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Is the Death Penalty Justified or Should It Be Abolished?

• is the death penalty justified or should it be abolished?

*Updated 2022

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

Prevents convicted killers from killing again

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

Maintains justice

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

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

Historically recognized

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

Arguments against the Death Penalty

Not proven to deter crime

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

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

More expensive than imprisonment

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

Does not bring closure

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

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

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the death penalty debate

Arguments for and Against the Death Penalty

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

The death penalty deters future murders.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Full text can be found at PBS.org .

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

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

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

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

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

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

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

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

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

Click here for the full text from the ACLU website.

Retribution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The entire speech by Justice Kogan is available here.

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

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

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

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

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

Full text can be found here.

Arbitrariness & Discrimination

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The entire decision can be found here.

5 Death Penalty Essays Everyone Should Know

Capital punishment is an ancient practice. It’s one that human rights defenders strongly oppose and consider as inhumane and cruel. In 2019, Amnesty International reported the lowest number of executions in about a decade. Most executions occurred in China, Iran, Saudi Arabia, Iraq, and Egypt . The United States is the only developed western country still using capital punishment. What does this say about the US? Here are five essays about the death penalty everyone should read:

“When We Kill”

By: Nicholas Kristof | From: The New York Times 2019

In this excellent essay, Pulitizer-winner Nicholas Kristof explains how he first became interested in the death penalty. He failed to write about a man on death row in Texas. The man, Cameron Todd Willingham, was executed in 2004. Later evidence showed that the crime he supposedly committed – lighting his house on fire and killing his three kids – was more likely an accident. In “When We Kill,” Kristof puts preconceived notions about the death penalty under the microscope. These include opinions such as only guilty people are executed, that those guilty people “deserve” to die, and the death penalty deters crime and saves money. Based on his investigations, Kristof concludes that they are all wrong.

Nicholas Kristof has been a Times columnist since 2001. He’s the winner of two Pulitizer Prices for his coverage of China and the Darfur genocide.

“An Inhumane Way of Death”

By: Willie Jasper Darden, Jr.

Willie Jasper Darden, Jr. was on death row for 14 years. In his essay, he opens with the line, “Ironically, there is probably more hope on death row than would be found in most other places.” He states that everyone is capable of murder, questioning if people who support capital punishment are just as guilty as the people they execute. Darden goes on to say that if every murderer was executed, there would be 20,000 killed per day. Instead, a person is put on death row for something like flawed wording in an appeal. Darden feels like he was picked at random, like someone who gets a terminal illness. This essay is important to read as it gives readers a deeper, more personal insight into death row.

Willie Jasper Darden, Jr. was sentenced to death in 1974 for murder. During his time on death row, he advocated for his innocence and pointed out problems with his trial, such as the jury pool that excluded black people. Despite worldwide support for Darden from public figures like the Pope, Darden was executed in 1988.

“We Need To Talk About An Injustice”

By: Bryan Stevenson | From: TED 2012

This piece is a transcript of Bryan Stevenson’s 2012 TED talk, but we feel it’s important to include because of Stevenson’s contributions to criminal justice. In the talk, Stevenson discusses the death penalty at several points. He points out that for years, we’ve been taught to ask the question, “Do people deserve to die for their crimes?” Stevenson brings up another question we should ask: “Do we deserve to kill?” He also describes the American death penalty system as defined by “error.” Somehow, society has been able to disconnect itself from this problem even as minorities are disproportionately executed in a country with a history of slavery.

Bryan Stevenson is a lawyer, founder of the Equal Justice Initiative, and author. He’s argued in courts, including the Supreme Court, on behalf of the poor, minorities, and children. A film based on his book Just Mercy was released in 2019 starring Michael B. Jordan and Jamie Foxx.

“I Know What It’s Like To Carry Out Executions”

By: S. Frank Thompson | From: The Atlantic 2019

In the death penalty debate, we often hear from the family of the victims and sometimes from those on death row. What about those responsible for facilitating an execution? In this opinion piece, a former superintendent from the Oregon State Penitentiary outlines his background. He carried out the only two executions in Oregon in the past 55 years, describing it as having a “profound and traumatic effect” on him. In his decades working as a correctional officer, he concluded that the death penalty is not working . The United States should not enact federal capital punishment.

Frank Thompson served as the superintendent of OSP from 1994-1998. Before that, he served in the military and law enforcement. When he first started at OSP, he supported the death penalty. He changed his mind when he observed the protocols firsthand and then had to conduct an execution.

“There Is No Such Thing As Closure on Death Row”

By: Paul Brown | From: The Marshall Project 2019

This essay is from Paul Brown, a death row inmate in Raleigh, North Carolina. He recalls the moment of his sentencing in a cold courtroom in August. The prosecutor used the term “closure” when justifying a death sentence. Who is this closure for? Brown theorizes that the prosecutors are getting closure as they end another case, but even then, the cases are just a way to further their careers. Is it for victims’ families? Brown is doubtful, as the death sentence is pursued even when the families don’t support it. There is no closure for Brown or his family as they wait for his execution. Vivid and deeply-personal, this essay is a must-read for anyone who wonders what it’s like inside the mind of a death row inmate.

Paul Brown has been on death row since 2000 for a double murder. He is a contributing writer to Prison Writers and shares essays on topics such as his childhood, his life as a prisoner, and more.

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About the author, emmaline soken-huberty.

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

• Archive Issues

Journal of Practical Ethics

A journal of philosophy, applied to the real world.

The Death Penalty Debate: Four Problems and New Philosophical Perspectives

Masaki Ichinose

The University of Tokyo

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

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

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

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

1. To whom should punishment be justified?

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

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

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

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

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

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

2. ‘Impossibilism’

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

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

~ PCE & PCE

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

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

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

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

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

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

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

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

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

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

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

3. Three chronological stages

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

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

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

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

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

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

4. Analogy from natural disasters

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

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

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

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

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

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

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

5. Initial harm

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

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

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

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

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

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

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

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

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

6. Feeling of being victimised

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

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

7. Violation and forfeiture

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

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

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

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

Followed by the remark:

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

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

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

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

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

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

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

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

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

Locke also wri tes (1960, Section 24):

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

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

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

8. The deterrent effect

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

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

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

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

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

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

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

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

a murderer saved +5

a murderer executed -5

an innocent saved +10

an innocent murdered -10

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

9. Negative causation and where to give priority

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

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

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

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

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

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

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

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

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

10. Prospects

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Death Penalty Abolition, the Right to Life, and Necessity

• Published: 27 December 2022
• Volume 24 , pages 77–95, ( 2023 )

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• Ben Jones   ORCID: orcid.org/0000-0003-2134-8631 1  

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One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life. Notably, this right-to-life argument emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm. Can capital punishment be necessary in this sense—and thus justified defensive killing? If so, the right-to-life argument would have to admit certain exceptions where executions are justified. Drawing on work by Hugo Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world. A state’s obligations to its prisoners include the obligation to use nonlethal incapacitation (ONI), which applies as long as prisoners pose no imminent threat. ONI precludes executions for reasons of future dangerousness. By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground.

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In the last century, there has been a dramatic shift away from capital punishment worldwide (Hood and Hoyle 2015 : 10–22). Various arguments have contributed to this shift, but perhaps none more so than the right-to-life argument —that is, capital punishment should be abolished because it violates individuals’ fundamental right to life (see Yorke 2009 ). This principle appears in Protocol No. 13 of the European Convention of Human Rights, the Second Optional Protocol to the International Covenant on Civil and Political Rights, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, and the Catholic encyclical Fratelli Tutti (Schabas 2019 ; Francis 2020 : 269). It also appears in debates on whether capital punishment violates domestic law (e.g., Barry 2019 ).

Despite the prominence of the right-to-life argument in legal and religious thought, there has been insufficient attention to whether it is internally consistent. Notably, the argument emerged from normative and legal frameworks that recognize deadly force against an aggressor as justified when necessary to stop their unjust threat of grave harm (i.e., death or serious bodily injury). Can capital punishment ever be necessary in this sense—and thus justified defensive killing? If so, the right-to-life argument would have to admit certain exceptions where executions would be justified. The internal consistency of the right-to-life argument to abolish the death penalty hinges on whether executions could qualify as justified defensive killing.

The philosophical literature on defensive killing gives little attention to capital punishment, focusing instead on war and individual self-defense (see Coons and Weber 2016 ). That is understandable since capital punishment—as the term implies—typically is understood as punishment for past harms, not defensive killing to prevent future ones. Still, one reason given in support of capital punishment is its effectiveness incapacitating offenders from committing future violence (e.g., Gregg v. Georgia 1976 : 183). Even death penalty opponents like Jeremy Bentham note the power of this argument. He calls its “greatest perfection … taking from the offender the power of doing further injury” (Bentham 2009 : 167). The idea that executions are necessary to protect society from capital offenders is implicit in statutes that list future dangerousness as an aggravating factor or requirement for a death sentence (see Edmondson 2016 ).

There may be a temptation to quickly dismiss the claim that capital punishment could be justified defensive killing since it kills an offender in custody who poses no imminent threat. For some, only imminent threats can justify defensive killing (Ferzan 2004 ). But many question this view and various laws fail to reflect it (Baron 2011 ; Allhoff 2019 ; Ford 2022 ). Such skepticism toward the imminence requirement means that defenders of the right-to-life argument cannot take this requirement as a given. They must make the argument for why the imminence requirement applies in the case of the death penalty and precludes it as justified defensive killing.

This article presents such an argument. I begin by examining the right-to-life argument and explaining why its defenders must address whether capital punishment can be justified defensive killing. I then consider a thought experiment by Hugo Bedau to show that an execution would qualify as justified defensive killing under certain imagined conditions, which our world lacks. To justify an execution as defensive killing under real-world conditions, the state must show that the condemned, though defenseless and not an imminent threat at the time of execution, poses a future danger that requires deadly force to prevent it. Empirical research finds predictions of future dangerousness to be notoriously unreliable, so executions based on them are morally suspect. Moreover, a state’s obligations to its prisoners, I argue, include the obligation to use nonlethal incapacitation (ONI), which applies as long as a prisoner poses no imminent threat. This obligation precludes the death penalty for the purpose of incapacitation since it involves killing a non-imminent threat. Justifying capital punishment as defensive killing fails, then, even if predictions of future dangerousness improve. By subjecting the right-to-life argument to closer scrutiny, this article shows that it is internally consistent and ultimately places it on firmer ground.

The Right-to-Life Argument for Abolition

All major international treaties prohibiting capital punishment treat it as contrary to the right to life. Protocol No. 13 of the European Convention on Human Rights emphasizes: “everyone’s right to life is a basic value in a democratic society and … the abolition of the death penalty is essential for the protection of this right” (Council of Europe 2003 ). Likewise, the Second Optional Protocol to the International Covenant on Civil and Political Rights adopted by the United Nations General Assembly states: “abolition of the death penalty should be considered as progress in the enjoyment of the right to life” (United Nations Office of the High Commissioner of Human Rights 1989 ). The Protocol to the American Convention on Human Rights to Abolish the Death Penalty uses similar language: “abolition of the death penalty helps to ensure more effective protection of the right to life” (Organization of American States 1990 ). Nearly half of all states have endorsed one or more of these treaties (Schabas 2019 : 217), a sign of growing recognition of the right to life as reason to abolish capital punishment.

This line of argument also features prominently in religious thought, especially Catholic social teaching (Jones 2018 : 236–239). Francis ( 2020 : §263) in his encyclical Fratelli Tutti says that “the death penalty is inadmissible” and calls “for its abolition worldwide.” He then cites “the inalienable dignity of every human being” as grounds to end the practice (Francis 2020 : §269).

The idea that capital punishment violates individuals’ right to life has a certain prima facie appeal. Capital punishment involves the state, in the most deliberate way possible, taking someone’s life. Still, many recognize the right to life without concluding that the death penalty violates it. For instance, John Locke affirms the rights of life, liberty, and property, while understanding political power as including the “right of making laws with penalties of death” (Locke 2003 : §§3, 87). When we think about rights, few are absolute. There are some circumstances where they can be forfeited or permissibly infringed upon. Such features of rights open potential paths for the right to life to coexist with capital punishment. It is therefore not immediately obvious that the right to life leads to abolition of the death penalty. There are additional steps in the argument to flesh out.

Here I provide what its defenders hopefully will regard as a charitable reconstruction of the right-to-life argument. The right to life represents the most fundamental right—the basis for exercising all other rights—and as such generates an especially strong presumption against killing. The leading justifications for the death penalty are retribution and general deterrence (Gregg v. Georgia 1976 : 183). The right-to-life argument does not necessarily reject retribution and deterrence as justifications for penalties short of death, like loss of property or liberty, which carry a lower (but still high) justificatory burden. But this argument rejects that deterring others and ensuring just deserts for the guilty are valid justifications for the extraordinary step of killing a prisoner. The state’s obligation to uphold the right to life—even of those who have committed grave crimes—takes priority over considerations of retribution and deterrence.

Decisive evidence on capital punishment’s deterrent effect compared to imprisonment has been elusive (National Research Council 2012 ). But even if capital punishment were an effective deterrent, the right-to-life argument would reject deterrence as a justification for it. According to this view, the right to life rules out killing someone as a means to deter others from violence. The right-to-life argument’s principled rejection of deterrence and retribution excludes two leading justifications for the death penalty. But another notable justification remains, which the following section explores.

The Defensive Killing Justification

The normative and legal frameworks that gave birth to the right-to-life argument do recognize circumstances where defensive killing is justified. Most death penalty opponents endorse the right to use deadly force when necessary, in self-defense or defense of others, to stop an aggressor’s unjust threat of death or serious bodily injury (e.g., Paul 1995 : §55). Except for pacifists, the right to life still permits defensive killing. That raises a potential challenge for the right-to-life argument: Can capital punishment ever qualify as justified defensive killing?

Rather than appealing to retribution or deterrence, this justification appeals to incapacitation. One virtue of capital punishment is its effectiveness incapacitating offenders—those executed never harm again. The defensive killing justification represents an especially stringent version of this rationale for capital punishment: an execution is justified only if it is necessary to prevent a capital offender’s threat of death or serious bodily injury.

The defensive killing justification differs from the societal self-defense justification sometimes offered for capital punishment. The latter’s core idea is to bring together backward- and forward-looking considerations to justify punishment (Boonin 2008 : 192). It takes punishment as necessary to protect society given its deterrent effect in reducing future crime. It then says that the most just way to distribute the necessary harm of punishment is for it to fall on those who have broken the law through past violence. Some who defend this approach to punishment argue that it justifies the death penalty (Farrell 1985 : 367–368; Montague 1995 : 131–157), but others question that conclusion (Hurka 1982 : 659; Tadros 2011 : 348–351).

Despite using the term self-defense , this justification ultimately makes the case for punishment by appealing, within certain constraints, to deterrence. That goal notably differs from the standard justification for individual self-defense—incapacitation. In fact, some express skepticism that self-defense can justify punishment (Alexander 2013 ). We need not resolve that debate here. The important point is that, when deployed to defend capital punishment, the societal self-defense justification appeals to this penalty’s ability to deter others from violence, which the right-to-life argument rejects as a valid ground to take a prisoner’s life.

In contrast, the defensive killing justification appeals to the goal of incapacitation. If capital punishment were necessary to incapacitate some prisoners—that is, stop their (not others’) unjust threats of grave harm—it would count as justified defensive killing. Those who embrace the right-to-life argument, aside from pacifists, recognize that justification as valid. So if some executions met the criteria for justified defensive killing, proponents of this argument would have to concede that it fails to imply abolition of the death penalty, even granting its underlying assumptions regarding retribution and deterrence.

Seeming to appreciate that concern, at least one formulation of the right-to-life argument expresses some hesitancy about rejecting the death penalty without exception. In his encyclical Evangelium Vitae , John Paul II writes that punishment “ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society.” He then adds that such cases of necessity “are very rare, if not practically non-existent” (Paul 1995 : §56).

One strategy to close this loophole is to appeal to the idea of the imminence requirement—that is, a necessary condition to justify deadly force is an imminent threat—and claim that it applies in all cases of defensive force. In other words, only imminent threats can justify deadly defensive force (see Ferzan 2004 ). That view carries the implication of precluding executions as justified defensive killing.

Here is why: capital punishment never kills an imminent threat but rather someone already rendered defenseless. To illustrate, imagine if a prisoner on their way to the execution chamber breaks free and attacks the surrounding guards, who then kill the prisoner in self-defense. Though the killing occurs minutes before the scheduled execution and has the same effect, it is distinct from an execution. The guards kill in self-defense to stop an imminent threat. An execution occurs under much different circumstances: the condemned is usually bound, unable to stop the deadly force awaiting them, and not an imminent threat. Footnote 1 If defensive killing only can be justified against imminent threats, capital punishment fails to qualify as justified killing.

That strategy of countering the incapacitation rationale for capital punishment has a flaw, however. It simply accepts as true a highly contested claim. Critics of the imminence requirement stress that necessity and imminence sometimes come apart, such as situations where it is necessary to use deadly force now to stop a grave threat that, though not imminent, will manifest itself later absent preventive action (see, e.g., Robinson 1982 : 217). Deadly force is morally justified in these scenarios lacking an imminent threat, critics argue, and the imminence requirement errs by failing to recognize such exceptions (Baron 2011 ; Allhoff 2019 ; Ford 2022 ). Notably, the law rarely reflects the imminence requirement across all contexts. The Model Penal Code and some jurisdictions’ criminal statutes omit the imminence requirement in their justifications for deadly defensive force (Dubber 2015 : 149, 164; Baron 2011 : 234). Moreover, law enforcement officials frequently have legal permissions to use deadly force against certain non-imminent threats. In many jurisdictions, suspects who have shown themselves to be dangerous in the past—for example, by committing or attempting a violent felony—are liable to deadly force when necessary to prevent their escape, regardless of whether they pose an imminent threat (Stoughton et al. 2020 : 81–84).

To be sure, some existing legal permissions to use deadly force against non-imminent threat may be too broad and morally dubious (see Fabre 2016 ; Jones forthcoming ). Still, the prevalence of such permissions makes clear that a blanket imminence requirement for deadly defensive force is a controversial view, which lacks robust support. Defenders of the right-to-life argument cannot simply assume that the imminence requirement applies to capital punishment and precludes it as justified defensive killing. That argument must be made.

Bedau’s Thought Experiment

Let’s turn to whether capital punishment could be justified defensive killing. This section considers a thought experiment by Hugo Bedau and uses it to suggest that executions could be justified defensive killing, at least in a fictional world different from ours in significant ways.

The nature of an execution poses challenges to understanding it as defensive killing. It kills someone already rendered defenseless in contrast to the paradigm case of justified defensive killing: deadly force against an unjust aggressor posing an imminent threat to life. If we stretch our imagination far enough, though, it is possible to imagine an execution that meets the criteria for justified defensive killing. Consider this thought experiment by Bedau:

Execution that Restores Life: Executing a murderer brings their victim back to life without fail, restoring the latter’s body and mind to how it was immediately before the murder. An execution is the only way to achieve this end. (Bedau 1993 : 183) Footnote 2

Despite his opposition to the death penalty, it strikes Bedau as obvious that an execution would be justified in this scenario. Footnote 3 His claim has prima facie appeal, but exactly why requires explanation, especially in light of a challenge to Bedau’s view. Gary Colwell ( 2002 ) points out that, if executing an offender restores their victim’s life, the person executed no longer appears guilty of murder. The fact that their victim is now alive violates a necessary condition for the crime of murder. Colwell thus questions the fairness of punishing someone with death for an offense that, following their punishment, does not involve permanently taking a life. One must overcome this challenge to justify capital punishment in Bedau’s thought experiment.

The solution lies in understanding an execution in this scenario as defensive killing. Like in our world, law enforcement officials in Bedau’s do not always succeed in preventing murder. But unlike our world, these officials sometimes have a chance to undo murders they failed to prevent. If the state fails to kill an aggressor at t 1 before their victim’s death, the state’s goal becomes executing the aggressor—following their arrest and conviction—at t 2 after the victim’s death. An execution at t 2 stops an unjust threat to the victim’s life posed by the aggressor’s continued existence. At both t 1 and t 2 , the intention and effect of killing the aggressor are the same: saving a victim’s life by stopping an unjust threat to it. So there is reason to conclude that defensive killing at t 2  is every bit as justified as at t 1 .

Some may question whether executing an aggressor at t 2 truly counts as defensive killing. Admittedly, the unusual causal relations in Bedau’s fictional world alter the status of actions in ways that are not immediately intuitive. In this thought experiment, a murderer who lives keeps their victim unjustly confined to the jaws of death. The murderer’s past wrong renders their mere existence an unjust threat to a life already taken—a type of threat that never arises in our world. When an execution stops that threat and restores the victim’s life, perhaps the aggressor is no longer guilty of murder. Still, the execution counts as justified defensive killing. This justification must show that the principle of necessity was met: the executed prisoner posed an unjust threat to life that only lethal means could stop. And the state can make exactly that case. The execution stopped the prisoner’s unjust threat to their victim’s life—a goal that only lethal means could achieve.

Predictions of Future Dangerousness

Bedau’s thought experiment shows that it is possible to imagine a world where executions would be justified defensive killing. Of course, in our world, executions do not bring murder victims back to life. But they do incapacitate capital offenders and prevent future violence by them. Under real-world conditions, a defensive killing justification for the death penalty would have to rely on predictions of a capital offender’s future dangerousness to show why executing them is necessary to prevent them from murdering or seriously harming others.

In the United States, considerations of future dangerousness play a significant role in capital sentencing. Two states, Oregon and Texas, require jurors to consider “whether there is a probability that the defendant would commit criminal acts of violence.” Jurors must unanimously answer this question in the affirmative to sentence a capital offender to death (Edmondson 2016 : 860, 906). In other states, future dangerousness counts as an aggravating factor in favor of a death sentence that juries weigh along with other aggravating and mitigating factors (Edmondson 2016 : 873–879). Even when future dangerousness is not raised at trial, interviews of capital jurors find that this concern often impacts their decisions (Blume et al. 2001 ).

No US jurisdiction limits death sentences to cases that satisfy the principle of necessity—the capital offender poses an unjust threat to life that only lethal means can stop. Even in Texas and Oregon, their statutes permit death sentences for those who pose just a small risk of violence or who are only likely to engage in violence that fails to justify deadly force. But despite such loose criteria, sentencing outcomes under these laws still provide insight into the accuracy of future dangerousness predictions. If states cannot make these predictions with reliable accuracy, executions justified as necessary to prevent future threats rest on morally suspect claims.

The US Supreme Court consistently has upheld the constitutionality of future dangerousness as a factor that juries in capital cases can consider (Jurek v. Texas 1976 ; Barefoot v. Estelle 1983 ), despite social science evidence casting doubt on such predictions. The American Psychiatric Association ( 1982 ) urged the court in Barefoot v. Estelle to prohibit psychiatric testimony predicting capital defendants’ future dangerousness because of its unreliability. Evidence at the time showed that psychiatric predictions that an inmate posed a future danger were wrong two-thirds of the time (American Psychiatric Association 1982 : 5). The Supreme Court did not question that high rate of false positives—that is, predicting dangers that never transpire—but still allowed psychiatric predictions of future dangerousness in capital cases. The court reasoned that, through the adversarial process, juries could distinguish reliable from unreliable evidence regarding future dangerousness (Barefoot v. Estelle 1983 : 900–901).

Subsequent research has shown the Supreme Court’s hopes to be unfounded (Cunningham 2006 ). The error rate of expert testimony on future dangerousness proves to be even higher than the best estimates at the time Barefoot v. Estelle was decided. One study identified 155 cases in Texas where the defendant was sentenced to death following expert testimony that they were a future danger. Those predictions of future dangerousness were almost always wrong: only 5% of inmates committed a serious assault and none committed a homicide while incarcerated during the time period studied (Edens et al. 2005 : 62–63). Juries do not fare any better. Many jurors greatly overestimate the likelihood that someone convicted of a capital crime will murder again if not executed. In interviews, capital jurors in Texas reported that they believed this probability to be 50%. That estimation turns out to be 50- to 250-times greater than the actual prevalence of capital offenders who commit homicide again after going to prison (Cunningham et al. 2011 : 2), based on studies of different jurisdictions in the US (Marquart et al. 1994 ; Sorensen and Wrinkle 1996 ; Sorensen and Pilgrim 2000 ; Cunningham et al. 2005 ; Sorensen and Cunningham 2009 ; Reidy et al. 2013 ).

Some may point to the more restrictive conditions on death row compared to elsewhere in prison to explain why those predicted to be a future danger often do not cause grave harm again. That explanation, however, fails to stand up under scrutiny. Several studies of Texas inmates look at violence by capital offenders deemed a future danger and sentenced to death but later moved to the general prison population after their sentence was overturned. These former death row inmates live in the same prison conditions as capital offenders not deemed a future danger at trial. Rates of violence between these groups are statistically indistinguishable from each other. So despite jury predictions to the contrary, former death-row inmates are not more dangerous and few engage in serious violence (Marquart et al. 1989 ; Cunningham et al. 2011 ).

Studies of other jurisdictions arrive at similar conclusions. Like in Texas, Oregon juries must deem a capital offender a future danger to sentence them to death. Analysis of prison violence by capital offenders finds that Oregon juries fare no better than chance in their predictions: “juries were right 90% of the time when predicting that future violence was not likely, and wrong 90% of the time when they predicted that future violence was likely” (Reidy et al. 2013 : 299). This lack of accuracy, combined with low base rates of violence by capital offenders in prison, means that jury predictions of dangerousness are wrong the vast majority of the time. The same is true for federal capital trials (Cunningham et al. 2009 ).

Decades of research on expert and jury predictions of future dangerousness in capital cases suggest the same conclusion: at present, we cannot make these predictions with reliable accuracy. This finding undermines the claim that executions are necessary to incapacitate certain capital offenders because of their future dangerousness. We have no reason to believe such predictions. In fact, since most capital offenders never engage in serious violence in prison, the predictions are likely wrong. The state’s inability to provide plausible grounds for its predictions of capital offenders’ future dangerousness puts in jeopardy the defensive killing justification to execute them.

But perhaps it can be salvaged. Studies of future dangerousness show that only a small percentage of capital offenders will kill in prison, but also that it is difficult to predict the few who will. Even if the risk of future lethal violence is low for imprisoned capital offenders—1% or less according to studies of US prisons (Cunningham et al. 2011 : 2)—that risk is higher than if they were executed since an execution eliminates all such risk. Now a death sentence, it should be pointed out, does not offer the same certainty as an execution. Summary executions are not a realistic option legally or morally given the need for due process, so a death sentence comes with some risk that the condemned could kill while awaiting execution (see Sorensen and Pilgrim 2006 : 60–61).

Still, it is plausible that a death sentence, by cutting short an offender’s life, limits their opportunities for violence and reduces that risk compared to a prison sentence. Footnote 4 Though rare, some convicted of capital offenses kill again in prison—directly Footnote 5 or by ordering it Footnote 6 —or after escaping Footnote 7 or being released. Footnote 8 We can compare these sentences’ relative effectiveness:

probability that capital offender sentenced to prison never unjustly kills in the future

probability that capital offender sentenced to death never unjustly kills in the future

Imprisonment comes with only a small risk of future lethal violence, but that risk is greater than it is for capital punishment. This slight difference opens the door for arguing that capital punishment satisfies the principle of necessity.

To understand why requires a closer look at this principle. What necessity demands is clearest under conditions of certainty. If one has only two options against an unjust threat to life—lethal option A or nonlethal option B —and it is certain A will stop the threat and B will not, A satisfies necessity. Conversely, if it is certain that A or B will stop the threat, A is not necessary. One should choose B because it achieves the same end while causing less harm. Such certainty, however, is elusive under real-world conditions. Available options almost always offer probabilities of success greater than zero but less than one. Indeed, that describes the choice facing the state when deciding between a death sentence and imprisonment for a capital offender.

Under uncertainty, the necessity principle typically is understood as offering guidance between options equally likely to stop a threat but with different risks of harm (Lazar 2012 : 10). If tripping or shooting an aggressor each have 0.8 probability of preventing their threat to life, one should trip them—it is equally likely to succeed while posing less risk of serious harm. In many cases, imprisonment will be just as effective as capital punishment in preventing unjust threats to life by capital offenders. Yet the state has difficulty knowing in advance for which offenders imprisonment will be effective and for which it won’t. It instead knows the expected effectiveness of imprisonment generally in preventing lethal violence. On this measure, a death sentence beats out imprisonment. So perhaps capital punishment does not violate the principle of necessity and is justified defensive killing.

But there is reason to question this argument. As Seth Lazar ( 2012 : 12) points out, it is implausible that any small increase in the likelihood of stopping a threat provided by deadly force automatically justifies it over the most effective nonlethal alternative (see also McMahan 2016 ). Due to the grave and irrevocable harm caused by deadly force, if its likelihood of preventing a threat is just marginally better than a nonlethal tactic, such a small difference appears insufficient to justify it. Indeed, it is difficult to justify deadly force in the following scenario: shooting a fully or partially culpable aggressor raises the likelihood of stopping their threat from only 0.98 to 0.99 compared to an available nonlethal option. Lazar’s nuanced understanding of necessity aligns with that judgment. His conception of necessity still gives priority to innocent over culpable life in evaluations of whether and what level of defensive force is justified, yet stops short of giving absolute priority to innocent over culpable life in those moral calculations. And that is the problem with trying to justify capital punishment as defensive killing. The nonlethal alternative of imprisonment has a high likelihood of success in stopping serious violence by capital offenders, which a death sentence can only slightly improve upon.

As the gap in likely effectiveness widens in favor of deadly force, justifications of such force on defensive grounds become more plausible. In the case of capital punishment, one development that could widen that gap is improved predictions of future dangerousness. Currently, juries and psychiatrists are no better than chance in predicting which capital offenders pose a future danger, but advances in research could change that. If our ability to predict future dangerousness improved significantly, perhaps the state could better identify those few capital offenders with a high likelihood of killing again. Let’s imagine for these individuals that the probability of a death sentence preventing future lethal violence remains over 0.99, yet the probability of a prison sentence achieving that same end is only 0.7. In this scenario, capital punishment is in a stronger position to satisfy the principle of necessity.

It is difficult to specify exactly how wide the gap in likely effectiveness between lethal and nonlethal options must be to justify the former. We can gain traction in answering that question for capital punishment by looking at prisoners generally and seeing what level of risk justifies deadly force on defensive grounds. As the next section explains, this analysis reveals an especially stringent obligation on the state to avoid lethal means to incapacitate prisoners, provided they pose no imminent unjust threat to life. That obligation precludes executions as justified defensive killing, even if predictions of future dangerousness improve.

Obligation to Use Nonlethal Incapacitation

A state has immense power over its prisoners, which comes with responsibilities. If it decides to imprison individuals for crimes, it must allocate the resources needed to safeguard their lives. So at the same time that the state takes rights away from those imprisoned, it acquires special obligations to them. There is debate over the extent of those obligations, but most agree on certain basic ones—providing food, clothing, essential medical care, and security.

I would like to suggest that one of these obligations is to incapacitate prisoners through nonlethal means. If a state uses lethal incapacitation as a first resort, it takes life unnecessarily and shows disregard for the lives of its prisoners. Beyond just avoiding this wrong, the state must proactively prevent violence through nonlethal means. If the state is negligent in this regard and allows prison conditions that endanger inmates’ lives, it forsakes a basic obligation to them.

It is important to qualify this obligation. First, it does not apply when prisoners pose an imminent unjust threat of death or serious bodily injury that only deadly force can stop. Such threats, to be sure, can stem from the state’s failure to fulfill its obligation to prevent violence through nonlethal incapacitation. Still, the state retains the right to use deadly force when necessary to stop imminent and unjust threats to life, otherwise the obligation suggested here would prove too restrictive and conflict with a widely recognized permission for defensive force.

Second, assigning blame to the state when it fails to uphold its obligation to prevent violence does not mean prisoners who initiate violence are free from blame. Various actors often bear responsibility for prison violence. The important point is that the state is more than just a bystander to such violence—it has a responsibility to prevent it. Indeed, when rampant prison violence occurs, we rightly fault the state for allowing such conditions to develop.

Third, the obligation defended here specifically limits the state’s use of deadly force for the goal of incapacitation. Its implications do not extend to deadly force that aims to achieve other ends, like retribution. The discussion below focuses on whether the defensive killing justification—not other potential justifications for the death penalty—succeeds or fails in light of this obligation to prisoners. That approach aligns with the article’s overall goal: to assess the internal consistency of the right-to-life argument.

With those caveats, the state’s obligation to incapacitate through nonlethal means can be expressed as follows:

Obligation to Use Nonlethal Incapacitation (ONI): If prisoners pose no imminent, grave, and unjust threat that only deadly force can stop (or is significantly more likely to stop), the state has an obligation to use nonlethal means to incapacitate them.

ONI gives just one exception—an imminent, grave, and unjust threat that requires deadly force to stop it—where the prohibition against lethal incapacitation does not apply. In other words, it applies the imminence requirement to the state in any efforts to prevent future harm by prisoners.

Some may support the general goal of incapacitating prisoners by nonlethal means but find ONI too restrictive. Nonlethal incapacitation can be challenging and costly, especially for dangerous inmates. Couldn’t some prisoners pose future dangers so great that ONI becomes too onerous and no longer applies? If so, that opens the door to justifying executions as defensive killing, at least under conditions where the state could reliably predict future dangerousness.

Various examples, however, suggest a different conclusion: ONI remains in place regardless of how great a prisoner’s future danger is. Consider the appeals process for those sentenced to death, even those deemed a future danger. Rather than immediately execute these offenders, countries like the US grant them appeals that take years to exhaust. Though critics call for shorter appeals, most grant that those sentenced to death have a right to at least some appeals. As long as they do, the state has a corresponding obligation to find nonlethal means to prevent serious violence by prisoners pursuing appeals. So most already recognize ONI during the appeals process. Its binding nature during this time, regardless of an offender’s future danger, undermines the idea that such danger can override ONI.

Consider, too, how the state handles dangerous individuals in its custody not sentenced to death. Bentham makes this point when arguing against the death penalty:

It has been asserted, that in the crime of murder [capital punishment] is absolutely necessary ; that there is no other means of averting the danger threatened from that class of malefactors. This assertion is, however, extremely exaggerated…. Even these malefactors are not so dangerous nor so difficult to manage as madmen…. Yet it is never thought necessary that madmen should be put to death. They are not put to death: they are only kept in confinement; and that confinement is found effectually to answer the purpose. (Bentham 2009 : 177)

Though we may find Bentham’s talk of madmen a bit dated, he makes a point that has stood the test of time—those sentenced to death are no more dangerous than many others in the state’s custody. In fact, research suggests that prisoners serving shorter sentences for less serious crimes often are more violent in prison than capital offenders, even when both are confined to the same conditions (Cunningham et al. 2005 ). If these noncapital offenders fail to pose a danger sufficient to override ONI, the state cannot claim that capital offenders do.

For utilitarians like Bentham, conceivably there could be some scenario—say an evil Hulk convicted of grave crimes—where the prisoner’s future threat and costs of preventing it by nonlethal means are so great that the utilitarian calculus calls for an execution. In practice, though, such cost–benefit calculations are deeply problematic given the nature of the state’s obligations to its prisoners.

To illustrate, imagine if a state considered starving its prisoners to feed more of its poor and benefit society as a whole. There is something deeply wrong with that mindset. Most obviously, it opens the door to rationalizing horrific abuses of state power. But, more fundamentally, it fails to understand the state’s relationship to its prisoners, which generates obligations particularly resistant to being overridden. By taking away their liberty, the state renders prisoners dependent on it for their life and welfare. As a result, the state has a greater responsibility to safeguard prisoners’ lives than it does to others less dependent on it. Allowing any resident to starve is a tragedy, yet such neglect is especially egregious when the state makes someone dependent on it for basic necessities and then fails to provide them.

Just as the state’s obligation to feed its prisoners is largely resistant to being overridden, the same appears true for ONI. When the state has a noncapital offender in custody, it never considers killing them as an option for incapacitation, absent an imminent threat. That absolute prohibition makes sense given the state’s immense power over its prisoners. Pursuing nonlethal incapacitation may require extra resources—perhaps ones the state would prefer not to spend—but there is a strong intuition that the state must provide those resources, at least for noncapital offenders. Indeed, for this class of offenders, there appears to be an overlapping consensus for ONI. For some, the state fulfills ONI by dedicating resources to high-security prisons to protect against particularly dangerous inmates. For others, a more humane and effective way of fulfilling ONI comes through pairing incarceration with more robust rehabilitative practices (an approach common in Scandinavia). Regardless of which side one falls on, the important point here is that neither side sees executing noncapital offenders as a morally or politically viable option for ensuring public safety.

If ONI applies to all noncapital offenders, it should apply to capital offenders. Capital offenders are no more dangerous than the most dangerous noncapital offenders. Since the latter’s level of risk fails to override ONI, it cannot be the case that the former’s level of risk does. So ONI holds for all prisoners, which has the effect of prohibiting executions for defensive killing. After all, ONI only permits deadly force to incapacitate prisoners who pose a grave imminent threat, and executions kill prisoners who are defenseless and pose no such threat.

ONI reframes the decision facing states when lethal and nonlethal means of incapacitation have different likelihoods of success. It is a mistake to try to determine how wide that gap must be in favor of lethal means to justify an execution. Regardless of how wide it is, ONI prohibits executions for incapacitation. States therefore should not see executions as a solution when nonlethal methods falter. ONI instead suggests committing to efforts to improve nonlethal incapacitation.

Addressing Objections

Let’s turn now to three potential objections to ONI.

Objection 1: If a prisoner kills despite good faith efforts to observe ONI, it no longer applies

This objection recognizes that executions should not be the state’s first option. But if an inmate kills despite good faith efforts to prevent such violence, surely the state is justified in pursuing lethal incapacitation where nonlethal measures failed. In such cases, it is reasonable to conclude that executing the prisoner is necessary to protect life.

Though tempting, that conclusion fails to hold up under scrutiny. It is far from obvious that lethal means become necessary after a prison killing since it only shows that particular nonlethal measures failed to incapacitate, not the failure of all such measures. In the wake of prison violence, the state’s obligation to pursue nonlethal incapacitation remains, as long as the imminent threat to life has passed.

That point is evident in the case of a juvenile prisoner or one with intellectual disability who murders another inmate. Assume they bear some but diminished culpability for their crime, due to their youth or intellectual disability. In US law, these exculpatory factors categorically bar the death penalty (Atkins v. Virginia 2002 ; Roper v. Simmons 2005 ), a prohibition in line with most people’s intuitions (Atkins v. Virginia 2002 : 316–317; Death Penalty Information Center 2022 ). One explanation for moral unease with an execution in this case is that it is wrong to kill those who lack culpability for intentional harms they pose—so-called innocent aggressors (see Thomson 1991 ; McMahan 1994 ; Otsuka 1994 ). But that explanation, even if correct, doesn’t work here since the prisoner is still partially culpable. That detail makes it hard to deny that the prisoner would be liable to defensive killing if they posed an imminent threat to life that only lethal means could stop. But if the same prisoner posed no imminent threat, there is a robust consensus against deadly force. This prohibition applies regardless of past violence or future danger, which highlights ONI’s binding nature.

Objection 2: ONI overlooks how culpability lowers the risk needed to justify defensive killing

Some argue that an aggressor’s culpability determines their liability to defensive harm. An example by Jeff McMahan illustrates this idea. Normally it is impermissible to intentionally kill someone you know poses no threat and use them as a means to save your life. But imagine a villain makes a futile effort to kill you—their gun is empty, which you know yet they don’t—while the real threat comes from a second villain pointing a loaded gun out of a basement window. The only way to save your life is to kill the first villain so that they drop and block the window. Some have the intuition that killing the first villain would be justified (McMahan 2005 : 391–392). According to this view, culpability loosens the restriction against killing those who pose no actual threat. By analogy, one could argue that capital offenders’ culpability for grave crimes lowers the bar for justifying defensive killing against them. Their culpability makes its permissible to use lethal incapacitation against a level of risk that, for other offenders, only justifies nonlethal measures.

This argument rests on a contested claim applied to a context where it is especially dubious. McMahan notes that not everyone shares the intuition that deadly force against the first villain is justified. He also expresses reservations with relying on culpability as a principle to guide deadly force decisions since it fails to specify where to draw the line between justified and unjustified defensive killing. If McMahan’s example featured a bystander who attempted murder a year ago —a threat long passed—and presently makes no threat, would they be liable to deadly force (McMahan 2005 : 392–393)? That is far less plausible. Even defenders of culpability as a basis for liability agree and reject “free-floating” conceptions of it (Ferzan 2012 : 686). When culpability indefinitely robs one of protections against deadly force, it risks turning defensive killing into a form of punitive action.

That is the problem with lowering, just for capital offenders, the bar to justify executions on defensive grounds. It treats capital and noncapital offenders differently based on their past action rather than future threat. This backward-looking approach is at odds with the principle of necessity, which focuses on stopping future threats, not punishing past wrongs. If deadly force is unnecessary for imprisoned noncapital offenders posing the greatest risk of future danger, it also should be unnecessary for imprisoned capital offenders posing no greater risk.

Objection 3: ONI would not apply to past political communities with far fewer resources

This objection stems from the contingent grounds on which ONI appears to rest. The argument for ONI appeals to the resources that states have today for nonlethal incapacitation. Political communities, of course, have not always had so many resources. ONI seems less plausible for past political communities without the resources and technology to establish secure facilities for incapacitating capital offenders. ONI describes an obligation grounded in contingent facts about the world today, which limits its application to past societies or ones that could emerge.

Even if this objection is true, showing that ONI applies to current states remains significant. Establishing this obligation robs executions today of a potentially compelling justification. Contemporary nations that execute—like China, Iran, and the US—hardly are weak states lacking nonlethal modes of incapacitation or resources to improve them when they falter. It is absurd to suggest that executions carried out today are necessary on defensive grounds.

Whether ONI would apply in past political communities with scarce resources is a tougher question. Consider a small, poor community ravaged by murderous raids, which leave it teetering on the edge of existence. It captures an attacker and has genuine worries about being able to securely confine them. There is the real risk of the captive’s escaping and pillaging again. An execution in such dire circumstances seems like it might satisfy the principle of necessity. Yet it also seems natural in this scenario—indeed, appropriate—to feel moral unease about killing on defensive grounds someone bound and defenseless. For past societies with scarce resources, it is not immediately obvious whether executing dangerous captives would be justified defensive killing. Fortunately, that question proves far less thorny for states today.

Calls to abolish the death penalty because it violates the right to life prove consistent with recognizing certain forms of defensive killing as justified. Besides thought experiments like Bedau’s, where executing a murderer extracts their victim from the jaws of death, it is a mistake to understand the death penalty as necessary for incapacitation. By developing and defending the obligation to use nonlethal incapacitation (ONI), this article offers a novel explanation for why the death penalty fails to qualify as justified defensive killing. ONI places the imminence requirement on the state in its efforts to prevent violence by prisoners. ONI thus has the effect of precluding the death penalty—a practice that kills individuals rendered defenseless who pose no imminent threat—for the purpose of incapacitation.

This article focuses on establishing the internal consistency of the right-to-life argument to abolish the death penalty. As such, it does not purport to address all potential objections to the right-to-life argument. Notably, the right-to-life argument categorically rejects retribution and an offender’s culpability as valid grounds for the death penalty. Many proponents of the death penalty, of course, reject this premise. If retribution is a valid ground for executions, the right-to-life argument fails despite its internal consistency.

It is beyond this article’s scope to evaluate retributive arguments for the death penalty, except to note that retribution, compared with incapacitation, has long been a more controversial basis for killing. Though objections to deadly force that is necessary to stop grave unjust threats tend to be limited to pacifists, a far broader range of critics object to taking life on retributive grounds. Footnote 9 Appeals to future dangerousness can be understood, in part, as an attempt to establish a less controversial moral basis for the death penalty. Through introducing and defending ONI, this article’s contribution lies not in defeating all justifications for the death penalty, but in depriving proponents of the practice of a justification with potentially broad appeal.

Some may suggest gladiator contests, where the condemned could defend themselves, as a counterexample. Being sentenced to such combat was not a true death sentence, though. There were distinctions in ancient Rome between gladii poena (certain death by sword), summum supplicium (certain death by more cruel methods like being thrown to the beasts), and ludi damnatio (condemnation to gladiatorial games). The last penalty forced individuals into combat where death was possible but not assured (see Bauman 1996 : 14, 122). Furthermore, my description of capital punishment remains apt for present practices since gladiator combat is rightly seen as morally repugnant and not a realistic sentencing option today.

Bedau does not explicitly say that executing murderers is the only way to revive their victims, but context implies it. He writes: “taking life deliberately is not justified so long as there is any feasible alternative” (Bedau 1993 : 179).

Before Bedau, Justice Richard Maughan of the Utah Supreme Court expressed a similar idea: “Were there some way to restore the bereaved and wounded survivors, and the victims, to what was once theirs; there could then be justification for the capital sanction. Sadly, such is not available to us” (State v. Pierre 1977 : 1359). This remark is mentioned by Barry ( 2017 : 540).

That claim is questionable in the US, where most death sentences are overturned (Baumgartner and Dietrich 2015 ) and executions that do occur usually take place close to two decades after conviction (Bureau of Justice Statistics 2021 : 2). I grant this claim, though, for the sake of argument.

E.g., Thomas Creech who killed a fellow inmate after receiving life sentences for murder in Idaho (Boone 2020 ).

E.g., Clarence Ray Allen who while serving a life sentence for murder in California conspired with a recently released inmate to murder witnesses from his previous case (Egelko and Finz  2006 ).

E.g., Jeffrey Landrigan who escaped from an Oklahoma prison where he was serving a sentence for murder and went on to commit another murder in Arizona (Schwartz 2010 ).

E.g., Kenneth McDuff who was sentenced to death, had his sentences commuted to life following Furman v. Georgia ( 1972 ), and was eventually paroled, after which he murdered multiple people in Texas (Cartwright 1992 ). I thank an anonymous reviewer for suggesting the examples in footnotes 5–8.

These critics include those who grant retribution as a valid rationale for punishment but still reject it as a justification for the death penalty (see Brooks 2004 ).

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I am grateful for helpful feedback on this article from Désirée Lim, Kevin Barry, and Erin Hanses.

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Jones, B. Death Penalty Abolition, the Right to Life, and Necessity. Hum Rights Rev 24 , 77–95 (2023). https://doi.org/10.1007/s12142-022-00677-x

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The Death Penalty Debate: Arguments For and Against Capital Punishment

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

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

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

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

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

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

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

Arguments For the Death Penalty

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

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

Arguments Against the Death Penalty

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

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

The Takeaway

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

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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.

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Death penalty draws more Americans’ support online than in telephone surveys

Most americans favor the death penalty despite concerns about its administration, california is one of 11 states that have the death penalty but haven’t used it in more than a decade, public support for the death penalty ticks up, most popular.

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

Essays About the Death Penalty: Top 5 Examples and Prompts

The death penalty is a major point of contention all around the world. Read our guide so you can write well-informed essays about the death penalty. 

Out of all the issues at the forefront of public discourse today, few are as hotly debated as the death penalty. As its name suggests, the death penalty involves the execution of a criminal as punishment for their transgressions. The death penalty has always been, and continues to be, an emotionally and politically charged essay topic.

Arguments about the death penalty are more motivated by feelings and emotions; many proponents are people seeking punishment for the killers of their loved ones, while many opponents are mourning the loss of loved ones executed through the death penalty. There may also be a religious aspect to support and oppose the policy. 

1. The Issues of Death Penalties and Social Justice in The United States (Author Unknown)

2. serving justice with death penalty by rogelio elliott, 3. can you be christian and support the death penalty by matthew schmalz, 4.  death penalty: persuasive essay by jerome glover, 5. the death penalty by kamala harris, top 5 writing prompts on essays about the death penalty, 1. death penalty: do you support or oppose it, 2. how has the death penalty changed throughout history, 3. the status of capital punishment in your country, 4. death penalty and poverty, 5. does the death penalty serve as a deterrent for serious crimes, 6. what are the pros and cons of the death penalty vs. life imprisonment , 7. how is the death penalty different in japan vs. the usa, 8. why do some states use the death penalty and not others, 9. what are the most common punishments selected by prisoners for execution, 10. should the public be allowed to view an execution, 11. discuss the challenges faced by the judicial system in obtaining lethal injection doses, 12. should the death penalty be used for juveniles, 13. does the death penalty have a racial bias to it.

“Executing another person only creates a cycle of vengeance and death where if all of the rationalities and political structures are dropped, the facts presented at the end of the day is that a man is killed because he killed another man, so when does it end? Human life is to be respected and appreciated, not thrown away as if it holds no meaningful value.”

This essay discusses several reasons to oppose the death penalty in the United States. First, the author cites the Constitution and the Bill of Rights, saying that the death penalty is inhumane and deprives people of life. Human life should be respected, and death should not be responded to with another death. In addition, the author cites evidence showing that the death penalty does not deter crime nor gives closure to victims’ families. 

Check out these essays about police brutality .

“Capital punishment follows the constitution and does not break any of the amendments. Specific people deserve to be punished in this way for the crime they commit. It might immoral to people but that is not the point of the death penalty. The death penalty is not “killing for fun”. The death penalty serves justice. When justice is served, it prevents other people from becoming the next serial killer. It’s simple, the death penalty strikes fear.”

Elliott supports the death penalty, writing that it gives criminals what they deserve. After all, those who commit “small” offenses will not be executed anyway. In addition, it reinforces the idea that justice comes to wrongdoers. Finally, he states that the death penalty is constitutional and is supported by many Americans.

“The letter states that this development of Catholic doctrine is consistent with the thought of the two previous popes: St. Pope John Paul II and Benedict XVI. St. John Paul II maintained that capital punishment should be reserved only for “absolute necessity.” Benedict XVI also supported efforts to eliminate the death penalty. Most important, however, is that Pope Francis is emphasizing an ethic of forgiveness. The Pope has argued that social justice applies to all citizens. He also believes that those who harm society should make amends through acts that affirm life, not death.”

Schmalz discusses the Catholic position on the death penalty. Many early Catholic leaders believed that the death penalty was justified; however, Pope Francis writes that “modern methods of imprisonment effectively protect society from criminals,” and executions are unnecessary. Therefore, the Catholic Church today opposes the death penalty and strives to protect life.

“There are many methods of execution, like electrocution, gas chamber, hanging, firing squad and lethal injection. For me, I just watched once on TV, but it’s enough to bring me nightmares. We only live once and we will lose anything we once had without life. Life is precious and can’t just be taken away that easily. In my opinion, I think Canada shouldn’t adopt the death penalty as its most severe form of criminal punishment.”

Glover’s essay acknowledges reasons why people might support the death penalty; however, he believes that these are not enough for him to support it. He believes capital punishment is inhumane and should not be implemented in Canada. It deprives people of a second chance and does not teach wrongdoers much of a lesson. In addition, it is inhumane and deprives people of their right to life. 

“Let’s be clear: as a former prosecutor, I absolutely and strongly believe there should be serious and swift consequences when one person kills another. I am unequivocal in that belief. We can — and we should — always pursue justice in the name of victims and give dignity to the families that grieve. But in our democracy, a death sentence carried out by the government does not constitute justice for those who have been put to death and proven innocent after the fact.”

This short essay was written by the then-presidential candidate and current U.S. Vice President Kamala Harris to explain her campaign’s stance on the death penalty. First, she believes it does not execute justice and is likely to commit injustice by sentencing innocent people to death. In addition, it is said to disproportionally affect nonwhite people. Finally, it is more fiscally responsible for abolishing capital punishment, as it uses funds that could be used for education and healthcare. 

This topic always comes first to mind when thinking of what to write. For a strong argumentative essay, consider the death penalty and list its pros and cons. Then, conclude whether or not it would be beneficial to reinstate or keep the policy. There is an abundance of sources you can gather inspiration from, including the essay examples listed above and countless other online sources.

People have been put to death as a punishment since the dawn of recorded history, but as morals and technology have changed, the application of the death penalty has evolved. This essay will explore how the death penalty has been used and carried out throughout history.

This essay will examine both execution methods and when capital punishment is ordered. A few points to explore in this essay include:

• Thousands of years ago, “an eye for an eye” was the standard. How were executions carried out in ancient history?
• The religious context of executions during the middle ages is worth exploring. When was someone burned at the stake?
• The guillotine became a popular method of execution during the renaissance period. How does this method compare to both ancient execution methods and modern methods?
• The most common execution methods in the modern era include the firing squad, hanging, lethal injections, gas chambers, and electrocution. How do these methods compare to older forms of execution?

Choose a country, preferably your home country, and look into the death penalty status: is it being implemented or not? If you wish, you can also give a brief history of the death penalty in your chosen country and your thoughts. You do not necessarily need to write about your own country; however, picking your homeland may provide better insight. 

Critics of the death penalty argue that it is anti-poor, as a poor person accused of a crime punishable by death lacks the resources to hire a good lawyer to defend them adequately. For your essay, reflect on this issue and write about your thoughts. Is it inhumane for the poor? After all, poor people will not have sufficient resources to hire good lawyers, regardless of the punishment. 

This is one of the biggest debates in the justice system. While the justice system has been set up to punish, it should also deter people from committing crimes. Does the death penalty do an adequate job at deterring crimes? 

This essay should lay out the evidence that shows how the death penalty either does or does not deter crime. A few points to explore in this essay include:

• Which crimes have the death penalty as the ultimate punishment?
• How does the murder rate compare to states that do not have the death penalty in states with the death penalty?
• Are there confounding factors that must be taken into consideration with this comparison? How do they play a role?

This is one of the most straightforward ways to explore the death penalty. If the death penalty is to be removed from criminal cases, it must be replaced with something else. The most logical alternative is life imprisonment. 

There is no “right” answer to this question, but a strong argumentative essay could take one side over another in this death penalty debate. A few points to explore in this essay include:

• Some people would rather be put to death instead of imprisoned in a cell for life. Should people have the right to decide which punishment they accept?
• What is the cost of the death penalty versus imprisoning someone for life? Even though it can be expensive to imprison someone for life, remember that most death penalty cases are appealed numerous times before execution.
• Would the death penalty be more acceptable if specific execution methods were used instead of others?

Few first-world countries still use the death penalty. However, Japan and the United States are two of the biggest users of the death sentence.

This is an interesting compare and contrast essay worth exploring. In addition, this essay can explore the differences in how executions are carried out. Some of the points to explore include:

• What are the execution methods countries use? The execution method in the United States can vary from state to state, but Japan typically uses hanging. Is this considered a cruel and unusual punishment?
• In the United States, death row inmates know their execution date. In Japan, they do not. So which is better for the prisoner?
• How does the public in the United States feel about the death penalty versus public opinion in Japan? Should this influence when, how, and if executions are carried out in the respective countries?

In the United States, justice is typically administered at the state level unless a federal crime has been committed. So why do some states have the death penalty and not others?

This essay will examine which states have the death penalty and make the most use of this form of punishment as part of the legal system. A few points worth exploring in this essay include:

• When did various states outlaw the death penalty (if they do not use it today)?
• Which states execute the most prisoners? Some states to mention are Texas and Oklahoma.
• Do the states that have the death penalty differ in when the death penalty is administered?
• Is this sentence handed down by the court system or by the juries trying the individual cases in states with the death penalty?

It might be interesting to see if certain prisoners have selected a specific execution method to make a political statement. Numerous states allow prisoners to select how they will be executed. The most common methods include lethal injections, firing squads, electric chairs, gas chambers, and hanging. 

It might be interesting to see if certain prisoners have selected a specific execution method to make a political statement. Some of the points this essay might explore include:

• When did these different execution methods become options for execution?
• Which execution methods are the most common in the various states that offer them?
• Is one method considered more “humane” than others? If so, why?

One of the topics recently discussed is whether the public should be allowed to view an execution.

There are many potential directions to go with this essay, and all of these points are worth exploring. A few topics to explore in this essay include:

• In the past, executions were carried out in public places. There are a few countries, particularly in the Middle East, where this is still the case. So why were executions carried out in public?
• In some situations, individuals directly involved in the case, such as the victim’s loved ones, are permitted to view the execution. Does this bring a sense of closure?
• Should executions be carried out in private? Does this reduce transparency in the justice system?

Lethal injection is one of the most common modes of execution. The goal is to put the person to sleep and remove their pain. Then, a cocktail is used to stop their heart. Unfortunately, many companies have refused to provide states with the drugs needed for a lethal injection. A few points to explore include:

• Doctors and pharmacists have said it is against the oath they took to “not harm.” Is this true? What impact does this have?
• If someone is giving the injection without medical training, how does this impact the prisoner?
• Have states decided to use other more “harmful” modes of execution because they can’t get what they need for the lethal injection?

There are certain crimes, such as murder, where the death penalty is a possible punishment across the country. Even though minors can be tried as adults in some situations, they typically cannot be given the death penalty.

It might be interesting to see what legal experts and victims of juvenile capital crimes say about this important topic. A few points to explore include:

• How does the brain change and evolve as someone grows?
• Do juveniles have a higher rate of rehabilitation than adults?
• Should the wishes of the victim’s family play a role in the final decision?

The justice system, and its unjust impact on minorities , have been a major area of research during the past few decades. It might be worth exploring if the death penalty is disproportionately used in cases involving minorities. 

It might be worth looking at numbers from Amnesty International or the Innocence Project to see what the numbers show. A strong essay might also propose ways to make justice system cases more equitable and fair. A few points worth exploring include:

• Of the cases where the death penalty has been levied, what percentage of the cases involve a minority perpetrator?
• Do stays of execution get granted more often in cases involving white people versus minorities?
• Do white people get handed a sentence of life in prison without parole more often than people of minority descent?

If you’d like to learn more, our writer explains how to write an argumentative essay in this guide.

For help with your essay, check our round-up of best essay writing apps .

Martin is an avid writer specializing in editing and proofreading. He also enjoys literary analysis and writing about food and travel.

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Capital Punishment and the Death Penalty Essay

Criminal law and procedure, historical development of criminal law, difference between legal and social parameters in criminal law, elements of a crime.

In most nations, there are two or three sorts of courts that have authority over criminal cases. A single expert judge typically handles petty offenses, but two or more lay justices in England may sit in a Magistrates’ Court. In many nations, more severe cases are heard by panels of two or more judges (Lee, 2022). Such panels are frequently made up of attorneys and lay magistrates, as in Germany, where two laypeople sit alongside one to three jurists. The French cour d’assises comprises three professional judges and nine lay assessors who hear severe criminal cases. Such mixed courts of professionals and ordinary residents convene and make decisions by majority voting, with lawyers and laypeople having one vote.

The United States Constitution permits every defendant in a non-petty matter the right to be prosecuted before a jury; the defendant may forgo this privilege and have the decision decided by a professional court judge. To guarantee the court’s fairness, the defense and prosecution can dismiss or challenge members whom they prove to be prejudiced (Lee, 2022). Furthermore, the defense and, in the United States, the prosecution has the right of vexatious challenge, which allows it to confront several participants without providing a reason.

One of the most primitive texts illustrating European illegitimate law appeared after 1066, when William the Conqueror, Duke of Normandy, conquered England. By the eighteenth century, European law addressed criminal behavior specifically, and the idea of trying lawbreakers in a courtroom context began to transpire (Zalewski, 2019). The English administration recognized a scheme referred to as common law, which is the method through which regulations that regulate a group of people are established and updated. Corporate law relates to public and illegal cases and is grounded on the establishment, adjustment, and expansion of laws by adjudicators as they make permissible judgments. These decisions become standards, prompting the consequences of impending cases.

Misdemeanors, offences, and sedition are the three types of unlawful offenses presented before the courts. Misdemeanors are petty infringements decided by penalties or confiscation of property; some are penalized by less than a year in prison. Offences are meaningfully more heinous felonies with heavier consequences, such as incarceration in a federal or state prison for a year or more. Treason is characterized as anything that breaches the country’s allegiance. Felonious law changes and is often susceptible to modification based on the ethics and standards of the period.

Parameters are values with changing attributes, principles, or dimensions that may be defined and monitored. A parameter is usually picked from a data set because it is critical to understanding the situation. A parameter aids in comprehending a situation, whereas a parameter defines the situation’s bounds (Doorn et al., 2018). The critical concept of the Legal parameter is that behaviors are restricted by unspoken criteria of deviance that are agreeable to both the controlled and those that govern them. Impartiality, fairness, and morality are all ideals conveyed by social justice, and they all have their origins in the overarching concept of law (Doorn et al., 2018). From a social standpoint, it involves various topics such as abortion, cremation, bio-genetics, human decency, racial justice, worker’s rights, economic freedom, and environmental concerns.

All crimes in the United States may be subdivided into distinct aspects under criminal law. These components of an offense must then be established beyond possible suspicion in a court of law to convict the offender (Ormerod & Laird, 2021). Many delinquencies need the manifestation of three crucial rudiments: a criminal act, criminal intent, and the concurrence of the initial two. Depending on the offense, a fourth factor called causality may be present.

First is the criminal act (Actus Reus): actus reus, which translates as “guilty act,” refers to any criminal act of an act that occurs. To be considered an unlawful act, an act must be intentional and controlled by the defendant (Ormerod & Laird, 2021). If an accused act on nature, they may not be held responsible for their conduct. Words can be deemed illegal activities and result in accusations such as perjury, verbal harassment, conspiracy, or incitement. On the contrary, concepts are not considered illegal acts but might add to the second component: intent.

Second is crime intent (Mens Rea): for a felonious offense to be categorized as a misconduct, the culprit’s mental circumstance must be reflected. According to the code of mens rea, a suspect can only be considered remorseful if there is felonious intent (Ormerod & Laird, 2021). Third is concurrence, which refers to the coexistence of intent to commit a crime and illicit behavior. If there is proof that the mens rea preceded or happened simultaneously with the actus reus, the burden of proving it is met. Fourth is causation: this fourth ingredient of an offense is present in most criminal cases, but not all. The link concerning the defendant’s act and the final consequence is called causation. The trial must establish outside a possible suspicion that the perpetrator’s acts triggered the resultant criminality, which is usually detriment or damage.

The risk of executing an innocent man cannot be entirely removed despite precautions and protection to prevent capital punishment. If the death penalty was replaced with a statement of life imprisonment, the money saved as a result of abolishing capital punishment may be spent in community development programs. The harshness of the penalty is not as efficient as the guarantee that the penalty will be given in discouraging crime. In other terms, if the penalty dissuades crime, there is no incentive to prefer the stiffer sentence.

Doorn, N., Gardoni, P., & Murphy, C. (2018). A multidisciplinary definition and evaluation of resilience: The role of social justice in defining resilience . Sustainable and Resilient Infrastructure , 4 (3), pp. 112–123. Web.

Lee, S.-O. (2022). Analysis of the major criminal procedure cases in 2021 . The Korean Association of Criminal Procedure Law , 14 (1), pp. 139–198. Web.

Ormerod, D., & Laird, K. (2021). 2. The elements of a crime: Actus reus . Smith, Hogan, and Ormerod’s Criminal Law , pp 26–87. Web.

Rancourt, M. A., Ouellet, C., & Dufresne, Y. (2020). Is the death penalty debate really dead? contrasting capital punishment support in Canada and the United States . Analyses of Social Issues and Public Policy , 20 (1), 536–562. Web.

Stetler, R. (2020). The history of mitigation in death penalty cases . Social Work, Criminal Justice, and the Death Penalty , pp. 34–45. Web.

Wheeler, C. H. (2018). Rights in conflict: The clash between abolishing the death penalty and delivering justice to the victims . International Criminal Law Review , 18 (2), 354–375. Web.

Zalewski, W. (2019). Double-track system in Polish criminal law. Political and criminal assumptions, history, contemporary references . Acta Poloniae Historica , 118 , pp 39. Web.

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• Essay Samples Essays

The Death Penalty Debate Essay

Some people commit heinous crimes like murder and this is mainly intentional due to greediness or cruelty. Different countries have laws that are meant to protect the interests of the citizens and death penalty has been used to solve such criminal cases. However, this practice has often come under criticism for various reasons. Against this background, this paper is going to critically evaluate the factors for and against this practice in different places. To a larger extent, it can be seen that people who commit such gruesome crimes like murdering others in cold blood should also be killed since they would be seen as very dangerous to other citizens in society. Upon conviction of murder, the murderer should also be killed. Therefore, death penalty is ideal in this case since it would be meant to deter the other people from committing such kind of gruesome crimes which may negatively impact on peace in the society.

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According to the Universal Declaration of Human Rights (1948), human beings are born with inalienable rights which should not be violated by other people. Article 3 of the UDHR (1948) states that “everyone has the right to life, liberty and security of a person.” Different countries have laws that mainly derive from their constitutions and these laws are meant to protect the interests and rights of the citizens. Since everyone is entitled to life, it can be argued that capital punishment such as death penalty should be abolished since it violates the rights of other people. Instead, other sentences should be put in place in order to deal with such cases since killing a person because he has murdered someone would be a violation of his right to life. It is only God who has the powers to end human life since he is the creator. In such a case, it can be observed that there is no other person who is supposed to kill another individual even if that person has committed a serious crime like murder. The responsible authorities should find other means of sentencing people who have committed murder.

According to Bahati (ND), death penalty is inhuman, cruel and degrading punishment that should not be used by different countries. In countries that use this law, all people convicted of murder are hanged as punishment. However, the method used when the executions are carried out is cruel since the person involved will be subjected to cruel death. This violates the rights of other people since it is stated in the UDHR (1948) that every person has a right to live. Ending another person’s life in such a violent manner amounts to cruelty even if that person involved would have committed a serious crime. It is argued that sentences such as life imprisonment can be ideal when dealing with cases involving murder. There is no person who will have a guilty conscience of having killed the other person. Therefore, death penalty should not be used when punishing the criminals since it is cruel.

On the other hand, it can be seen that some people are very cruel such that they kill others in a very bad way. Such people should also die the same way since they would have killed others as a result of greediness or just cruelty. Various studies indicate that death penalty has been used in many countries since time immemorial. In other religions, all murderers are killed. There are various methods that are used when terminating the lives of the people involved in murder cases. In some religions, the offenders are stoned to death while in some areas the culprits are hanged. The culprit is first tried and once convicted of murder, then he is also killed. There are some people who are specifically concerned with carrying out the executions in different areas.

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The bible also mentions the use of capital punishment were people who kill others also deserved to be killed. Bahat (ND) quotes some bible verses which support death penalty and they include the following: “He who kills a man shall be put to death.” Genesis 9:6 states, “Whoever sheds the blood of man, by man shall his blood be shed.” Exodus 21:12-14 states: “whoever strikes a man so that he dies shall be put to death. But if he did not lie in wait for him, but God let him fall into his hand, then I will appoint for you a place to which he may flee. But if a man wilfully attacks another to kill him treacherously, you shall take him from my altar that he may die.” There are also other numerous verses in the bible which support death penalty. If the bible supports death sentence, then all criminals who murder others in cold blood should also be subjected to the same treatment. Thus, “a tooth for tooth, eye for eye” principle should be applied since it would be concerned with protecting the interests of all people. The aim of applying the death penalty would be meant to ensure that all citizens enjoy the rights to their lives. Cruelty against human kind should be treated with the contempt it deserves and this means that all murderers should be eliminated from the society in order to promote peace and justice.

In as far as the concept of human rights is concerned, it can be noted that John Locke’s Second Treatise Government 1776, USA states that all individuals have natural rights to their lives and liberties (Donnelly, 1998). It is the role of the ruling government of the day to put measures in place that are meant to protect the lives of the citizens in the country. The ruling government has the power to enact laws that are meant to shape the behaviour of the people such that peace and harmony prevails in the country.

For instance, all governments have clearly defined criminal laws which are designed in such a way that all culprits are brought to book to ensure the prevalence of justice. According to Kleyn & Viljoen (2002), criminal law is often regarded as penal law and all people who commit crimes such as murder which are classified as criminal would be liable for prosecution by the government. It is the duty of the government to prosecute as well as to sentence any person who is accused of committing a criminal act. The state has a duty to punish all the transgressors against the stipulated laws of the land. Murder is a serious crime which should not be tolerated in any democratic society since there is no one with a right to kill another person.

Death penalty should be enforced as a way of trying to deter people from committing criminal cases such as murder. The behaviour of people living in a particular society should be regulated so that it does not impact negatively on other people’s lives. For instance, killing another person can be regarded as culpable homicide or murder. In some instances, the death of another person can be a result of mistake but the offender in this case will be liable for a lighter sentence or fine. However, there are some cases where the killing would be intentional. Murderers usually kill other people with the aim of robbing them of their valuable possessions. In such a situation, the culprit should not be let free as this would promote criminal activities in the society. Justice should prevail for the sake of citizens living in a particular society (Muller et al, 2007). In the absence of a fair and democratic justice system, it can be seen that people can kill each other wantonly and this can severely impact on other people’s rights and liberties to live.

Basically, death penalty should be enforced in cases involving gruesome murder of other people as a way of removing the culprits from the society. The other aim of enforcing this law is to send a warning to other members of the society so that they would not commit similar offences. If the justice system is lenient to culprits who commit serious crimes like murder, it may be difficult to govern the societies involved. In every society, there are laws that are supposed to protect other people so that it can be easy to govern as well as control them. In each country, the law of the land should be used to protect other people such that the country can be governable. Extreme cases like murder should never treated lightly since they destabilize the society in a variety of ways. Intentional murder cases deserve to be treated with the highest degree of contempt so that other people can freely enjoy their liberties.

It defies logic to pardon the murderers since this would encourage other people to commit heinous crimes to other innocent citizens. Any person who is found guilty of a murder case should be hanged since this is the only punishment that can help to reduce the cases of murder in a given country. However, the culprits have to be tried in the court of law so as to ensure that justice prevails. Once found guilty, the culprit should be hanged since this is likely to warn other people against committing such offences. There is no person who should be above the law in any given country and this principle should be enforced at any cost. Human life is precious hence it has to be protected by all the citizens. Failure to adhere to this principle can lead to anarchy in a country which can ultimately make it ungovernable. This would not be a good thing for other peace loving citizens. Brown (2001) states that capital punishment can be used as a very effective strategy that can ensure the restoration of justice in a given society where people can learn to respect other citizens.

Over and above, it can be observed that there are often conflicting interests with regards to the aspect of death penalty. Whilst some people may argue against this particular practice, it can be seen that people who kill others should also be killed since they would be dangerous elements in any society. There are various international laws that treat murder as a serious person since there is no person endowed with the right to terminate the life of the other person. As long as the culprit is found guilty of a serious criminal offence that involves gruesome murder of another person, then the culprit should be eliminated from the society since he or she will be a serious threat to the lives of other people.

Bahat, A. (ND). The Death Penalty Debate. Tanzania Law Reform Commission.

Brown, S. P. (2001). ‘Punishment and the restoration of rights’. Punishment and

Society, vol. 3(4), pp. 485-500.

Donelly, J. (1998). International Human Rights, Boulder, Westview Press, Colorado.

Kleyn, D. & Viljoen, F. (2002). Beginner’s guide for law students, 3rd Edition. JUTA:

United States Department of State (ND). Country reports on human rights practices,

Washington DC, US Department of state, Issued annually.

Universal Declaration of Human Rights (1948). United Nations Department of Public

information.

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Argumentative essay on death penalty

In 1994, Seth Penalver was sentenced to death for a brutal murder that involved three individuals. There was no actual physical evidence relating him to the crime. The only evidence they had was a video with poor quality in which the murderer’s face could not be seen as well. Penalver remained in custody until 2012, when he was finally acquitted of all charges. (Florida: Seth Penalver, acquitted in 2012) Death Penalty is a crime. The death penalty is unjustifiable, hypocritical and leads to false imprisonment that results in executions that are later discovered to be found.

Seth Penalver case is just among the countless cases that have been recorded by individuals who have been on the verge of death due to poor apprehension tactics in their case. Investigations that have been carried out in numerous states following the reinstatement of the death penalty in 1976 reveals that there are numerous people who were executed yet innocent. It is inevitable to state that the execution of any innocent individual is morally reprehensible. Despite the effort that has been put into guaranteeing proper investigation and conviction of individuals brought in front of a court, no case is fool proof (Ogletree 18). Thus, there might be the conviction of people into death row yet innocent. Based on this, it is recommendable that all individuals, if found guilty beyond reasonable doubt, are given a sentence of life without parole which is reasonably effective. The sentencing of death to some criminals might put them out of the misery they might have endured in prison.

The manipulation of the judicial system has been evident where in history it is recorded that factors such as race influenced the death sentence in certain states. This is evident in cases whereby if an African American murdered a white man, he or she was likely to be sentenced to death which is unlike if the situation was reversed. In states such as Oregon, there have been numerous accounts of biases whereby the blacks were victimized by being given the death sentence, which would not have been the case if a white man killed an African American. The death row system has also been a significant waste of the taxpayers money whereby in cases such as the 1995 Washington County murder cases an estimated $1.5 million shillings was spent yet only one of the three suspects was sentenced to death (Ellsworth and Samuel 28). An investigation conducted by the Oregon Department of Administrative Service has made statements that the abolishment of the death row system would save the federal government a substantial amount of resources that could be utilized in significant development projects.

Despite the overwhelming evidence that may be rendered against a suspect, it is important to note that this does not necessarily make them guilty. However, the lack of a proper defense, particularly among suspects who do not have the financial resources to hire a good lawyer, are likely to be found guilty and sentenced to death. An analysis of the numerous cases that the death penalty has been reversed there has been overwhelming evidence pointing out poor counsel. A study conducted by the Columbia University argues that an estimated 68% of appeals made by individuals sentenced to death have been reversed due to ineffective assistance of counsel. Based on this understanding, it would be inappropriate to continuously sentence people to death row as there are numerous factors that could contribute to misjudgment.

Despite the numerous arguments that have been presented in support of the abolishment of the death penalty, there continues to exist counter arguments who believe that the death penalty should be upheld. Among the substantial arguments that have been presented is that, the public execution of the said offenders serves a public reminder to criminals that crime is not rewarding. Speculations reveal that an evaluation of the rate of homicide in numerous states significantly dropped after the incorporation of the death sentence (Hood and Carolyn 7). The further argument presented in support of the death penalty states that the execution of a convicted felon guarantees that the killer will never be engaged in the act again. This argument has been supported by the fact that a significant number of people have been killed by convicted felons who managed to get parole or escaped from jail.

Irrespective of the varied arguments that have been presented in support of the death penalty, I believe that everyone has the capacity to change. It would, therefore, be inappropriate to sentence convicted felons to death without giving them an opportunity to express their remorse towards their actions. It is important that other means of dealing with criminals who are engaged in great crimes is developed because the death sentence has seemingly had no positive impact on lowering the crime rate.

• Ellsworth, Phoebe C., and Samuel R. Gross. “Hardening of the attitudes: Americans’ views on the death penalty.” Journal of Social Issues 50.2 (1994): 19-52.
• Hood, Roger, and Carolyn Hoyle. The death penalty: A worldwide perspective. OUP Oxford, 2015.
• Ogletree Jr, Charles J. “Black man’s burden: Race and the death penalty in America.” Or. L. Rev. 81 (2002): 15.
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Home — Essay Samples — Social Issues — Capital Punishment — The Death Penalty: Is it Ethical and Effective in Crime Prevention?

The Death Penalty: is It Ethical and Effective in Crime Prevention?

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Utilizing the death penalty raises ethical concerns, on the other hand, proponents argue that the death penalty is a necessary tool in the fight against crime, in conclusion.

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Tennessee Senate advances bill to allow death penalty for child rape

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Tennessee’s GOP-controlled Senate advanced legislation on Tuesday allowing the death penalty in child rape convictions as critics raised concerns that the U.S. Supreme Court has banned capital punishment in such cases.

Republicans approved the bill on a 24-5 vote. It must still clear the similarly conservatively dominant House chamber before it can go to Gov. Bill Lee’s desk for his signature.

If enacted, the Tennessee bill would authorize the state to pursue capital punishment when an adult is convicted of aggravated rape of a child. Those convicted could be sentenced to death, imprisonment for life without possibility of parole, or imprisonment for life.

Florida’s Gov. Ron DeSantis enacted a similar bill nearly a year ago. Supporters in both states argue that the goal is to get the currently conservative-controlled U.S. Supreme Court to reconsider a 2008 ruling that found it unconstitutional to use capital punishment in child sexual battery cases.

Republican Sen. Ken Yager argued during Tuesday’s debate that his bill was not unconstitutional because it only gave district attorneys the option of pursuing the death penalty for those convicted of child rape.

“We are protecting the children using a constitutional approach,” Yager said. “I would not stand here and argue for this bill if I didn’t believe that with my whole heart.”

Yager’s argument differs from the supporters inside the Tennessee Legislature, where Republican House Majority Leader William Lamberth has conceded that even though Tennessee previously allowed convicted child rapists to face the death penalty, the Supreme Court ultimately nullified that law with its 2008 decision.

Other lawmakers compared their goal to the decades long effort that it took overturn Roe v. Wade , the landmark 1973 case that legalized abortion nationwide but was eventually overruled in 2022.

“Maybe the atmosphere is different on the Supreme Court,” said Republican Sen. Janice Bowling. “We’re simply challenging a ruling.”

Democrats countered that the bill would instill more fear into child rape victims about whether to speak out knowing that doing so could potentially result in an execution. Others warned that predators could be incentivized to kill their victims in order to avoid a harsher punishment.

Execution law in the U.S. dictates that crimes must involve a victim’s death or treason against the government to be eligible for the death penalty. The Supreme Court ruled nearly 40 years ago that execution is too harsh a punishment for sexual assault, and justices made a similar decision in 2008 in a case involving the rape of a child.

Currently, all executions in Tennessee are on hold as state officials review changes to its lethal injection process. Gov. Lee issued the pause after a blistering 2022 report detailed multiple flaws in how Tennessee inmates were put to death.

No timeline has been provided on when those changes will be completed. And while the state Supreme Court is free to issue death warrants for death row inmates, it has so far not done so.

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NPR defends its journalism after senior editor says it has lost the public's trust

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NPR is defending its journalism and integrity after a senior editor wrote an essay accusing it of losing the public's trust. Saul Loeb/AFP via Getty Images hide caption

NPR is defending its journalism and integrity after a senior editor wrote an essay accusing it of losing the public's trust.

NPR's top news executive defended its journalism and its commitment to reflecting a diverse array of views on Tuesday after a senior NPR editor wrote a broad critique of how the network has covered some of the most important stories of the age.

"An open-minded spirit no longer exists within NPR, and now, predictably, we don't have an audience that reflects America," writes Uri Berliner.

A strategic emphasis on diversity and inclusion on the basis of race, ethnicity and sexual orientation, promoted by NPR's former CEO, John Lansing, has fed "the absence of viewpoint diversity," Berliner writes.

NPR's chief news executive, Edith Chapin, wrote in a memo to staff Tuesday afternoon that she and the news leadership team strongly reject Berliner's assessment.

"We're proud to stand behind the exceptional work that our desks and shows do to cover a wide range of challenging stories," she wrote. "We believe that inclusion — among our staff, with our sourcing, and in our overall coverage — is critical to telling the nuanced stories of this country and our world."

NPR names tech executive Katherine Maher to lead in turbulent era

She added, "None of our work is above scrutiny or critique. We must have vigorous discussions in the newsroom about how we serve the public as a whole."

A spokesperson for NPR said Chapin, who also serves as the network's chief content officer, would have no further comment.

Praised by NPR's critics

Berliner is a senior editor on NPR's Business Desk. (Disclosure: I, too, am part of the Business Desk, and Berliner has edited many of my past stories. He did not see any version of this article or participate in its preparation before it was posted publicly.)

Berliner's essay , titled "I've Been at NPR for 25 years. Here's How We Lost America's Trust," was published by The Free Press, a website that has welcomed journalists who have concluded that mainstream news outlets have become reflexively liberal.

Berliner writes that as a Subaru-driving, Sarah Lawrence College graduate who "was raised by a lesbian peace activist mother ," he fits the mold of a loyal NPR fan.

Yet Berliner says NPR's news coverage has fallen short on some of the most controversial stories of recent years, from the question of whether former President Donald Trump colluded with Russia in the 2016 election, to the origins of the virus that causes COVID-19, to the significance and provenance of emails leaked from a laptop owned by Hunter Biden weeks before the 2020 election. In addition, he blasted NPR's coverage of the Israel-Hamas conflict.

On each of these stories, Berliner asserts, NPR has suffered from groupthink due to too little diversity of viewpoints in the newsroom.

The essay ricocheted Tuesday around conservative media , with some labeling Berliner a whistleblower . Others picked it up on social media, including Elon Musk, who has lambasted NPR for leaving his social media site, X. (Musk emailed another NPR reporter a link to Berliner's article with a gibe that the reporter was a "quisling" — a World War II reference to someone who collaborates with the enemy.)

When asked for further comment late Tuesday, Berliner declined, saying the essay spoke for itself.

The arguments he raises — and counters — have percolated across U.S. newsrooms in recent years. The #MeToo sexual harassment scandals of 2016 and 2017 forced newsrooms to listen to and heed more junior colleagues. The social justice movement prompted by the killing of George Floyd in 2020 inspired a reckoning in many places. Newsroom leaders often appeared to stand on shaky ground.

Leaders at many newsrooms, including top editors at The New York Times and the Los Angeles Times , lost their jobs. Legendary Washington Post Executive Editor Martin Baron wrote in his memoir that he feared his bonds with the staff were "frayed beyond repair," especially over the degree of self-expression his journalists expected to exert on social media, before he decided to step down in early 2021.

Since then, Baron and others — including leaders of some of these newsrooms — have suggested that the pendulum has swung too far.

Author Interviews

Legendary editor marty baron describes his 'collision of power' with trump and bezos.

New York Times publisher A.G. Sulzberger warned last year against journalists embracing a stance of what he calls "one-side-ism": "where journalists are demonstrating that they're on the side of the righteous."

"I really think that that can create blind spots and echo chambers," he said.

Internal arguments at The Times over the strength of its reporting on accusations that Hamas engaged in sexual assaults as part of a strategy for its Oct. 7 attack on Israel erupted publicly . The paper conducted an investigation to determine the source of a leak over a planned episode of the paper's podcast The Daily on the subject, which months later has not been released. The newsroom guild accused the paper of "targeted interrogation" of journalists of Middle Eastern descent.

Heated pushback in NPR's newsroom

Given Berliner's account of private conversations, several NPR journalists question whether they can now trust him with unguarded assessments about stories in real time. Others express frustration that he had not sought out comment in advance of publication. Berliner acknowledged to me that for this story, he did not seek NPR's approval to publish the piece, nor did he give the network advance notice.

Some of Berliner's NPR colleagues are responding heatedly. Fernando Alfonso, a senior supervising editor for digital news, wrote that he wholeheartedly rejected Berliner's critique of the coverage of the Israel-Hamas conflict, for which NPR's journalists, like their peers, periodically put themselves at risk.

Alfonso also took issue with Berliner's concern over the focus on diversity at NPR.

"As a person of color who has often worked in newsrooms with little to no people who look like me, the efforts NPR has made to diversify its workforce and its sources are unique and appropriate given the news industry's long-standing lack of diversity," Alfonso says. "These efforts should be celebrated and not denigrated as Uri has done."

After this story was first published, Berliner contested Alfonso's characterization, saying his criticism of NPR is about the lack of diversity of viewpoints, not its diversity itself.

"I never criticized NPR's priority of achieving a more diverse workforce in terms of race, ethnicity and sexual orientation. I have not 'denigrated' NPR's newsroom diversity goals," Berliner said. "That's wrong."

Questions of diversity

Under former CEO John Lansing, NPR made increasing diversity, both of its staff and its audience, its "North Star" mission. Berliner says in the essay that NPR failed to consider broader diversity of viewpoint, noting, "In D.C., where NPR is headquartered and many of us live, I found 87 registered Democrats working in editorial positions and zero Republicans."

Berliner cited audience estimates that suggested a concurrent falloff in listening by Republicans. (The number of people listening to NPR broadcasts and terrestrial radio broadly has declined since the start of the pandemic.)

Former NPR vice president for news and ombudsman Jeffrey Dvorkin tweeted , "I know Uri. He's not wrong."

Others questioned Berliner's logic. "This probably gets causality somewhat backward," tweeted Semafor Washington editor Jordan Weissmann . "I'd guess that a lot of NPR listeners who voted for [Mitt] Romney have changed how they identify politically."

Similarly, Nieman Lab founder Joshua Benton suggested the rise of Trump alienated many NPR-appreciating Republicans from the GOP.

In recent years, NPR has greatly enhanced the percentage of people of color in its workforce and its executive ranks. Four out of 10 staffers are people of color; nearly half of NPR's leadership team identifies as Black, Asian or Latino.

"The philosophy is: Do you want to serve all of America and make sure it sounds like all of America, or not?" Lansing, who stepped down last month, says in response to Berliner's piece. "I'd welcome the argument against that."

"On radio, we were really lagging in our representation of an audience that makes us look like what America looks like today," Lansing says. The U.S. looks and sounds a lot different than it did in 1971, when NPR's first show was broadcast, Lansing says.

A network spokesperson says new NPR CEO Katherine Maher supports Chapin and her response to Berliner's critique.

The spokesperson says that Maher "believes that it's a healthy thing for a public service newsroom to engage in rigorous consideration of the needs of our audiences, including where we serve our mission well and where we can serve it better."

Disclosure: This story was reported and written by NPR Media Correspondent David Folkenflik and edited by Deputy Business Editor Emily Kopp and Managing Editor Gerry Holmes. Under NPR's protocol for reporting on itself, no NPR corporate official or news executive reviewed this story before it was posted publicly.

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The Morning

Business and a second trump term.

Times reporters discuss the relationship between major C.E.O.s and Donald Trump.

By David Leonhardt

If Donald Trump wins a second term, he has promised to govern as no modern president has, imposing steep tariffs, rounding up immigrants, freeing Jan. 6 rioters and possibly pulling out of NATO. Trump has signaled that he will accomplish all this by appointing loyalists, rather than the more moderate military leaders and corporate executives from his first term.

Even so, many C.E.O.s are unconcerned , as my colleague Jonathan Mahler described them in a recent article. They don’t believe Trump will do what he has promised, in contrast to many scholars who have studied politicians like Trump and believe that he will follow through.

To make sense of the situation, I asked for help from Jonathan and three Times reporters who have been covering Trump’s second-term plans : Maggie Haberman, Charlie Savage and Jonathan Swan. Our exchange follows.

‘They can work with him’

David Leonhardt: Do C.E.O.s just assume that Trump will fail to implement his agenda — or do they quietly support it?

Jonathan Mahler: Most C.E.O.s are not wild about a second Trump term. They had a rocky ride the first time around — though they did get the tax cuts and deregulation they wanted — and they are pretty sure he will bring instability, which is generally bad for business.

Having said that, many are also down on President Biden, who has been much more aggressive about regulating business. And I don’t have the impression that they have absorbed the messages that Trump and his allies have been sending about what a second term would look like.

It may be hard for C.E.O.s to imagine that they could have a lot less influence next time. But to me, that attitude seems to ignore both history and political currents around the world, including within America’s own conservative movement.

Charlie Savage: The premise here is that C.E.O.s would be more motivated by larger issues of American democracy as a matter of enlightened self-interest than by their direct self-interest. I am not sure that premise holds.

It is common to hear the term “populist” used as shorthand for Trumpism. But that isn’t the right label if the question is which candidate’s policies are more likely to allow corporations and the wealthy to amass more money in the near term. Biden would let Trump’s 2017 income tax cuts expire for affluent people, while Trump is promising a new corporate tax cut. And Trump disparages regulatory agencies — the means by which society imposes rules on powerful business interests, which can cut into their profits — as part of the “deep state” he has vowed to dismantle.

Many radical aspects of Trump’s agenda are not incompatible with the wealthy getting wealthier.

(Related: In a speech yesterday, Biden harshly criticized Trump as a protector of the wealthy . “He looks at the economy from Mar-a-Lago, where he and his rich friends embrace the failed trickle-down policies that have failed working families for more than 40 years,” Biden said.)

Maggie Haberman: I think some C.E.O.s are telling themselves that there were similar warnings about Trump in 2016, and that they believe he’s so transactional that they can work with him. The problem with that take is that Trump’s interest in the C.E.O.s is entirely need based. Yes, he likes approval from the wealthy. But if he wins, he cannot legally run for president again, which would be unconstraining for him.

I think the basic point that these executives are unhappy with economic policy under Biden is crucial. I have heard endless complaints about the climate initiatives, student debt relief and the federal deficit (despite a lack of complaining from the same executives when Trump increased the deficit).

Most importantly, these executives tend to roll their eyes at coverage of Trump’s radical plans and tell themselves they can find ways to navigate it.

‘Averting their gazes’

Jonathan Swan: Trump will have far fewer incentives in 2025 than he did in 2017 to appease corporate America. The donor class largely abandoned him after Jan. 6, even if some are slowly coming back now. American banks refuse to do business with the Trump Organization.

And under Trump, the Republican base has changed dramatically. They are more blue collar, more likely to loathe corporate chieftains and Davos “thought leaders.” The relationship between corporate America and congressional Republicans has also chilled. I have heard something like this from several Trump-aligned Republicans about corporate America: “We protected you for years. And then you turned around and sided with the Democrats on every major cultural issue — the environment, immigration, diversity and inclusion and voting rights.”

Most Republicans are still cozy with corporate interests, but some of the newer Trump-aligned members of Congress, like Marjorie Taylor Greene, are less dependent on corporate money because they raise a ton online from grass-roots donors.

David Leonhardt : I’m left believing that many C.E.O.s genuinely support a lot of Trump’s agenda — but also oppose other parts. The executives seem to be betting they can get the parts they like without the ones they don’t.

Maggie Haberman: No matter how genuinely they support or don’t support specific pieces, many are animated by greater antipathy toward Biden than attraction to Trump. And they’re averting their gazes from the parts they don’t like.

For more: Read Jonathan’s article on the views of C.E.O.s and The Times’s series on Trump’s second-term agenda .

THE LATEST NEWS

Trump on trial.

Juan Merchan, the judge overseeing Trump’s Manhattan criminal trial, swore in the first seven of the jurors who will hear the case, including the foreman.

Lawyers on both sides questioned prospective jurors, and Merchan dismissed several for social media posts critical of Trump. ( See the 42 questions prospective jurors must answer.)

After Trump muttered during jury selection, Merchan scolded his lawyer. “I will not have any jurors intimidated in this courtroom,” Merchan said.

The selection is moving quickly and could be done this week. Read more takeaways from Day 2 .

When Melania Trump learned in 2018 that her husband had paid to cover up an affair, she was furious with him. Now, she shares his disdain for the case against him.

Trump has relied on a handful of explanations to defend himself across his various indictments. Read a fact check .

“Another Stormy day in New York”: The late night hosts had plenty to say about the trial .

Some House Republicans said they would fight Speaker Mike Johnson’s plan to advance aid for Ukraine. Johnson will need Democrats’ help to pass the package.

House Republicans delivered articles of impeachment against Alejandro Mayorkas, Biden’s homeland security secretary, to the Senate.

More on Politics

The Supreme Court justices sounded wary of letting prosecutors use an obstruction law to charge participants in the Jan. 6 attack. It’s a case that could free convicted rioters from prison and eliminate some charges against Trump.

Bob Graham, a Florida Democrat who worked entry-level jobs alongside his political roles in a populist strategy that helped make him a governor, senator and 2004 presidential candidate, died at 87 .

Middle East

Israel’s war cabinet continued to debate retaliatory options after Iran’s attack. World leaders are pressing Israel and Iran to de-escalate the conflict.

Separate Israeli strikes killed two Hezbollah commanders in southern Lebanon, the military said.

Iran’s attack on Israel has shifted focus from the war in Gaza. Read about the status of Israel’s offensive there .

International Response

The U.S. plans to impose more sanctions on Iran for the attack.

The University of Southern California, citing security concerns, canceled a planned speech by a valedictorian, who is Muslim. A Muslim group called the decision cowardly; pro-Israel groups said she had linked to antisemitic material online.

Senator Tom Cotton, an Arkansas Republican, urged people to “ take matters into your own hands ” if pro-Palestinian protesters block roads.

More International News

Thousands of foreign fighters signed up to help Ukraine after Russia’s invasion. The Times spent four days alongside some of them .

“Green Islam”: Clerics in Indonesia have issued fatwas to fight climate change .

Other Big Stories

American officials, to persuade the British government to extradite the WikiLeaks founder Julian Assange, promised that he would not face the death penalty . Assange is charged with violating the Espionage Act.

Jerome Powell, the Federal Reserve chair, said the Fed would probably wait to cut interest rates , citing stubborn inflation.

NPR suspended an editor who publicly accused the network of liberal bias.

Hawaii bars government contractors from making political donations. Late night fund-raising parties have undermined the effort, a Times analysis found.

Doug Sosnik explains Biden’s narrow path to victory with 11 maps .

Israel should act like a democracy and allow outside journalists to enter Gaza, Jodie Ginsberg writes.

Two former prosecutors discuss Trump’s criminal trial in Manhattan with David French .

Here are columns by Thomas Friedman on leadership change in the Middle East and Ross Douthat on the difference between polarization and civil war .

MORNING READS

Animals: Feral cats threaten Australia’s native wildlife . Survival training for prey species could help.

Nature school: This six-month program in Brooklyn helps New Yorkers bring neighborhood flora and fauna into focus.

Social media: On TikTok, more women are making videos about abortions — some reflecting on their own experiences, others explaining how to obtain one.

Ask Well: There are drugs to prevent Lyme disease in dogs. Why don’t humans have the same?

Lives Lived: Whitey Herzog was a Hall of Fame manager who led the St. Louis Cardinals to a World Series victory. He died at 92 .

N.B.A.: The Sacramento Kings defeated the Golden State Warriors , 118-94, in a Play-In game. The Warriors are eliminated from playoff contention.

Los Angeles Lakers: The Kings will play the Pelicans for the Western Conference’s final playoff spot after the Lakers won in New Orleans to advance to the full playoffs.

W.N.B.A.: Monday’s draft averaged 2.4 million viewers ; the previous record was 601,000, in 2004.

Cage-match politics: Dana White, the chief executive of the U.F.C., has risen to the peak of Trump-era political influence .

ARTS AND IDEAS

Medics in the U.S. have begun to explore an idea that was first popularized in Britain: “ social prescription .” That means trying to address problems like isolation and stress by suggesting patients explore nonclinical activities; think glassblowing, walks in nature, or ballroom dancing.

Some experts, however, are skeptical about how far the approach will go in a nation without socialized medicine: “I think all the biases built into the system favor medical care and more acute intensive care,” a health policy professor told The Times.

More on culture

Oklahoma-style onion burgers are popular in New York. Pete Wells visited a SoHo restaurant where they reach their drippy peak.

“Civil War,” the new film from Alex Garland, ends in Washington. Read a behind-the-scenes look at how the sequence came together .

THE MORNING RECOMMENDS …

Serve Indian butter chickpeas over rice.

Throw a perfect dinner party .

Turn a bike ride into a workout .

Focus better with a white noise machine .

Stop mosquitoes from multiplying .

Here is today’s Spelling Bee . Yesterday’s pangrams were complicit and impolitic .

And here are today’s Mini Crossword , Wordle , Sudoku , Connections and Strands .

Thanks for spending part of your morning with The Times. See you tomorrow. — David

P.S. Jon Stewart interviewed The Times’s David Sanger, a national security correspondent, on “The Daily Show.”

Sign up here to get this newsletter in your inbox . Reach our team at [email protected] .

David Leonhardt runs The Morning , The Times’s flagship daily newsletter. Since joining The Times in 1999, he has been an economics columnist, opinion columnist, head of the Washington bureau and founding editor of the Upshot section, among other roles. More about David Leonhardt