Ethical Theory Approach to Death Penalty

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Within the contractual framework, the death penalty is seen as unethical and immoral. The major debate at stake concerns the challenges of racist history, ‘objective’ standards, and the ‘greater good.’ Considering the numerous variants of legal culture that influence erroneous court outcomes, it is not ethically justifiable to continue applying a terminal sentence as a principle. According to contractualism, the interest of an innocent person convicted of murder by mistake outweighs those of others. Hence, in the ethical framework of contractualism, nations should abolish the death penalty de facto and de jure.

Ethical Theory Review

The normative conclusions on the topic of capital punishment will be drawn within the contractual framework. While both the utilitarian and the contractual approach render the consequences of actions morally significant, the latter can effectively evaluate honesty, fairness, and neglect (Li, 2017). Scanlon’s contractualism states that “an act is permissible if and only if it is justifiable to everyone affected by it” (Li, 2017, p. 153). Even a single person matters in this framework – contractualism does not consider the number of people with similar interests. As a result, there is a pairwise comparison between the strongest personal generic reason on one side and on the other (Li, 2017). In this case, the sides are an innocent murder convict with an interest in abolishing capital punishment and those who demand that the convicted criminal be punished harshly. The strongest interest of murder convicts is not to be executed by mistake and to keep their lives, while the strongest common reason of death penalty proponents is likely based on general deterrence. Hence, in this pairwise comparison, a pledge for a human to survive outweighs a pledge of deterring future crime.

Within this ethical theory and morally, a terminal sentence cannot be justified for those executed and innocent. Even if a cruel and unusual sentence could maximize deterrence, Li (2017) rejects it as unacceptable under the foundational theory principle that an offender should not receive punishment exceeding what they deserve. Therefore, the question is whether it is ever justifiable to convict, given a chance of a mistaken verdict. Li (2017) further argues that since the death penalty does not allow any meaningful remedy if any refuting evidence surfaces and the pledge of a falsely convicted offender takes priority, the death penalty is not justifiable. In other terms, imposing an irreparable and incomparable burden on certain community members, given the chance of false accusation, is rejected by contractualist ethical theory.

Death Penalty Policy Review

Understanding the underlying problems of the capital punishment policy requires consideration of history. Today’s death penalty policy is best understood by considering its predecessors: slavery and the use of lynching to enforce a racial caste system (Bandes, 2018). The modern Court has effectively sidelined race as a consideration in capital punishment by ruling that the presence of racial bias does not automatically establish it in each case (Sigler, 2018). However, numerous studies indicate that to this day, black defendants are more likely to be executed than other races, while murders of black people are less likely to be similarly punished (Cholbi & Madva, 2018). Such statistics are especially concerning since today when official manifestations of overt racism are rare, it would be difficult for defendants to prove it on a case-by-case basis.

Another issue is a lack of clarity in determining the systemic purpose of a terminal sentence. The Court routinely refers to “the two distinct social purposes served by the death penalty: deterrence and retribution,” regularly confusing the two (Sigler, 2018, p. 81). Deterrence implies punishment reducing the future frequency and severity of the crime, while retribution suggests that imposing a proportionate punishment rectifies the past wrongs, regardless of achieving other social goals (Bandes, 2018; Sigler, 2018). Sigler (2018) and Bandes (2018) criticize the Court for consistently failing to distinguish retribution from revenge and vigilantism, yet recognizing those as legitimate punishment justifications. Moreover, the research on deterrence shows that reducing the death penalty to life imprisonment would not compromise national security (Li, 2017). Therefore, given the perpetual confusion and unclear benefits, there seems to be little justification for validating terminal sentences.

Lastly, the information analysis for death penalty decisions is criticized. Recent findings indicated that between 3.3% and 5% of convictions in rape-murder cases might be wrong (Li, 2017). Moreover, there are known cases where some wrongfully killed people were found innocent years after the execution (Mbah, Pruitt, & Wasum, 2019). In regulating the death penalty, the modern Court operates in terms of society’s “evolving standards” and “objective” parameters, including statutes and jury decision-making patterns, nonetheless leaving room for its “own judgment” (Sigler, 2018, p. 81). In practice, this process entails the Court tracking statutory trends, jury decisions, and opposition from professional organizations (Sigler, 2018). Unfortunately, the law designed to protect minorities does so by limiting the majority power; therefore, using the majority’s value judgments to protect minorities does not make sense (Sigler, 2018). Thus, the Court essentially abdicates its duty to make independent judgments, undermining the whole process.

Proposed Changes

The death penalty has a profound impact on family members involved on both sides, the victim and the perpetrator and the entire society. Mbah, Pruitt, and Wasum (2019) show that children of executed convicts face emotional and financial problems, and some develop resentment and a desire for revenge. Moreover, some victims’ family members regret accepting the execution of their loved ones’ killer since it does not give them the expected healing (Mbah, Pruitt, & Wasum, 2019). In light of these findings, Mbah, Pruitt, and Wasum (2019) propose a sentencing reform, and increased funding for jury training on life imprisonment and parole, calling for increased awareness of all death penalty aspects. Furthermore, death penalty executions are no longer public affairs. They no longer carry, if they ever did, the message of redemption and moral teaching. In contrast, the death penalty may still carry the legacy of racial discrimination, which may be corrected by largely re-evaluating the extent to which race is considered in issuing verdicts (Cholbi & Madva, 2018). It follows that because executing an innocent person is ethically unjustifiable and current procedures are flawed, courts should be vigilant not to allow executions unless there is compelling evidence that cannot be reversed.

However, in the light of contractualism, executing an innocent person does not merely necessitate being more vigilant. Li (2017) argues that, based on the existence of erroneous convictions alone, the death penalty should be banned entirely since it cannot justifiably be inflicted on innocent individuals wrongly sentenced due to a flawed criminal trial system. Cholbi and Madva (2018) support this proposal stating that the death penalty should be abolished due to its disproportionate harm to black communities. Understanding the racial or any other form of the unjust death penalty from a political and statistical perspective, rather than from the perspective of individual desert and retribution, further substantiates this claim.


To conclude, since a certain percentage of erroneous convictions in criminal cases is inevitable, it supplies a strong ground for finding capital punishment entirely impermissible in the framework of contractualism.


Bandes, S. A. (2018). All bathwater, no baby: Expressive theories of punishment and the death penalty. Michigan Law Review, 116(6), 905–924. Web.

Cholbi, M., & Madva, A. (2018). Black Lives Matter and the call for death penalty abolition. Ethics, 128(3), 517–544. Web.

Li, H.-L. (2017). Contractualism and the death penalty. Criminal Justice Ethics, 36(2), 152–182. Web.

Mbah, R. E., Pruitt, T., & Wasum, F. (2019). Cruel choice: the ethics and morality of the death penalty. Research on Humanities and Social Sciences, 9(24). Web.

Sigler, M. (2018). Principle and pragmatism in the death penalty debate. Criminal Justice Ethics, 37(1), 72–86. Web.

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DemoEssays. "Ethical Theory Approach to Death Penalty." February 17, 2023.