The death penalty is a highly controversial issue in modern times and represents one of the most decisive political decisions in contemporary politics. This is part one of a political essay series on the merits of the death penalty. This paper argues in favor of keeping the death penalty.

Why we still need the death penalty

One of the most controversial and heavily debated issues in states across the United States today is the death penalty.. Proponents of capital punishment argue that the death penalty is legal under the eighth amendment of our Constitution; that it deters further capital crime; that it is fair for the capital murderer convicted according to our system of due process, for the victim and the victim’s family, and for society; that it is cost effective compared with a sentence of life without the possibility of parole; and that with new rules on DNA evidence required by recent Supreme Court law, courts are now less likely to be wrong about convictions. These are strong arguments to preserve capital punishment.

Although the United States, Japan and Taiwan are the only developed countries in the world that still permit the death penalty (there are 54 other countries that permit the death penalty and 139 countries that prohibit it or have it but haven’t used it in the past ten years), it is a complicated question of law in the United States, not only in the Federal government, but among the fifty states as well where there is no consensus on whether it is permissible. (ACLU). Any analysis of capital punishment generally has two approaches, one based on the constitutional law of the jurisdiction in question, and the other based on the ethical question presented generally by those opposed to capital punishment of whether it is morally right to take a life as punishment for anything, even the most heinous of crimes. (ACLU).

In the United States there have been 42 executions in 2012 so far, all by lethal injection, and there were 43 executions in 2011, also all by lethal injection. The last execution by other than lethal injection was by firing squad in Utah in 2010, and by electric chair in Virginia, also in 2010. Those jurisdictions have since changed to lethal injection, although in Virginia electrocution can still be requested by the defendant (Death Penalty). It's also important to note that executions are not always done correctly, as there is an element of human error during administration.

Brief discussion of the legal basis for capital punishment

In the United States, the Founders created a federal justice system under the United States Constitution that covers what are considered “federal crimes” (such as treason). In those cases of federal capital crimes, there is a federal death penalty provided for by federal law. This federal death penalty law is not applicable to the fifty states. (Tenth Amendment, U.S. Constitution).

Under the U.S. Constitution, certain powers are reserved to the states under the Tenth Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

And among those powers are the power to establish a criminal law for each sovereign state. This amendment allows the States to have their own state Constitution, their own state criminal law, criminal courts, and system of procedures and punishments. The only restriction the U.S. Constitution places on this system is that the States cannot violate any provision of the United States Constitution.

This comes into play in capital punishment cases because some states have in the past not necessarily provided criminal defendants with the level of due process the U.S. Constitution has been found to require, and state death penalty cases end up in the Federal Court on these grounds, as mentioned in a previous research paper from Ultius. So too, in death penalty cases, many states give these defendants rights to automatically appeal if convicted, and other rights regarding punishment phases of the criminal trial, all to protect the rights of the defendant against any unconstitutionality, prolonging the procedure to conviction and sentence, and to actually carrying out the sentence. (ACLU).

Finally, another issue which comes up under the U.S. Constitution is whether the sentence violates the Eighth Amendment:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

This is one of the continuing contentious issues today regarding the death penalty, and state high courts have, as recently as 2010, decided that electrocution violates the Eighth Amendment (Nevada Supreme Court ruling on Nevada’s constitutional proscription against torture:

"Condemned prisoners must not be tortured to death, regardless of their crimes”. (ACLU).

Capital punishment is legal under the United States Constitution

The first and most important argument in favor of the death penalty is that it is not prohibited either by the U.S. or any State’s Constitution. In fact, the United States Supreme Court, the highest court in the United States has held on three separate occasions since 1976 that the death penalty is constitutional (1976, Gregg v. Georgia, Reaffirmed the Supreme Court's acceptance of the death penalty in the United States; 1985, Glass v. Louisiana, Electrocution does not violate Eighth Amendment; 2008, Baze v. Rees, Found Kentucky's lethal injection method did not violate the Eighth Amendment). Note that this does not stop any state’s Constitution or law from prohibiting the death penalty, or any state court from finding the death penalty violates that state’s constitution. The death penalty has been banned in only 17 states, and capital punishment is still allowed in, and has been used by lethal injection in the past two years in Florida, Arizona, Oklahoma, Texas, Ohio, South Dakota, Missouri, Idaho, Alabama, Georgia, Delaware, and Mississippi. (“Searchable Execution Database”).

Capital Punishment is Deterrence Against Capital Crime

To proponents of the death penalty, deterrence is a fact borne out by sophisticated statistical analysis, rigorously performed as far back as forty to fifty years ago (see for example, Becker, 1968; Ehrlich, 1975; Ehrlich, 1977). More recently, for instance, Professors Hashem Dezhbakhsh and Joanna M. Shepherd (and later with Professor Rubin) established in their research that every execution results in 18 fewer murders. (Dezhbakhsh, et al. 2003; Dezhbakhsh and Shepherd, 2006). There are numerous other studies and papers arguing for the continuation of the death penalty.

Death penalty opponents often cite supposed statistics to purportedly show that capital punishment does not stop crime. (See, for example, ACLU, 2012 (statistics collected at length)). Those statistics are designed for one purpose only, to turn public opinion against the death penalty, not to make a legal or even a legitimate argument. Proponents of the death penalty contest the accuracy or legitimacy of those statistics. (Layton).

Capital punishment is justified

The simple fact is that if someone wants to kill, no penalty will stop them. However, if someone is smart enough to premeditate, then it just might stop them, and if capital punishment saves a hundred thousand, or even just one life, then it is worthwhile. It is not a question of whether those inmates on death row would stop or not if there is a death penalty, because the question is not whether the death penalty would have prevented a crime that has already been committed, but rather, whether hundreds of thousands of murders have never been committed because of the deterrence. (Layton; Dezhbakhsh 2006). Either way, the debate if the death penalty is just or not is surely a tricky one in this case.

What is important is whether the hundreds of thousands of inmates, with potentially hundreds of thousands or millions of victims, in the general prison population hesitated to pull the trigger or would have hesitated if faced with capital punishment. There is a strong argument that there are tens or hundreds of thousands of inmates who would put down their weapon instead of firing simply out of fear of dying, now by lethal injection. And that fear in the mind of the criminal is the paradigmatic definition of deterrence. Those statistics are never offered by opponents, because they never ask that question (the answer will not help their cause).

Capital punishment can be the right penalty for victims' rights

Opponents of the death penalty are fond of pointing out the United States is one of only a handful of developed countries that still maintain the death penalty. Yet our system of imposing the death penalty is more fair than any other system in the history of the world (which explains why the death penalty is costly for taxpayers).Strictly speaking, victim’s rights are not set out in the Constitution, only an accused’s rights. But even this argument offered by opponents is not strictly true. This is because the Constitution itself is based on cultural concepts of justice that are not two hundred years old, but likely more than three thousand years old.

The societal need for capital punishment

In the Constitution, it states that:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, and among these rights are life, liberty and the pursuit of happiness.”

These words are oft cited by those who oppose the death penalty to support other arguments they may (and we may) support. But the purpose of referring to these words here is the fact that our Founding Fathers spoke of rights that attach to every human being by way of a biblical concept (endowed by our Creator), and our entire system of justice is based on some very simple laws of justice (mainly influenced by Christian ethics) all peoples have known for thousands of years, regardless of race or religion, starting with “Thou Shalt Not Kill.”

If you ask someone on the street whether there should be a death penalty, and why, their answer is likely to be “Yes,” (Gallup, 2006), and their justification likely will be an “eye for an eye.” This simple statement of ancient concepts of justice is at the very core of our highly developed Constitutional system of government and justice, and it cannot be denied that this “unwritten” concept comes into play in determining the penalty at trial, just at those same basic concepts in our civil society today govern much of our interpersonal and governmental concepts of fairness, due process and reasonable doubt.

“We the People” in the United States have added “due process” to “an eye for an eye” so that it now basically reads “an eye for an eye, after due process has been afforded the defendant, including all rights appertaining thereto, and the right to appeal to the highest court twice (and sometimes more than twice).”

Victim's rights and the death penalty

Is it fair to consider victim’s rights? Our system of justice generally is based on some concept of “fair and reasonable”, terms which truly do differ based on point of view. But in some cases, it seems there is almost a universal consensus on what is right and what is wrong when it comes to sentencing someone to death for killing. We just have to ask ourselves this question: If Adam Lanza, the Connecticut killer who shot and killed 20 elementary school children and 6 adults just this week had lived, would we want the death penalty in his case? Of course, in our system, there are years of facts and justifications and personal history, and mental exams that would have to be elicited first, but on this day, at this moment, it seems the vote for execution would be nearly unanimous in this country among all fair minded people. However, it should be noted the Governor of Connecticut earlier this year, signed a bill banning the death penalty (Redden). One can only wonder if the voters in Connecticut disagree today after the tragedy at Sandy Hook Elementary School.

In addition, there are victims' rights that include closure, recovering from the shock of losing a loved one, the terrible unfairness of an inmate enjoying a fairly stable life behind bars with cable television, three square meals a day, books, magazines, and exercise while the loved one(s) are dead, forcing the victims’ families to continually face the tragedy over and over and over. Execution provides final closure for the victim’s family and the perpetrator (Dudley).

Capital punishment is cost effective

If the death penalty is applied in a swift and efficient manner, it is cost effective, as opposed to housing, guarding and feeding an inmate for the rest of his natural life, which could cost millions of dollars on death row. As touched on in a previous blog post by Ultius, enforcing the death penalty is riddled with procedural flaws and costly processes, and have successfully through appeals and legislation made the process of securing final sentences onerous and time-consuming. Now, having saddled the court systems with appeal after appeal after appeal, at a high cost, they argue that the expense of imposing the death penalty is too high to justify it. Supporters of the death penalty argue that activists cannot have it both ways. If they seek to impose draconian procedures to impose the punishment, they cannot then argue that it is too expensive to follow the very procedures they insisted be imposed (Dudley).

Opponents are also fond of showing that keeping a death row inmate for fifty years on death row is more expensive, because of the security required in maintaining death row. What the opponents do not show, however, is that if the death penalty were efficiently applied, there would be no death row inmates on death row for more than the relatively short time it takes for their cases to be “speedily” disposed of. After all, the Sixth Amendment to the U.S. Constitution guarantees a speedy trial:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…” (Dudley).

If you compare the costs of keeping someone incarcerated for their entire life against execution after a speedy and fair trial, as guaranteed by the Sixth Amendment, the difference in cost is dramatically less to impose the death penalty efficiently (Dudley). Dudley showed, in 1997, that efficient imposition of the death penalty (the definition of “efficient” used was six years from trial to execution, including all appeals) compared to a sentence of life without parole was over $3 million for life without parole against $1.88 million for the death penalty.

Mistakes in death penalty convictions are now greatly reduced by DNA evidence

In previous years, opponents of the death penalty claimed that there were cases where some convicted of the death penalty were wrongly convicted, and that some of those convicted were proven by DNA evidence to be innocent. In March 2011, the United States Supreme Court held that Hank Skinner could use DNA evidence to determine his innocence or guilt. (Skinner). Today, DNA evidence is accepted in many jurisdictions at trial, and therefore the chances of errant convictions for capital crimes has been greatly reduced, and opponents having been successful at introducing DNA evidence into the trial process. Of course, DNA evidence also is used to prove guilt as well. (Dudley).

Whether or not to the death penalty is just, and then whether or not to carry out the punishment is one of the most significant moral decisions we make as a society. It is important to get the decision right, but for proponents of capital punishment, it is also important once the decision is fairly made according to all of the critical principles embedded in our justice system and in the Constitution, for the sentence, once it is affirmed by all those protections, to be swiftly rendered.

Works Cited

Becker, Gary S. "Crime and Punishment: An Economic Approach," Journal of Political Economy, Vol. 76, No. 2. (1968). 169-217.

"Death Penalty." The Gallup Poll. Retrieved from http://www.galluppoll.com/ content/default.aspx?ci=1606. 2007.

Death Penalty Information Center. 2012. Retrieved from http://www.deathpenaltyinfo.org/

Dezhbakhsh, Hashem, Shepherd, Joanna M. Rubin, Paul H. "Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data," American Law and Economics Review, Vol. 5, No. 2. (2003). 344-376.

Dezhbakhsh, Hashem, Shepherd, Joanna M. "The Deterrent Effect of Capital Punishment: Evidence from a 'Judicial Experiment'". Economic Inquiry, Vol. 44, No. 3. (2006). 512-535.

Ehrlich, Isaac. "Capital Punishment and Deterrence: Some Further Thoughts and Additional Evidence," Journal of Political Economy, Vol. 85. (1977). 741-788.

Ehrlich, Isaac. "The Deterrent Effect of Capital Punishment: A Question of Life and Death". American Economic Review, Vol. 65, No. 3. (1975). 397-417.

Layson, Stephen K. "Homicide and Deterrence: A Reexamination of the United States Time-Series Evidence," Southern Economic Journal, Vol. 52, No. 1. (1985). 68-89.

Redden, Molly. “Does Nixing the Death Penalty Save Money?” The New Republic. (2012). Retrieved from http://www.tnr.com/blog/the-study/102972/does-nixing-the-death-penalty-save-money#

“Searchable Execution Database”. Death Penalty Information Center. (2012). Retrieved from http://www.deathpenaltyinfo.org/executions

Sharp, Dudley. “Death Penalty and Sentencing Information: The Cost of Life Without Parole vs. The Death Penalty.” Justice For All. (1997). Retrieved from http://www.prodeathpenalty.com/DP.html#D.Cost

Skinner v. Switzer. United States Supreme Court slip opinion, delivered by Justice Ginsberg. (2011). Retrieved from http://www.supremecourt.gov/opinions/10pdf/09-9000.pdf

“The case against the death penalty”. American Civil Liberties Union. (2012). Retrieved from http://www.aclu.org/capital-punishment/case-against-death-penalty