Death Penalty Capital Punishment Is a Controversial

¶ … Death Penalty

Capital punishment is a controversial topic because it involves the taking of a human life as a punishment. Traditionally, Judeo-Christian and other mainstream religions strictly prohibit killing because they regard the matter of giving and taking of human life as exclusively within the jurisdiction of God and never something that is appropriately executed by the operation of human decisions or judicial determination.

In modern times, secular society has recognized several other equally important conceptual objections to relying on capital punishment within the framework of crime control and punishment.

Specifically, there may be good reason to believe that the death penalty has, historically, been applied unequally to offenders of minority communities and to members of society who lack the necessary means to secure their legal rights to their fullest extent by virtue of poverty. Moreover, despite the often-cited proposed justification that the death penalty provides an effective deterrent to serious crime in the community, the empirical evidence seems to suggest precisely the opposite. Finally, the death penalty is out of synch with the near-consensus of the entire global human community in that most modern societies have already abolished it for one or more of those particular arguments against it. On balance, there does not appear to be a justification for maintaining capital punishment within the framework of a modern society that respects human life and that protects the rights of all citizens equally.

Argument Number 1 -- The Unconstitutionality of Unequal Application and Cruelty

In the United States, the concept of equal protection under the law has been one of the most important elements of the constitutional protections since its enactment by Congress in 1866 (Zalman, 2008). In principle, it guarantees that all persons receive the same treatment under the law and that the consequences of violating penal laws are not variable based on the identity or any element of individual status of persons charged with or convicted of statutory violations (Zalman, 2008). Moreover, the legislative history of the 14th Constitutional Amendment that embodies the notion of equal protection reveals that it was necessitated in the first place precisely because both civil and penal laws were being applied unequally against minority races, and in particular, against the newly-freed slaves in the Reconstruction Era after the War between the States (Schmalleger, 2009). Furthermore, both the 14th Constitutional Amendment and the 5th Constitutional Amendment set forth the protection of due process of law and that concept is applied equally to all persons through the equal protection clause of the 14th Amendment (Zalman, 2008).

The argument against the death penalty based in constitutional law is that there is substantial empirical evidence documenting the extent to which it has been applied unequally against minority defendants charged with crime and against convicted offenders who are members of racial minorities (Dershowitz, 2002). Similarly, the available empirical evidence also documents the extent to which defendants of comparatively limited financial means and convicted offenders of comparatively limited financial means are more likely to be charged with capital punishment-eligible crimes for identical offenses and more likely to receive the maximum penalty allowable by statute, respectively (Dershowitz, 2002). Therefore, from the perspective of constitutional principles, capital punishment, as it has been applied in the U.S. violates the fundamental protections of equal protection guaranteed by the 14th Amendment and of due process as guaranteed by the 5th and 14th Amendments and as applied specifically to the individual states through the 14th amendment. Apart from any argument against the death penalty in principle, it is offensive to American values strictly as a function of its inconsistency with equal protection and due process in the way that it has been applied in practice.

Finally, within the framework of any constitutional analysis, one must also consider the fact that there is substantial evidence that the death penalty, as it has been applied in practice in almost all of the American states where it is still operative law, may also violate the 8th Constitutional Amendment as well. Specifically, the 8th Amendment prohibits "cruel and unusual" punishment (Dershowitz, 2002; Zalman, 2008). According to the available evidence, lethal injection -- the statutory method of application of capital punishment in most American states) -- is subject to medical error in a significant number of cases (Kaveny, 2008). In those instances, the failure of physicians to administer the right medications in the prescribed order and/or correct dosages results in an agonizing death from slow suffocation instead of the nearly instantaneous death that process is designed to effectuate (Kaveny, 2008). While that issue is tangential to the ethical issue of capital punishment in principle, the fact that it also violates another express constitutional protection in practice only strengthens the argument in opposition to it.

Argument Number 2 -- Ineffectiveness as a Deterrent

In theory, proponents of capital punishment have traditionally argued that its value beyond punishment is the deterrence of crime, at least with respect to serious, death penalty-eligible crimes (Schmalleger, 2009). More specifically, according to that theoretical justification, the fact that certain crimes carry particularly severe penal consequences deters crime by virtue of the rational choice model of criminality. In theory, criminal offenders make rational choices in deciding whether or not to perpetrate specific crimes under their contemplation and they are more likely to control their urges to commit serious, death penalty-eligible crimes if they are consciously aware that the consequences of being convicted of those crimes carries the death penalty (Schmalleger, 2009).

Arguably, the death penalty might be justifiable as a response to serious crime if it were capable of functioning as an effective deterrent, especially of crimes involving the taking of a life of innocent victims. However, the empirical evidence that is available suggests that this is, in fact, not the case at all. More specifically, that conclusion arises from two types of crime rate comparison in connection with the frequency of death penalty-eligible crimes before and after changes in state law to adopt (or eliminate) capital punishment and in connection with comparative rates of similar crimes in neighboring states where one state maintains capital punishment statutes and the other state does not. Those data indicate that the incidence of death penalty eligible crimes (in states with the death penalty) and of the same types of crimes (in states without the death penalty) are entirely unaffected by whether or not capital punishment is a possible consequence of specific offenses (Lynch, 1999; Nagin, 1998).

Furthermore, research into the degree to which offenders were aware of those potential consequences reveals that prior awareness of the possibility of receiving a death sentence played no role in any decisions made by offenders and that this lack of correspondence between the awareness of specific possible penal consequences and criminal conduct is consistent throughout the spectrum of crime from the least serious to the most serious criminal offenses (Lynch, 1999; Nagin, 1998). Therefore, the proposed justification of deterrence fails to support the argument in favor of capital punishment because it reduces that consequence purely to a punitive purpose.