penalty on the strength of texts in the Bible and the Koran. In 1995, however, the Vatican released a papal encyclical— Evangelium Vitae (The Gospel of Life)—arguing that the death penalty was permissible only under very special conditions, and that in modern civil society it was not permissible because none of those conditions prevailed. The encyclical argued that the basic doctrinal paradigm for how God wants murderers to be punished is to be found in the story of Cain and Abel (Genesis 4:8–16). Abel was murdered for no good reason by his brother, Cain, and upon discovery God inflicted on him a threefold punishment: he was cursed, he was stigmatized so all would know he was a murderer, and he was banished. He was not killed; indeed, God threatened dire punishment on anyone who would ‘‘raise his hand’’ against Cain. Early in the history of the Biblical peoples as this story is, it is unquestionably vivid and telling. Whether its impact is negated by later passages in the Bible, in which the death penalty for many crimes is endorsed, is a matter of controversy among scholars.

Christians often appeal to ‘‘the sanctity of life,’’ or at least the sanctity of human life; but this appeal cuts both ways in the controversy over the death penalty. Its opponents think executions fly in the face of the sanctity of human life; but its friends will cite this religious idea as their most important reason for favoring this punishment. If we are created in ‘‘the image of God’’ (Genesis 9:6), and if this is the source and nature of the sanctity of our lives, then the crime of murder is the gravest and most radical violation of that sanctity imaginable. It requires an adequate response to the offender’s crime, and the only adequate response is to put the offender to death.

There is much more in the Bible relevant to the death penalty besides the story of Cain and Abel and the imago dei , and Jews, Christians, and Muslims have been adroit and energetic in interpreting their scriptures to support their preferred view about the death penalty. In secular societies, however, or in nations whose religious history is nonbiblical (apart from western imperialism), other arguments are required to establish public policy and the principles governing the criminal justice system.

Secular Arguments

Defenders of the death penalty typically divide between those who rely on consequentialist (crime preventive) considerations, and those who rely on deontic (retributive) considerations. Arguments of the former kind depend on empirical evidence but the latter do not; they rely on moral intuitions and a priori reasoning. In a day when the death penalty was used for a wide variety of crimes and long-term imprisonment had yet to be practiced, it was plausible to stress the death penalty as a necessary means to the end of public safety. The death penalty could be used as a means to that end in either or both of two ways: as a deterrent , striking fear in would-be felons, or as incapacitation, effectively preventing recidivism in any form.

The chief source of support for the claim of superior deterrence was essentially this argument: Persons fear death more than imprisonment; the greater the fear the better the deterrent. That argument involves two empirical claims, raising the question of what (if any) evidence can be enlisted in their support. Little or no empirical evidence had been brought to bear on them until half a century ago. In the early 1950s in the United States, social scientists compared homicide rates in adjacent states (some with, others without the death penalty), homicide rates in all abolition states versus the rates in death penalty states, and homicide rates in a given state before and after abolition. In none of these comparisons was any evidence found of a superior deterrent effect thanks to the death penalty.

The debate was heightened in the mid1970s, when statistical methods borrowed from econometrics purported to show that each execution during the middle years of this century was correlated with eight or so fewer homicides. Close scrutiny established that the purported special deterrent effect (the claim that each execution caused eight or so fewer homicides) was an artifact of the methodology and not a reliable, reproducible result. By the mid-1980s, social scientists had lost interest in further research of this sort. The most recent review of a half century of deterrence research concluded: ‘‘Neither economists nor sociologists, nor persons from any other discipline (law, psychology, engineering, etc.) have produced credible evidence of a significant deterrent effect for capital punishment. And not a single investigation to date has produced any indication that capital punishment deters capital murders—the crime of direct theoretical and policy concern’’ (Bailey and Peterson, p. 154).

Research on incapacitation, by contrast, has been infrequent and less rigorous. A study of the behavior in prison and (where relevant) after release of more then five hundred offenders on death row who were resentenced in the 1970s as ordered by the Court in Furman showed that a half dozen of these murderers killed again. Many committed other felonies, but hundreds (if the evidence is reliable) were guilty of no further crimes. Since there is no reliable way of predicting which convicted murderers will recidivate, recidivist murder can be prevented only by executing every person convicted of murder. This will strike all but a few as excessively draconian as well as immoral (because it involves ‘‘punishing’’ some prior to their having recidivated, and it involves ‘‘punishing’’ others who will not become guilty of any recidivist crimes at all). Bureau of Justice statistics show that among death row prisoners in the 1990s, perhaps one in eleven had a previous conviction of some form of criminal homicide. Obviously, imprisonment failed to incapacitate these recidivist offenders. But there is no known method by means of which the courts or prison authorities could have identified the nine percent who would become recidivist murderers. Since a mandatory death penalty is unconstitutional, it is not clear what can practically and legally be done to reduce further (and ideally eliminate) this recidivism by convicted murderers.

However, as the Supreme Court’s rulings in the 1970s limited the death penalty to the punishment of murder and prohibited mandatory death penalties as well, the role of empirical arguments on behalf of the superior preventive effects of the death penalty has steadily shrunk, in favor of the a priori argument that relies entirely on desert and retribution. Here the essential argument goes as follows: Justice requires lex talionis , that is, that the punishment fit the crime; the punishment that best fits the crime of murder is the death penalty. Or, in a slightly different version: Murderers deserve to die, and justice requires that we inflict deserved punishments.

The classic objection to any argument of this form, in which the proper punishment for a crime is held to lie in making the punishment as close to the crime as possible, is that it cannot be generalized—or can be generalized only with absurd results. There is no punishment of this sort to ‘‘fit’’ a kidnapper who has no children, a bankrupt embezzler, or a traitor, a homeless arsonist, and a host of other serious offenders. As for the crimes of rape and torture, we could rape and torture the convicted offender, but the very idea is (or ought to be) morally repugnant. A retributivist can, of course, abandon lex talionis in favor of a principle of proportionality: the graver the crime the more severe the deserved punishment. This principle has great intuitive appeal; abolitionists who advocate life without the possibility of parole accept this principle. However, it does not require the death penalty. On the assumption that murder is the worst crime, all this principle requires is that murderers receive the severest punishment permissible. In sum, whereas retributivists have a plausible answer to the question, Who deserves to be punished? (Answer: all and only the guilty), they do not have a plausible answer to the next question, What is the deserved punishment? Their most plausible answer—murderers deserve the most severe punishment permissible—does not by itself provide any defense of the death penalty.

Opponents of the death penalty often point to the incompatibility of this practice with respect for the right to life, the value of even the worst lives, and human dignity. None of these normative considerations, however, quite succeeds in providing a rational ground to oppose all executions. Since at least the time of John Locke (1632–1704), defense of the death penalty can be made consistent with our ‘‘natural’’ and ‘‘inalienable’’ right to life on the understanding that the murderer forfeits his right to life. Even apart from forfeiture, it can be argued that the right to life is not absolute; few think it is morally wrong to take the life of an unjust aggressor if there is no other way to prevent an innocent person from being murdered. As for the value of human life, either this is a disguised way of asserting that the death penalty is morally wrong (and thus cannot be a reason for that judgment except by begging the question) or it is an empirical claim about convicted murderers (and thus open to doubt because of the belief that in the case of some murderers, whatever value is to be found by them or by society in their lives is cancelled or outweighed by the value to others of executing them). As for human dignity and the death penalty, proponents of the death penalty will argue that it no more confers immunity from a lawful execution than does the right to life. Perhaps the most that can be said about these three normative considerations is that they put the burden of argument on the defenders of the death penalty. A better argument against the death penalty starts from a well-known liberal principle of state interference: society, and government as its instrument, ought not to intervene coercively in individual lives except to pursue a goal of paramount social importance and then only by the least invasive, restrictive, destructive means. With this as the major premise (roughly equivalent to the principle familiar in constitutional law of ‘‘substantive due process’’), the abolitionist can then concede as a minor premise that reducing violent crime is a goal of paramount social importance. The crucial step in the argument is the next one, the twofold empirical claim that longterm imprisonment is (a) a sufficient means to that end; and (b) a less restrictive, coercive means to that end. The evidence for (a) is partly negative (the failure of social science to discover any persuasive evidence of the superiority of the death penalty as a deterrent, and the practical and legal impossibility of killing all convicted murderers to maximize incapacitation), and partly positive (the record of successful social control both in prison and in the general public without recourse to the death penalty in a dozen different American abolition jurisdictions spanning a century and a half ). The evidence for (b) is partly direct (convicted murderers themselves show by the relative rarity both of suicide, or even attempted suicide, on death row and of death prisoners who ‘‘volunteer’’ for death by refusing appeals that they believe that death for them is far more invasive and destructive than even LWOP) and partly indirect (opponents of the death penalty believe that death is more severe than LWOP, and so do its supporters).

International Law of Human Rights

Probably the most influential factor in shaping the future of the death penalty is international human rights law. In 1966 the International Covenant on Civil and Political Rights was adopted by the General Assembly of the UN, and it came into force in 1976. The Covenant provided that ‘‘no one shall be subjected to torture or to cruel, inhumane or degrading punishment or torture.’’ It was clear that this language was on a collision course with the death penalty. The United States ratified the Covenant but took explicit exception to two other provisions: the prohibition against executing juveniles (persons under eighteen at the time of the crime) and pregnant women. In 1989 the General Assembly adopted the Second Optional Protocol to the Covenant, asserting that ‘‘No one within the jurisdiction of a State party to the present Optional Protocol shall be executed.’’ This protocol came into force in 1991. Concurrently, the Organization of American States adopted in 1990 a Protocol to the American Convention on Human Rights to Abolish the Death Penalty. Interpreting and enforcing these protocols continues to challenge signatory nations, and the United States is by no means the only country seeking for ways to disregard their mandate. Nevertheless, these developments in conjunction with the condition placed on nations wishing to join the Council of Europe that they abolish the death penalty suggest the direction in which the future will unfold (Council of Europe 1998; Schabas).

Bibliography:

• American Bar Association, House of Delegates. ‘‘Recommendation [of a moratorium on executions pending reforms in the administration of the death penalty].’’ Law and Contemporary Problems 61, no. 4 (1998): 219–231.
• Bailey, William, and Peterson, Ruth D. ‘‘Murder, Capital Punishment, and Deterrence: A Review of the Literature.’’ In The Death Penalty in America: Current Controversies. Edited by H. A. Bedan. New York: Oxford University Press, 1997. Pages 135–161.
• Baldus, David; Pulaski, Jr., Charles; and Woodworth, George Equal Justice and the Death Penalty: A Legal and Empirical Analysis. Boston, Mass., Northeastern University Press, 1990.
• Beccaria, Cesare. On Crimes and Punishments and Other Writings. Edited by Richard Bellamy. Cambridge, U.K.: Cambridge University Press, 1995.
• Bedau, Hugo Adam. ‘‘The Decline of Executive Clemency in Capital Cases.’’ New York University Review of Law & Social Change 18, no. 2 (1990–1991): 255–272.
• Bedau, Hugo Adam. The Death Penalty in America: Current Controversies. New York: Oxford University Press, 1997.
• Bedau, Hugo Adam. ‘‘Abolishing the Death Penalty Even for the Worst Murderers.’’ In The Killing State: Capital Punishment in Law, Politics, and Culture. Edited by Austin Sarat. New York: Oxford University Press, 1999. Pages 40–59.
• Block, Brian, and Hostettler, John. Hanging in the Balance: A History of the Abolition of Capital Punishment in Britain. Winchester, U.K.: Waterside Press, 1997.
• Bowers, William ‘‘The Capital Jury Project: Rationale, Design, and Early Findings.’’ Indiana Law Journal 70 (1995): 1043–1102.
• Davis, Michael. Justice in the Shadow of Death: Rethinking Capital and Lesser Punishments. Lanham, Md.: Rowman & Littlefield, 1996.
• Evans, Richard Rituals of Retribution: Capital Punishment in Germany 1600–1987. Oxford, U.K.: Oxford University Press, 1996. Great Britain. Royal Commission on Capital Punishment 1949–1953. Report. London: H.M.S.O., 1953.
• Hodgkinson, Peter, and Rutherford, Andrew. Capital Punishment: Global Issues and Prospects. Winchester, U.K.: Waterside Press, 1996.
• Hood, Roger. The Death Penalty: A World-wide Perspective. 2d ed. Oxford, U.K.: Clarendon Press, 1996.
• International Commission of Jurists. Administration of the Death Penalty in the United States. Geneva: International Commission of Jurists, 1996.
• Joyce, James Avery. Capital Punishment: A World View. New York: Thomas Nelson, 1961.
• Mackey, Philip English, ed. Voices against Death: American Opposition to Capital Punishment, 1787–1975. New York: Burt Franklin, 1976.
• Masur, Louis Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865. New York: Oxford University Press, 1989.
• Megivern, James The Death Penalty: An Historical and Theological Survey. Mahwah, N.J.: Paulist Press, 1997.
• Meltsner, Michael. Cruel and Unusual: The Supreme Court and Capital Punishment. New York: Random House, 1973.
• NAACP Legal Defense and Educational Fund, Inc. Death Row, U.S.A., Spring 1999. New York, N.Y.: NAACP Legal Defense and Educational Fund, Inc., 1999.
• Pojman, Louis, and Reiman, Jeffrey. The Death Penalty: For and Against. Lanham, Md.: Rowman & Littlefield, 1998.
• Pope John Paul The Gospel of Life (Evangelium Vitae). New York: Random House, 1995.
• Radelet, Michael; Bedau, Hugo Adam; and Putnam, Constance E. In Spite of Innocence: Erroneous Convictions in Capital Cases. Rev. ed. Boston, Mass.: Northeastern University Press, 1994.
• Radelet, Michael, and Zsembik, Barbara A. ‘‘Executive Clemency in Post- Furman Capital Cases.’’ University of Richmond Law Review 27 (1993): 289–314.
• Sarat, Austin, ed. The Killing State: Capital Punishment in Law, Politics, and Culture. New York: Oxford University Press, 1999.
• Schabas, William The Abolition of the Death Penalty in International Law. 2d ed. Cambridge, U.K.: Cambridge University Press, 1977.
• Scott, George Ryley. The History of Capital Punishment. London: Torchstream Books, 1950.
• S. Bureau of Justice Statistics. Capital Punishment 1998. Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, 1999.
• S. General Accounting Office. Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities. Washington, D.C.: General Accounting Office, 1990.
• S. Staff Report, Subcommittee on Civil and Constitutional Rights, House Judiciary Committee, 103d Congress, 1st Session. Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions. Washington, D.C.: Subcommittee on Civil and Constitutional Rights, 1993.

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Capital Punishment Research Paper Examples

Type of paper: Research Paper

Topic: Social Issues , Punishment , Criminal Justice , Death , Death Penalty , Capital Punishment , Crime , Finance

Published: 12/06/2019

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Capital punishment is defined as the legal infliction of death as a punishment. Capital punishment was first recorded in the United States in Jamestown colony in 1608. It is used in thirty-eight American states even today. There are five means of carrying out the death penalty; hanging, the electric chair, gas chamber, lethal injection and the firing squad. In 1967, the Supreme Court considered the constitutionality of the capital punishment, and in 1972 the Supreme Court seemed to have done away with capital punishment for good. Buut again in 1974, it upheld the decisions of three states which drafted new laws for capital punishment. Right now, the Supreme Court is of the opinion that the Constitution permits capital punishment. Human rights activists have been protesting against the law for quite some time now, claiming that capital punishment is inhuman, that it is often practiced in a racially discriminatory way, that it does not give the effect it need to give, and that it is wrong.

Argument for

The most important argument supporting capital punishment is that it permanently and effectively removes the worst criminals from society. It is safer for the public to have them dead than have them in prison from where a lot of deadly criminals have escaped over the ages. Also, how good a method is taking care of these criminals in prison? The government is spending the money of the taxpayer to give food and lodging to the worst criminals of society. How fair is that, when there are sick people dying and poor people starving everywhere? Therefore is it not a better idea to just get rid of them forever? It is also shown that in countries like Singapore where the death penalty is carried out very effectively, there is a much less crime rate than in countries where it is not. This is one way to show that the fear of the capital punishment may actually deter the potential criminal from commiting crimes. And one of the most important arguments is that it is only the law of nature that any person who does any crime against society must pay back from what he has, as retribution for what he has done. Thus in cases where a criminal takes a life or more than one life, it is only fair to have his life taken to balance nature’s system.

Arguments against

Now there are many humanitarian arguments against the death penalty, and the most important one is that it is very much possible that a totally innocent person can get capital punishment, and even if it is known later that the person is not guilty it would be too late to amend. If on the other hand, the person was only sentenced to a prison sentence it would still be possible to give him justice. There are also people who may have killed somebody without intending to, but often the drama that happens in the courtroom may eventually lead to the accused getting a death penalty which certainly is not just. We should also think about the family and friends of the person who has been awarded the death penalty. Loss of a close person may irreparably damage that person’s life. Also, there are people who actually repent after doing a crime. Although they may deserve a harsh sentence, they are ready to go back to society to pay back for their crimes, if given a chance. While it may not be a great idea to let very hardened criminals back into society, people who have done the lesser intense crimes and people against whom there is not a lot of solid evidence could be granted a chance to repent. And last but not the least we should realize that the criminals too are in fact human beings with feelings and emotions. While they may have been bad enough to commit crimes, the thought of pain and suffering and eventual death will hurt any human beyond imagination. It will be only being human to not give them death but give them alternative punishments.

Death penalty seems a rather inhuman thing from most view points, but there are cases(mass murder, terrorism etc) in which the criminal seems to deserve nothing less than death. There will always be arguments for and against this topic, but I think that until a better system is invented, the very hard criminals need to be executed at least as a lesson to the people in the world that such crimes do not deserve any mercy.

LawBrain.com (2010), retrieved from web http://lawbrain.com/wiki/Capital_Punishment Smith J. (2006), retrieved from web http://www.capitalpunishmentuk.org/thoughts.html

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