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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 Can Ensure ‘Justice Is Being Done’

A top Justice Department official says for many Americans the death penalty is a difficult issue on moral, religious and policy grounds. But as a legal issue, it is straightforward.

By Jeffrey A. Rosen

Mr. Rosen is the deputy attorney general.

This month, for the first time in 17 years , the United States resumed carrying out death sentences for federal crimes.

On July 14, Daniel Lewis Lee was executed for the 1996 murder of a family, including an 8-year-old girl, by suffocating and drowning them in the Illinois Bayou after robbing them to fund a white-supremacist organization. On July 16, Wesley Purkey was executed for the 1998 murder of a teenage girl, whom he kidnapped, raped, killed, dismembered and discarded in a septic pond. The next day, Dustin Honken was executed for five murders committed in 1993, including the execution-style shooting of two young girls, their mother, and two prospective witnesses against him in a federal prosecution for methamphetamine trafficking.

The death penalty is a difficult issue for many Americans on moral, religious and policy grounds. But as a legal issue, it is straightforward. The United States Constitution expressly contemplates “capital” crimes, and Congress has authorized the death penalty for serious federal offenses since President George Washington signed the Crimes Act of 1790. The American people have repeatedly ratified that decision, including through the Federal Death Penalty Act of 1994 signed by President Bill Clinton, the federal execution of Timothy McVeigh under President George W. Bush and the decision by President Barack Obama’s Justice Department to seek the death penalty against the Boston Marathon bomber and Dylann Roof .

The recent executions reflect that consensus, as the Justice Department has an obligation to carry out the law. The decision to seek the death penalty against Mr. Lee was made by Attorney General Janet Reno (who said she personally opposed the death penalty but was bound by the law) and reaffirmed by Deputy Attorney General Eric Holder.

Mr. Purkey was prosecuted during the George W. Bush administration, and his conviction and sentence were vigorously defended throughout the Obama administration. The judge who imposed the death sentence on Mr. Honken, Mark Bennett, said that while he generally opposed the death penalty, he would not lose any sleep over Mr. Honken’s execution.

In a New York Times Op-Ed essay published on July 17 , two of Mr. Lee’s lawyers criticized the execution of their client, which they contend was carried out in a “shameful rush.” That objection overlooks that Mr. Lee was sentenced more than 20 years ago, and his appeals and other permissible challenges failed, up to and including the day of his execution.

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A Factful Perspective on Capital Punishment

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

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

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Capital Punishment: Pros and Cons of the Death Penalty

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The death penalty, also known as capital punishment, is the lawful imposition of death as punishment for a crime. In 2004 four (China, Iran, Vietnam, and the US) accounted for 97% of all global executions. On average, every 9-10 days a government in the United States executes a prisoner.

It is the Eighth Amendment , the constitutional clause that prohibits "cruel and unusual" punishment, which is at the center of the debate about capital punishment in America. Although most Americans support capital punishment under some circumstances, according to Gallup support for capital punishment has dropped dramatically from a high of 80% in 1994 to about 60% today.

Facts and Figures

Red state executions per million population are an order of magnitude greater than blue state executions (46.4 v 4.5). Blacks are executed at a rate significantly disproportionate to their share of the overall population.

Based on 2000 data , Texas ranked 13th in the country in violent crime and 17th in murders per 100,000 citizens. However, Texas leads the nation in death penalty convictions and executions.

Since the 1976 Supreme Court decision that reinstated the death penalty in the United States, the governments of the United States had executed 1,136, as of December 2008. The 1,000th execution, North Carolina's Kenneth Boyd, occurred in December 2005. There were 42 executions in 2007 .

More than 3,300 prisoners were serving death-row sentences in the US in December 2008. Nationwide, juries are delivering fewer death sentences: since the late 1990s, they have dropped 50%. The violent crime rate has also dropped dramatically since the mid-90s, reaching the lowest level ever recorded in 2005.

Latest Developments

In 2007, the Death Penalty Information Center released a report, “ A Crisis of Confidence: Americans’ Doubts About the Death Penalty .”

The Supreme Court has ruled that the death penalty should reflect the "conscience of the community," and that its application should be measured against society's "evolving standards of decency. This latest report suggests that 60% of Americans do not believe that the death penalty is a deterrent to murder. Moreover, almost 40% believe that their moral beliefs would disqualify them from serving on a capital case.

And when asked whether they prefer the death penalty or life in prison without parole as punishment for murder, the respondents were split: 47% death penalty, 43% prison, 10% unsure. Interestingly, 75% believe that a "higher degree of proof" is required in a capital case than in a "prison as punishment" case. (poll margin of error +/- ~3%)

In addition, since 1973 more than 120 people have had their death row convictions overturned. DNA testing has resulted in 200 non-capital cases to be overturned since 1989. Mistakes like these shake public confidence in the capital punishment system. Perhaps it is not surprising, then, that almost 60% of those polled—including almost 60% of the southerners—in this study believe that the United States should impose a moratorium on the death penalty.

An ad hoc moratorium is almost in place. After the 1,000th execution in December 2005, there were almost no executions in 2006 or the first five months of 2007.

Executions as a form of punishment date to at least the 18th century BC. In America, Captain George Kendall was executed in 1608 in the Jamestown Colony of Virginia; he was accused of being a spy for Spain. In 1612, Virginia's death penalty violations included what modern citizens would consider minor violations: stealing grapes, killing chickens and trading with Indigenous peoples.

In the 1800s, abolitionists took up the cause of capital punishment, relying in part on Cesare Beccaria's 1767 essay, On Crimes and Punishment .

From the 1920s-1940s, criminologists argued that the death penalty was a necessary and preventative social measure. The 1930s, also marked by the Depression, saw more executions than any other decade in our history.

From the 1950s-1960s, public sentiment turned against capital punishment , and the number executed plummeted. In 1958, the Supreme Court ruled in Trop v. Dulles that the Eighth Amendment contained an "evolving standard of decency that marked the progress of a maturing society." And according to Gallup, public support reached an all-time low of 42% in 1966.

Two 1968 cases caused the nation to rethink its capital punishment law. In U.S. v. Jackson , the Supreme Court ruled that requiring that the death penalty be imposed only upon recommendation of a jury was unconstitutional because it encouraged defendants to plead guilty to avoid trial. In Witherspoon v. Illinois , the Court ruled on juror selection; having a "reservation" was insufficient cause for dismissal in a capital case.

In June 1972, the Supreme Court (5 to 4) effectively voided death penalty statutes in 40 states and commuted the sentences of 629 death row inmates. In Furman v. Georgia , the Supreme Court ruled that capital punishment with sentencing discretion was "cruel and unusual" and thus violated the Eighth Amendment of the U.S. Constitution.

In 1976, the Court ruled that capital punishment itself was constitutional while holding that new death penalty laws in Florida, Georgia and Texas—which included sentencing guidelines, bifurcated trials, and automatic appellate review—were constitutional.

A ten-year moratorium on executions that had begun with the Jackson and Witherspoon ended on 17 January 1977 with the execution of Gary Gilmore by firing squad in Utah.

There are two common arguments in support of capital punishment : that of deterrence and that of retribution.

According to Gallup, most Americans believe that the death penalty is a deterrent to homicide, which helps them justify their support for capital punishment. Other Gallup research suggests that most Americans would not support capital punishment if it did not deter murder.

Does capital punishment deter violent crimes? In other words, will a potential murderer consider the possibility that they might be convicted and face the death penalty before committing murder? The answer appears to be "no."

Social scientists have mined empirical data searching for the definitive answer on deterrence since the early 20th century. And "most deterrence research has found that the death penalty has virtually the same effect as long imprisonment on homicide rates." Studies suggesting otherwise (notably, writings of Isaac Ehrlich from the 1970s) have been, in general, criticized for methodological errors. Ehrlich's work was also criticized by the National Academy of Sciences - but it is still cited as a rationale for deterrence.

A 1995 survey of police chiefs and country sheriffs found that most ranked the death penalty last in a list of six options that might deter violent crime. Their top two picks? Reducing drug abuse and fostering an economy that provides more jobs.

Data on murder rates seem to discredit the deterrence theory as well. The region of the county with the greatest number of executions—the South—is the region with the largest murder rates. For 2007, the average murder rate in states with the death penalty was 5.5; the average murder rate of the 14 states without the death penalty was 3.1. Thus deterrence, which is offered as a reason to support capital punishment ("pro"), doesn't wash.

Retribution

In Gregg v Georgia , the Supreme Court wrote that "[t]he instinct for retribution is part of the nature of man..." The theory of retribution rests, in part, on the Old Testament and its call for "an eye for an eye." Proponents of retribution argue that "the punishment must fit the crime." According to The New American : "Punishment—sometimes called retribution—is the main reason for imposing the death penalty."

Opponents of retribution theory believe in the sanctity of life and often argue that it is just as wrong for society to kill as it is for an individual to kill. Others argue that what drives American support for capital punishment is the " impermanent emotion of outrage ." Certainly, emotion not reason seems to be the key behind support for capital punishment.

Some supporters of the death penalty also contend it is less expensive than a life sentence. Nevertheless, at least 47 states do have life sentences without the possibility of parole. Of those, at least 18 have no possibility of parole. And according to the ACLU :

The most comprehensive death penalty study in the country found that the death penalty costs North Carolina $2.16 million more per execution than a non-death penalty murder case with a sentence of life imprisonment (Duke University, May 1993). In its review of death penalty expenses, the State of Kansas concluded that capital cases are 70% more expensive than comparable non-death penalty cases.

More than 1000 religious leaders  have written an open letter to America and its leaders:

We join with many Americans in questioning the need for the death penalty in our modern society and in challenging the effectiveness of this punishment, which has consistently been shown to be ineffective, unfair, and inaccurate... With the prosecution of even a single capital case costing millions of dollars, the cost of executing 1,000 people has easily risen to billions of dollars. In light of the serious economic challenges that our country faces today, the valuable resources that are expended to carry out death sentences would be better spent investing in programs that work to prevent crime, such as improving education, providing services to those with mental illness, and putting more law enforcement officers on our streets. We should make sure that money is spent to improve life, not destroy it... As people of faith, we take this opportunity to reaffirm our opposition to the death penalty and to express our belief in the sacredness of human life and in the human capacity for change.

In 2005, Congress considered the Streamlined Procedures Act (SPA), which would have amended the Anti-Terrorism and Effective Death Penalty Act (AEDPA). AEDPA placed restrictions on the power of federal courts to grant writs of habeas corpus to state prisoners. The SPA would have imposed additional limits on the ability of state inmates to challenge the constitutionality of their imprisonment through habeas corpus.

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An Impassioned Debate: An Overview of the Death Penalty in America

(Updated June 26, 2008)

In this article: The role of the courts Lethal injection and the Baze case Child rape and the Kennedy case The history of the death penalty The death penalty worldwide

Few public policy issues have inflamed passions as consistently and as strongly as the debate over capital punishment. Religious communities have been deeply involved on both sides of the issue, drawing on teachings and traditions that define justice and the dignity of human life. The debate over the death penalty has been complicated in recent years by such concerns as the fairness of the criminal justice system, the role of doctors in carrying out executions, and the possibility of reform and rehabilitation among death row inmates.

In this research package

An Impassioned Debate An overview of the death penalty in America.

The Death Penalty and the Supreme Court An analysis of the arguments before the Supreme Court in Baze v. Rees .

Public Opinion on the Death Penalty Americans continue to support the death penalty.

Religious Groups’ Official Positions on the Death Penalty A breakdown of 16 major religious groups’ views on the death penalty.

Death Penalty Timeline A timeline of important court cases and legal milestones since 1972.

The debate over capital punishment has been heating up, prompted by two high-profile Supreme Court cases. The first case, Baze v. Rees , tested the constitutionality of the most commonly used form of lethal injection. In a 7-2 decision handed down on April 16, 2008, the court ruled that the method of lethal injection used in almost all states that have death penalty statutes does not violate the U.S. Constitution’s Eighth Amendment prohibition on cruel and unusual punishment. (See Lethal Injection on Trial: An Analysis of the Arguments Before the Supreme Court in Baze v. Rees .)

The second case, Kennedy v. Louisiana , involved a constitutional challenge to a statute that allows the imposition of capital punishment for a person convicted of raping a child under age 12. In a 5-4 decision issued on June 25, 2008, the court invalidated the statute on the ground that the death penalty is an unconstitutionally severe penalty for crimes that do not result in the victim’s death. (See Q&A: Supreme Court Considers New Case on Capital Punishment .)

While both of these cases are important, the Baze case is the more significant of the two since it applies to many more situations: Only five states besides Louisiana have statutes authorizing the death penalty for child rape, while lethal injection is the method of execution used by the federal government and by all but one of the 37 states with death penalty statutes. Indeed, merely agreeing to hear the Baze case put the use of lethal injection in a state of limbo, prompting states to delay all scheduled executions until a ruling was handed down.

Opponents’ desire to end capital punishment is driven by different arguments, including the belief that the government should not be in the business of taking human life and the concern that the death penalty is inherently unfair because it is disproportionately used on minority and lower-income felons. On a more practical level, many opponents of the death penalty contend that it does not deter violent crime. And even if it did, they argue, profound flaws in the criminal justice system ensure that the government cannot be confident that each person who goes to the death chamber is actually guilty of the crime for which he or she has been convicted. Indeed, they point out, the development of sophisticated DNA testing has, since 1989, resulted in the exoneration of hundreds of inmates – including 18 on death row.

Many supporters of capital punishment, on the other hand, believe some crimes are so brutal and heinous that execution is the only sentence that can ensure justice. Supporters also point to several recent statistical studies that they say show that capital punishment, even though rarely used, does in fact deter violent crime. Moreover, supporters say, modern technology (such as the use of ballistics and DNA evidence) and the lengthy appeals process in most capital cases make it nearly impossible to mistakenly send an innocent person to the death chamber.

Death penalty supporters also point out that a solid majority of the American people have long favored the use of capital punishment. Recent support for the death penalty reached its peak in the late 1980s and early 1990s, when, according to Gallup polls , the number of people in favor of executing convicted murderers climbed as high as 80 percent. Today, 62 percent of the public supports capital punishment for people convicted of murder, according to a 2007 poll by the Pew Forum on Religion & Public Life and the Pew Research Center for the People & the Press.

Although religious groups in the U.S. have helped to lead the fight against the death penalty, not all religious bodies oppose its use. (See Religious Groups’ Official Positions on Capital Punishment .) For instance, although the Catholic Church and most mainline Protestant denominations, such as United Methodists and Episcopalians, officially oppose capital punishment, many evangelical churches, including Southern Baptists, support the death penalty.

The Role of the Courts

While capital punishment laws in the U.S. fall under the states’ purview, the Supreme Court has played a major role in shaping the use of the death penalty in this country. In the 1930s, for example, the Supreme Court intervened on a number of occasions to overturn death sentences it believed could have been the result of racial discrimination. And in a landmark 1972 decision, Furman v. Georgia , the high court ruled 5-4 that the death penalty, as it was being applied at the time by the states, violated both the Eighth Amendment’s prohibition of cruel and unusual punishment and the 14th Amendment’s guarantee of equal protection under the law.

The majority decision in Furman was highly fractured, and each of the five justices issued a separate opinion. Still, the general thrust of the opinions was that existing state death penalty statutes were too arbitrary to guarantee the fair and uniform application of capital punishment. One of the five justices, Potter Stewart, famously wrote that “these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” More specifically, the court in Furman found that state-mandated instructions to juries during the sentencing phase in capital punishment cases were too vague and inevitably led to vastly different results, even in cases involving the same type of crime.

As a result of the Furman decision, all death penalty statutes were effectively overturned, and 633 death row inmates in 32 states had their sentences commuted to life in prison. But while the court had essentially invalidated all death penalty statutes, it did not rule that capital punishment itself was unconstitutional. As a result, many state legislatures redrafted their laws to address the criticisms contained in the Furman decision. By 1976, 35 states had new capital punishment laws on the books, and more than 500 inmates were on death row.

Following the Furman ruling and the subsequent enactment of new state death penalty statutes, many thought it was a question of when , rather than if , the court would revisit the issue. That opportunity arrived just four years after Furman in a series of five related decisions involving different state statutes. In these decisions, most significantly Gregg v. Georgia (1976), the court ruled that death penalty sentencing statutes must contain a set of objective criteria to guide judges and juries in determining whether a death sentence is warranted. In Gregg and two other cases, the court ruled that death penalty statutes in Florida, Georgia and Texas had met these criteria and thus were constitutional. However, the court struck down two other statutes (in North Carolina and Louisiana) that automatically imposed the death penalty when someone was convicted of first-degree murder. (These are known as mandatory death sentencing laws.) In these two cases, the court ruled that some discretion must be left to judges and juries to determine whether the death penalty is appropriate.

Since 1976, more than 1,000 inmates have been executed. At the same time, there also have been a number of important high court decisions that have imposed new limits on capital punishment. In Atkins v. Virginia (2002), for instance, the Supreme Court ruled that states could not execute mentally disabled offenders. Three years later, in Roper v. Simmons , the court barred the use of the death penalty for juvenile offenders.

Lethal Injection and the Baze Case

In most states, the process of executing an inmate by lethal injection involves the use of a three-drug combination. First, the inmate is rendered unconscious with sodium thiopental, a sedative used as an anesthetic. Next, pancuronium bromide is used to induce paralysis throughout the body. Finally, sodium chloride is injected to stop the heart from beating.

Ironically, lethal injection was developed in the late 1970s as a more humane alternative to electrocution, which had been the predominant method of execution in the United States for more than 70 years. In the ensuing 30 years, lethal injection has become the sole method of execution for the federal government and for all but one of the 37 states that currently have death penalty statutes; only Nebraska still uses the electric chair.

Opponents of lethal injection argue that far from being humane, the procedure actually can cause excruciating pain. In particular, they say, the anesthetic can wear off prior to death, making inmates conscious and susceptible to pain when the third, heart-stopping drug is injected. At the same time, they argue, an inmate who has regained consciousness may not be able to alert authorities to any pain or suffering due to the total paralysis caused by the second drug.

This allegation – that the current, three-drug method of lethal injection can cause inmates significant levels of pain – was at the heart of the Baze case. Ralph Baze and Thomas C. Bowling, the two Kentucky death row inmates who initiated the litigation in Baze , argued that the high court in their state failed to adequately consider the risk of “significant pain” when it ruled in 2006 that the state’s lethal injection protocol did not violate the Eighth Amendment.

But the U.S. Supreme Court rejected this argument, contending that the risk that Kentucky’s lethal injection protocol might cause substantial pain was not great enough to trigger a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of objectively intolerable risk of harm that qualifies as cruel and unusual” under the Eighth Amendment, Chief Justice John Roberts wrote in a plurality opinion.

In order to establish an “objectively intolerable risk” of pain, those challenging lethal injection or another method of execution on Eighth Amendment grounds need to show that the method in question creates a “demonstrated risk of severe pain,” Chief Justice Roberts wrote. Baze and Bowling failed to do this, he added. Furthermore, Chief Justice Roberts wrote, challengers must show that there are feasible alternative methods that significantly reduce risk of pain.

Although seven justices voted to uphold Kentucky’s lethal injection protocol, there was little agreement among those in the majority. Six of the seven justices wrote their own opinions – an unusual occurrence. And the opinion written for the court by Chief Justice Roberts was signed by only two other justices: Anthony Kennedy and Samuel Alito. Furthermore, one of the seven, Justice John Paul Stevens, wrote that he had voted with the majority only out of respect for the court’s prior precedents upholding the death penalty. Indeed, in his concurring opinion in the Baze case, Justice Stevens, for the first time, called for the abolition of capital punishment in the United States.

The immediate impact of the Baze ruling is that the nationwide moratorium on capital punishment – in force since late 2007 – has ended. In some states, scheduled executions will almost certainly move forward in the coming months. Longer term, the tough standards laid out by Chief Justice Roberts in the decision will make it difficult for death row inmates and death penalty opponents to challenge lethal injection or other methods of capital punishment on Eighth Amendment grounds in the future.

Child Rape and the Kennedy Case

The Supreme Court’s most recent death penalty case has its roots in a 1995 Louisiana law that allows for the imposition of the death sentence in cases of rape of a child under age 12. Five other states – Texas, Georgia, South Carolina, Montana and Oklahoma – subsequently enacted laws making child rape a capital crime, although these statutes, unlike the Louisiana law, allow a death sentence for child rape only in cases where the convicted child rapist already has a prior conviction for the same crime. So far, only Louisiana has actually handed down a death sentence for child rape – to two inmates, including Patrick Kennedy, who appealed his death sentence to the Supreme Court after being convicted in 2004 of raping his 8-year-old stepdaughter .

In his appeal, Patrick Kennedy argued that the Louisiana law was unconstitutional under an important Supreme Court ruling, Coker v. Georgia (1977), which held that Georgia had violated the Eighth Amendment by sentencing the rapist of an adult woman to death. According to the Coker decision, sentencing someone to death for a crime that does not kill the victim is an “excessive penalty.”

In response to Patrick Kennedy’s argument, Louisiana claimed that its law was valid under the Coker ruling because that decision applied only to adult rape. According to Louisiana, the Coker decision left open the possibility that states may sentence people to death for crimes that do not result in death but are more reprehensible than the rape of an adult. Louisiana claimed that its law was therefore constitutional because it did not apply to all rapes but only to the most atrocious form of rape, the rape of a child.

On June 25, 2008, the high court issued a 5-4 decision requiring the Louisiana courts to find a punishment for Patrick Kennedy that is less severe than death because, according to a majority of the court, death is an unconstitutionally severe penalty for the rape of a child.

Justice Kennedy, writing for the majority, explained that there are two factors to consider in determining whether the Louisiana law is constitutional: (1) whether there is a national consensus for capital punishment for child rape, and (2) whether, in the court’s judgment, the death penalty is a proportional punishment for child rape.

Because only six states currently authorize the death penalty for child rape, and because no state besides Louisiana has sentenced someone to death for child rape since 1964, Justice Kennedy found that the states generally agree that the death penalty should not apply to child rape. Moreover, Justice Kennedy wrote, the court’s prior cases confirm that the death penalty should be reserved for cases involving the death of the victim. Given these two factors, the majority held that the government may not sentence people to death for raping children, no matter how brutal or harmful the crime.

In a dissenting opinion, Justice Alito, joined by Chief Justice Roberts and Justices Antonin Scalia and Clarence Thomas, declared that the majority had erred in limiting its analysis to these two factors. According to the dissent, the majority should also have considered, among other things, that the “worst child rapists exhibit the epitome of moral depravity” and that the court had previously found that the Eighth Amendment permits states to create “new capital punishment statutes to meet new problems.” Furthermore, the dissent argued, even if the majority was right in limiting its analysis to these two factors, the majority decision was still wrong because it incorrectly assessed each factor.

The Kennedy decision has a direct legal effect only on the six states that have statutes permitting the death penalty for child rape. These statutes are now invalid. But the decision also signifies a larger trend in the court’s death penalty jurisprudence. Over the last few years, when the court has sided with opponents of the death penalty, the decisions have carved out classes of activities and individuals as ineligible for the death penalty, such as child rapists in the Kennedy decision as well as the mentally disabled in Atkins and juveniles in Roper . These cases suggest that for the opponents of the death penalty to be successful in their efforts, they will need to focus on categories of conduct and persons rather than on the procedures by which states sentence people to death.

The History of the Death Penalty

Capital punishment has a long and nearly uninterrupted history in the United States. Indeed, in the 18th and 19th centuries, the death penalty was used to punish a wide array of crimes, from murder and rape to horse stealing and arson.

The movement to abolish capital punishment has an equally long history. From the earliest days of European settlement in North America, Quakers and other religious and secular groups have worked to end, or at least limit, the use of the death penalty. And, in spite of general support for executions, abolitionists have had their share of successes. In 1847, for instance, Michigan became the first state to effectively end capital punishment. In the ensuing 160 years, 12 other states and the District of Columbia followed suit.

There also has been a decline in the overall number of executions nationwide even as the country’s population has steadily increased. For instance, according to the Death Penalty Information Center , there were 1,670 executions in the 1930s, 1,289 in the 1940s, 715 in the 1950s and 192 in the 1960s. As noted earlier, there have been just over 1,000 executions since 1976, when the Supreme Court ruled that states could once again employ the death penalty.

There were only 42 executions in 2007, in part as a result of the Baze -related moratorium, which is the lowest number since capital punishment was reinstated in 1976. Another milestone also occurred in 2007, when on Dec. 17, New Jersey Gov. Jon Corzine signed legislation abolishing the death penalty, making the Garden State the first and so far only one to repeal a capital punishment law since the 1976 reinstatement.

Opposition to the death penalty also has helped to change the way people are executed. For instance, until the 20th century, most convicted criminals were hanged, often in public. The last 100 years have seen an end to public executions as well as the development of new methods that aim to be more humane, namely the electric chair and, most recently, lethal injection.

A recent source of opposition to the death penalty has come from many of the nation’s physicians. According to the American Medical Association , in 15 states, laws require medical doctors to at least be present during an execution because lethal injection is a medical procedure. At the same time, the AMA has stated that it is a violation of medical ethics for doctors to participate in, or even be present at, executions because physicians are supposed to heal, not hurt, patients. A 2001 survey published in the Annals of Internal Medicine found that fewer than one-in-five physicians said they would be willing to administer lethal drugs for an execution.

Physician opposition has made it difficult for some states to find adequate medical personnel to conduct executions. In California, for instance, a scheduled 2006 execution of convicted murderer and rapist Michael Morales was stayed after two anesthesiologists who originally had agreed to be present changed their minds. In other states, inmates have been forced to endure longer than normal executions due to mistakes by prison personnel who did not have adequate medical training.

The Death Penalty Worldwide

Many countries in the developing world, including China, India and a substantial number of nations in the Middle East and Africa, continue to use the death penalty, but few industrialized countries still employ the practice. Indeed, of the major industrial democracies, only the United States, Japan and South Korea still use capital punishment. No Western European or Central European countries execute felons, regardless of the severity of the crime. The same is true in Canada, Mexico, Australia and much of Southern Africa. Moreover, many countries that still have death penalty laws on the books, including Russia and Brazil, have stopped executing inmates.

In Europe and elsewhere, the worldwide abolition of the death penalty has become a major human rights issue, and countries like the United States are routinely criticized for continuing to execute inmates. Since criminal justice issues largely rest with each individual state in the U.S., executions likely will continue to take place unless the Supreme Court rules that capital punishment is unconstitutional, which most legal experts believe is unlikely in the near future. Likewise, the debate over the death penalty itself also will go on, as both supporters and opponents continue to grapple with the moral, legal and practical aspects of this complex issue. This report was written by David Masci, Senior Research Fellow, and Jesse Merriam, Research Associate, Pew Forum on Religion & Public Life

Photo credit: Ken Light/Corbis

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Should the Death Penalty Be Legal?

• History of the Death Penalty

Practiced for much, if not all, of human history, the death penalty (also called capital punishment) is the “execution of an offender sentenced to death after conviction by a court of law of a criminal offense,” according to Roger Hood, professor at the Centre for Criminological Research at the University of Oxford.

Amnesty International lists the United States as just one of 55 countries globally with a legal death penalty for ordinary crimes as of May 2023. Another nine countries reserve the death penalty for “exceptional crimes such as crimes under military law or crimes committed in exceptional circumstances,” according to Amnesty International. Meanwhile, 112 countries have abolished the death penalty legally and 23 have abolished the punishment in practice. Read more history…

Pro & Con Arguments

Pro 1 The death penalty provides the justice and closure families and victims deserve. Many relatives of murder victims believe the death penalty is just and necessary for their lives to move forward. Jason Johnson, whose father was sentenced to death for killing his mother, states: “[I will go to see him executed] not to see him die [but] just to see my family actually have some closure… He’s an evil human being. He can talk Christianity and all that. That is all my father is. That’s all he’s ever been, is a con man… If he found redemption, that doesn’t matter, that’s between him and God. His forgiveness is to come from the Lord and his redemption is to come from the Lord, not the government. The Bible also says, ‘An eye for an eye.’” [ 17 ] Phyllis Loya, mother of police officer Larry Lasater who was killed in the line of duty, states, “I will live to see the execution of my son’s murderer. People [need] closure, and I think it means different things to different people. What it would mean for me is that my fight for justice for my son would be complete when his sentence, which was [handed down] by a Contra Costa County jury and by a Contra Costa County judge, would be carried out as it should be.” [ 18 ] While some argue that there is no “closure” to be had in such tragedies and via the death penalty, victim families think differently. Often the families of victims have to endure for years detailed accounts in the press and social media of their loved one’s gory murder while the murderer sits out a life sentence or endlessly appeals their conviction. A just execution puts an end to that cycle. As Oklahoma Attorney General John O’Connor explains, “The family of each murder victim suffers unspeakable pain when their loved one is murdered. Those wounds are torn open many times during the following decades, as the investigations, trials, appeals, and pardon and parole board hearings occur. Each stage brings torment and yet a desire for justice for the heinous treatment of their family member. The family feels that the suffering and loss of life of the victim and their own pain are forgotten when the murderer is portrayed in the media as a sympathetic character. The family knows that the execution of the murderer cannot bring their loved one back. They suspect it will not bring them ‘closure’ or ‘finality’ or ‘peace,’ but there is justice and perhaps an end to the ongoing wounding by ‘the murderer and then the system.’” [ 19 ] Read More

Pro 2 The death penalty prevents additional crime. If not a deterrent to would-be murderers, at the very least, when carried out, the death penalty prevents convicted murderers from repeating their crimes. “Perhaps the most straightforward argument for the death penalty is that it saves innocent lives by preventing convicted murderers from killing again. If the abolitionists had not succeeded in obtaining a temporary moratorium on death penalties from 1972 to 1976, [Kenneth Allen] McDuff would have been executed, and Colleen Reed and at least eight other young women would be alive today,” explains Paul Cassell, former U.S. District Judge. [ 15 ] Kenneth Allen McDuff was convicted and sentenced to death in 1966 for the murders of three teenagers and the rape of one. However, the U.S. Supreme Court invalidated the death penalty nationwide in 1972 ( Furman v. Georgia ), leading to a reduced sentence and McDuff being released on parole in 1989. An estimated three days later, he began a crime spree: torturing, raping, and murdering at least six women in Texas before being arrested again on May 4, 1992, and sentenced to death a second time. Had McDuff been executed as justice demanded for the first three murders, at least six murders would have been prevented. [ 15 ] [ 16 ] Considering recidivism rates, how many more murders and associated crimes of kidnaping, rape, and torture, among others could have been deterred had the death penalty been imposed on any number of murderers? Read More

Pro 3 The death penalty is the only moral and just punishment for the worst crimes. Talion law ( lex talionis in Latin), or retributive law, is perhaps best known as the Biblical imperative: “Anyone who inflicts a permanent injury on his or her neighbor shall receive the same in return: fracture for fracture, eye for eye, tooth for tooth. The same injury that one gives another shall be inflicted in return.” [ 8 ] [ 9 ] The word “retribution” comes from the Latin re + tribuo , or “I pay back.” In order for those who commit the worst crimes to pay their debts to society, the death penalty must be employed as punishment, or the debt has not been paid. [ 10 ] “ Retribution is an expression of society’s right to make a moral judgment by imposing a punishment on a wrongdoer befitting the crime he has committed,” says Charles Stimson of the Heritage Foundation. Therefore, “the death penalty should be available for the worst of the worst,” regardless of the race or gender of the victim or perpetrator. [ 11 ] Thus, “retributionists who support the death penalty typically do not wish to expand the list of offenses for which it may be imposed. Their support for the death penalty is only for crimes defined as particularly heinous, because only such criminals deserve to be put to death. Under lex talionis it is impermissible to execute those whose crimes do not warrant the ultimate sanction,” explains Jon’a F. Meyer, professor at Rutgers University. “The uniform application of retributive punishment is central to the philosophy.” [ 12 ] As Robert Blecker, professor emeritus at New York Law School, further clarifies, “retribution is not simply revenge . Revenge may be limitless and misdirected at the undeserving, as with collective punishment. Retribution, on the other hand, can help restore a moral balance. It demands that punishment must be limited and proportional. Retributivists like myself just as strongly oppose excessive punishment as we urge adequate punishment: as much, but no more than what’s deserved. Thus I endorse capital punishment only for the worst of the worst criminals.” [ 13 ] “Sometimes, justice is dismissing a charge, granting a plea bargain, expunging a past conviction, seeking a prison sentence, or — in a very few cases, for the worst of the worst murderers — sometimes, justice is death…A drug cartel member who murders a rival cartel member faces life in prison without parole. What if he murders two, three, or 12 people? Or the victim is a child or multiple children? What if the murder was preceded by torture or rape? How about a serial killer? Or a terrorist who kills dozens, hundreds or thousands?” asks George Brauchler, District Attorney of the 18th Judicial District in Colorado. The nature of the crime, and the depth of its depravity, should matter. [ 14 ] Read More

Con 1 Not only is the death penalty not a deterrent to crime, it is very expensive. Advocates for capital punishment long argued that it deters crime, other criminal acts, but according to the ACLU, “There is no credible evidence that the death penalty deters crime more effectively than long terms of imprisonment. States that have death penalty laws do not have lower crime rates or murder rates than states without such laws. And states that have abolished capital punishment show no significant changes in either crime or murder rates.” [24] “People commit murders largely in the heat of passion, under the influence of alcohol or drugs, or because they are mentally ill, giving little or no thought to the possible consequences of their acts,” the ACLU continues. “The few murderers who plan their crimes beforehand… intend and expect to avoid punishment altogether by not getting caught. Some self-destructive individuals may even hope they will be caught and executed.” [ 24 ] Further, the death penalty is significantly more expensive than life-without-parole, the oft-shunned alternative penalty. The death penalty system costs California $137 million per year while a system with lifelong imprisonment as the maximum penalty would cost $11.5 million, an almost 92% decrease in expense. The statistics are lower but comparable across other states including Kansas, Tennessee, and Maryland. [ 25 ] And this money has to come from somewhere, most often at the expense of taxpayers. In Texas, executions are funded “by raising property tax rates and by reducing public safety expenditure. Property crime rises as a consequence of the latter,” explains Jeffrey Miron of the Cato Institute. [ 26 ] Read More

Con 2 The death penalty is steeped in poor legal assistance and racial bias. The Equal Justice Initiative explains that the “death penalty system treats you better if you’re rich and guilty than if you’re poor and innocent,” resulting in the punishment being ”mostly imposed on poor people who cannot afford to hire an effective lawyer” while “people of color are more likely to be prosecuted for capital murder, sentenced to death, and executed, especially if the victim in the case is white.” [ 20 ] The American Bar Association sets minimum qualifications for capital case lawyers, yet most death penalty states do not require lawyers to meet even those requirements, leaving defendants without the means to hire a private lawyer to face the court with inadequate counsel. [ 20 ] Further, erroneous eyewitness identifications, false and coerced confessions, false or misleading forensic evidence, misconduct by police, prosecutors, or other officials, and incentivized witnesses taint death row cases. [ 21 ] For every eight people on death row, one of them has later been found innocent. [ 20 ] The death penalty is inconsistently applied and most often applied to Black men who have killed a white person. While Black people made up only 13% of the American population in 2018, 41% of people on death row and 34% of those executed were Black. [ 20 ] This inequality should not be surprising considering the roots of the death penalty. Bryan Stevenson, capital defense attorney and founder of the Equal Justice Initiative, refers to the death penalty as the “stepchild of lynching .” [ 22 ] As journalist Josh Marcus explains, “Following the end of the Reconstruction period, which saw federal troops occupy the former Confederate states and enforce new legal and constitutional protections for Black people, lynching surged in the late 1800s, until it became all but a daily occurrence across America. Lynchings sometimes involved government officials like local law enforcement, and government officials began arguing for capital punishment as an alternative. It would still satiate the public’s appetite for violence against Black people, but under the auspices of the law, which at the time allowed for explicit racial segregation in all areas of life.” [ 22 ] A survey of executions found that 80% of executions occur in former Confederate states and mirror historic lynching sites. [ 22 ] [ 23 ] “We should be beyond the point of killing people for killing people. It’s so archaic,” concludes Rachel Sutphin, whose father Eric, a Deputy Sheriff in Virginia, was killed by an escaped prisoner who was, in turn, executed by lethal injection. [ 23 ] Read More

Con 3 The death penalty is immoral and amounts to torture. Many religions , from Catholicism to Judaism, not only oppose the death penalty but also call for its worldwide abolition. “Murder is calculated, unjustified and intentional taking of life. When we, under the supposed color of law, deliberate, decide, and plan the purposeful extinguishing of human life, we commit murder. The death penalty is murder,” explains Rabbi and former Assistant Ohio Public Defender Benjamin Zober. “We are commanded, ‘justice, justice, shall you pursue.’ (Deut. 16:20) We cannot do this by taking lives, acting in anger, or vengeance, or by creating more bloodshed, trauma, and pain…. There is a world in every person, every life…. ‘Anyone who destroys a life is considered by Scripture to have destroyed an entire world; and anyone who saves a life is as if he saved an entire world.’ (Mishnah Sanhedrin 4:5).” [ 27 ] Robert Schentrup, brother of 16-year-old Carmen who died in the Marjory Stoneman Douglas High School mass shooting in Parkland, Florida, in 2018 says, “This is the part where pundits on TV will invoke the name of my sister to support the murder of another human being. This is the part where people try to convince me that vengeance should make me feel better and that it will bring me ‘closure’ so that ‘I can continue to heal. But I do not … care, because my sister is dead, and killing someone else will not bring her back.” [ 28 ] Further, while the death penalty ultimately takes a life, the condemned person is subjected to what is otherwise considered physical and psychological torture before death. As law professor John Bessler explains “The death penalty, in fact, always and inevitably inflicts severe pain and suffering rising to the level of torture. That’s because capital charges and death sentences systematically threaten individuals with death (and, when death warrants against individuals are carried out, kill), with torture—prohibited by various domestic laws in addition to the bar in international law—considered to be the aggravated form of cruel, inhuman, or degrading treatment or punishment.” [ 29 ] Certain methods of execution are especially tortuous: consider the 2024 nitrogen hypoxia execution of Kenneth Smith, which inflicted an intense struggle for air before he died 22 minutes after the execution began. In the United States, cruel punishment is explicitly banned by the Constitution’s Eighth Amendment . [ 29 ] [ 30 ] Read More

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Human Rights

Race, Human Rights, and the U.S. Death Penalty

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From enslavement to lynching, race massacres, the genocide against indigenous peoples, Jim Crow segregation, and immigrant exclusion policies, the United States has a long history of human rights abuses arising out of racial violence and discrimination.

Following the ratification of the post-Civil War amendments to the U.S. Constitution that ended chattel slavery and guaranteed equal protection of the law to all Americans, and the landmark Reconstruction Era Civil Rights Act, governmental acts of racial discrimination became unconstitutional and unlawful in this country. While enshrined as the law of the land, those rights are often violated and those violations are often not redressed by the courts. Whether deemed a violation of domestic law or not, those governmental acts of racial discrimination — and toleration of racial discrimination by non-enforcement of prohibitions against it — may violate international human rights law.

International Context on Race and Human Rights

The International Convention on the Elimination of All Forms of Racial Discrimination was adopted in 1965 and ratified, with reservations , by the United States in 1994. Article 2 sweepingly “condemn[s] racial discrimination” and commits parties to the treaty to “undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms.” Article 2, Section 1(a) makes clear that the obligations of the treaty extend beyond federal governments, committing countries “to engage in no act or practice of racial discrimination … and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.”

Article 6 of the Convention requires countries to “assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination.” The failure of Congress to provide effective remedies and the refusal of federal courts to enforce them are themselves violations of international human rights norms, separate and apart from the initial violation by state or local government actors.

Although the United States signed ICERD in 1966, it was not ratified by the Senate until October 1994. The Senate declared the treaty to be “not self-executing,” meaning that its provisions would be unenforceable in U.S. courts unless Congress separately enacted legislation making it part of U.S. domestic law. Congress has not done so, nor has it enacted legislation that would permit individuals who believed their human rights under ICERD had been violated to bring suit in U.S. courts. It also refused to submit disputes under ICERD to the jurisdiction of the International Court of Justice without “the specific consent of the United States … in each case.”

According to the American Bar Association Section on Civil Rights and Social Justice, these actions “nullify the treaty’s effect” and demonstrate a “hollow” and “watered-down commitment … toward ICERD’s goal of eliminating global racial discrimination.”

In recent years, international human rights bodies have criticized the United States for endemic racial discrimination throughout its criminal legal system. Following the extrajudicial killing of George Floyd by Minneapolis police, and during the subsequent Black Lives Matter protests, the United Nations Human Rights Council called for an urgent debate in June 2020 . In that session, the council discussed systemic racism and violations of international human rights law committed by law enforcement officials against Africans and people of African descent around the world, and proposed a “transformative agenda” to “end impunity for human rights violations by law enforcement officials and … ensure that the voices of people of African descent and those who stand up against racism are heard and that their concerns are acted upon.” The session concluded with a resolution calling upon the UN Office of the High Commissioner on Human Rights to conduct a thorough report on the matter.

In 2021, the “groundbreaking” racial justice report was released and provided 20 actionable recommendations. Unsatisfied with the progress since, the Office of the High Commissioner released a subsequent report in 2022 identifying “ piecemeal progress in combating systemic racism .” The racial justice report specifically noted “the disproportionate impact of the death penalty, punitive drug policies, arrests, overrepresentation in prisons and other aspects of the criminal justice system on people of African descent in different countries” and quoted Amnesty International’s 2021 Global Report on Death Sentences and Executions that charged that “many cases of those who faced the death penalty [in the United States] in 2021 were also affected by concerns of racial discrimination and bias.”

The 2020 United Nations Universal Periodic Review of the United States’ human rights record includes generalized criticism from several UN bodies regarding the discriminatory nature of the U.S. capital punishment system. The Working Group of Experts on People of African Descent, which had previously expressed concern about the existence of capital punishment in 2016, noted that those of African descent were disproportionally affected, citing the fact that they represented over 40% of the U.S. death row population. The Working Group on Arbitrary Detention noted that “African Americans were more likely to be sentenced to longer terms of imprisonment” and expressed concern “about the existence of racial disparities at all stages of the criminal justice system.”

Evidence of Race Discrimination in the U.S. Death Penalty

Everywhere in the world in which the death penalty exists, it is applied disproportionately against racially, religiously, ethnically, and politically disfavored groups. The United States is no exception to that worldwide rule.

The United States death penalty is often referred to as a descendent of the American historical practices of enslavement, lynching, and Jim Crow segregation. Studies have found that states with a greater history of lynchings also tend to have more modern death sentences, and that the link is even stronger between lynchings and death sentences imposed upon Black defendants. [1] A 2022 study documented the “deep historical and contemporary connection [between the death penalty and] white racial hostility toward blacks.” [2] It found that the same “racial resentment of blacks [that] drives support for the death penalty at the individual level” operates at the state level and that “states with higher aggregate levels of racial resentment impose more death sentences,” particularly against African Americans. From slavery to lynching to segregation to the death penalty and mass incarceration, the researchers wrote, “[r]acial attitudes that historically led to discrimination and racial subjugation reproduce themselves within the white population through the institutions and political cultures of a given area.”

Studies show that racial discrimination operates and compounds itself at each stage of a potentially capital case, from policing practices, to charging decisions, to plea negotiations, and on through the process of trial, sentencing, appeal, and execution. [3] A review of a dataset of 2,328 Georgia first-degree murder convictions that produced 1,317 death eligible cases found that two sets of factors operated in combination to determine who would be executed: “victim race and gender, and a set of case-specific features that are often correlated with race.” [4] Indeed, Georgia data showed that “racial disparities persist and … are magnified during the appellate and clemency processes,” with the net result that “the overall execution rate is a staggering seventeen times greater for defendants convicted of killing a white victim.” [5]

Other landmark studies have documented similar phenomena: after rating cases based upon the perceived severity of a murder, African Americans were more likely to be sentenced to death than white defendants irrespective of the race of the victim and the severity of the murder, and a death sentence was more likely to be imposed in a case involving one or more white victims, irrespective of the race of the defendant and the severity of the murder. The combination of race of victim and race of defendant most likely to produce a death verdict at all levels of severity was a Black defendant and a white victim.

A study of the death penalty in Philadelphia, [6] which in 2001 had 113 African Americans on death row — 25 more than any other county in the U.S. [7] — found that the odds that a capital trial would result in a death sentence were 3.1 times greater if the defendant was Black; and those odds became 9.3 times greater if the case advanced to a capital penalty phase; and 29.0 times greater if a jury found both aggravating and mitigating circumstances to be present and had to make the discretionary choice between life or death.

To explore the impact of racial bias — overt or implicit — on capital sentencing, other researchers examined whether the defendant’s appearance affected the likelihood of a death sentence. [8] They rated African American capital defendants based upon the degree to which they had prototypically African facial features (i.e., darker skin, broader nose, and thicker lips) and examined sentencing outcomes based upon the race of the victim. They found that a Black defendant’s appearance had no statistically significant difference in sentencing outcomes if the victim also was Black. But in cases in which the victim was white, a Black defendant with archetypical African features was twice as likely to be sentenced to death as a Black defendant with lighter skin, a narrower nose, and thinner lips.

The racist underpinnings of the U.S. death penalty — and its emergence as a successor to extrajudicial lynchings — can be seen most clearly in the historical application of the death penalty for allegations of rape . Between 1930 and 1972, 455 people in the United States were executed for rape. 405 (89.1%) of those executed were Black. 443 of the executions for rape (97.3%) occurred in the states of the former Confederacy. No white man has ever been executed in the U.S. for the rape of a Black woman or child in which the victim was not killed. For most of the 20th century, Virginia permitted the death penalty for rape, attempted rape, and armed robbery that did not result in death. 73 Black men and boys were executed on charges they had committed non-lethal acts. No white person was executed for an offense that did not result in death.

In the “modern era” — since states began re-enacting death penalty laws after the Supreme Court struck down existing death penalty statutes in 1972 — executions have been limited to cases in which a victim was killed. That has eliminated the huge racial bias present in death penalty cases for non-lethal offenses. However, significant race-of defendant and race-of victim bias remains. Executions disproportionately involve white victims, suggesting an inappropriate race-based conception of what constitutes the “worst of the worst” killings. And among the most vulnerable of defendants — juveniles, late adolescents, the intellectually disabled, and those who are innocent and have been wrongfully convicted and sentenced to death — significant bias permeates the death penalty system.

More than two thirds (30 of 44) of the known intellectually disabled prisoners who were executed before the Supreme Court banned the practice in Atkins v. Virginia in 2002 were people of color. More than 60% (27 of 44) were Black. Over the next twenty years, U.S. states executed at least 29 more prisoners who most likely were intellectually disabled. More than three-quarters (22, 75.9%) were people of color and 62.1% (18 of 29) were Black. As of December 2022, at least 142 condemned prisoners had their death sentences overturned under Atkins : More than 4 in 5 (118, 83.1%) were people of color and more than two-thirds (96, 67.6%) were Black.

Similarly, nearly two-thirds (65.2%) of the 235 death sentences imposed on juvenile offenders (under age 18) in the United States in the modern era before the Supreme Court struck down that practice in Roper v. Simmons in 2005 were people of color. [9] More than half (52.0%) were Black. 64.7% of the 1,319 death sentences imposed on late adolescent offenders (between ages 18 and 21) in the U.S. in the modern era have been directed at people of color, with more than half imposed on Black adolescents (51.2%). [10] Noting that “Black youth are punished more harshly than Whites” and that “it is clear death as a penalty is not applied equally and fairly among members of the late adolescent class,” the American Psychological Association in August 2022 adopted a resolution calling for an end to the death penalty for individuals aged 18-20.

The National Registry of Exonerations has documented that Black defendants charged with murder are much more vulnerable to wrongful convictions than are their white counterparts. In its 2022 report, Race and Wrongful Convictions in the United States , the Registry found that Black people are about 7½ times more likely to be wrongfully convicted of murder in the U.S. than are whites, and about 80% more likely to be innocent than others convicted of murder. The already disproportionate risk of wrongful conviction, the Registry found, was even worse if the murder victim in a case was white.

Not surprisingly, death-row exonerations highlight the enhanced risk of wrongful conviction that innocent defendants of color face in their capital trials. Nearly two-thirds of wrongfully convicted death-row prisoners who have subsequently been exonerated are individuals of color and more than half are Black. As of March 2023, DPIC had documented 191 death-row exonerations since 1973: one exoneration for every 8.2 executions in the United States in the past half century. DPIC’s exoneration data shows that exonerees of color, and particularly those who are Black, are more likely to be victims of official misconduct and false accusation, more likely to be wrongfully convicted and condemned, and more likely to spend longer periods facing execution or under the continuing shadow of their wrongful conviction than white death-row exonerees.

Reframing the Death Penalty as a Human Rights Issue Rather than a Legitimate Tool of Public Safety

In most of the democratic nations of the world, the death penalty is viewed as a human rights issue. And when the United States looks outward at the death penalty policies and practices of autocratic regimes like Iran, Saudi Arabia, China, North Korea, and Belarus, it, too, tends to frame the issue in terms of human rights. But Americans rarely turn the human rights lens inward towards this nation’s death penalty practices. Instead, internally, the death penalty tends to be discussed as a legitimate criminal legal policy option in promoting and protecting public safety.

However, that is beginning to change as historians, academics, and policy advocates increasingly address the historical use of enslavement and punishment as instruments of social control in the United States and the continuing role the death penalty plays in legitimizing other policies of mass incarceration.

In a 2015 interview with The Marshall Project , Equal Justice Initiative founder and executive director Bryan Stevenson observed that the United States has “never committed itself to a conversation about the legacy of slavery. … Very few people in this country have any awareness of just how expansive and how debilitating and destructive America’s history of slavery is.”

“The whole narrative of white supremacy was created during the era of slavery. It was a necessary theory to make white Christian people feel comfortable with their ownership of other human beings,” Stevenson said. “And we created a narrative of racial difference in this country to sustain slavery, and even people who didn’t own slaves bought into that narrative, including people in the North. … We created a narrative of racial difference to maintain slavery. And our 13th amendment never dealt with that narrative. It didn’t talk about white supremacy. The Emancipation Proclamation doesn’t discuss the ideology of white supremacy or the narrative of racial difference. So I don’t believe slavery ended in 1865, I believe it just evolved. It turned into decades of racial hierarchy that was violently enforced — from the end of reconstruction until WWII — through acts of racial terror.”

During the 2018 dedication of EJI’s lynching memorial , the National Memorial for Peace and Justice, Stevenson called capital punishment “the stepchild of lynching. … It was disproportionately used against people of color; it still continues to be shaped primarily by race,” he said.

Stevenson argues that “we’ve used the death penalty to sustain racial hierarchy by making it primarily a tool to reinforce the victimization of white people. The greatest racial disparity of the death penalty is the way in which the death penalty is largely reserved for cases where the victims are white. … And that’s true throughout this country. We’ve used it particularly aggressively when minority defendants are accused of killing white people. And history is replete with defendants being described with the n-word, cases just saturated with racial bigotry, and the courts have largely tolerated that.” He says that the occasional pursuit of the death penalty for hate crimes targeting Black victims does not legitimize the death penalty. “We can’t be distracted by thinking that if they execute one person who committed mass violence that’s some sign of progress. That’s a sign of tactical misdirection to preserve a system that is inherently corrupted by a narrative of racial difference.”

In a 2023 Discussions With DPIC podcast interview, Georgetown University Racial Justice Institute Executive Director Diann Rust-Tierney observed that “for a long time, the death penalty has been misclassified … as if it was a normal public safety tool, notwithstanding the fact that there is no relationship between safety and the death penalty, that we don’t see reduction in the crime or murder in places that use the death penalty.” Rust-Tierney describes the suggestion that the death penalty is a tool of public safety as “fiction.” Rather, she says, “the death penalty really [is] part of something much more terrible. It is part of the racial caste system in the United States.”

“[F]rom its very beginning in history, from the very first time that Africans were brought to the United States to work, it was part of a legal and social system designed to keep various races in their place and to reinforce the institution of slavery,” Rust-Tierney says. “And the most important thing that the death penalty does, and did then, is to tell us the value of different lives. In other words, it places a different value on the life of a victim, depending upon their race, and it places a different value on the life of the defendant based on their race. That’s something we’ve seen historically, and so it was important to understand that the death penalty is not a tool of public safety, but it is in fact, a tool of racial and social oppression.”

Rust-Tierney frames the discussion of capital punishment in the U.S. and worldwide as part of “a global struggle for human rights, a global struggle for democracy.” She notes that the most aggressive death penalty states in the U.S. are engaging in a broad range of anti-democratic practices, making their execution practices state secrets, attempting to bar African Americans from jury service through regulations and rules that limit who can serve on a jury or through the discriminatory use of jury strikes, attempting to overturn the results of local elections in which reform prosecutors have said that they don’t intend to seek the death penalty or are going to seek the death penalty more sparingly, and trying to oppress a significant segment of their population through voter suppression. “The reality,” she says, “is that the death penalty is a tool of oppression. Autocrats and anti-democratic people and dictators use death as punishment, and they wield it where they will, and how they will …. [T]he death penalty is a tool of power.”

Rust-Tierney says “it’s time to stand on the side of either democracy and self determination and human rights on this side or on the side of autocracy and oppression and dictators. And in that stark contrast, you have to oppose the death penalty.”

DPIC Webinars: Webinar on Race and the U.S. Death Penalty ;

German Embassy Panel on Human Rights & the U.S. Death Penalty, Diann Rust Tierney speaks at 54min

DPIC Report: Enduring Injustice

DPIC Webpage: Race Page

DPIC Podcast: Georgetown Racial Justice Institute Director Diann Rust-Tierney on Reconceptualizing the U.S. Death Penalty as a Violation of Fundamental Human Rights

Human Rights Council holds an urgent debate on current racially inspired human rights violations, systemic racism, police brutality and violence against peaceful protests

2022 Report: A/HRC/51/53: Promotion and protection of the human rights and fundamental freedoms of Africans and of people of African descent against excessive use of force and other human rights violations by law enforcement officers through transformative change for

Agenda towards transformative change for racial justice and equality

2021 Report: A/HRC/47/53: Promotion and protection of the human rights and fundamental freedoms of Africans and of people of African descent against excessive use of force and other human rights violations by law enforcement officers

International Convention on the Elimination of All Forms of Racial Discrimination

IACHR Precautionary Measure on Julius Jones

2020 Universal Period Review of United States Human Rights Record

Cornell Center on the Death Penalty Worldwide: Discrimination Page

Cornell Center on the Death Penalty Worldwide: Arbitrariness Page

Cornell Center on the Death Penalty Worldwide: Due Process Page

[1] David Jacobs, Jason T. Carmichael, and Stephanie L. Kent, Vigilantism, Current Racial Threat, and Death Sentences , American Sociological Review 656–77, Vol. 70 (Aug. 2005).

[2] Frank R. Baumgartner, Christian Caron, and Scott Duxbury, Racial Resentment and the Death Penalty , The Journal of Race, Ethnicity, and Politics 1–19 (2022).

[3] Jeffrey Fagan, Garth Davies, and Raymond Paternoster, Getting to Death: Race and the Paths of Capital Cases After Furman , 107 Cornell Law Review 1565-1620 (2022); Scott Phillips and Justin F. Marceau, Whom the State Kills , 55 Harvard Civil Rights-Civil Liberties Law Review 585-656, Issue 2 (Summer 2020).

[4] Fagan et al. , at 1565.

[5] Phillips and Marceau, at 603.

[6] David C. Baldus, George Woodworth, David Zuckerman, and Neil Alan Weiner, Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview with Recent Findings from Philadelphia , 83 Cornell Law Review 1638-1770 (1998).

[7] Robert Dunham, Racial composition of death row in the seventy most populous counties in states with the death penalty , July 16, 2001, document on file with the Death Penalty Information Center.

[8] Jennifer L. Eberhardt, P G. Davies, Valerie J. Purdie-Vaughns, and Sheri Lynn Johnson, Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes , Psychological Science 383-86, Vol. 17, No. 5 (2006).

[9] For whom race is known. 235 people were sentenced to death for crimes committed before they turned age 18. 115 were Black; 77 were white; 26 were Hispanic; 3 were of other races; and race data was missing for 14.

[10] Again, for whom race is known. 1,319 death sentences were imposed on late adolescent offenders. 640 were Black; 442 were white; 139 were Hispanic; 30 were of other races; and race data was missing for 68 cases.

• Capital Punishment: Our Duty or Our Doom?
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Capital Punishment:Our Duty or Our Doom?

But human rights advocates and civil libertarians continue to decry the immorality of state-sanctioned killing in the U.S. Is capital punishment moral?

About 2000 men, women, and teenagers currently wait on America's "death row." Their time grows shorter as federal and state courts increasingly ratify death penalty laws, allowing executions to proceed at an accelerated rate. It's unlikely that any of these executions will make the front page, having become more or less a matter of routine in the last decade. Indeed, recent public opinion polls show a wide margin of support for the death penalty. But human rights advocates and civil libertarians continue to decry the immorality of state-sanctioned killing in the U.S., the only western industrialized country that continues to use the death penalty. Is capital punishment moral?

Capital punishment is often defended on the grounds that society has a moral obligation to protect the safety and welfare of its citizens. Murderers threaten this safety and welfare. Only by putting murderers to death can society ensure that convicted killers do not kill again.

Second, those favoring capital punishment contend that society should support those practices that will bring about the greatest balance of good over evil, and capital punishment is one such practice. Capital punishment benefits society because it may deter violent crime. While it is difficult to produce direct evidence to support this claim since, by definition, those who are deterred by the death penalty do not commit murders, common sense tells us that if people know that they will die if they perform a certain act, they will be unwilling to perform that act.

If the threat of death has, in fact, stayed the hand of many a would be murderer, and we abolish the death penalty, we will sacrifice the lives of many innocent victims whose murders could have been deterred. But if, in fact, the death penalty does not deter, and we continue to impose it, we have only sacrificed the lives of convicted murderers. Surely it's better for society to take a gamble that the death penalty deters in order to protect the lives of innocent people than to take a gamble that it doesn't deter and thereby protect the lives of murderers, while risking the lives of innocents. If grave risks are to be run, it's better that they be run by the guilty, not the innocent.

Finally, defenders of capital punishment argue that justice demands that those convicted of heinous crimes of murder be sentenced to death. Justice is essentially a matter of ensuring that everyone is treated equally. It is unjust when a criminal deliberately and wrongly inflicts greater losses on others than he or she has to bear. If the losses society imposes on criminals are less than those the criminals imposed on their innocent victims, society would be favoring criminals, allowing them to get away with bearing fewer costs than their victims had to bear. Justice requires that society impose on criminals losses equal to those they imposed on innocent persons. By inflicting death on those who deliberately inflict death on others, the death penalty ensures justice for all.

This requirement that justice be served is not weakened by charges that only the black and the poor receive the death penalty. Any unfair application of the death penalty is the basis for extending its application, not abolishing it. If an employer discriminates in hiring workers, do we demand that jobs be taken from the deserving who were hired or that jobs be abolished altogether? Likewise, if our criminal justice system discriminates in applying the death penalty so that some do not get their deserved punishment, it's no reason to give Iesser punishments to murderers who deserved the death penalty and got it. Some justice, however unequal, is better than no justice, however equal. To ensure justice and equality, we must work to improve our system so that everyone who deserves the death penalty gets it.

The case against capital punishment is often made on the basis that society has a moral obligation to protect human life, not take it. The taking of human life is permissible only if it is a necessary condition to achieving the greatest balance of good over evil for everyone involved. Given the value we place on life and our obligation to minimize suffering and pain whenever possible, if a less severe alternative to the death penalty exists which would accomplish the same goal, we are duty-bound to reject the death penalty in favor of the less severe alternative.

There is no evidence to support the claim that the death penalty is a more effective deterrent of violent crime than, say, life imprisonment. In fact, statistical studies that have compared the murder rates of jurisdictions with and without the death penalty have shown that the rate of murder is not related to whether the death penalty is in force: There are as many murders committed in jurisdictions with the death penalty as in those without. Unless it can be demonstrated that the death penalty, and the death penalty alone, does in fact deter crimes of murder, we are obligated to refrain from imposing it when other alternatives exist.

Further, the death penalty is not necessary to achieve the benefit of protecting the public from murderers who may strike again. Locking murderers away for life achieves the same goal without requiring us to take yet another life. Nor is the death penalty necessary to ensure that criminals "get what they deserve." Justice does not require us to punish murder by death. It only requires that the gravest crimes receive the severest punishment that our moral principles would allow us to impose.

While it is clear that the death penalty is by no means necessary to achieve certain social benefits, it does, without a doubt, impose grave costs on society. First, the death penalty wastes lives. Many of those sentenced to death could be rehabilitated to live socially productive lives. Carrying out the death penalty destroys any good such persons might have done for society if they had been allowed to live. Furthermore, juries have been known to make mistakes, inflicting the death penalty on innocent people. Had such innocent parties been allowed to live, the wrong done to them might have been corrected and their lives not wasted.

In addition to wasting lives, the death penalty also wastes money. Contrary to conventional wisdom, it's much more costly to execute a person than to imprison them for life. The finality of punishment by death rightly requires that great procedural precautions be taken throughout all stages of death penalty cases to ensure that the chance of error is minimized. As a result, executing a single capital case costs about three times as much as it costs to keep a person in prison for their remaining life expectancy, which is about 40 years.

Finally, the death penalty harms society by cheapening the value of life. Allowing the state to inflict death on certain of its citizens legitimizes the taking of life. The death of anyone, even a convicted killer, diminishes us all. Society has a duty to end this practice which causes such harm, yet produces little in the way of benefits.

Opponents of capital punishment also argue that the death penalty should be abolished because it is unjust. Justice, they claim, requires that all persons be treated equally. And the requirement that justice bc served is all the more rigorous when life and death are at stake. Of 19,000 people who committed willful homicides in the U.S. in 1987, only 293 were sentenced to death. Who are these few being selected to die? They are nearly always poor and disproportionately black. It is not the nature of the crime that determines who goes to death row and who doesn't. People go to death row simply because they have no money to appeal their case, or they have a poor defense, or they lack the funds to being witnesses to courts, or they are members of a political or racial minority.

The death penalty is also unjust because it is sometimes inflicted on innocent people. Since 1900, 350 people have been wrongly convicted of homicide or capital rape. The death penalty makes it impossible to remedy any such mistakes. If, on the other hand, the death penalty is not in force, convicted persons later found to be innocent can be released and compensated for the time they wrongly served in prison.

The case for and the case against the death penalty appeal, in different ways, to the value we place on life and to the value we place on bringing about the greatest balance of good over evil. Each also appeals to our commitment to"justice": Is justice to be served at all costs? Or is our commitment to justice to be one tempered by our commitment to equality and our reverence for life? Indeed, is capital punishment our duty or our doom?

(Capital punishment) is . . . the most premeditated of murders, to which no criminal's deed, however calculated . . can be compared . . . For there to be an equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at mercy for months. Such a monster is not encountered in private life. --Albert Camus

If . . . he has committed a murder, he must die. In this case, there is no substitute that will satisfy the requirements of legal justice. There is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is no equality between the crime and the retribution unless the criminal is judicially condemned and put to death. --Immanuel Kant

For further reading:

Hugo Adam Bedau, Death Is Different: Studies in the Morality, Law, and Politics of Capital Punishment (Boston: Northeastern University Press, 1987).

Walter Berns, For Capital Punishment (New York: Basic Books, 1979.)

David Bruch, "The Death Penalty: An Exchange," The New Republic , Volume 192 (May 20, 1985), pp. 20-21.

Edward I. Koch, "Death and Justice: How Capital Punishment Affirms Life," The New Republic, Volume 192 (April 15,1985), pp. 13-15.

Ernest van den Haag and John P. Conrad , The Death Penalty: A Debate (New York: Plenum Press, 1983).

This article was originally published in Issues in Ethics - V. 1, N.3 Spring 1988

At the NABJ convention in Chicago on July 31st, Donald Trump Asked Rachel Scott To Define DEI. She Should Have.

While free speech is a right that has been embraced in the United States for several centuries, ethical issues about the process and limitations of free speech and protest behavior, like some of those seen on college campuses this Spring, are in question and are debatable.

Stockholders pay the price when executives and directors choose profits over ethics.

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capital punishment , execution of an offender sentenced to death after conviction by a court of law of a criminal offense. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law . The term death penalty is sometimes used interchangeably with capital punishment , though imposition of the penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment.

Capital punishment for murder , treason , arson , and rape was widely employed in ancient Greece under the laws of Draco (fl. 7th century bce ), though Plato argued that it should be used only for the incorrigible . The Romans also used it for a wide range of offenses, though citizens were exempted for a short time during the republic. It also has been sanctioned at one time or another by most of the world’s major religions. Followers of Judaism and Christianity, for example, have claimed to find justification for capital punishment in the biblical passage “Whosoever sheddeth man’s blood, by man shall his blood be shed” ( Genesis 9:6). Yet capital punishment has been prescribed for many crimes not involving loss of life, including adultery and blasphemy . The ancient legal principle Lex talionis ( talion )—“an eye for an eye , a tooth for a tooth, a life for a life”—which appears in the Babylonian Code of Hammurabi , was invoked in some societies to ensure that capital punishment was not disproportionately applied.

The prevalence of capital punishment in ancient times is difficult to ascertain precisely, but it seems likely that it was often avoided, sometimes by the alternative of banishment and sometimes by payment of compensation . For example, it was customary during Japan’s peaceful Heian period (794–1185) for the emperor to commute every death sentence and replace it with deportation to a remote area, though executions were reinstated once civil war broke out in the mid-11th century.

In Islamic law , as expressed in the Qurʾān , capital punishment is condoned . Although the Qurʾān prescribes the death penalty for several ḥadd (fixed) crimes—including robbery, adultery, and apostasy of Islam —murder is not among them. Instead, murder is treated as a civil crime and is covered by the law of qiṣās (retaliation), whereby the relatives of the victim decide whether the offender is punished with death by the authorities or made to pay diyah (wergild) as compensation.

Death was formerly the penalty for a large number of offenses in England during the 17th and 18th centuries, but it was never applied as widely as the law provided. As in other countries, many offenders who committed capital crimes escaped the death penalty, either because juries or courts would not convict them or because they were pardoned, usually on condition that they agreed to banishment; some were sentenced to the lesser punishment of transportation to the then American colonies and later to Australia. Beginning in the Middle Ages, it was possible for offenders guilty of capital offenses to receive benefit of clergy , by which those who could prove that they were ordained priests (clerks in Holy Orders) as well as secular clerks who assisted in divine service (or, from 1547, a peer of the realm) were allowed to go free, though it remained within the judge’s power to sentence them to prison for up to a year, or from 1717 onward to transportation for seven years. Because during medieval times the only proof of ordination was literacy, it became customary between the 15th and 18th centuries to allow anyone convicted of a felony to escape the death sentence by proving that he (the privilege was extended to women in 1629) could read. Until 1705, all he had to do was read (or recite) the first verse from Psalm 51 of the Bible—“Have mercy on me, O God, according to your steadfast love; according to your abundant mercy blot out my transgressions”—which came to be known as the “ neck verse” (for its power to save one’s neck). To ensure that an offender could escape death only once through benefit of clergy, he was branded on the brawn of the thumb ( M for murder or T for theft). Branding was abolished in 1779, and benefit of clergy ceased in 1827.

From ancient times until well into the 19th century, many societies administered exceptionally cruel forms of capital punishment. In Rome the condemned were hurled from the Tarpeian Rock ( see Tarpeia ); for parricide they were drowned in a sealed bag with a dog, cock, ape, and viper; and still others were executed by forced gladiatorial combat or by crucifixion . Executions in ancient China were carried out by many painful methods, such as sawing the condemned in half, flaying him while still alive, and boiling . Cruel forms of execution in Europe included “breaking” on the wheel, boiling in oil, burning at the stake , decapitation by the guillotine or an axe, hanging , drawing and quartering , and drowning. Although by the end of the 20th century many jurisdictions (e.g., nearly every U.S. state that employs the death penalty, Guatemala, the Philippines , Taiwan , and some Chinese provinces) had adopted lethal injection , offenders continued to be beheaded in Saudi Arabia and occasionally stoned to death (for adultery) in Iran and Sudan . Other methods of execution were electrocution , gassing, and the firing squad.

Historically, executions were public events, attended by large crowds, and the mutilated bodies were often displayed until they rotted. Public executions were banned in England in 1868, though they continued to take place in parts of the United States until the 1930s. In the last half of the 20th century, there was considerable debate regarding whether executions should be broadcast on television, as has occurred in Guatemala. Since the mid-1990s public executions have taken place in some 20 countries, including Iran, Saudi Arabia, and Nigeria , though the practice has been condemned by the United Nations Human Rights Committee as “incompatible with human dignity.”

In many countries death sentences are not carried out immediately after they are imposed; there is often a long period of uncertainty for the convicted while their cases are appealed. Inmates awaiting execution live on what has been called “ death row ”; in the United States and Japan, some prisoners have been executed more than 15 years after their convictions . The European Union regards this phenomenon as so inhumane that, on the basis of a binding ruling by the European Court of Human Rights (1989), EU countries may extradite an offender accused of a capital crime to a country that practices capital punishment only if a guarantee is given that the death penalty will not be sought.

Syracuse Journal of Law & Civic Engagement

An inquiry into the ethics of capital punishment.

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

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

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

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

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

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

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

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

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

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

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

We oppose capital punishment not just for what it does to those guilty of horrible crimes but for what it does to all of us as a society. Increasing reliance on the death penalty diminishes all of us and is a sign of growing disrespect for human life. We cannot overcome crime by simply executing criminals, nor can we restore the lives of the innocent by ending the lives of those convicted of their murders. The death penalty offers the tragic illusion that we can defend life by taking life.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III.       What is the Community Practice?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. What is the Ethical Response?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[5] Exodus 21:23-25.

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

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

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

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

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

[12] Id . at 17.

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

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

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

[16] Id. at 181-82.

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

[19] Id . at 204.

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

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

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

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

[25] Id . at 252.

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

[27] Id. at 271.

[28] Id . at 274.

[29] Id . at 276.

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

[32] Id. at 302.

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

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

[35] Id . at 333.

[36] Id . at 335.

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

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

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

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

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

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

[43] Id . at 569.

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

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

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

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

[48] Ala. Code § 13A-5-40.

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

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

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

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

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

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

[55] ABA Guideline 1.1(A).

[56] ABA Guideline 1.1 (B).

[57] ABA Guideline 6.1.

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

[59] ABA Guideline 9.1.

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

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

[62] Id . at 9.

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

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

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

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

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

[70] C.R.S.A. § 16-12-205.

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

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

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

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

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

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

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

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

[80] Zacharias and Green at 34.

[81] Id . at 51.

[82] Id . at 52-53.

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

[84] Id . at 454.

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

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

[87] O’Dell , 521 U.S. at 167.

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

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

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

[91] Id . at *83-85.

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

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

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

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

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

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Death Penalty

The death penalty, known as capital punishment, is the government-sanctioned taking of a life as punishment for a crime. Read the overview below to gain an understanding of the issues surrounding the death penalty and explore the previews of additional articles highlighting diverse perspectives.

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Capital punishment.

"Capital Punishment." Opposing Viewpoints Online Collection , Gale, 2023.

Capital punishment , also referred to as the  death penalty , has long been a feature of human society and has been used in the United States since the colonial era. Crimes punishable by death are called  capital offenses . Under US constitutional law, states have the right to apply their own criminal statutes including capital punishment. However, the death penalty remains a controversial political and legal issue in the United States. Supporters of capital punishment argue that it deters crime and provides ultimate justice for crime victims, particularly murder victims. Opponents counter that it is an immoral and costly practice that is particularly vulnerable to racial bias. It also carries the risk of wrongful execution. As of 2023, the death penalty had been abolished in twenty-three US states and the District of Columbia. In addition, governors in Arizona, California, Ohio, Oregon, and Pennsylvania had placed moratoriums on the death penalty that remained in effect.

PROS AND CONS OF ABOLISHING THE DEATH PENALTY

• The death penalty violates the Eighth Amendment's protection against "cruel and unusual punishment" by the state.
• With little evidence that capital punishment deters crime, it is a costly and ineffective use of public resources.
• Abolishing the death penalty is the only way to prevent bias in its application and ensure that no person is executed by the government erroneously or unconstitutionally.
• The option to seek the death penalty is constitutional because the Fifth Amendment authorizes its application as long as "due process of law" has been followed.
• The death penalty provides immeasurable public benefit by discouraging people from committing capital offenses.
• Capital punishment enables the state to assert its authority over the people and serve in its role as the administrator of justice.

In addition to state laws, the federal government identifies about sixty crimes to which the death penalty could be applied. These offenses involve murder, treason, or committing another crime that results in death, such as kidnapping or aircraft piracy. The US Department of Justice (DOJ) authorizes federal death penalty cases, which are prosecuted in federal court. In 2020, following seventeen years without carrying out the penalty, the federal government executed ten people. In January 2021 the federal government executed Lisa Marie Montgomery, the first woman to receive such a punishment from the federal government in sixty-seven years. Despite this surge in federal executions in 2020, state executions reached their lowest number that year since 1991.

In states that still enforce capital punishment, lethal injection is the primary method of carrying out executions. Though their use is rare, secondary execution methods permitted by individual state laws include electrocution, gas inhalation, hanging, and firing squad. As of 2023, only three people in the United States have been executed by hanging since 1965, and only four people have faced a firing squad since 1960. Tennessee used electrocution in 2020. For federal offenses, the government uses the methods of execution authorized by the state in which the court imposes the punishment. In cases handled in states that have abolished capital punishment, the federal judge can designate a death-penalty state to carry out the execution.

Several nonprofit organizations work to end the use of capital punishment. The National Coalition to Abolish the Death Penalty, the nation's oldest anti–death penalty nonprofit organization, was founded in 1976 and focuses on ending the practice through mass organization, providing legal assistance, and educating the public. The Innocence Project, founded in 1992, focuses on providing legal services and DNA testing with the purpose of winning exoneration for wrongfully convicted prisoners. Exoneration occurs when a person's conviction is overturned. Between 1973 and 2023, at least 195 inmates on death row in the United States were exonerated.

DEVELOPMENT OF US DEATH PENALTY LAWS

The Fifth Amendment of the US Constitution outlines conditions for trying individuals accused of capital crimes and states that no person "shall be deprived of life … without due process of law." The government is granted the authority to execute a person if certain conditions—such as arrest, indictment, and trial—have been met. The Eighth Amendment, however, prohibits the government from enforcing "cruel and unusual punishment," which several lawsuits have used successfully to challenge certain applications of capital punishment.

Through the Crimes Act of 1790, also referred to as the Federal Criminal Code of 1790, lawmakers of the newly independent United States granted federal judges the authority to impose the death sentence. By the 1800s, federal law not only permitted capital punishment but required it in cases involving certain crimes. This created a problem for juries that found a defendant guilty but did not believe the offense warranted a sentence of death. With no legal ability to impose a punishment other than execution, some juries chose to hand down verdicts of not guilty, a trial outcome known as  jury nullification .

Due in part to rising jury nullifications, which effectively allowed guilty criminals to be set free, state legislatures began to pass laws in 1838 that rejected mandatory application of the death penalty in favor of jury discretion in sentencing. The abolitionist movement to end capital punishment also influenced state legislatures. By the early 1900s, most states had adopted laws that allowed juries to apply either the death penalty or a sentence of life in prison.

Executions in the United States peaked during the 1930s at an average rate of 167 per year. Courts handed down death sentences fairly frequently until the 1960s when the practice began to face growing moral, legal, and political opposition. Critics cast doubt on its value as a crime deterrent and argued that the courts applied it inconsistently and unequally. Among other factors, scholars determined that the races of both the victim and the defendant often influenced sentencing. Despite comprising less than 15 percent of the US population, African Americans comprised more than half of the nearly four thousand people executed from 1930 to 1967. Facing increasing pressure to rule on the constitutionality of capital punishment law, an unofficial nationwide moratorium on executions began in 1968.

CONSTITUTIONAL CHALLENGES

The Supreme Court ruled in  Furman v. Georgia  (1972) that the death penalty, as it was implemented, violated the Constitution. The court overturned the death sentence of William Furman, an African American man whose murder trial had lasted less than one day. The court found Furman's death sentence to be "cruel and unusual punishment." The ruling determined that the unequal and arbitrary application of the death penalty to African American defendants violated the equal protection clause of the Fourteenth Amendment. The decision required states to develop consistent legal standards for capital punishment to ensure that sentences matched the severity of offenses and did not cause undue pain and suffering. From 1972 to 1976, thirty-five US states revised their death penalty laws.

On July 2, 1976, the Supreme Court handed down five decisions in cases that originated in Florida, Georgia, Louisiana, North Carolina, and Texas, collectively referred to as the July 2 cases, or by the name of the lead case,  Gregg v. Georgia . All cases involved ongoing state-level efforts to reform capital punishment laws. The court ruled that mandatory capital punishment laws were too rigid. However, the court also determined that the death penalty does not violate the Constitution, capital punishment serves as a practical deterrent, and retribution provides a justifiable basis for execution.

The court's rulings also indicated that inconsistent and racially biased death sentences could be prevented by holding two hearings: one to establish guilt and one to determine sentencing if found guilty. Most states authorized a system of allowing the jury to decide the guilty party's punishment, though some allowed judges to make the decision or retain the right to overrule the jury. These decisions allowed the reinstatement of state death penalty laws. The federal government lifted its capital punishment moratorium in 1988 but did not carry out another execution until 2001.

RESURGENCE IN THE LATE TWENTIETH CENTURY

After the unofficial moratorium on capital punishment ended with the execution of Gary Gilmore in Utah in 1977, the execution rate remained low for an extended period. During the late 1970s, the Supreme Court handed down decisions that expanded defendants' rights in capital offense trials and ruled that capital punishment could not be imposed for the rape of an adult, limiting the death penalty to offenses of murder, treason, and the rape of a child. In the 1980s, the court ruled that the death penalty could not be applied to offenders under the age of sixteen or those deemed mentally incompetent. During the 1980s, more than half of all federal appeals in capital punishment cases resulted in death sentences being overturned.

In  McCleskey v. Kemp  (1987), the Supreme Court again confronted the issue of race and capital punishment. Warren McCleskey, a Black resident of Georgia, had been convicted of killing a white police officer in 1978 and sentenced to death. McCleskey's attorneys argued that his Eighth and Fourteenth Amendment rights were violated because his race made it statistically more likely that he would receive the death penalty. McCleskey's attorney cited a 1983 study, commonly referred to as the Baldus study, that determined African Americans in Georgia were 4.3 times more likely to receive death sentences for killing a white person than they were for killing another African American. Upon losing his Supreme Court appeal, McCleskey was executed in 1991.

In the years since the McCleskey ruling, opponents of capital punishment have continued to voice concerns about the role of racial bias in death penalty sentencing. The court's ruling is believed to have made proving racial discrimination more difficult. According to the National Association for the Advancement of Colored People (NAACP), incarceration rates of racial minorities skyrocketed in the decade following the McCleskey decision. As of October 2023, Black defendants accounted for 34.1 percent of all people executed in the United States since 1976 and over 40 percent of the country's death row population despite making up just 13.6 percent of the general population.

During the 1990s, the Supreme Court issued several decisions that upheld the constitutionality of capital punishment and limited defendants' opportunities to have their cases reviewed. The number of executions performed annually began a steady rise during this decade. A total of sixteen executions were carried out in the United States in 1989. In 1999 state governments carried out ninety-eight executions, the highest number since the 1976 reinstatement of the death penalty.

TWENTY-FIRST-CENTURY DEVELOPMENTS

The 2001 execution of Timothy McVeigh, convicted for his role in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, marked the first federal execution carried out since 1963, with drug trafficker Juan Raul Garza executed eight days later. After the execution of Louis Jones Jr. in 2003, no federal executions were scheduled until US Attorney General William Barr announced a return to the practice in 2019. One year after the announcement federal executions resumed, and ten prisoners were executed by the federal government in the last six months of 2020. An additional four federal prisoners were executed in January 2021, during the last weeks of Trump's presidency. His successor, Joe Biden, has pledged to end the federal death penalty and issued a federal moratorium on executions. As of late 2023, federal courts have not issued any death sentences during the Biden administration.

Opponents of the death penalty have also focused their arguments on the mental capacity of those found guilty of capital offenses. The Supreme Court ruled in  Atkins v. Virginia  (2002) that executing people with intellectual disabilities violated the Eighth Amendment but left the definition of intellectual disabilities up to individual states. In  Hall v. Florida  (2014), the Supreme Court found Florida's system of determining intellectual disability to be unconstitutional and handed down a similar ruling in  Moore v. Texas  (2017). In several cases in 2020 the Florida Supreme Court reversed existing protections afforded to inmates sentenced to death and overturned existing evidential and jury agreement standards for imposing the death penalty.

Between 2000 and 2020, with few exceptions, the number of state executions performed annually dropped each year, with the exceptions of 2017 and 2018. While eighty-five state executions were carried out in 2000, there were twenty-five in 2018 and twenty-two in 2019. Seven state executions took place in 2020, the lowest annual number of the twenty-first century as of late 2023. Though no federal executions had taken place under the Biden administration as of 2023, forty-one state executions took place during that period, with eighteen taking place in 2022 and at least twenty in 2023. Death penalty abolitionists have expressed frustration at the Biden administration's lack of progress on permanently ending capital punishment and the DOJ's upholding of previous federal death sentences.

CRITICAL THINKING QUESTIONS

• What factors do you think have historically had the greatest influence on capital punishment reform in the United States?
• Under what conditions, if any, do you think a court should sentence a person to death? Explain your answer.
• In your opinion, should pharmaceutical companies have the right to refuse to sell drugs for executions? Why or why not?

LETHAL INJECTION CONTROVERSIES

A nationwide shortage of sodium thiopental, the barbiturate anesthetic used in lethal injections, emerged in 2009 after the only pharmaceutical plant in the United States approved by the Food and Drug Administration (FDA) to manufacture the drug announced it was stopping production. The shortage resulted in the postponement of several scheduled executions. States could only acquire the drug by importing it from abroad, sometimes improperly. European drug manufacturers objected to capital punishment procedures, and the European Commission banned the export of drugs used in lethal injection procedures in 2011. Some states attempted to circumvent regulations, resulting in the federal Drug Enforcement Administration (DEA) seizing drug supplies from prisons in Alabama, Georgia, Kentucky, South Carolina, and Tennessee.

Other states sought to carry out their scheduled executions using experimental combinations of drugs. Officials in Oklahoma were found to have made significant errors in an execution in 2014 after authorizing the use of untested drugs supplied by undisclosed sources. A grand jury determined in 2016 that state officials had committed a long list of oversights and avoidable mistakes in carrying out executions. In 2017 officials in Arkansas came under criticism for expediting the schedule of eight executions by lethal injection before the state's supply of available drugs reached its expiration date. Four of the eight inmates were ultimately executed, while four received stays of execution.

Concerns over botched executions using untested lethal injection methods reached the US Supreme Court, which handed down its decision in  Bucklew v. Precythe  in April 2019. The split five-to-four ruling held that challenges to a state's method of execution due to claims of excessive pain must demonstrate that alternative methods exist that would cause less pain than the state-determined one. The majority decision reasoned that the constitutional prohibition against cruel and unusual punishment does not equate to a guarantee of a painless execution. The dissenting opinion argued that the use of lethal injection in this case met the standards for an Eighth Amendment challenge previously established by the court itself.

During the COVID-19 pandemic, lawyers for federal death-row inmates Dustin Higgs and Corey Johnson argued that their clients, both of whom tested positive for COVID-19, should not be subject to lethal injection. The attorneys suggested that the combination of COVID-19 infection with the flooding of the lungs caused by the execution drugs would cause suffering that amounted to "cruel and unusual punishment." Like earlier appeals in defense of the prisoners' lives, this argument proved ineffective. Both men were executed in Virginia in January 2021.

Two months after these executions, on March 24, 2021, Virginia governor Ralph Northam signed a bill that abolished the death penalty in the state. When signing the bill, Northam referenced the disproportionate use of the death penalty against Black men in the state and the 170 prisoners sentenced to death row who had been exonerated after capital punishment was reinstated in the United States. Virginia became the first state in the South to abolish the death penalty, leading some to believe others could follow.

In 2015, following several botched executions, the governments of Alabama, Mississippi, and Oklahoma began to approve nitrogen hypoxia, in which the inmate dies by asphyxiation, as an execution method. In August 2023 Alabama became the first state to announce that it would use the method as it sought to schedule the execution of Kenneth Smith, whose first execution the state had botched the previous year.

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Capital Punishment: Advantages and Disadvantages Essay

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Advantages of Capital Punishment

Disadvantages of capital punishment.

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Within the realms of the American laws, criminal justice system comprises of the law creators (legislative), courts (adjudication), and correctional facilities such as probation, parole, prisons, and jails. American criminal justice system comprises of the jurisdictional, normative, functional, and institutional components.

These components work simultaneously in defining the goals of procedural laws and decision to be taken by the court of law. Factually, these activities take place at different points. This paper analyses impact of death penalty at the Walnut Street Jail of Philadelphia.

Actually, capital punishment refers to a death sentence on individuals who have committed unlawful deeds. Indeed, such punishment arises due to capital offences. Death penalty is normally conducted by knocking out head from an individual’s body. Initially, death penalty was practiced by many countries but currently several nations have abandoned the practice.

Indeed, many positions have been raised due to religious and cultural explanations, and political principles. In fact, the Holy Bible justifies death penalty against criminal offenses such as murder. This paper examines death penalty from an impartial view by considering disadvantages and advantages of capital punishment in society.

First, according to Teeters, death penalty eradicates criminal activities in a community. Indeed, capital punishment is an important mission for every person simply because it instills moral while discouraging criminal activities in society. Actually, dead victims would not commit more illegal actions either when freed from jail or in jail.

Secondly, money is ever a limited commodity. In this case, nations would utilize wisely their scarce resources to care their citizens who need help rather than spending such resources in imprisoning criminals for long term basis. Capital punishment is hence cost-effectual. Indeed, infinite appeals would spend much time and more resources in resolving death disputes.

Death penalty is therefore cost-valuable. Thirdly, Teeters views that death penalty is a retribution action in which a victim is punished because of offenses committed. In fact, capital punishment is an eye for an eye formula which is revengeful with no forgiveness. Lastly, capital punishment is a deterrent device that has discouraged crimes. Actually, before committing crimes, criminals have to perceive possible impacts of their actions because they are aware of what death penalty justifies.

Teeters explains that there is a conviction that innocent persons would be killed and therefore there would be no alternative manner for compensating and rehabilitating such people. Secondly, death penalty is an unkind, barbaric and unashamed inhuman act, regardless how atrocious offense is.

Indeed, human being has self-respect to exist which is a natural law from religious perspective. In addition, human being has dignity to exist with self-respect which should be key priority for any government objective for people. Moreover, there has been a big concern how a government would tread on persons’ dignity and right.

Third, according to Teeters, death penalty never gives a victim possibility to be regretful of his actions. Actually, capital punishment has never treated criminals with a just prospect to recover their deeds. Lastly, there is no tangible proof that death penalty has been capable to prevent latent victims from performing offensive acts.

Furthermore, mitigating capital punishment as way to prevent future unlawful acts is likely to be an obvious one-dimension justification to several people. Indeed, this should not be the case. Actually, people should look for objective justifications that support every person, even criminal offenders.

Though parole and probation are community correction strategies which functioning on the concept of community supervision, they are different in many aspects. Despite these differences, they were initiated to mitigate the magnitude and severity of the punishment process. Parole was introduced in America in the mid 19 th century.

Under this arrangement credit marks are awarded for behavior change, and release from detaining heavily relies on the cumulative score per prisoner. After probation, the suspected offender is passed through criminal justice system, and if found guilty, may be sentenced to a jail term. Since these detention camps have parole officers, prisoners are registered in parole programs and the best behaved released before full jail term. Generally, these processes are designed to promote positive behavior change initiated by the suspect.

Capital punishment had been a controversial dispute since ancient era, though remains certainty in some nations in the world. Actually, India and other countries still endow death penalty for most terrible unlawful acts. However, Human Right Advocates have remained persistent to resist against capital punishment in order to restore human dignity. However, some States have embraced death penalty as an eventual sentence so long as unlawful deeds typifies intense brutal act.

Teeters, Negley. “The Cradle of the Penitentiary: The Walnut Street Jail at Philadelphia 1773-1835.” Temple University, 2001

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