No Justification for Capital Punishment


The fundamental reasons society punishes criminal behavior can be classified into two areas. One is to obtain desired consequences which include protecting society, obtain reparations from the offender and to deter that person and other potential offenders from the commission of crimes. The other, retribution, or vengeance, involves punishment for a wrong perpetrated on society. Death penalty proponents argue that three of these four components justify their position. The practice protects society while deterring others from committing murder and serves as a collective societal retribution. Capital punishment does protect society from further acts by the individual. Aside from deterrence, the central reasoning for proponents is vengeance guised as ‘justice for the victim and their families.’ The death penalty does not deter crime which this paper will explain. This fact is not a deterrent for proponents because deterrence was not their driving motivation as this paper will demonstrate as well.

Opponent Position

Capital punishment opponents argue that the practice does not deter crime, which statistics reprove. Opponents also deny that the death penalty is a deterrent to crime because of the nature of the reasons people commit homicide. People cannot conceive their own demise therefore cannot contemplate or appreciate the consequences. In addition, these acts are usually carried out impulsively and are not methodically considered beforehand. Therefore, “the deterrent case has no validity” (Donohue, 2006). Again, the opponents view has been substantiated. Many studies have been performed to determine if the death penalty is indeed deterrence. All prevailing research indicates capital punishment is as much of a deterrent to crime as a life sentence.

Evidence from the ‘Land of Capital Punishment’

The State of Texas is widely acknowledged as executing more prisoners than any other state, a title it holds on an annual basis. A study conducted from the years 1984 through 1997 demonstrated homicides were not deterred as a result of the practice. “The murder rate (in Texas) was steady and there was no evidence of a deterrent effect. The number of executions was found to be unrelated to murder rates (Sorenson, Wrinkle, Brewer and Marquart, 1999). Though proponents cite deterrence as the main reason for continuing the death penalty despite all evidence to the contrary, the majority (55 percent) would still be in favor of it if they were convinced the practice was not a deterrent. “Over 80 percent believe the existing research fails to support a deterrence justification for the death penalty.” (Gallup Poll, 1999). Ironically, only about a quarter of proponents cite revenge as their motive when this is practically the only reason possible for favoring the death penalty given the overwhelming evidence.

Proponents Position/Opponents Response

Of course, death penalty proponents cite pages of statistics to offer support for their impassioned claims. For example, in 2003 a study released from the Emory University Economics Department stated “our results suggest that capital punishment has a strong deterrent effect. An increase in any of the probabilities — arrest, sentencing or execution — tends to reduce the crime rate. In particular, each execution results, on average, in eighteen fewer murders.” (Dezhbakhsh, et al. 2003) These results are speculative at best. The study showed no actual evidence to support the claim outside of some very selective conclusions based on no corroborating verifications. Other pro-death penalty ‘studies’ such as one conducted by Joanna M. Shepherd of Clemson University showed much different results, that each execution nationwide resulted in five, not eighteen, fewer murders. Professor Shepard was also part of the Emory study conducted in the same year. If the results are conclusive then why this large discrepancy of figures occurred during the same year and by the same person? The reason is using subjective and selective evidence usually results in varying conclusions, hardly credible scientific evidence to support proponents claims of deterrence. (Dezhbakhsh, et al. 2003)

Insufficient Evidence

Some lawyers and judges have heard defendants providing reasons for their actions in relation to avoiding the death penalty. Senator Dianne Feinstein tells of such an instance. “I remember well in the 1960s when I was sentencing a woman convicted of robbery in the first degree and I remember looking at her commitment sheet and I saw that she carried a weapon that was unloaded into a grocery store robbery. I asked her the question: ‘Why was your gun unloaded?’ She said to me: ‘So I would not panic, kill somebody, and get the death penalty.’ That was firsthand testimony directly to me that the death penalty in place in California in the sixties was in fact a deterrent.” (CDAA, 2003) Isolated and very dated but these instances do occur. However, it is hardly evidence that the death penalty deters repeat offences.

Convoluted Thinking

Another often utilized source of ‘evidence’ by proponents is the ‘criminals always attempt to evade detection’ argument. Their line of reasoning usually goes something like this: How this reasoning relates to the death penalty deterring repeat offences is a mystery. Of course those that commit crimes do not want to get caught regardless of the punishment they may face for the particular crime. All this proves is that no one wants to go to jail. The petty criminal runs from the store clerk after stealing a pack of chewing gum. People who steal gas drive away, bank robbers have ‘getaway’ car waiting for them, etc. The simple and obvious fact that criminals do not want to pay society back for their crime does not prove the death penalty deters further instances. This is too broad of a study group to make a conclusion for a narrow demographic.

Selected Statistics

Proponents cite statistics which if not examined only cursorily might lead one to sympathize with their position. For example, “the murder rate in Harris County (Houston), Texas has fallen 73 percent since executions resumed in 1982, through 2000, from 31/100,000 to 8.5/100,000. (TX DPS, 2000) Again, this is an example of selective statistics that proves nothing. Did nothing else lead to a reduced murder rate? The ‘proof’ does not say. Is the reader to assume, despite credible evidence to the contrary, that one county’s decline in murders is due to fear of the death penalty alone, or at all? The ‘evidence’ is a cover for other reasons the American public seems determined to keep the death penalty though all other Western, civilized, industrial nations have long-since learned that it is not a deterrent, just a barbaric, uncivilized practice.

Ideology Over-Rules Law

There are obvious associations between ideological beliefs and attitudes toward capital punishment. “Studies have shown that highly religious people and those with a strong belief in a just world, the belief that good things will happen to good people and bad things will happen to bad people, held the most punitive attitudes to offenders” (Esmee Fairbairn Foundation, 2004, p. 27). Not surprisingly, conservative beliefs, measured by agreement with statements endorsing traditional social values, are linked with harsher punitive crime prevention measures and liberal political views with more lenient attitudes (Esmee Fairbairn Foundation, 2004, p. 27). The emotional contention clashes with the reasonable position and can, and is, argued without a consensus. The reason is, much as the abortion issue, the death penalty is emotionally charged on both sides. However, this issue will not and should not be decided outside a courtroom. To make the issue murkier, the Supreme Court has decided one way then reversed itself. It has also made its determination based on the prevailing majority opinion instead of on a strictly legal interpretation.

Legal Definitions

Punishment for crimes which are deemed cruel and unusual is forbidden by the Eighth Amendment to the U.S. Constitution. This amendment is often invoked when discussing the legal merits of the death penalty. By definition, capital punishment is not unusual, legally speaking, unless one considers and acknowledges the racial bias that exists in the justice system. Whether or not it is cruel is not definable by law. It can only be defined by the collective social conscious of a culture. A definition of cruel and unusual is critical to understand the legal debate.

Cruel and Unusual

The legal interpretation of ‘cruel and unusual’ is somewhat open to debate but in general, the term ‘cruel’ refers to brutal punishments that cause excessive pain. Most legal experts agree that punishments including bodily dismemberment or torture are undoubtedly classified as cruel. Terminologies are open to interpretation as evidenced by the current debate at the highest level of government involving the definition of torture. The term ‘unusual’ is commonly understood to define the equitable application of punishment for a particular offense. For example, if ten people were cited for speeding and nine of them were fined $100 but one was fined $1000, this penalty would be considered ‘unusual.’ Taken together, both ‘cruel’ and ‘unusual’ indicate that the punishment should be exacted in proportion to the offense committed. A life term in prison is an acceptable form of punishment but if it were imposed for jaywalking, this would be an unacceptable sentence because it would be considered excessive given the severity of the offense. Excessive is also open to wide interpretation in both the public and legal realm. (Donohue, Wolfers, 2006)

Some would argue, for example, that imprisonment of any amount of time for ‘crimes’ such as gambling, prostitution and the possession of drugs should be interpreted as excessive therefore ‘unusual.’ The death penalty was decided by the court of public opinion which is based on the basic first impulse of revenge and fueled by misinformation campaigns from death penalty proponents. Societal sanctioned intentional premeditated murder surely on some level should be considered by the majority as cruel and/or unusual. The fault does not lie with the court system or the Supreme Court specifically. A society that collectively considers the death penalty a moral and just punishment must accept most of the blame. The courts have historically followed this path.

Interpreting the Eighth

The Supreme Court has on several occasions dealt with judging the merits of the death penalty and whether or not it is interpreted by the Constitution as punishment which is cruel and unusual. Proponents applaud this interpretation of the Constitution because punishment or retribution (revenge) is their actual reason for wanting the death penalty to continue in this country. The court must decide the issue, not based on its perceived merits such as deterrence but on its legality. If the courts based its decision on merit, whether it is a deterrent or not, the death penalty would have been judged unconstitutional many years ago.

Interpretation of the Eighth Amendment have changed somewhat throughout the years and the Court could possibly reverse this point of view sometime in the future as result of changing societal values. For example, the whipping of offenders was commonplace until the late Eighteenth Century. This practice came to be considered inappropriate because society’s opinion changed to include it as a ‘cruel’ punishment. That’s epicenter of the problem. The High Court is basing the ruling more on broad public support rather than strictly abiding by the law. Society finally came to understand whipping did not deter crime and that it was cruel and unusual. Slavery was legal in the Southern United States for much longer than in the Northern States. The horrendous practice was immoral and obviously unconstitutional but remained in place because of public opinion. A parallel can be drawn between slavery and the death penalty. On a side note, did whipping captured slaves deter others from trying to escape? It is unreasonable to assume anything but no. (Donohue, Wolfers, 2006)

Law Must Jump the Religion Hurdle, Again

Interestingly, those that use the quote from the Old Testament to justify the use of the death penalty as moral either overlooked or ignored the passage in the New Testament where Jesus rebuffs this statement explicitly then reminds his followers to instead to ‘turn the other cheek.’ However, the ‘eye for an eye’ justification is still used by many today. These, of course, are the same people that justify the death penalty by insisting it is deterrence to crime. Those that hold this view are certainly correct when they say that the death penalty insures that the criminal will not commit another crime against society. The death penalty is indeed the ultimate preventative measure for one person but no credible scientific evidence has surfaced that suggests others are deterred to commit what is usually a crime of passion, where the perpetrator is not thinking rationally or is likely to consult a religious passage prior to committing murder. Protestant and Catholic philosophy have consistently confirmed the right of a fair government to end the life of convicted murderers. The Sixth Commandment in original Hebrew reads not ‘thou shall not kill’ but ‘thou shall not murder.’ The Torah, Judaism’s chief source of ethical reference, is definite in its support of the death penalty. The only law repeated in all five books of the Torah is the condemnation of murderers to death (Prager, 2001).


Individuals, scientists and researchers who have determined the death penalty is a deterrent to others who might be inclined for whatever reason to commit murder base their belief on presupposed ideology. No credible evidence is offered that supports this position. However, evidence heavily favors the notion that the death penalty does not deter a person from killing. Over the past month or so, five mass killings have occurred in the U.S. Besides a small hiatus during the 1970’s, the capital punishment has sadly been a part of the American way of life. This paper has shown that the death penalty does not deter crime and is legal only because the majority of Americans believe they must seek vengeance for murder. This is everyone’s first instinct but the laws of a society must raise above individuals initial inclinations. Our Constitution was intended to protect the minority rights from popular majority opinion. The justice system thus far has failed to live up to this ideal in this particular instance.

Works Cited

Dezhbakhsh, Hashem; Rubin, Paul H. and Shepherd, Joanna M. “Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data” American Law and Economics Review V5 N2 2003 (344-376).

Donohue, John; Wolfers, Justin J. “The Death Penalty: No Evidence for Deterrence” The Economists’ The Berkley Electronic Press Voice Vol. 3 Issue 5 (2006).

Esmee Fairbairn Foundation. “Rethinking Crime and Punishment: The Report.” (2004). Web.

Gallup Poll. (1999). Web.

Prager, Dennis. “Death Penalty Guards What is Valued Most.” Milwaukee Journal Sentinel. (2001).

“Prosecutors Perspective on California’s Death Penalty” California District Attorneys Association. (CDAA) (2003).

Sorenson, J., Wrinkle, R., Brewer, V., & Marquart, J. “Capital Punishment and Deterrence: Examining the Effect of Executions on Murder in Texas.” 45 Crime and Delinquency. pp. 481-493. (1999).

Texas Department of Public Safety (TX DPS) Uniform Crime Reporting, Harris County data from 1982 and 2000 database.

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